Iron Workers Local 783 (BE&K Construction)

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 734 (N.L.R.B. 1993)

734
311 NLRB No. 73
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the third paragraph of sec. II,C,2 of his decision, and in the
first paragraph of sec. II,F,4,e, the judge stated, respectively, (1) that
most of the passengers on the chartered bus from Iron Mountain,
Michigan, to International Falls, Minnesota, on September 8–9,
1989, were members of the Respondent, and (2) that the passengers
on the bus were drawn primarily from the Respondent’s member-
ship. But the record does not actually reveal the names or organiza-
tional affiliations of the passengers who were on the bus to Inter-
national Falls. The record does, however, reveal the names and
union affiliations of the passengers who were on the bus as it began
its return trip from International Falls later in the day on September
9. There were 32 passengers on the bus then, 11 of whom were
members of the Respondent.
In the fourth paragraph of sec. II,E of his decision, the judge stat-
ed that bus owner Donald Dabb testified that Respondent Business
Manager John LaVallee telephoned him in late summer 1989 to ask
about chartering a bus for a trip to ‘‘Minnesota.’’ Dabb’s testimony
at the hearing, however, which was consistent in this regard with his
testimony in an earlier deposition that is in evidence, was that
LaVallee asked about a trip to ‘‘Minneapolis.’’
In fn. 3 of his decision, the judge stated that Ralph Guentzel was
a member of the Respondent. The record establishes that Guentzel
was a member of Iron Workers Local 563, but not that he was also
a member of the Respondent. From the context of his fn. 3, it ap-
pears that the judge meant to refer to Robert Genschow, a member
of the Respondent who was convicted of riot, but who was not on
the bus when it began its return trip from International Falls on Sep-
tember 9, 1989.
Finally, in the sixth paragraph from the end of sec. II,G of his de-
cision, the judge inadvertently referred to the deposition of Kenneth
Perry as Jt. Exh. 40, rather than 39.
2 The Charging Party has excepted to some of the judge’s credi-
bility 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 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 reversing the findings.
3 We note that LaVallee obtained a personal loan which he used
for these activities. This loan was repaid approximately 2 months
later through contributions made by the Respondent’s members and
others.
Iron Workers Local No. 783, International Associa-
tion of Bridge, Structural and Ornamental Iron
Workers, AFL–CIO and BE&K Construction
Company. Case 18–CB–2021
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On April 29, 1992, Administrative Law Judge David
G. Heilbrun issued the attached decision. The Charging
Party filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the decision and the record1 in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions and to adopt the rec-
ommended Order.
We abhor the rioting, violence, physical attacks, and
property damage that occurred at the Charging Party’s
man-camp on September 9, 1989. But we agree with
the judge that the General Counsel has not established
by a preponderance of the evidence that the Respond-
ent participated in this misconduct, or that it is other-
wise responsible for it.
We note in this connection that the Charging Party
has excepted, inter alia, to the judge’s finding that the
activities of Respondent Business Manager John
LaVallee in personally arranging but not paying for
legal representation and posting bail for the Respond-
ent’s members who were arrested in conjunction with
the riot did not constitute condonation or ratification
by the Respondent of the misconduct that its members
were at that point alleged to have engaged in. For the
reasons set forth below, we find no merit in this ex-
ception.
Four members of the Respondent did ultimately
plead guilty early in 1990 to criminal charges of riot.
But at the time LaVallee posted bail for them and for
others who also were arrested, no judicial determina-
tion had yet been made that any of them had engaged
in any unlawful act, and they were thus still presump-
tively innocent of any wrongdoing. Indeed, three of the
seven members of the Respondent who were arrested
were subsequently released.
Under these circumstances, we find LaVallee’s per-
sonal activities on behalf of members of the Respond-
ent was not condonation or ratification by the Re-
spondent of the alleged misconduct for which the
members had been arrested.3 Rather, LaVallee merely
assisted certain of the Respondent’s members to exer-
cise a legal and constitutional right. Accordingly, the
judge properly refused to hold the Respondent liable
for the misconduct under principles of condonation and
ratification.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Everett Rotenberry, Esq., for the General Counsel.
Nino E. Green (Green, Renner, Weisse, Rettig, Rademacher
& Clark, P.C.), of Escanaba, Michigan, for the Respond-
ent.
Dion Y. Kohler (Ogletree, Deakins, Nash, Smoak & Stewart),
of Atlanta, Georgia, and Lowell J. Noteboom (Leonard,
Street & Deinard), of Minneapolis, Minnesota, for the
Charging Party.
735IRON WORKERS LOCAL 783 (BE&K CONSTRUCTION)
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This case
was heard at Minneapolis, Minnesota, over a course of 4 trial
days comprising April 16–19, 1991, inclusive. The charge
was filed January 29, 1990, by BE&K Construction Com-
pany (for brevity BE&K), and the complaint was issued De-
cember 14, 1990. The primary issue is whether Iron Workers
Local No. 783, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL–CIO (Respondent)
restrained and coerced employees in the exercise of their
rights guaranteed in Section 7 of the National Labor Rela-
tions Act by participating in a riot in violation of Section
8(b)(1)(A) of the Act.
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
BE&K is a Delaware corporation which maintained an of-
fice and place of business in International Falls, Minnesota,
where at all times material, it was engaged in construction
and installation of industrial facilities, machinery, and equip-
ment. During calendar year 1990 BE&K, in the course and
conduct of such business operations, purchased and received
products, goods, and materials at this jobsite valued in excess
of $50,000 directly from points outside the State of Min-
nesota. On these admitted facts I find that BE&K is, and at
all times material has been, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act, and that Respondent, as also admitted, is, and at all
times material has been, a labor organization within the
meaning of Section 2(5).
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
On September 9, 1989, a riot happened at the employee
housing center for a large construction project in northern-
most Minnesota. Extensive background events were plainly
associated to this riot, which took many forms touching po-
litical, business, trade union, and community interests.
The essential context was institutional and ideological fric-
tion when a major industrial construction company undertook
a locality-sensitive papermill expansion by its habitual ap-
proach of operating nonunion. Respondent is here accused of
complicity in this labor dispute-based riot, both by intention
and by covert action.
B. Geographic and Organizational Matrix
The enormous amount of activity which this case concerns
took place along a crescent of the northern Great Lakes area.
This ran generally from Marquette situated at a central point
in Michigan’s upper peninsula, westerly through the tip of
Wisconsin to round by Duluth, Minnesota, at the end of Lake
Superior, and turn northerly to International Falls situated at
the Canadian border. This total distance is about 400 miles.
As a factor in the various communicating, venturing, and
miscellaneous itineraries that occurred, I also identify Iron
Mountain, Michigan. This city is akin to being the hub of
a small population locale almost astride the Michigan-Wis-
consin state line about 75 miles southwest of Marquette, and
where much of the case focus truly relates.
Respondent, an organization of 315 members, is a local af-
filiate of the Iron Workers International Union, the offices of
which are in Washington, D.C. Its designated trade jurisdic-
tion coincides with the area of Michigan’s upper peninsula.
