Greg Construction Co.

National Labor Relations Board - Board Decisions

Dec 31, 1985

277 N.L.R.B. 1411 (N.L.R.B. 1985)

GREG CONSTRUCTION CO.
Greg Construction Co. and Frank L. Lentner, Jr.
United Brotherhood of Carpenters and Joiners of
America, Local 1005, AFL-CIO and Frank L.
Lentner, Jr. Cases 13-CA-24496 and 13-CB-
10734
31 .December 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 12 September 1985 Administrative Law
Judge Howard I. Grossman issued the attached de-
cision. The General Counsel filed exceptions and a
supporting brief, and the Respondent Union filed
an answering brief.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence 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 examined the record and find no basis for re-
versing the findings
In his decision, the judge inadvertently stated that Business Agent
Manley suggested using a "50-50" crew to perform the work at the job-
site, and that the Employer's superintendent Hopp rejected this proposal
However, it is clear that in making this suggestion Manley did not refer
to a "50-50" crew, but simply suggested that the Employer use its non-
union employees to perform noncarpentry work Additionally, the judge
erroneously stated that Manley confronted Hopp about the latter's failure
to abide by the referral provisions of the parties' collective-bargaining
agreement during the 20 August 1984 morning meeting, rather than at a
meeting held later that afternoon These errors are insufficient to affect
the results of our decision.
Any W. Eggersten, Esq., for the General Counsel.
Steven A. Johnson, Esq. (Spangler, Jennings, Spangler, &
Dougherty, P.C.), of Merrillville , Indiana, for Respond-
ent Employer.
Bernard M. Mamet, Esq. and, Paul Berkowitz, Esq. (Mamet
& Associates, Ltd.), of Chicago, Illinois, for Respondent
Union.
Mr. Frank L. Lentner Jr., appearing pro se.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge.
The original charges in Cases 13-CA-24496 and 13-CB-
277 NLRB No. 163
1411
10734 were filed on 13 September 19841 by Frank L.
Lentner Jr. (Lentner or the Charging Party) and alleged
that United Brotherhood of Carpenters and Joiners of
America, Local 1005, AFL-CIO (Respondent Union)
caused Greg Construction Co. (Respondent Employer or
Greg) to discharge the Charging Party, Robert McDan-
iels, Neil McPherson, and Donald Kollor, 2 because they
were not members of Respondent Union nor had been
given an opportunity to join. A consolidated complaint
issued on 25 October. Thereafter, on 30 October,
Lentner filed a first amended charge in Case 13-CB-
10734 with similar allegations. An amended consolidated
complaint issued on 23 November, and an amendment
thereto on 25 February 1985. As thus amended, the com-
plaint alleges that Respondent Union, about 21 August,
attempted to cause and caused Respondent Employer to
discharge the Charging Party, Robert McDaniels, Neil
McPherson, and Donald Kollor, because they were not
members of Respondent Union, in violation of Section
8(b)(1)(A) and (2) of the National Labor Relations Act
(the Act). The complaint also alleges that Respondent
Employer, pursuant to Respondent Union's aforesaid
conduct, laid off the employees in violation of Section
8(a)(3) and (1) of the Act.
A hearing was held before me on these matters in Chi-
cago, Illinois, on 12 and 13 March 1985. Briefs have been
submitted by the General Counsel, Respondent Employ-
er, and Respondent Union. On the entire record, and on
my observation of the demeanor of the witnesses, I make
the following
FINDINGS OF FACT
1. JURISDICTION
The amended pleadings , as further amended at the
hearing, establish that Respondent Employer is a Michi-
gan corporation with an office and place of business in
Warren, Michigan , where it is engaged in the business of
installing commercial store fixtures and counters . During
the 12-month period ending 1 October 1984 , a represent-
ative period , Respondent Employer purchased and re-
ceived at its Warren, Michigan facility products and ma-
terials valued in excess of $50,000 directly from points
outside the State of Michigan and performed services
valued in excess of the amount in States other than the
State of Michigan . The parties stipulated that Respond-
ent Employer is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent Union admits, and
Respondent Employer does not deny that Respondent
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act. I so find.
I All dates are in 1984 unless otherwise specified
2 The spelling of Donald Kollor's name appears as siipulated at the
hearing
1412- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Nature of Respondent Employer's Business
The dispute in this case involved the remodeling of a
K-Mart store in Merrillville, Indiana. Respondent Em-
ployer's assistant vice president Dewey C. Wilkey testi-
fied that 80 percent of Greg's income is derived from K-
Mart Corporation. In most cases, Greg submits a fixed
price, and K-Mart either accepts or rejects it. In a few
instances, the contract specifies cost of time and materi-
als plus a certain percentage, not to exceed a designated
amount. Wilkey testified that K-Mart does not set the
rates of pay of employees employed by Greg. However,
the contract for work at the Merrillville location states
that K-Mart is to pay 10 percent over material costs and
15 percent over wages and benefits. The carpenter labor
rate is specified as $27.08, with a total contract price of
$93,470 (G.C. Exh. 2(d)). Wilkey said that he had never
seen a contract like this before, but that the $27.08 figure
represented the base wage rate plus 15 percent. If the
actual wage paid by the Company is less than the con-
tract rate, Greg will "get lucky and make a little profit,"
according to Wilkey.
B The Contractual Relationship of Respondents
On I-June 1983 Respondent Union's Northwest Indi-
ana and Vicinity District Council entered into a 3-year
collective-bargaining agreement with The Calumet
Builders Association, Inc. (AGC), et al. (the AGC agree-
ment). The agreement is a 42-page booklet and covers a
wide variety of work, including the "milling, fashioning,
joining, assembling, erecting, fastening or dismantling of
all materials of wood, plastic, metal, fiber, cork and com-
position and all other substitute materials" (G.C. Exh. 4,
p. 34). The agreement provides for wage rates, including
a minimum wage of $17.10 hourly for journeyman car-
penters, plus employer payment of fringe benefits (id.,
art. III). The contract is signed by numerous individuals,
including A. J. Manley as business representative of the
District Council.
On 16 September 1983 the Respondents executed,a
memorandum of agreement whereby Greg recognized
the Union as the representative of its employees in the
Union's territorial and occupational jurisdiction. The par-
ties adopted the AGC agreement, and stipulated at the
hearing that the unit described in that agreement covered
the work at the Merrillville jobsite. The parties also stip-
ulated that Respondent Employer "administered" the
agreement. The memorandum of agreement is printed on
one page and is signed, by Gregory Oakwood for Re-
spondent Employer3 and A. J. Manley for Respondent
Union.4
Article IX, section 3, of the AGC agreement refers to
Section 8(f) of the Act, and section 4 of that article reads
as follows:
8 The pleadings establish that Gregory Oakwood was president of Re-
spondent Employer and a supervisor within the meaning of the Act.
4 The complaint alleges, the Union admits, and Greg does not deny
that Joseph Manley was an agent of the Union I so find and conclude
that this is the same individual as A J Manley.
Section 4. Procedure . In the application and admin-
istration of Section 3 of this Article the following
shall govern:
(a) The EMPLOYER shall advise the UNION of
all available openings and job requirements at least
twenty-four (24) hours prior to the EMPLOYER'S
fulfilling such job requirements.
(b) If the UNION or EMPLOYER elects, a pre-
job conference prior to commencement of work
shall be held . At the prejob conference the EM-
PLOYER shall advise the UNION of its require-
ments as to the workmen required in the respective
classifications , the probable starting date , duration
of the job and the working schedules.
(c) The UNION shall be given an opportunity to
refer qualified applicants for employment.
(d) Persons so referred shall not be given prefer-
ence or priority by the EMPLOYER over non-re-
ferred persons and the EMPLOYER shall have the
sole and exclusive right of accepting or rejecting
the person so referred.
(e) Nothing herein shall prohibit the EMPLOY-
ER from hiring or recruiting workers from any
source it desires [G .C. Exh. 4].
C. The Remodeling of the Merrill Ville Store
1. Summary of the evidence
a. The first and second weeks
Leroy Hopp , Greg's superintendent on the Merrillville
job,5 testified that he arrived at the jobsite on 7,August.
He recalled from previous work in the area that there
had been a union contract, but believed that it had ex-
pired . Hopp stated that he called Lloyd Oakwood,
Greg's chairman of the board and, according to Hopp,
the father of the "owner," i.e., Gregory Oakwood.6
Hopp asked Oakwood whether there was a union con-
tract in the area . The chairman denied it, according to
Hopp . The latter asserted that he asked the same ques-
tion of Oakwood a second time and received the same
answer . Upon being shown his pretrial affidavit, Hopp
read from that statement that he had "asked Lloyd at
least three times if we had an agreement with' the
Union." Hopp testified that he wanted to "double check
and triple check," and did not want to make any mis-
takes . If he had known that there was a contract, Hopp
asserted , he .would have called the Union . Instead, he
went to the State Unemployment Service and asked for
applicants with carpenter experience . Hopp testified that
he informed , the service that Greg was an "open shop"
contractor, and that it did not matter whether an appli-
cant was union or nonunion . This latter averment does
not appear in Hopp 's pretrial affidavit, according to his
testimony.
5 The pleadings establish that Leroy Hopp was a superintendent and_a
supervisor of Respondent Employer within the meaning of the Act The
evidence also shows that he was a member of the Union,
6 The pleadings establish that Lloyd Oakwood was Greg's chairman of
the board and a supervisor within the meaning of the Act
GREG CONSTRUCTION CO.
Thereafter, on 13 August, Hopp hired the four alleged
discriminatees-Frank Lentner, Donald Kollor, Neil
McPherson, and Robert McDaniels. He also hired Kelly
Webb on the same date. The only one of these who testi-
fied was the Charging Party, Frank Lentner. He stated
that Hopp, during the employment interview, asked him
whether he was a member of the Union, and whether he
had any "union involvement." When Lentner replied in
the negative, Hopp said "good." There was no discussion
of wages during this interview, and Lentner did not
know his pay rate until he received his first check. The
i ate was $12.
b. First discussions at Merrillville about the Union
Charging Party Lentner asserted that alleged discri-
minatee McPherson told Hopp and the crew on Wednes-
clay, 15 August , that an individual claiming association
with the Union asked about the union status of the job.
Hopp said that he was afraid this was going to happen,
that there would be negotiations with the Union, and
that be would handle them. The Union would be re-
quired to offer membership to each employee in order to
"come in on the job." On Thursday, 16 August, Hopp
and the K-Mart manager talked about the possibility of
picketing. On Friday, 17 August, Hopp told the crew
that Business Agent Manley was not in favor of allowing
the current employees to become union members, but
that the "actual negotiations" would begin on Monday
(20 August) at 7 a.m. Hopp would pay for the union
cards, and the men could repay him.
Hopp told the crew, according to Lentner, that
Manley had cursed him and had told him to either make
it a union job or "get out of town." Hopp was very
nervous. Lentner and employee Don Kollor offered to
be present at 7 a.m . on Monday to participate in the "ne-
gotiations" with Manley. Hopp, however, said that he
could handle them , and that the men should come in at
their usual reporting time.
c. First authenticated meeting between Manley and
Hopp
Although Lentner's testimony-reciting statements
made by Hopp-suggests prior communication between
Manley and Hopp , their testimonies indicate that the first
meeting took place on Monday, 20 August.-According to
Manley, he arrived at 7 a.m. and the store was locked.
The conversation with Hopp took place in the vestibule
of the store. Manley told Hopp that he was the Carpen-
ters' business agent and said he was checking prevailing
wages. Hopp identified himself as the construction super-
intendent , and, according to Manley, launched into a
"tirade" against unions and the poor quality of individ-
uals referred by unions . Hopp said that he was "armed,"
and that he would "pull it" if Manley caused him any
"`bullshit ." In reply, Manley testified, he told Hopp that
he would "break his legs" if Hopp pulled a gun.
After this inauspicious beginning , Hopp "calmed
down," according to Manley, and invited him back to
the restaurant for a cup of coffee. Manley told Hopp that
the union referrals were competent and recited good re-
lations which the Union had with K-Mart. Hopp asked
1413
Manley whether he would take Hopp's men into the
Union. Manley replied that there would be no problem if
they were qualified and Hopp was willing to pay them
the contractual wage rate of $20.94 (base rate of $17.10
plus fringe benefits of $3.84). Hopp said that only one
employee, Kelly Webb, was qualified to receive this
wage. Frank Lentner, the Charging Party, testified that
he had been through a millwright apprenticeship pro-
gram and had done carpenters ' work. In Hopp 's various
reports to the crew about Manley, according to Lentner,
the superintendent never stated that he had indicated this
background about Lentner to Manley.
Manley testified that , upon receiving word from Hopp
about the supposed lack of qualification of employees
other than Webb, he suggested the Union's apprentice-
ship program if Hopp was interested in "bringing them
into the Union ." The business agent testified that he
never met the four alleged discriminatees . However,
Hopp did introduce Kelly Webb to Manley.
Manley had a copy of the AGC contract with him and
gave it to Hopp. The latter said that he knew "these
books backwards and frontwards," but wanted to see
whether Manley was telling the truth about union wage
rates. Although the AGC booklet was not opened during
the discussion , Manley and Hopp talked about the provi-
sion giving Hopp the right to hire . "We agreed to that,"
Manley testified . "But I raised cane with him because he
didn't have a pre job conference which is in this con-
tract . And he didn 't give me a chance to refer people
... which is part of this contract. That was part of our
discussion."
Hopp asked Manley whether union referrals would do
menial work, such as running a jackhammer, stripping
tile, pouring concrete , and running the wheelbarrow to
the dumpster. Manley replied that Hopp was "the boss,"
and that the union referrals would do whatever he
wanted . The business agent told Hopp that that work be-
longed to other crafts , and the Union did not claim it.
However , the union referrals would do the work if this
is what Hopp wanted. According to Manley, he also
suggested that Hopp 's existing employees could do this
work. The superintendent said that he could not make a
decision himself. At that point , Manley asked Hopp the
name of his company, and Hopp told him. It was then,
Manley testified , that he thought he recognized Hopp.