At the Michigan-Wisconsin state line this adjoins the com-
parably understood geographic jurisdiction of Iron Workers
Local 563 situated in Duluth. Respondent’s intermediate
union affiliations are principally as constituent of the Iron
Workers International Union, or with organizations of the
unionized building trades as these comprise and draw from
various construction crafts. In this sense Respondent is a part
of the Iron Workers North Central States District Council,
the Upper Peninsula Building, and Construction Trades
Council and, to illustrate parallels with Local 563, the Michi-
gan State AFL–CIO and the Michigan State Building and
Construction Trades Council (BCTC). John LaVallee has
been Respondent’s business manager, financial secretary, and
treasurer since 1973. He operates from an office in Mar-
quette, situated in a building shared with other unions. The
only other full-time paid employee of Respondent is Beatrice
Anderson, an office secretary of over 20 years’ service with
the organization. Kenneth (Ken) Perry is Respondent’s elect-
ed president and the only other person within the organiza-
tion other than LaVallee who possesses pronounced execu-
tive and financial authority. LaVallee holds concurrent office
in the North Central States District Council as its recording
secretary.
Escanaba, Michigan, is a city on the north shore of Lake
Michigan about 60 miles south of Marquette. Quinnesec is
a small community in Michigan only several miles from Iron
Mountain. During the summer of 1989 Respondent had
members employed on major construction jobs at both Esca-
naba and Quinnesec. The smaller of these at Escanaba was
a project for owner, Mead Paper Company, with Fru-Con of
St. Louis, Missouri, as the general contractor. Respondent
had reached a project agreement with Fru-Con for this job,
and over the course of its approximately 2 years’ duration
furnished a fluctuating crew of ironworkers ranging from 20
to 50.
The Quinnesec job was a $350 million paper machine in-
stallation for Champion International Paper, which also ran
about 2 years for completion. Rust Engineering served as a
unionized general contractor for this project. The peak em-
ployment of ironworkers furnished by Respondent for
Quinnesec was about 250 during the eventful September–Oc-
tober 1989 timespan.
Besides these two main projects Respondent had about
150 of its members employed with 25 or so other contractors
at various locations within its jurisdiction. In keeping with
typical craft union practices Respondent also administered a
referral program from its Marquette office. Under this ‘‘trav-
elers’’ from other Iron Workers locals, predominantly the ad-
joining Local 563 and often, too, from North Dakota Local
793, would work at the trade for contractors engaged in
Michigan upper peninsula construction jobs.
Local 563 is a member of the Iron Range Building and
Construction Trades Council covering northern Minnesota,
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates and named months hereafter are in 1989 unless other-
wise indicated.
the same Iron Workers North Central States District Council,
the Minnesota State AFL–CIO, and the Minnesota State
BCTC. The business manager of Local 563 is Fred Salo, an
individual who also concurrently holds office in the Iron
Range BCTC. The president of Minnesota State BCTC is
William (Bill) Peterson, whose office is in St. Paul.
C. Condensed Background
1. Preceding the riot
In 1988 Boise Cascade announced plans for a $500 mil-
lion plant expansion of its papermill at International Falls.
Initially Fru-Con was expected to handle the project and
building trades unions, urgently interested in securing a
union mode on the imminent construction work, negotiated
for several months with Fru-Con. In March 1989 Boise Cas-
cade actually awarded the expansion project to BE&K, after
a large demonstration for public support of a union contract
manager had been arranged by local unions around Inter-
national Falls.
Actual work by BE&K began in early July 1989 with over
100 employees of its own, and subcontractor awards to both
union and nonunion employers. By mid-July approximately
100 construction workers were also on the site for various
union subcontractors. BE&K’s own employees, in keeping
with its operating style, were nonunion as were persons em-
ployed by any nonunion subcontractor which by then had
commenced its phase of the project.1
On July 18 a walkout by the unionized construction trades
personnel occurred, and disruptive picketing activity at the
jobsite commenced in protest of BE&K and nonunion sub-
contractors. Within several days BE&K obtained a temporary
restraining order which limited picketing activity and re-
stored a measure of control regarding the dispute. BE&K
soon replaced the subcontractors whose union workers had
walked out with nonunion subcontractors, and the project
continued on that adjusted basis as the summer months
passed.
On August 28 a major incident occurred at an employment
center maintained by BE&K in a post office basement near
the jobsite. Early on that Monday morning this employment
office, at which several dozen hires were completing paper-
work preliminary to their job orientation, was descended on
by protesters. A crowd of about 40 persons began a men-
acing disturbance around 7:45 a.m. From their congregation
on the outdoor sidewalk they burst down the stairwell and
into the personnel lobby, yelling obscenities, vandalizing the
application process, and generally intimidating persons in-
side. Both police and the Vance International Security Serv-
ice used by BE&K were summoned, and the disturbance was
quelled in its serious stage. However, many of the perpetra-
tors remained for several hours outside, performing, threat-
ening, or destructive activity. Members of this crowd were
wearing clothing with union insignia from places as far as
Michigan, and they keyed much of their demonstration ire to
the theme of ‘‘rat(s)’’ as their objective of protest.
By early September a specialty builder hired by BE&K
had finished early phases of an employee housing center lo-
cated about 2 miles from the actual Boise Cascade expansion
project. As ultimately intended for occupancy by about 1000
persons in dormitory style living, it was then in use by over
100 plus several dozen Vance personnel also housed within
this fenced ‘‘man-camp.’’ Just prior to September 9 rumors
circulated throughout the community that a large disturbance
was about to affect the man-camp.
2. The riot of September 9
Early in the morning of September 9 large groups began
assembling near the man-camp, most of them after arriving
from outlying or distant points. The situation was under
monitoring by law enforcement authorities, as most promi-
nently under the command of International Falls Police Cap-
tain Randy Borden. This officer had reacted to the fully cir-
culating rumor by a special dispersal of his own and auxil-
iary law enforcement personnel to best position themselves
for the rumored event. By as early as 6 a.m. on September
9 it was apparent to Borden that trouble was imminent be-
cause of roadways being blocked and loud exhortation to at
least trespass.
In further reaction to the rumored event BE&K had can-
celed work at the project for that Saturday, and had evacu-
ated all resident employees of the man-camp the night be-
fore. As the early morning hours of September 9 unfolded
the gathered crowd of about 150 persons moved purposefully
and ominously from their point of congregation in the city
to the man-camp location. Borden deployed his 15 available
police officers to the scene as size, mood, and momentum of
the crowd increased. From about 7 a.m. and for nearly the
next hour, the crowd now grown to over 200 and eventually
to total about 450, rioted during a breaking down of fencing
at the man-camp. This was followed by extensive destruction
after they had surged inside the facility and caused personal
injury to some Vance guards by rock throwing and physical
beatings. Vehicles inside the man-camp were damaged and
overturned, dormitories and their contents were vandalized,
and various buildings set afire before the rioters withdrew.