Lentner testified that he and the other crewmembers
arrived at work at 8 a . m. on Monday, and saw Hopp and
Manley having coffee in the cafeteria . Lentner walked
over to the table and said "hello" to Manley . Manley did
not answer. He looked at Hopp, said that he would be
back, and left. As indicated , Manley denied that Hopp
ever introduced him to the alleged discriminatees and
denied knowing who Lentner was until he saw him at
the hearing . The business agent contended that the store
was full of people at times when he was visiting with
Hopp.
Although Manley and Lentner thus placed the first
meeting early on Monday , Hopp said that he was paged
about 10 a.m. and then met Manley. The business agent
asked him why he "wasn't union ." Hopp replied that the
competition was nonunion, and that his Company was
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forced to do the same. However, Hopp asserted, he told
Manley the Company would have no problem if the
Union granted union membership or work permits to the
Company's employees at the jobsite. Hopp objected to
the conduct of some stewards, and Manley told him that
he could, select his own steward. Hopp said that he could
not make a decision on his own because he was not an
officer of the Company. He denied receiving a copy of
the AGC contract on Monday, saying that Manley did
not give it to him until Wednesday.
Although Manley, as noted, said that he told Hopp he
would break his legs if the latter pulled a gun on him,
Hopp denied that Manley threatened him on Monday.
The superintendent denied having a handgun in Indiana
or telling Manley that he would pull a gun on him, but
admitted having a gun at his home in Florida.
d. Hopp's report to the crew on Monday, 20 August
Hopp worked alongside his men and ate lunch with
them. He was a "super worker," according to Lentner.
Hopp testified that he told the employees at noon on
Monday that he was "negotiating" with Manley to have
the latter represent the men on the job. Hopp wanted his
men accepted into the Union and, if this was accom-
plished, their wages would be brought up to union scale.
Lentner testified that Hopp told the crew that Manley
did not plan to offer union membership to the existing
crewmembers.
e. Manley's description of a conversation with Hopp on
Monday afternoon
According to Manley, after learning on Monday morn-
ing that Greg Construction Co. was the name of the con-
tractor, he returned to the union hall and checked his
health and welfare forms. Manley discovered that Greg
was signatory to the union contract by virtue of the 1983
memorandum of agreement , and that Hopp had been a
union member since about 1974.
The business agent contended that he returned to K-
Mart and met Hopp in ,front of the store. The latter said
that he had not called his boss. Manley told Hopp that
he would give him time to talk to his boss, but informed
him that the Company had a union contract, i.e., the
memorandum of agreement. Manley did not bring a copy
to the jobsite because the Company had a copy on file,
and Hopp "got his orders from his own people."
Hopp called "somebody in Michigan [who] identified
himself as the father of the owner," and let Manley talk
to this individual. According to Manley, he informed the
other party that Hopp was not following the contract.
He was supposed to call for a prejob conference and
allow the Union an opportunity to refer, although he had,
the right to refuse any such referrals. Manley said on the
phone that Hopp was "disrupting the area, and the
Union's good graces with K-Mart." The man on the
other end said that he "understood the problem" and
"would take care of it," according to Manley.
Hopp was asked whether he had a conversation with
Manley on Monday afternoon and gave three different
answers: "10:00 o'clock," "yes," and "no."
f. The Manley-Hopp conversation on Tuesday, 21
August
Manley testified that he met Hopp on Tuesday, 21
August, at 7 a.m. Hopp said that he had spoken with his
boss who wanted to "go ahead." Hopp asked whether
the prior day's agreements were still valid, i.e., whether
Hopp could appoint the steward, and whether union re-
ferrals would do menial work. Manley assured him that
these agreements were still binding. Hopp then asked
whether the Union would refer an individual named Dan
Barton, would permit the Company to retain Kelly
Webb, the only "qualified" employee, and would attempt
to get Webb a union card. Manley agreed to these re-
quests. Hopp then said that he would request three refer-
rals (and Barton) from the Union. "Beautiful," Manley
replied. He returned to his office and had his secretary
contact Barton and three individuals for referral.
Hopp testified on direct examination that he met
Manley on Tuesday morning, but gave an entirely differ-
ent version of the conversation. It took place at 7 a.m.,
and the K-Mart manager was "in the background,"
Hopp again asked Manley about " representing his
[Hopp's] men on the job," and Manley asked how many
of Manley's men Hopp was going to hire. Hopp suggest-
ed that he hire one immediately and others as needed.
Manley rejected this and demanded that Hopp fire his
whole crew on the grounds of incompetence. The Union
had 400 men out of work, and was not accepting any
more members. Hopp suggested a "50-50" compro-
mise-Greg to retain the five employees already at
work, and hire five more from the union hall. Although
this would have given him "too many people," Hopp
told Manley he would use the union referrals for carpen-
ters' work, and have the original employees do laborers'
work. However, Manley also rejected this offer and said
that he did not want any of Hopp's men on the job. Ac-
cording to Hopp, the morning session ended with Man-
ley's statement that he would bring back an "agreement"
that afternoon and "get it all settled."
Hopp asserted that he then called Chairman of the
Board Lloyd Oakwood and told him that Manley
wanted him to fire every man on the job and replace
them with union men. Oakwood replied, according to
Hopp, that the Company would not do that 'unless
Manley gave the Company a letter, on union stationery
signed by Manley, agreeing to accept responsibility for
the layoff of the existing employees.
Manley arrived on Tuesday afternoon, according to
Hopp, saw the existing employees, and said that they
were "no damn good." The business agent asserted that
he would not let "one of those son-of-a-bitches in my
union ," according to Hopp. Manley started cursing at
Hopp and told him that if he thought he "had prob-
lems," Manley would "give [him] problems." According
to Hopp, Manley said-that the Union had people who
could "take care of him." He demanded that Hopp fire
all his existing employees, and Hopp refused unless the
Union gave the Company a letter assuming responsibility
for the discharges.
Hopp contended that he then called the Company's
president, Gregory Oakwood, and said that Manley
GREG CONSTRUCTION CO.
wanted Hopp to fire all the existing employees . Manley
was yelling at him and threatening him, Hopp told Oak-
wood . Hopp suggested that Gregory Oakwood get his
father to call. After this conversation , Manley again told
Hopp that he had people who could take care of him,
and that , if he was smart , he would be out of town by
morning.
Lloyd Oakwood called and Hopp repeated Manley's
asserted statements and threats to him , including an al-
leged threat of a picket line. Oakwood said that they did
not need a picket line , and that he did not want Hopp to
get hurt. Accordingly , the chairman of the board in-
structed Hopp to lay off the existing employees and hire
all union members . Hopp suggested that Oakwood talk
with Manley. This conversation ensued , and Hopp con-
tended that he heard Manley tell Oakwood that Hopp
had promised to fire all the existing employees and re-
place them with union men.