The monetary total of loss associated to the riot was approxi-
mately $2 million.
Among persons participating in this riot were those on a
chartered bus that had left Iron Mountain, Michigan, the
night before. This bus departed about 7 p.m. on Friday, Sep-
tember 8, and arrived in International Falls at about 3 a.m.
after the customary 8 hours’ driving time. Most of the bus
passengers were members of Respondent, and as requested
the driver let them out at a union hall. The cost of the round-
trip charter was to be $1150, and this amount was paid in
cash by the unseen act of money being left on the dashboard
just before departure. The bus had been scheduled for a mid-
day return trip on September 9, but it was stopped in transit
out of International Falls by police. All occupants were for-
mally disembarked as part of investigatory and
preprosecutive work relative to the riot. It eventuated that 14
persons from the bus were arrested, and from this number
Respondent’s members William Ahlich, Leslie Bedell, and
Richard Pascoe, along with former member Daniel (Dan)
Miller plus two ironworkers then working in travel status out
of Respondent’s office and three persons in construction
trades other than ironworker were convicted after guilty pleas
to violating Minnesota law prohibiting riot.
The animosity of unionized building trades to BE&K was
fully documented. Presentation was in keeping with common
737IRON WORKERS LOCAL 783 (BE&K CONSTRUCTION)
knowledge in labor relations of the institutional view held by
AFL–CIO affiliates toward ‘‘merit shop’’—termed nonunion
contractors. Here evidence was presented that as early as
March 1988 the United Brotherhood of Carpenters and the
United Paperworkers International Union announced their
formation of a joint ‘‘Solidarity Committee.’’ A news release
described their intention to carry out ‘‘programs in the forest
products industry’’ with particular reference to a ‘‘BE&K
Alert’’ relative to this company’s asserted ‘‘policy to under-
cut union construction standards in papermill construction
projects.’’ This one-sheet release was a harbinger of further
reams showing the virulent hostility of building trades unions
to the growing nonunion phenomenon in construction, and to
BE&K in particular. Suffice it that such material showed an
extreme depth of concern, national in scope of publicity and
with brooding encouragement of the fullest sort of personal,
community, and political pressures to counteract this threat
against union labor.
As to the specific expansion project at International Falls
this objective manifested with involvement by Minnesota’s
governor in the dispute, and litigation against numerous par-
ties seeking to establish that a unionized basis for the project
must exist because of legally enforceable dealings between
Boise Cascade, Fru-Con, and the AFL–CIO unions of Min-
nesota. The violent disruption at BE&K’s personnel office on
August 28 had occurred principally from action by a bus
load of unionists arranged for by officers of Pipe Fitters
Local 728 located in Iron Mountain. Admittedly, too, the ex-
tent and frequency of cross-communication between key
union functionaries, Peterson, Salo, and LaVallee included,
escalated as the seeming crisis of BE&K successfully
verging on eventual project completion at the Boise Cascade
expansion grew ever more realistic.
D. Respective Contentions
1. As made at trial
The General Counsel’s opening statement succinctly out-
lined the project’s background, and set forth a goal of proof
showing how Respondent ‘‘arranged transportation for its
members and for others’’ in connection with the riot.
The Charging Party’s counsel enlarged on case theory by
terming the riot both ‘‘planned’’ by Respondent’s ‘‘covert’’
undertakings, and so shown by the ‘‘circumstantial evi-
dence’’ to be adduced. In later colloquy the Charging Party’s
counsel stated, ‘‘Our case is built on the activities and the
interrelationship of these various unions . . . .’’ (Tr. 424.)
Initial comment by Respondent’s counsel referred to the
historically important source of employment in Michigan’s
upper peninsula that papermill construction comprised, but
from this contrasted his client’s total lack of any relationship
with either Boise Cascade or BE&K in arguing that any
‘‘spontaneous’’ nature of the occurrence on September 9
‘‘was in no way advocated, supported, urged or financed by
the Respondent.’’
2. As made in briefs
In his brief counsel for the General Counsel contends how
several components of circumstantial evidence in the case
show that the bus load of members traveling from Inter-
national Falls for arrival early on September 9 was an ‘‘offi-
cial function’’ of Respondent. Chief among these compo-
nents was an overwrought fear of successful nonunion con-
tracting, coupled with a configuration of telephoning that
would ‘‘strongly suggest’’ the claimed bus arrangements
were in fact made by Respondent.
In its brief BE&K advances three theories of violation
from the solely circumstantial evidence in the case. It first
contends that Respondent ‘‘instigated, planned and partici-
pated’’ in the riot, second that even if not so doing it subse-
quently ratified the riotous conduct, and that, third, its mem-
bers’ ‘‘mass action’’ made Respondent liable for the con-
sequences.
Respondent’s posthearing brief disputes that circumstantial
evidence, particularly the frequency of telephone calls among
interested union functionaries, affords a ‘‘proper basis’’ for
an inference that they were planning a riot. The brief further
contends that the ‘‘vast quantity’’ of data totally fails to es-
tablish the claimed planning of, or participation in, what
eventuated as the man-camp riot. Generally Respondent’s
brief is in harmony with its often-repeated statement during
trial that documentary evidence, including telephone records,
are without ‘‘relevance, materiality or other circumstances af-
fecting the probative value’’ of such items as were admitted.
E. Factual Highlights of the Case
On July 24 LaVallee composed a letter on Respondent’s
stationery which secretary Anderson typed. The letter was
addressed to members and signed by LaVallee. It stated:
The Boise Cascade Paper Company of International
Falls, Minnesota, has selected BE&K as its Construc-
tion Manager and General Contractor to build a 535
million dollar paper facility on a Merit Shop Basis.
BE&K advised the Iron Range Building Trades Council
that no more than 50% of the job would be subcon-
tracted Union and in fact is performing Iron Work and
other Trades work on the project on a non-union basis.
Based on these circumstances and the fact that
BE&K is importing non-union workers from the South,
the Union Tradesman on the project have chosen not to
work side-by-side with these non-union workers and are
presently off the project and demonstrating against
BE&K and the owner over their choice of importing
non-union labor for the project.
Local Union #563, Duluth, Minnesota needs our
help, both financially and assisting in demonstrating
their right not to work side-by-side with non-union
workers.
As Brother Iron Workers, we are asking you for a
$10.00 per week voluntary contribution to assist their
efforts.
Please donate this contribution to your foreman on a
weekly basis until notified otherwise.
Thank you for your support.
Before issuing this letter as an item of regular union mail,
LaVallee first obtained legal advice. When it developed that
the July 18 walkout at International Falls had not been offi-
cially sanctioned, LaVallee did not send the letter out as
planned. However it soon became known that a copy was
circulating among ironworkers at the Quinnesec job, and
learned even later that the contents had been printed in a
Minnesota newspaper. I do not determine from any known
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 A time zone change separates the Marquette vicinity (Eastern)
from points in Minnesota or Wisconsin (Central). Times shown from
facts whether contributions passed through Respondent’s of-
fice as a result of this letter being leaked; rather the entire
murky matter of banded cash amounts that may or may not
have been responsive is used as a factor in credibility evalua-
tions to be made below.