According to Hopp , Manley then handed the phone
back to Hopp. Lloyd Oakwood assertedly said - to Hopp,
"My gosh , that guy's really hot, isn't he? Go ahead and
sign an agreement with him 'cause we don 't want you
hurt out there "
At that point , Hopp claimed, Manley handed him an
agreement to sign. The obvious import of this testimony
is that the signature lines on the agreement were blank,
or, at least , that the line for the Company's signature was
blank . Although Hopp , as indicated , said that Lloyd
Oakwood had instructed him to sign this agreement, he
testified that he refused to do so, on the ground that he
was not an officer of the Company . Instead, Hopp assert-
ed, he mailed the copy to his office for signature. On
cross-examination , Hopp was shown the parties' memo-
randum of agreement , dated almost a year before, on 16
September 1983 (G.C. Exh . 3). In explanation, Hopp con-
tended that this was not the copy he mailed to his office.
Instead, General Counsel 's Exhibit 3 is a document
which Manley brought him at a meeting several weeks
later, saying that he had "found this one," and did not
need signatures on the unsigned copy supposedly given
to Hopp on 21 August. The complaint alleges that the
Company and the Union entered into a verbal agreement
on, 21 August whereby the Company recognized the
Union as the representative of its employees in a unit de-
scribed in the AGC agreement (G.C. Exh. 1 (o)). Hopp
contended that he did not know there was a valid con-
tract on 21 August , although he "assumed" there was
when Lloyd Oakwood told him to discharge the employ-
ees. At the hearing, the General Counsel contended that
"neither party" knew there was a contract Neither
Gregory nor Lloyd Oakwood was called to testify.
According to Hopp, the conversation with Manley on
Tuesday afternoon ended with the business agent saying
that he would bring four men out in the morning and
wanted to see the existing employees off the job. Hopp
said nothing because he was "quite upset."
During the Union's case-in-chief, Manley listed various
conversations with Hopp. Although there was one on
Tuesday morning, Manley did not indicate any on Tues-
day afternoon The business agent denied that he had
any "negotiations" with Hopp-he already had a "signed
agreement ." Manley denied giving the Company or the
1415
General Counsel the memorandum of agreement which
is in evidence as General Counsel's Exhibit 3. The Com-
pany already had a copy, Manley stated, which he gave
to their counsel on 16 September 1983. Manley also
denied presenting Hopp with another copy of the signed
agreement-the Company already had one. The business
agent denied giving Hopp a blank copy of the agreement
for signature. As previously indicated, Manley testified
that he discovered on 20 August that the Company and
the Union had a signed agreement and, on that day, so
informed Hopp and the "father of the owner." The only
agreement which he gave to Hopp was the 42-page
AGC "book."
The business agent denied telling Hopp to fire any of
his employees or implying it. He never told Hopp whom
to retain and whom to fire and never said that he would
not accept Hopp's men into the Union. Hopp, never in-
troduced him to the employees, and Manley did not
know how many employees there were. Manley never
said that Hopp's employees were no good and never told
Hopp or Lloyd Oakwood that he wanted only union
people on the job. In fact, Hopp never told Manley that
the Company was discharging the alleged discriminatees
and never asked Manley for a union letter requesting
such discharges or assuming union responsibility for
same. Manley denied that he ever told Hopp that the
Union had 400 men out of work.
As indicated, Manley testified that he recommended
the union apprenticeship program for Hopp's employees
who were not qualified. In the meantime, he suggested
that they do work at the jobsite which was not carpen-
ters' work. However, far from accepting this "50-50"
proposal (as Hopp asserted he had suggested), the super-
intendent rejected the idea, saying that he did not want
"to mix things." According to Manley, Hopp "wanted a
man to do what he wanted him to do when he wanted
him to do it." Manley responded that this was Hopp's
prerogative.
Although Hopp, as indicated, testified on direct exami-
nation that he suggested and Manley rejected a "50-50"
crew, with the union referrals doing carpenters' work
and Hopp's men doing laborers' work, on cross-examina-
tion Hopp testified to the contrary. Thus, he was asked
whether jackhammer work, laying concrete, and patch-
ing holes were carpenters' work. He agreed that it was
laborers' work and continued as follows:
I prefer not to have laborers on the job. 'When you
get a mix of laborers and carpenters, you have got
problems. They stand there and bicker with each
other, fight all the time over who is going to do this
and who is going to do that, and it is just a general
confusion. That is one of the problems I explained
to Joe Manley the day he arrived. That is why we
are nonunion.
Concerning Kelly Webb, Manley testified, "If I only
wanted union people on the job, why the hell would I
leave Kelly Webb there?" The Union did not make a
"special deal" with respect to Webb-it was Superin-
tendent Hopp who determined that Webb was the only
employee qualified to receive the union wage rate.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, Manley denied threatening Hopp except on
Monday morning, when the superintendent assertedly
said he would pull a gun on Manley , and Manley replied
that he would break his legs. Further, Manley denied
threatening to picket the job.
g. The discharge of the alleged discriminatees
On Tuesday afternoon, Hopp testified, he told the men
that Manley had threatened him, and that he would have
to let them go. All the employees except Kelly Webb
were laid off because Manley had allowed him to keep
one man. Hopp put "lack of work " on the layoff slips
because, he said, he could thereby protect their rights to
unemployment insurance benefits.
Frank Lentner testified that, as he was reporting for
work on Tuesday, 21 August, Manley was leaving. Hopp
told the crew that Manley would be back later to "finish
negotiations" and that the business agent "would have a
contract and all the paperwork for it to become a union
job." Later in the day about 4 p.m., according to
Lentner, Hopp told the crew that he was "not able to
swing it," and that this was their final day of work. The
superintendent also told his employees that he was able
to persuade Manley to permit continued employment for
Kelly Webb because Webb was willing "to travel across
the country" on other jobs with Hopp. According to
Lentner, the employees told Hopp that they would also
travel , and he promised to keep their phone numbers.
The superintendent suggested that they go to the union
hall and attempt to get work permits.
h. The hiring of the union referrals and appointment
of the steward
Manley was back again at K-Mart on Wednesday
morning with four referrals : Daniel Barton, Andrew
Mihall, Jerry Harvison , and Burton Peterson . Everything
was still quite amicable, according to Manley 's version of
these events . He told the referrals that Hopp might ask
them to do work which was not carpenters ' work, but
that he wanted them to do it without question. Hopp
was "antiunion" and the Union did not want "antiunion
people running around ." It wanted to bring Hopp back
into the Union's "good graces."
Manley introduced the referrals to Hopp . They were
hired and paid union wages . The superintendent asked
Manley about Kelly Webb, and the business agent re-
plied that he had "no problem with Webb or any other
qualified person that you have." Hopp inquired about ap-
pointment of a steward . Manley replied that he normally
appointed the steward . However, in this instance, ap-
pointment of the steward would be deferred until the fol-
lowing morning.
On the next morning, 23 August , Manley returned to
the jobsite and asked how things were going. Hopp said
that everything was all right. Manley asked , "Who is
going to be the steward?" "Dan Barton ," Hopp replied.
"Beautiful," said Manley. "Dan , you are the steward."
Hopp also appointed Barton as the foreman . Manley tes-
tified that this was the first time that anyone other than
he had appointed the steward . He left the jobsite think-
ing that matters were "going very well."