Donald Dabb individually owns and operates a charter bus
service from his home in Aurora, Wisconsin, using the busi-
ness name Northland Coaches. He is assisted by his wife and
son, who particularly cover the telephone when Dabb himself
is away as the principal driver for his business. Aurora is
only a few miles from Iron Mountain across the state line,
and Dabb was the provider of round-trip transportation for
the charter arranged by Pipe Fitters Local 728 when its mem-
bers traveled to International Falls and engaged in the per-
sonnel office disturbance of August 28.
Dabb testified that he had never dealt with a person named
LaVallee until late summer of 1989, when a caller giving
that name telephoned to make preliminary inquiry about the
chartering of a bus for travel to Minnesota. According to
Dabb he estimated the cost of such a trip, but the LaVallee
person simply never called back and he assumed such plans
were canceled.
However Dabb did schedule and fulfill the chartered trip
of September 8–9. He recalled this commitment originating
by telephone from a male-voiced caller who identified him-
self as ‘‘concerned persons’’ interested in an Iron Mountain-
International Falls round trip. Dabb gave this price, advised
that advance payment would be necessary, and agreed to
start the trip at a bar in Iron Mountain named Dad’s Place.
This establishment was, or had been, owned by the same
Dan Miller later to be convicted of riot at International Falls.
Dabb commenced the trip on schedule with 36 passengers
after finding cash payment in the bus. One of the travelers
said only that it had been left by ‘‘Dean.’’ The 7 p.m. depar-
ture on September 8 was made and Dabb proceeded unevent-
fully through the night to International Falls after one stop
for a single passenger pickup at Iron River, Michigan. He did
have very brief, and from his standpoint reluctant, conversa-
tion with Miller during the drive. After his bus emptied in
International Falls at approximately 3 a.m., Dabb told the
travelers he would look for a local motel to sleep and that
they should call him when the return travel was ready to be
started.
He was called in late morning by a person saying the
group was ready to leave and ‘‘wanted to get out of town.’’
Before leaving his motel, Dabb had a brief discussion with
a sheriff’s officer, the conversation amounting to the officer
learning that Dabb was about to drive back and Dabb learn-
ing that there had been ‘‘some problems’’ at the locality. He
made the intended return pickup of passengers at the Viking
Bar, and commenced the intended return just before noon
after loading of passengers proceeded promptly. Before clear-
ing International Falls, however, Dabb was stopped by police
and his bus escorted to the city’s Law Enforcement Center
for the disembarking consequences described above.
Immediately after Dabb’s return to his home in Aurora an-
other charter trip manifested for him to again travel to Inter-
national Falls. Dabb testified that this arose by telephone
contact from the ‘‘concerned persons’’ caller, and in con-
sequence he left at 3 a.m. on Monday, September 11, to pick
up the individuals that had been jailed following their arrests
at the bus. When Dabb arrived at the International Falls Law
Enforcement Center later that morning he learned that in fact
no one was yet released for transport back to Michigan. He
waited there for several hours until finally told by the local
prosecuting attorney that no releases were imminent. At this
point Dabb, and the accompanying friend who helped him
drive on long-distance turnaround trips, went to Virginia,
Minnesota, south of International Falls. They remained there
at a Holiday Inn while waiting for more instructions, after
notifying the Dabb home/office of their whereabouts. They
actually stayed at this Holiday Inn for the nights of both Sep-
tember 11 and 12, and then returned when the entire com-
missioned charter proved futile. This result seemed plain
after Dabb’s wife called him to say that ‘‘concerned per-
sons’’ had telephoned her saying there should be no further
waiting for the people in jail. Dabb testified that his overall
charge would have been $1350, and none of this amount was
ever paid.
According to both Perry and LaVallee they began receiv-
ing frequent inquiries from worried friends and family about
the union members being held in Minnesota following the
riot. Perry’s reaction to all this was relatively limited, how-
ever LaVallee undertook major relief efforts. His immediate
action was to travel to Duluth, and with that as a base of
operations undertake legal and financial steps to aid his ar-
rested union members. He spent almost a week in Minnesota,
during which time he arranged through his Marquette bank
for a $30,000 loan with a wire transfer of the funds to Min-
nesota. This loan was nominally made on LaValle’s personal
credit, and approval was based on his telephone request by
bank functionaries long familiar with LaVallee as the busi-
ness holder of his union’s several accounts. From his hotel
base in Duluth, he made one or more trips up to International
Falls, where he engaged Attorney Steve Nelson to provide
legal representation for numerous arrested persons plus pay-
ing out $16,000 in bail amounts from the wired loan pro-
ceeds and a lesser amount in fines. LaVallee did not return
from Duluth until September 15, at which point the riot con-
sequences were settling out in terms of the various persons
who were to await fulfillment of criminal proceedings stem-
ming from offenses that were committed. Bank records es-
tablish that the loan, accounting also for interest and fees,
was repaid in three installments. The first repayment was a
$12,000 amount toward principal on October 2, and about a
month later two further payments liquidated all that had been
borrowed. LaVallee testified that money contributions began
arriving in late September into early October from the
Quinnesec job, terming his assumption of this happening as
being that ‘‘people were aware of the obligation that I had
undertaken to post bail . . . .’’
In specific regard to telephone records that might implicate
Respondent in at least the chartering of Northland Coaches
for the September 9 trip, there are 12 such calls that bear
close attention. Using as reference points the telephone num-
bers: (906) 228–6450(51), (906) 343–6650, and (715) 589–
4145 for Respondent’s Marquette office, LaVallee’s resi-
dence in nearby Sand River, Michigan, and Northland
Coaches at Aurora, Wisconsin, respectively, the following
telephoning is shown:2
739IRON WORKERS LOCAL 783 (BE&K CONSTRUCTION)
the telephone record excerpts are in terms of the time zone at the
originating point of the call.
3 Halverson was one of the 21 named defendants in the Charging
Party’s civil action filed with Koochiching County (Minnesota) Dis-
trict Court as Case 36–C–89–201. Guentzel, a member of Respond-
ent, was one of the 59 persons convicted of riot in the criminal
courts of that county, although he was not on Dabb’s bus at the at-
tempted start of a return trip on September 9.
Date Time
Dura-
tion
(Mins.)
From To
9/1 9:36 a.m. 2 (906) 228–6450 (715) 589–4145
’’ 9:42 a.m. 1 ’’ ’’
’’ 6:04 p.m. 1 (715) 589–4145 (906) 343–6550
7:15 p.m. 7 (906) 343–6550 (715) 589–4145
9/2 11 a.m. 1 (906) 228–6450 ’’
9/6 1:10 p.m. 1 ’’ ’’
’’ 6:32 p.m. 1 (715) 589–4145 (906) 343–6550
9/7 8:34 a.m. 1 ’’ (906) 228–6450
’’ 6:46 p.m. 2 (906) 228–6450 (715) 589–4145
9/8 8:03 a.m. 3 (715) 589–4145 (906) 228–6450
’’ 9:33 a.m. 1 ’’ ’’
’’ 10:43 a.m. 4 (906) 228–6450 (715) 589–4145
After occurrence of the riot there was apparent telephone
communication between Respondent and Dabb at 1:10 p.m.
on September 11. Respondent’s office received a call from
International Falls then, being at about the time Dabb de-
spaired of making the jail pickup as expected. Later at 3:50
p.m. on September 11 another call was made to Respond-
ent’s office from the Holiday Inn at Virginia, Minnesota,
where Dabb had commenced his waiting. A call on Sep-
tember 12 from Duluth to the Holiday Inn at 8:01 a.m., fol-
lowed a call to LaVallee at Duluth at 7:25 a.m. from his
Marquette office. The next day at 9:45 a.m. another call from
Duluth to the Holiday Inn at Virginia was made, this being
just before Dabb left the area. LaVallee could not recall
making either of the two Duluth-originating calls over this
September 12–13 period.
F. Credibility
1. Introduction
As a case uniquely based on circumstantial evidence the
ordinary conflicts of testimony are not present. Furthermore
the question regarding witnesses of Respondent, or those in
likely sympathy with its position, is one of whether the de-
scriptive, connective, and episodal self-servingness of what is
testified to seems genuine as opposed to contrived.
With that opening comment I first deal with two witness
groups, one being those for whom no reason exists to doubt
their renditions, and the second being those brief witnesses
whose calling was tactical (or technical) by the party exer-
cising subpoena powers. I thus fully credit the testimony of
Robert Anderson, Boise Cascade’s public affairs manager,
Police Captain Randy Borden, Gary Martin, BE&K’s resi-
dent project manager at International Falls, John McGriff,
BE&K’s personnel manager, and Eric Dufford, Vance Inter-
national’s former tactical security cameraman at the man-
camp. I exclude as an unnecessary exercise any credibility
evaluation of Kevin Nylund, Keith Halverson, and Ralph
Guentzel, who each essentially denied the possession of sub-
poenaed documents,3 of Michael Edens, whose brief testi-
mony was inconsequential, and of Donald Doolittle who,
with active representation by private counsel, maintained a
fifth amendment privilege not to testify.
2. Donald Dabb
This witness was vague and halting and repeatedly voiced
lack of knowledge as to matters questioned about, a presen-
tation that left few subjects of evidentiary weight. There are
two additional twists to consider; first that Dabb would rea-
sonably have, and faintly gave just such a hint of, the incli-
nation to protect interests of organized labor in his vicinity,
and secondly that he repeatedly alluded to a hearing impair-
ment which affected both conversation and his ability to
comprehend tonal qualities between voices. Furthermore, as
a mixed matter of credibility and case analysis, his family
style bus charter business was subject to various forms of
communications success by those placing telephone calls to
it. A telephone answering machine was in use, and Dabb at
one point referred to more than one son that a caller ‘‘could
have reached’’ (Tr. 213). The single phone number at the
home for personal and business purposes combined leaves
concern for just how accurately Dabb could reconstruct past
happenings even if highly sincere by capacity and intent. I
leave his peculiar situation as a credibility assessment that by
demeanor and probability his testimony is of little value.
While not doubting its general correctness as to tangible mat-
ters of place, time and distance, I subordinate Dabb’s recol-
lection to that of LaVallee where they are in disharmony.
The Charging Party’s particular point about Dabb’s possible
financial interest in the case outcome has been considered in
making this evaluation.
3. Beatrice Anderson
This witness presented with an impressively honest-seem-
ing demeanor and after taking into account her obvious self-
interest as a longtime office employee of Respondent, I cred-
it her in full. The effect of this assessment is, somewhat as
the case with Dabb, to subordinate her less vivid recollection
of internal office matters and financial details to that of
LaVallee.
I do also note that the Charging Party overreaches in its
brief with footnote 24, page 12, in writing that Beatrice An-
derson testified in her deposition of February 21, 1990, that
cash collections were received at Respondent’s office ‘‘as a
result’’ of LaVallee’s July 24 letter (emphasis added). Bea-
trice Anderson’s deposition falls far short of supporting this
phrasing. She was first asked about whether money came in
to Local 783 ‘‘as a result of this letter?’’ at deposition page
66, to which she answered, ‘‘Well, we did get some.’’ In an
immediate followup question she vacillated with ‘‘Yes, we
did, but I can’t—I don’t know.’’ In subsequent deposition
questioning about whether cash contributions followed from
LaVallee’s letter her answers included ‘‘I—yeh, I can’t—I
don’t know. I don’t know that, about time, I—I couldn’t an-
swer that (p. 68, LL. 6–7), ‘‘I—I don’t know that’’ (p. 71,
L. 13), ‘‘I don’t know’’ (p. 73, L. 25), and ‘‘No, I can’t—
I can’t say that, because I don’t know what—at what times
or specific dates that any collections came to the office’’ (p.
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 During this line of questioning participating Attorney Green,
echoing Attorney Casselman, interposed a tacit objection that the
witness was being repeatedly subjected to improper leading ques-
tions.
5 A term attributed to the General Counsel, as used in his brief at
pp. 14 and 15.
74, LL. 5–7).4 The upshot of this overreaching in making the
Charging Party’s argument is to further buttress a belief in
the underlying, simple sincerity of persons associated with
Respondent, as they were taken through a sweeping attempt
at reconstruction of myriad events from the past.
4. John LaVallee
a. Summary belief
In the face of a painstakingly mounted collection of cir-
cumstantial evidence, the general and specific veracity of this
key individual is largely controlling of the decision. After
full reflection on all factors seeming, or claimed, to touch on
a credibility evaluation, I accord near-total acceptance of
LaVallee’s testimony.
b. Demeanor
LaVallee was most importantly seen in his testifying role
on the final day of trial. Although earlier and adversely
called by the Charging Party, and present during the entire
hearing, LaVallee’s most important offerings came when
called as Respondent’s chief defense witness. In the course
of such modestly extensive examination, I was impressed
with a consistent and valid-seeming candor in practically all
that he had to relate. In the realm of purely subjective reac-
tion to the demeanor of another, I reach the fully positive
conviction that his distinctions of fact and perception pre-
sented a comfortable assurance of truth-telling. Given the
complexities of subject matter about which questioned, he
displayed a remarkedly high degree of consistency in his
many instances of several times answering.
c. Testing instances
Aside from the pure demeanor of LaVallee’s testimonial
appearance, there were several areas in which the veracity of
what he recalled was lifted to even higher prominence be-
cause of surrounding circumstances. These are largely drawn
from a comparison between his testimony at trial and the
two-part deposition given by LaVallee in December fol-
lowing the events, particularly volume II thereof. As to vol-
ume II the passage at pages 98–107 does much to cause dis-
belief that LaVallee has created only an ‘‘alibi’’5 to avoid
enmeshing his organization in liability for the riot. This pas-
sage shows quite vividly the scope and subject matter of
LaVallee’s numerous occupational activities, and more im-
portantly the diversity of his contacts. I consider well the in-
ternal (and fraternal) union, collective bargaining, commu-
nity, public relations/publicity, institutional and technical
sweep of his working hours, and from that whether it should
be reasoned that because of several telephone calls that
Dabb’s Northland Coaches enterprise in homey Aurora, Wis-
consin, received it must have been part of a clandestine bus-
renting scheme. On so considering this point, I believe the
requested inference is not an appealing one to make.