Hopp affirmed that Manley showed up on 22 August
with four referrals. He also agreed that he asked Manley
for the job steward by name.
i. Lentner 's and Kollor's visit to the union hall the
week of 27 August
Lentner did not call Manley about these matters. In-
stead , following Hopp 's suggestion , he and Donald
Kollor went to the union hall in the early part of the
week following their discharge , i.e., about 27 August.
According to Lentner , there is no receptionist at the hall.
He walked up to a window , but it was an insurance
window . Lentner saw Manley standing behind a glass
partition and asserted that Manley was looking at him.
However, Lentner declined to affirm that Manley recog-
nized him.
At that point , "a couple of guys" walked out of an
office and spoke with Lentner and Kollor. One of them
said that he could get them union cards for $800, but he
was "joking," according to Lentner . The other individ-
ual took Lentner and Kollor into a room . Lentner ex-
plained what had happened at the Merrillville jobsite and
said that they wanted to join the Union and get work
permits and their jobs back . The man answered that
there was no one in the hall who knew what happened
at Merrillville . Lentner and Kollor could come back and
"sit before a board" to determine whether they were
qualified for membership . However, no work permits
were being issued because men had been laid off and,
even if Lentner and Kollor were accepted for member-
ship, the Union would not pull the men already there
and return Lentner and Kollor to their jobs. Lentner
gave a physical description of this individual.
Lentner's testimony was given on the first day of the
hearing . During the Union 's case-in-chief, which was
presented -on the second day, Business Agent Manley tes-
tified that he attended a district council meeting on the
evening after the first hearing day, reported the sub-
stance of Lentner's testimony , and asked each business
agent whether he had talked to Lentner . Manley stated
that he obtained no response . He also testified that he
himself did not see Lentner . As indicated , Manley of
firmed that he was never introduced to Hopp's employ -
ees and first knew who Lentner was on the day of the
hearing. Manley also stated that the union initiation fee is
$250.
J. Jerry Harvison and the weekend of 8 September
Manley and Hopp testified about events which took
place on a weekend following the hiring of the union re-
ferrals. The testimony of each witness is vague about the
exact date. The parties stipulated that Harvison's last day
of work was 14 September. Because of this stipulation
and other evidence, I conclude that the events took
place on the weekend of 8 September.
Hopp asserted that, on the prior Friday, i.e., 7 Septem-
ber, he learned after work that Harvison took some peg-
board without authority. Hopp said that he did not dis-
charge Harvison at that time "because he was gone."
On Saturday, Hopp testified, he was "taping sheet
rock" on the jobsite. This was painters' work which the
GREG CONSTRUCTION CO.
painters did not want , according to Hopp.7 Jerry Harvi-
son walked into the building and saw him . Hopp nodded
at Harvison , but neither man said anything.
Hopp testified ; about a telephone conversation with
Manley on the Sunday following this work , i.e., 9 Sep-
tember. Although somebody "may have complained"
about the work, Hopp denied that Manley did so in the
telephone conversation . Instead, he asserted, Manley
cursed at him on the phone on Sunday and said: "You
hire one of those bastards and I am going to kick the shit
out of you! That is the only thing he said."
According to Manley, Hopp awakened him on Sunday
at 7:30 a.m ., said that the Union had broken its word, en-
gaged in a "tirade about unionism ," and added that he
was more than ever convinced that he should have
stayed nonunion . Manley testified that he did not know
what Hopp was talking about . Every time that Hopp en-
gaged 'in one of his "tirades," ' Manley averred , the super-
intendent said , "Don't try your union bullshit on me."
Manley testified that he may have threatened Hopp
during the Sunday morning call. Asked to specify his
exact language , Manley stated that he told the superin-
tendent , "I will take the God-damn thing and I will meet
you there in the morning."
Manley then called Harvison , a local call for him, and
asked what was going on. Harvison informed him that
the Merrillville store was "very visible," with many
union members shopping there. A former union president
observed "some dude out there working ." Harvison
went to the jobsite and saw Hopp "doing carpenters'
work" for 2 hours. Harvison "jumped him on it," and
Hopp responded with one of his tirades about the unions:
According to this hearsay report, Hopp then told Harvi-
son `to "get off the job."
Manley testified that he and Harvison went ` to see
Hopp the following Monday, and that the superintendent
fired Harvison because of theft and an intention to "dis-
rupt the job ." Manley asked Hopp why he had not fired
Harvison the prior Friday, when the alleged theft took
place , but left with Harvison because it was Hopp's pre-
rogative to fire.
Manley 'asserted that Hopp hired two union members
off the street after firing Harvison , without giving the
Union an opportunity to refer them. Hopp corroborated
this.,
k. The asserted "wiring" of Hopp by the FBI and
Hopp 's visit with Manley at the Greek Hall
Hopp testified that he called Manley during the week
following Hopp's Saturday work at,the jobsite and tried
to set up a meeting to "resolve" their differences. He
was afraid of Manley, Hopp testified, and wanted to end
the "threats ." Manley suggested that he come to the
Greek Hall, where the Union sometimes held meetings.
This took place about 11 or 12 September.
Before going to the hall, Hopp asserted , he visited the
FBI office in Gary, Indiana , on Monday , 10 September,
The AGC contract includes in its claim of union work "[t]he installa-
tion of drywall materials including plasterboard , asbestos board, transite
and composition boards [and] [t]he installation and application of
nailed down asphalt fiber expansion material" (G C Exh 4, p 36)
1417
and gave two agents a taped statement . He did not recall
the names of the agents. Hopp told them that Manley
had stated that he knew where Hopp lived and every-
thing about him. The FBI did not consider this to be a
threat. However, according to Hopp , the agents said
they would "wire" him before the meeting.
Hopp testified that he was "not alone " at the Greek
Hall. It was at this meeting, according to Hopp, that
Manley showed him a copy of the parties ' 1983 memo-
randum of agreement , and when Hopp first learned that
there had been a prior contract . He averred that Manley
threatened to file internal union charges against him, and
to "get" his union pension . According to Hopp, the FBI
acknowledged having taped the internal union charge
threat , but refused to give Hopp a copy of it. The super-
intendent also said that the FBI monitored another con-
versation with Manley, but there was no threat at that
time.
Manley testified that Hopp arrived at the Greek Hall
and asked for "a truce." Manley replied that Hopp had
taken an oath as a "brother," and noted that he had
called Harvison a thief. Manley asked Hopp to rehire
Harvison , and Hopp agreed, if Manley would promise to
keep trying to get Kelly Webb a union card. Manley re-
newed this promise, and Harvison went back to work on
13 September . However, he was assigned to menial work
and quit the next day, 14 September . Manley denied any
threats about internal charges being filed against Hopp
and, as indicated , denied giving Hopp a copy of the
memorandum of agreement.
1. Hopp rehires Lentnerfor temporary work-asserted
new threats from Manley
After discharging Lentner , Hopp called him and re-
hired him for temporary work . Lentner testified that he
received the call on 8 September, and Hopp affirmative-
ly answered a leading question which contained the same
date. However, both Hopp and Lentner testified that,
during this conversation, Lentner informed Hopp that he
had filed unfair labor practice charges against the Com-
pany and the Union. Because Lentner's original charges
were filed on 13 September , it is obvious that both
Lentner and Hopp are in error about the date of this
call. Lentner's` testimony indicates that the work was
performed on a weekend . I conclude that Hopp called
Lentner about 13 or 14 September, and that Lentner
worked about 4 hours on Saturday and Sunday, 15 and
16 September.
Lentner testified that Hopp told him the union carpen-
ters were not working "at the pace he would like and
that he had a couple of displays he wanted to put in .. .
neatly." According to Lentner's uncontradicted testimo-
ny, he was paid $12 an hour for this work. Although he
believed other employees were getting more , he did not
complain. Hopp testified that he was trying to "help"
Lentner because "they were really quite short on funds."
Hopp , asserted that, after learning about Lentner's
filing of charges, he called Chairman of the Board Lloyd
Oakwood and relayed this information . Oakwood sug-
gested that Hopp try to get Manley to agree to rehire
the alleged discriminatees , to avoid the impact of the
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice charges. Hopp claimed that, after an
unsuccessful effort, he reached Manley by phone and
suggested that Manley allow him to rehire the men and
work them as laborers at union wages. In response,
Hopp claimed, Manley cursed him and said that he
would "kick the shit" out of him if he rehired one of the
alleged discriminatees.
Lentner testified that during his temporary employ-
ment, Hopp told him that Manley had made this threat,
and that Manley wanted the Company to sign a contract
with the Union. Hopp told Lentner that he did not
"make contracts," and that only his boss could sign one.
Hopp was nervous and upset and spilled coffee, accord-
ing to Lentner. Although Lentner placed the conversa-
tion on Sunday , 9 September , this cannot be accurate,
because Lentner's charges, which preceded the work,
were filed 13 September. I conclude that this conversa-
tion took place on Sunday, 16 September.
Manley denied that Hopp ever called him or suggested
rehiring the alleged discriminatees for "menial jobs."
"He could have put them in the menial jobs in the begin-
ning," Manley asserted . Lloyd Oakwood did not testify.
in. The end of the job-Manley and Hopp have lunch
and discuss the unfair labor practice charges
The parties stipulated that the carpentry work at the
Merrillville jobsite ended on 26 September, although
other work continued thereafter . Hopp testified that
Manley came to the jobsite that day and asked whether
Hopp had a check ready for the fringe benefits. The su-
perintendent replied that he had not yet done so and
needed new forms. Manley replied that he would pick up
the check the next day and , in the meantime , invited
Hopp to lunch. Although Manley offered to drive, Hopp
said he was afraid to get into a car with him, made an
excuse, and suggested that they eat "across the street at
the Sizzler."
During lunch, Manley discussed the unfair labor prac-
tice charges and suggested that he and Hopp go to "the
investigator's office and discuss it together." Hopp de-
clined . Manley then said that they should go to the union
hall, get on a three-way line, and discuss the matter with
Hopp's boss. Hopp replied that he could not leave the
jobsite and that his boss was not in the office that after-
noon.
The next day, Manley arrived at the jobsite and picked
up a check for the fringe benefits . On direct examination,
Hopp testified that Manley said to him, "I have written a
few things down I want you to say." On cross-examina-
tion, Hopp testified that Manley said, "I have a list here
of the things I am going to say." Manley gave Hopp a
printed sheet of paper reading as follows:
Greg Construction had a valid Contract with the
Carpenters Union
The Hall was to be notified so that men could be
referred
No requirement-to hire just to notify
There was no opportunity to refer
He realized a breach of Contract. He then noti-
fied the Hall and men were referred and he hired
them. He realized these men were more qualified
and he kept them on the payroll [G.C. Exh 5].
Hopp read the sheet and said that it was not -true.
Manley replied that they had to "say the same thing,"
and had to "get [their] stories straight." That way it
would be "easy." Hopp replied that none of it was true
and that he was not going anywhere. He himself had not
been "served with any papers."
Hopp testified that he then knew that the Company
had a contract with the Union. On the other hand, he
also testified that he called his office and "they had no
record of it at this time." Therefore, he had no way of
knowing whether the "copy" of the memorandum of
agreement-which Manley had assertedly given him-
was "a fake, a put on or what it was." Hopp denied that
he knowingly violated the contract.
According to Manley, the events referred to by Hopp
took place on the same day. Before visiting the jobsite,
he prepared General Counsel's Exhibit 5. He knew that
Hopp was leaving for Florida and wanted to see whether
he remembered what had happened. Manley arrived at
the store and received the fringe benefit check. He asked
Hopp whether he knew about the unfair labor practice
charges, and Hopp denied knowledge. Manley replied
that the Union had been charged, and that the Company
would also be charged.
Manley and Hopp had lunch at the Sizzler, and
Manley gave the superintendent the summary. He asked
Hopp whether this was basically what had been dis-
cussed. "No," Hopp replied. Manley rejoined, "No prob-
lem." He told Hopp that the latter would be called on to
testify and noted that the Union's health and welfare
office, with a bank of phones, was only two blocks
away. Manley suggested that he and Hopp make a call
to the NLRB and give their "testimony." He thought he
was "doing the man a service." Manley denied suggest-
ing that they talk to Hopp's boss.
2. Factual and legal analysis and conclusions
a. The General Counsel's position
The complaint alleges that the Union caused or at-
tempted to cause Respondent Employer to discharge the
existing crew because they were not union members. Al-
though the Union denies this allegation, Respondent Em-
ployer admits that it did discharge the alleged discrimin-
atees "pursuant to" the Union's alleged attempt to cause
it to do so. The General Counsel argues that this admis-
sion and the testimony of Hopp, "corroborated" by
Lentner, should be accepted because (1) Hopp's testimo-
ny and Respondent 's answer are admissions against inter-
est, (2) the antiunion animus attributed to Hopp by
Manley is inconsistent with the fact that Hopp fired the
nonunion employees and hired union members , and (3)
Manley "presented carefully tailored self-serving excul-
patory testimony." In addition, the General Counsel con-
tends, the collective-bargaining agreement between the
Respondent and the Union was either "later discovered,"
or was an oral agreement entered into on 21 August, the
breach of which by the Union constituted violation of its
duty to fairly represent the employees.
GREG CONSTRUCTION CO.
I disagree, for the reasons set forth below.
b. Knowledge of the contractual relationship
Hopp's assertions concerning Respondent Employer's
lack of knowledge of its contractual relationship with the
Union are extremely dubious. The memorandum of
agreement had been signed by the company president
less than a year before, and its provisions, i.e., the provi-
sions of the adopted AGC agreement , were being admin-
istered by the Company. Hopp acknowledged that there
had been a prior contract, but asserted a belief that it had
expired. Because he wanted to "triple check" this ques-
tion, Hopp called the chairman of the board-the father
of the company president-three times before hiring em-
ployees and was allegedly told that there was no con-
tract.