In volume II of the deposition at pages 57–67 LaVallee
was questioned exhaustively about a certain check 13301
drawn on Respondent’s account for $1250, and taken as cash
with a bookkeeping notation of only ‘‘LU.’’ His explanation
stated that this money was simply turned over to a small
contractor of the vicinity, who had been squeezed off a job
by the dynamics of other interests jockeying for favored po-
sition. However unsavory this might seem in the abstract the
point is that LaVallee candidly described the reasons, named
all persons and organizations with any knowledge of such
dealings, convincingly explained how this odd transaction fit
in with construction industry unioneering and generally re-
vealed ‘‘chapter and verse’’ about the entire matter. This was
coupled with a prompt and predictable denial to Attorney
Noteboom’s question whether ‘‘any part’’ of this loosely
handled $1250 cash boodle had been used to pay the North-
land Coaches charge to International Falls.
Another sequence of incessant and detailed questioning
concerned the earlier cash-oriented transaction, when check
13188 for $2500 was held for 5 weeks as office cash until
redeposit on August 29. In this instance the passage covering
deposition volume II pages 15–24 reflected more fully the
vagaries of how this small local union of Michigan’s sparsely
populated upper peninsula operated. The Charging Party’s in-
timations and expectations did not materialize; essentially
showing the poverty of its theory that so much of LaVallee’s
manner of operating was artificial.
In general as to financial affairs LaVallee explained re-
peatedly that union trustees regularly approved his monthly
financial reports, and this explanation was not assailed in any
known manner by the deposing party in interest. Perhaps the
best instance of these validating examples concerning the
solid-seeming veracity of LaVallee’s responsiveness was
seen in his winsome concession made at deposition volume
II, page 50 that ‘‘The system we use might be kind of crude,
but we got a cash box down there, and that’s accounted for.’’
Finally, in an engaging turnaround LaVallee piqued his ques-
tioner as to an actual instance of faulted itinerary plans and
the capricious vagaries that attend on persons in busy careers
of either labor officials or law practitioners (deposition vol.
II, p. 30, LL. 3–4).
d. Privilege taking
The Charging Party’s brief at continued footnote 24, page
13, faults LaVallee for refusing to answer certain questions
regarding post-riot fund collections and disbursements on
fifth amendment grounds. I duck any attempt at an academic
exposition of whether such fundamental privilege taking may
support an inference adverse to the party exercising this con-
stitutional right. Suffice it instead that in the context and
time frame here such privilege taking done during both De-
cember depositions occurred after cautious and well articu-
lated reasons for doing so, first by Attorney Green and later
by Attorney Casselman. Considering the magnitude of the
riot episode, the various criminal charges arising therefrom,
the widely dispersed geographic origin of participants, and
the not unraveled manner of financing the large assemblage
of early hours on September 9, the caution displayed by
LaVallee’s counsel (Attorney Green distinguishing his role
specially as between private counsel and union counsel) was
not untoward. On this basis I reject any slant or intimation
741IRON WORKERS LOCAL 783 (BE&K CONSTRUCTION)
6 My crediting of LaVallee includes the point that he advised
members at their general meeting of the coming September 16 labor
rally in Minnesota and asked for a show of interest. The fact that
meeting minutes do not cover this subject is noted, but I find this
insufficient to counteract the greater likelihood.
that is being suggested for a lessening of LaVallee’s credi-
bility standing because he took the fifth.
e. Consequences of this assessment
The conglomerate effect of this credibility evaluation is
both that I accept LaVallee’s basic denial that (1) he had any
active role in chartering Dabb’s bus for September 9, (2) that
he at any time used the pseudonym ‘‘concerned persons,’’
and (3) that he funnelled any cash amounts used to defray
or bear the cost of Northland Coaches’ intended round trip
bus transportation for 36 passengers drawn primary from Re-
spondent’s craft membership. There remains however the
independent and important issue of whether total circumstan-
tial evidence supports what is alleged in the General Coun-
sel’s complaint, and that topic is treated next.
G. Discussion
Aside from it being a matter of public notoriety the Board
is specifically experienced in labor-management strategies
based on the growth of open shop construction industry con-
tractors. In J. E. Merit Constructors, 302 NLRB 301 (1991)
the Board adopted description of a construction contractor
which had ‘‘historically operated on a nonunion basis,’’ this
being background to a major AFL–CIO building trades local
union undertaking a planned ‘‘step in its ‘Fight Back Pro-
gram’ against several nonunion maintenance contractors op-
erating within its territorial jurisdiction.’’ The parallels of
this phrasing to background here is a plain instance of the
pervasive tension that spreads across this area of labor man-
agement relations, and the depth of feelings that can be en-
gendered. The subject is a long-festering one. In the mid-80s
AFL–CIO President Lane Kirkland criticized then Secretary
of Labor Donovan for meeting with officials of the Associ-
ated Builders and Contractors, ‘‘an organization of predomi-
nantly nonunion construction firms,’’ with rhetoric that
reached a quoted crescesdo of ‘‘otherwise pander[ing] to that
lousy organization of scab-herders.’’ Labor Relations Year-
book 1984, Bureau of National Affairs, p. 257.
As among voluminous contextual evidence here, a relevant
item in substance and timeliness to the issue is the collegially
addressed attachment to Bill Peterson’s memorandum dated
August 24 to ‘‘All Building Trades Councils’’ of Minnesota,
urging a large rally turnout at the State Capitol on September
16. The two-page attachment was a partisan condensation of
background to the frustrating International Falls develop-
ments, and the gave reasons that a practically treacherous
combination of political and business forces was threatening
the ‘‘prevailing wage’’ justifiably deserved by ‘‘our skilled
brothers and sisters’’ which warranted a concerted rendering
of ‘‘labor’s voice . . . about the Boise Cascade situation.’’
I use this item of documentary evidence as a point of de-
parture for discussion, because LaVallee’s version of his late
summer activities keys strongly to the message. It was this
very rally at St. Paul, Minnesota, on September 16 that he
testified was the topic of a remembered six or so telephone
calls to Northland Coaches in preliminary exploration of
whether and by what details a bus charter for his members
to St. Paul might be arranged.
In essential rejection of the contentions by the General
Counsel and the Charging Party, I hold that from all material
circumstantial evidence LaVallee had in truth explored this
project. The trail of telephone records is as supportable of
that proposition as that he was really covertly engaged in
plans to participate with other components of upper Great
Lakes organized labor in destructive rioting activity at the
man-camp, using such of his willing members as would vol-
untarily engage in this violent activity.