Manley's testimony that he discovered the contractual'
relationship when he went back to his office after the
first meeting with Hopp, on 20 August, is unrebutted. If'
true, there would have been no point to Manley's giving
Hopp still another contract to sign-as Hopp asserted
Manley had done. The actual memorandum of agreement
could not have been this copy, because the agreement
was dated in 1983. Shown the actual agreement on cross-,
eKamination, Hopp then claimed that this copy was not
the blank copy given to him by Manley at the beginning
of their conversations. Rather, it was a copy of the origi-,
nal agreement which Manley "found" and showed to
Hopp weeks later at the Greek Hall. What happened toy
the blank copy? Hopp'said he mailed it to his office, thus
disobeying Lloyd Oakwood's asserted instruction to sign
it. Where was it at the time of the hearing? The record is
silent. The most incredible part of Hopp's testimony
about the contract is his assertion that, on the last day of
the job, when he was paying fringe benefits pursuant to
the contract, his office had no record of the contract.
The General Counsel presented no testimony from
Lloyd Oakwood on these matters, despite Hopp's testi-
mony that it was Oakwood who informed him there was
no contract I infer that, if called, Oakwood's testimony
would have been adverse to the General Counsel' s case.
Pur 0 Si!, Inc., 211 NLRB 333, 337 (1974).
In the face of these implausibilities, there is no reason
to doubt the straightforward testimony of Business
Agent Manley, to wit, that he discovered the contractual
relationship on the first day and so informed Hopp and
Chairman of the Board Lloyd Oakwood. Although
Manley could only identify this individual as the "father
or the owner," it is obvious that it was Lloyd Oakwood.
I credit Manley's testimony.
It is relatively unimportant whether Manley's notifica-
tion of contractual status took place on Monday after-
noon, 20 August, as he alleged, or whether his telephone
conversation with Lloyd Oakwood-admitted by
l Hopp-took place on Tuesday afternoon, as asserted by
the superintendent. I conclude that the notification took
place on Monday afternoon because (1) Lentner, describ-
ing the Monday morning conversation between Hopp
and Manley, testified that the business agent said he
would be back, (2) Hopp's answers to the question of
whether he met Manley on Monday afternoon were con-
1419
fusing and contradictory, and (3) because Hopp's manner
of testifying appeared to be less truthful than Manley's.
In light of these findings, the General Counsel's con-
tention that neither party knew it was already bound by
a contract and the complaint allegation that the parties
entered into a new, verbal agreement on 21 August are
without merit.
c. The Union's alleged demand that the Company
discharge the existing employees
As noted above, the complaint alleges that, the Union
caused or attempted to cause Greg to discharge the ex-
isting crew because they were not union members.
Hopp 's affirmations of this and Manley's denials-set
forth in detail above-need not be repeated. The key
issue in this welter of conflicting evidence is whether, as
Hopp contended, he suggested and Manley refused a
compromise "50-50" proposal whereby union referrals
would do carpenters' work while existing crew members
would do other work-or, as Manley testified, whether
it was he who suggested this and Hopp who rejected it.
On this issue, Manley's testimony is corroborated by
Hopp on cross-examination . The superintendent admitted
that he did not want a "mix" of employees doing differ-
ent work because it caused "problems." I therefore find
that it was Manley who suggested this and Hopp who
rejected it. This finding is inconsistent with the com-
plaint allegation that the Union demanded discharge of
Hopp 's employees.
A conclusion that the Union did not demand discharge
of company employees is further warranted by the fact
that Kelly Webb, who was not a union member, contin-
ued to work on the job without objection from Manley.
Hopp told his crew that Manley allowed him to keep
Webb because the latter agreed to travel (crediting
Lentner), but told Manley that he wanted to keep Webb
because he was the only employee entitled to the union
wage rate (crediting Manley). This was less than candid.
Although two employees asked to be present during
Hopp's asserted "negotiations" with Manley to have the
Union represent them, the superintendent refused to let
them attend. Had they done so, there would have been
additional evidence of the conversations between Manley
and Hopp. The General Counsel did not call the K-Mart
manager, who overheard at least one of these conversa-
tions. Nor was Lloyd Oakwood called as a witness on
the issue of whether Manley told him that Hopp had
agreed to fire all the existing employees (as asserted by
Hopp), or had notified him of the existing contractual re-
lationship (as contended by Manley). Pur 0 Sil, Inc.,
supra.
For these reasons, and because Manley was a more
truthful witness in demeanor, I credit his denials that he
demanded discharge of the existing employees . Rather,
he asked Hopp which of his employees were qualified to
receive the union wage rate, and accepted Hopp's ver-
dict that only Webb was so qualified. No objection was
raised with respect to Webb's continued employment,
and there is no reason to doubt that Hopp's other em-
ployees would have continued working-if the Company
had wanted them to be paid the union rate. Nor did
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manley demand the discharge of "unqualified" employ-
ees-rather, he suggested that they do other than carpen-
ters' work-in a "50-50" crew, and Hopp refused.
I credit Manley's testimony that he and Hopp dis-
cussed the contractual provision giving the Employer the
right to hire and that he agreed with that provision.
However, Manley "raised cane" with Hopp's failure to
abide by the requirement that the Employer give notice
of job openings and afford the Union an opportunity for
a prejob conference and referral of employees. Hopp
continued to refuse to comply with this requirement.
Without notice to the Union, he hired two individuals
off the street (albeit union members) after Harvison's dis-
charge and rehired Lentner for weekend work-again at
less than the union wage rate. The credible evidence thus
supports the Union's position that Respondent Employer
was not complying with its contractual obligations and
does not support the complaint allegation that the Union
demanded discharge of existing employees.
Lentner's and Kollor's visit to the union hall does not
support the complaint allegations. In the first place, they
went there pursuant to the suggestion of Superintendent
Hopp that they seek work permits. This was a ruse on
Hopp's part, because it was not absence of work permits,
but his refusal to pay them union wage rates, which was
the reason for their discharge. It is doubtful that
Lentner's testimony about the unknown individual who
spoke to him at the union hall is sufficient to establish
union responsibility for this individual's statements. Even
if such responsibility is "established, the statements do not
support the complaint allegation that the Union caused
the discharge of the alleged discriminatees. They had al-
ready been discharged at the time of the visit to the
union hall. All that the unknown individual said was
that, hypothetically assuming Lentner's and Kollor's ac-
ceptance into union membership, there was no assurance
that they would get their jobs back. But there is no indi-
cation that this individual knew the provisions of Re-
spondent Employer's contract with the Union-the con-
tractual denial of preference for referred individuals and
Respondent Employer's right to reject such referrals and
to hire or recruit workers, from any source. All that
Hopp had to do was to comply with the notification re-
quirements of the contract, pay union wages, and he
could have rehired the alleged discriminatees. This Hopp
steadfastly refused to do.
c. The reason for the discharges
As noted above, the General Counsel argues that Re-
spondent Employer's admission that it discharged the al-
leged discriminatees "pursuant to" the Union's alleged
attempt to cause it to do so should be accepted because
it is an admission against interest. However, the persua-
siveness of this argument is diminished by the fact that
Respondent Employer, in its posthearing brief, contends
that it should not be required to remedy any unfair labor
practices, because it was the victim of union coercion.