I have found that Dabb’s testimony is without value as to
analyzing this issue, for I specifically discredit his failure to
recall more than one contact or attempted contact running ei-
ther to or from him as regards Respondent’s office on the
rally-chartering prospects for September 16. Both ends of
such contact have a built-in vagueness to them; on
LaVallee’s part because of his great amount and diversity of
business telephoning and on Dabb’s part because his family
assisted, residence-based business leaves simply too much
random uncertainty about telephone contacts made to it or
attemptedly so. Thus I characterize the 12 recorded telephone
contacts made or attempted between Dabb’s location and
LaVallee, either at his home or office, as insufficient to con-
tribute that much of a showing toward an agent of Respond-
ent being the secretive ‘‘concerned persons.’’
A close examination of the specific days, the several times
of day, and the recorded duration of calls, suggests quite
strongly that no more than six effective calls were made as
LaVallee had credibly testified. I discount the seven 1-minute
calls of September 1 (2), September 2 and 6 (2), and Sep-
tember 7 and 8 as inconclusive telephoning attempts that did
not reach the intended callee, or that were absorbed into a
message answering machine. I do so both because of the in-
herent unlikelihood that discussion of the type intimated
would have taken place in the short 1-minute span, and more
persuasively that in each case but one of a 1-minute call (or
set of 1-minute calls) a more substantial telephone contact
shows from the records later that same day or early the fol-
lowing morning. The exception applies to the call of Sep-
tember 2 at 11 a.m., one which was not repeated until Sep-
tember 6 at 1:10 p.m. However I note that these were both
calls from the structured office setting of Respondent at Mar-
quette, and to the less structured Northland Coaches enter-
prise at a family domicile in small town Wisconsin. Further
it is seen that these calls were made on a Saturday and a
Wednesday, respectively, leaving not unimaginable that
LaVallee carried an intention to inquire of Northland Coach-
es as more time for response from his members could mate-
rialize.6
Notably there is another variable in the picture; that of
whether some person familiar with Respondent’s office, and
to its functionaries, surreptitiously used the outgoing office
number 228-6450 at some point before the bus trip. Re-
spondent’s telephone was not a fully secure instrument, as
seen from the aggregate of physical description made in Bea-
trice Anderson’s deposition, and the passage in LaVallee’s
deposition volume II, page 89 where he stated how even an
‘‘apprentice instructor’’ might have access.
I do express a troubled outlook as to the 12th and final
call from Respondent’s office, and presumably from LaValle
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
himself by his own version of what was then afoot, to the
Northland Coaches’ number. This contact, one of at least 4
minutes’ duration, was made a scant 8 hours before Dabb
was to depart from nearby (to him) Dad’s Bar, and there is
a natural temptation to believe the timing is so suspect as to
tumble down LaVallee’s ‘‘alibi.’’ I cannot however close the
circle on such an inference because of all other factors writ-
ten about above. What I see here instead is a roughly out-
lined scenario which is fully as likely as the one on which
allegations of the complaint are premised. The drum-beating
against BE&K had been loud and long over the many
months of 1989. The Quinnesec project was populated with
well-paid, fully to be employed until December ironworkers,
many of whom were working out of home Local 563 and
more concernedly associated to the International Falls prob-
lem. The recent bus trip sponsored only 10 days earlier by
locality pipefitters Local 728 could not have gone without
extensive knowledge throughout the Iron Mountain commu-
nity including the Quinnesec jobsite. These factors were all
sufficient in the aggregate to cause any manner and combina-
tion of persons to independently plan a counterpart trip, par-
ticularly where the situation at International Falls itself was
experiencing the dim but growing rumor there that some wa-
tershed event would take place at BE&K’s man-camp on
September 9.
The evidence settles into a mere state of equilibrium. It
would require pure conjecture to tip the scale, primary by as-
suming what the content of numerous telephone calls, osten-
sibly between an agent of Respondent and Northland Coach-
es, had been. There are various possibilities, if not prob-
abilities, as to such content. Thus, any conjecturing has no
solid basis in evidence to choose one likelihood over another.
It is a matter of whether to say what ‘‘could have been’’
rather than what ‘‘must have been.’’ I have insufficient basis
to say that applicable content must have covered impermis-
sible subjects, rather than that it only could have so con-
sisted.
I have also considered the upsurge in cross-telephoning be-
tween LaVallee and counterpart or interested union func-
tionaries after both the July walkout and the August 28 per-
sonnel office disturbance. While of legitimate note I do not
attach enough significance to any of this type activity as
would vary my fundamental holding. This view also includes
an appraisal of LaVallee’s July 24 letter as merely his ide-
ated response in support of the tactically doomed walkout of
union members at the International Falls project. The fact
that this letter received dissemination after being officially
squelched is not a matter of seeming significance to the
issue, and I generally view this facet of the evidence as re-
vealing more of background sentiments than of materiality to
the crucial issue of agency.
It would be naive to flatly assert that all is known about
the eventful summer of 1989. This is particularly true not-
withstanding what else I have said about LaValle’s veracity,
concerning whether or not he had some foreknowledge that
Local 783 members were about to board a bus for some
demonstration of union solidarity at International Falls based
on their collective planning. As generally commented about
before, the intimated interplay of telephone calls and
LaVallee’s interdicted letter of July 24 exemplify how sus-
picion might at least be harbored. A comparable reaction is
felt for example as to the uncommonly busy telephoning
among what the Charging Party terms ‘‘key players,’’ that is
the principal union activists in International Falls, Minnesota,
on July 26 and 27, but how can these loose ends tie up into
some coherent and compelling conclusion binding Respond-
ent? I do not believe they do, nor as applicable to LaVallee’s
telephoning the International Union on August 29 and twice
on September 8, after so few instances of this in immediately
preceding periods.
It is in the nature of things that any focus of attention can
fluctuate depending on how the world turns. If Respondent’s
focus in early summer of 1989 disclosed numerous telephone
calls to Tipp City, Ohio, and Eagle River, Wisconsin (Exh.
JX-14), why is it so intriguingly significant that later this sort
of focus swung to International Falls, Minnesota, and Aurora,
Wisconsin? I believe it is understandable to have such shift-
ing attentions, and while I have earnestly reflected on the cir-
cumstantial bases of all the evidence that has been mar-
shalled against Respondent I do not believe that it legiti-
mately requires or permits the requested inferences. The
issue of this case lent itself from the beginning to a direct
opinion as to the cumulative and potentially interconnected
significance of all circumstances arising out of the waking
hours of many people. In sum I conclude that the evidence
as a whole does not support the fundamental allegation of the
complaint.