This argument is supported in the General Counsel's
brief. Respondent Employer's admission, of course, is not
binding on Respondent Union.
With respect to the General Counsel's assertion of in-
consistency in Manley's attribution of antiunion animus
to Hopp, at the same time that he replaced nonunion em-
ployees with union referrals, the following observations
are pertinent: (1) Hopp himself admitted telling Manley
that the Company was nonunion and that it objected to
the conduct of union stewards; (2) Hopp originally sus-
pected the existence of a contract, called his office about
it three times within 1 week and, on being told that there
was no contract-so Hopp asserts-decided to hire car-
penters at $12 an hour while the contract permitted, him
to bill K-Mart at over $27 an hour; and (3) Hopp, after
having been informed by Manley of the existence of the
contract, continued to violate its terms by failing to
comply with the notification requirement and by surrep-
titiously rehiring one of the discharged employees at less
than the contract rate.
Faced with the reality of the contract when he met
Manley and the possibility of trouble with the Union
over violation of its terms, Hopp simply concluded that
he had to pay the contract rate, and decided that he
would do so only with respect to one employee. He kept
his employees away from the "negotiations" with 'the
union agent , and gave them reasons for their discharge
which are at variance with what he told the business
agent.
Hopp was not really corroborated by Lentner. Al-
though the latter testified about Hopp' s nervousness, this
may have been caused by the fact that Hopp had been
caught in contract violations and did not like the conse-
quences. Although Hopp asserted to his employees'that
Manley had threatened him, these assertions have no
more validity than Hopp's direct testimony on these
issues. There is little doubt that there was harsh language
between Hopp and Manley, by both of them. However,
harsh language in itself is not violative of the Act.
The Union argues in its posthearing brief that, even if
Hopp is completely credited, the General Counsel has
not made out a case of unlawful conduct by the Union.
The reason, the Union asserts, is that it had the right
under Board law to demand the discharge of employees
hired in violation of contractual hiring procedures and
the obligation to protect the rights of its members who
were not given the opportunity to be referred. " Because
of my finding that the Union did not in fact cause or- at-
tempt to cause Respondent Employer to discharge the
alleged discriminatees, I do not reach this argument.
d. Remaining issues concerning the Manley-Hopp
conversations
Hopp's additional testimony about asserted threats by
Manley to prevent Hopp from rehiring his former crew
add nothing to the General Counsel's case. On Saturday,
8 September, Harvison criticized Hopp for working on
the job, rightly or wrongly. The next morning, Sunday,
Hopp awakened Manley with a 7:30 a.m. telephone call
and protested, with a "diatribe." Manley did not know
what Hopp was talking about. Hopp's testimony that
8 Respondent Union cites Operating Engineers Local 181 (Raymond
Construction), 269 NLRB 611 (1984); Carpenters Local 522 (Caudle-Hyatt),
269 NLRB 574 (1984), Laborers Local 596 (Hood Mason Contractors), 216
NLRB 778 (1975); and Painters Local 1075 (Carr Glass & Paint Co.), 190
NLRB 388 (1971)
GREG CONSTRUCTION CO.
Manley threatened to "kick the shit" out of him if he re-
hired the alleged discriminatees is a non sequitur, because
there is no evidence that Hopp told Manley that he in-
tended to do so. The next day, Monday, Hopp fired
Harvison, asserting "theft" the prior Friday. I credit
Manley's version of the events.
With respect to Hopp's visit with Manley at the Greek
Hall, even the FBI-according to Hopp-said that they
had not detected any threats of violence. Manley doubt-
ed that Hopp in fact was wired, and Hopp's testimony on
this matter, although unrebutted, has an element of fanta-
sy to it.
Hopp's testimony that he called Chairman of the
Board Lloyd Oakwood after learning of the unfair labor
practice charges from Lentner, and that Oakwood sug-
gested that he recommend to Manley the rehiring of the
alleged discriminatees, is not supported by any testimony
from Oakwood. Although Hopp testified that he made
this recommendation to Manley, and that the latter again
threatened to "kick the shit" out of him, Manley denied
that Hopp ever made the recommendation. I credit
Manley.
The summary of events which Manley gave to Hopp,
after learning of the unfair labor practice charges, does
not establish any inappropriate conduct by Manley. I
credit Manley's statement, partially corroborated by
Hopp, that the latter denied knowledge of the unfair
labor practice charges. This was patently false because
Hopp himself testified that Lentner had previously in-
formed him of the charges.
Manley did not attempt to get Hopp to "say" some-
thing which was untrue by giving him the summary. In
the first place, although Hopp on direct examination at-
tempted to attribute such an attempt to Manley, on
cross-examination he admitted that Manley merely told
him that the summary represented what Manley was
going to say. Crediting Manley, when Hopp said that he
disagreed with the summary, Manley merely replied,
"No problem." Manley's attempt to get Hopp to make a
statement to the Board, in response to an unfair labor
practice charge, does not constitute objectionable con-
duct. Finally, the summary itself does represent, in a
very shorthand way, the actual events in this case.
e. Conclusions
It follows from the foregoing that Respondent Union
did not violate the Act.
We are left with Respondent Employer's admission
that it discharged the alleged discriminatees "pursuant
1421
to" Respondent Union's alleged unlawful attempt to
cause it to do so. However, this was not the cause of the
discharges-Respondent Employer terminated four of its
five employees because it did not want to pay them the
contract rate. It may be argued that, by this action, Re-
spondent Employer violated Section 8(a)(3) and (1) of
the Act. It may also be argued that, by not adhering to
the terms of the collective-bargaining agreement in
making job assignments ," and by failing to pay contrac-
tual wage rates to,10 or fringe benefits on behalf of" the
alleged discriminatees, Respondent Employer thereby
violated Section 8(a)(5) and (1) of the Act.
However, no such unlawful conduct was alleged by
the Charging Party in any of his charges, nor by the
General Counsel in any of the complaints. Although Re-
spondent Employer admitted that it discharged the al-
leged discriminatees "pursuant to" Respondent Union's
alleged unlawful attempt to cause it to do so, it argued
that it was not liable to remedy any unlawful unfair labor
practices because of the alleged union coercion. If the
complaint had alleged different reasons for the discharge,
Respondent Employer's answer may well have been dif-
ferent. Accordingly, a finding of a violation by Respond-
ent Employer would also be inappropriate.
CONCLUSIONS OF LAW
1. Greg Construction Co. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. United Brotherhood of Carpenters and Joiners of
America, Local 1005, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. Neither Respondent has committed an unfair labor
practice.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
ORDER
The complaint is dismissed in its entirety.
9 Wer-Coy Fabrication Co , 268 NLRB 907, 914 (1984).
10 Ross Crane Rental Corp„ 267 NLRB 415, 418 (1983); Ford Bros,
Inc., 272 NLRB 1222 (1984)
11 Howard Barthelmass Painting Co., 269 NLRB 346, 348 (1984)
12 If no exceptions are filed as provided by Sea 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec 10248 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.