After committing to this overall view of the pre-riot evi-
dence I turn to what both the General Counsel and the
Charging Party contend respecting post-riot happenings. Here
I believe these contentions are simply unavailing, for
LaVallee’s quick and extensive action of that following week
seems keyed only to ‘‘damage control’’ regarding the jam in
which his members found themselves. While also troubled by
a chink in LaVallee’s seemingly high veracity by failure to
recollect telephoning to Northland Coaches from his Duluth
base early in the week following the riot, I do not believe
the irregularity suffices to support a claimed unfair labor
practice. The activity was over at this point in time and a
bus chartering was simply related to how a detained group
of persons might be transported back to their Michigan loca-
tions some 400 miles distant. Furthermore Respondent has
made no secret of an early contact to Northland Coaches, for
Perry described this happening as early as the evening of
September 10. The details of this contact and its reasons as
perceived by Perry are set forth at his deposition pages 71–
74 (Exh. JX-40). Considering that Perry and LaVallee also
had immediate post-riot contact, it is not unlikely that
LaVallee was apprised of this potential for transportation and
among other things picked up on the prospect although not
now recalling having done so.
LaValle was also urgently involved early that post-riot
week with the funding of bail and legal expense money for
those he wished to assist. Here the focus of the case has
been on his motivation in obtaining the $30,000 loan; my
view is to propose that the banking practices too should be
looked at. LaVallee’s motivation was merely a part of his
post-riot undertakings, an activity I will write about below in
terms of the ‘‘condonation’’ theory faced by Respondent.
However the banking decisions also reflect somewhat on the
circumstantial import of this case, for if the bank could trust
LaVallee on the most informal of loan applications then I see
no reason why his confidence in voluntary contributions
from union members should not also eventuate. When de-
743IRON WORKERS LOCAL 783 (BE&K CONSTRUCTION)
posed by BE&K on January 4, 1990, in its civil lawsuit, Sen-
ior Bank Vice President Michael Dunn stated that he ap-
proved the $30,000 loan on a short-term basis but informally
because of ‘‘time constraints,’’ after taking into account
LaVallee’s verbal assurance that he would pledge his resi-
dence in collateral should a longer term be needed before re-
payment. This largess must have been welcomed, but is more
a reflection of the business influence wielded by LaVallee in
his home Marquette area than of sound banking practices.
Essentially $30,000 was wired off from Michigan based on
a telephone call from LaVallee in Minnesota that he needed
such an amount as a personal loan not to be accountable for
by his organization in its formal sense. The ready accommo-
dating of LaVallee was, of course, expectably justified, when
only several weeks later he made cash payment of over one-
third the total amount to Bank Operations Manager Sue
Johnson (deposed simultaneously with Dunn and others)
while making the intimation that such proceeds occurred be-
cause ‘‘they passed the hat.’’ The significance of all this to
the case is that post-riot funding was first, last, and foremost
a fraternal phenomenon among all involved in fulfillment of
tacit expectations based on shared union precepts.
Having not seen from the overall evidence the establish-
ment of an agency connection to Respondent respecting the
riot, I do not reach the General Counsel’s and the Charging
Party’s contentions respecting Respondent’s claimed instiga-
tion, planning, and participation in the riot. For this reason
I do not treat the main doctrine of agency, and also do not
reach for discussion cases such as Longshoremen Local 6
(Sunset Line & Twine Co.), 79 NLRB 1487 (1948), Plumbers
Local 195 (McCormack-Young Corp.), 233 NLRB 1087
(1977), Avis-Rent-A-Car System, 280 NLRB 580 (1986), and
Service Employees Local 87 (West Bay Maintenance), 291
NLRB 82 (1988), on which the doctrine is based. The Gen-
eral Counsel and the Charging Party however advance two
further theories in support of the complaint, one of condona-
tion and one of ‘‘mass action’’ by union members.
Respondent faces a specific contention that it condoned
the riotous conduct, by not disciplining its involved members
as empowered to do. It is not realistic to expect that Re-
spondent would impose discipline within the meaning of its
organizational authority. While not openly praising the riot-
ers’ conduct, the activity was not inimicable to trade union
objectives in the Boise Cascade dispute. In terms of the
International union’s constitution, 10 of the 11 enumerated
grounds for ‘‘charges’’ against a union member are not re-
motely relevant. Number 10 considers an offense to be any
act ‘‘likely . . . to bring discredit’’ on the union, or to
produce any ‘‘derogatory’’ result. In a realistic sense this
item is a dead letter insofar as any Local 783 member per-
haps being charged. Regardless of verbiage it would certainly
be against the spirit of the union’s constitution and its objec-
tives. Furthermore, the errant members were in the clutches
of the criminal justice system, and Respondent’s essential
role after September 9 was to deal with them as needful
strandees. I reject the condonation theory on the basis that
it does not square with typical reasons for intraunion member
discipline, and does not have a context close to the Respond-
ent’s field of geographic influence as typically so in con-
donation cases. Because I do not consider Respondent’s post-
riot acts of assistance as condonation, nor do I believe it had
standing to effect discipline within the meaning of that con-
cept in labor organization affairs, I also neither treat cases
such as East Texas Motor Freight, 262 NLRB 868 (1982),
Teamsters Local 326 (Eazor Express), 208 NLRB 666
(1974), Boilermakers Local 1 (Union Oil), 297 NLRB 524
(1989), and Meat Cutters Local 248 (Milwaukee Independent
Meat Packers), 222 NLRB 1023 (1976). All of these cases
involve picketing activity by the union members involved, a
far and distinguishable cry from even not unspontaneous de-
structive conduct by persons acting 400 miles distant outside
the jurisdiction of the labor organization being charged, and
subjecting themselves to specific criminal and civil liability
in the process.
Finally the ‘‘mass action theory of the Charging Party is
reached, but again this is merged into notions of condonation
which I hold inapplicable to the proceeding. Beyond this, and
more importantly, I do not believe the ‘‘mass action’’ doc-
trine is fundamentally applicable to this case by its nature
based uniquely on circumstantial evidence.
Food & Commercial Workers Furriers Council (Associ-
ated Fur), 280 NLRB 922 (1986), cited by the Charging
Party, is simply not in point, while Tri-State Building Trades
Council (Backman Sheet Metal), 272 NLRB 8 (1984), is a
fact-intensive case unsuitable as authority to support the de-
fined ‘‘mass action theory of liability for group action alone.
Burgreen Contracting Co., 195 NLRB 1067 (1972), was a
case of ‘‘mass picketing [around] mine property entrances’’
with union ‘‘responsibility’’ based largely on (1) presence at,
in roles of spokesman, each mine site of presidents of a
union affiliate, and (2) substantial evidence that union agents
‘‘were intimately involved in the orchestrated arrivals and
departures of the pickets at each of the five mine properties
. . . .’’ Sheet Metal Workers Local 28 (Diesel Construction),
196 NLRB 1065 (1972), involved union responsibility based
on ‘‘the inescapable inference’’ that it ‘‘approved and rati-
fied the work stoppages [and] actually participated in them.’’
Teamsters Local 85 (San Francisco Newspaper Co.), 191
NLRB 107 (1971), fundamentally turned on ‘‘signs’’ evi-
dencing union support for unlawful picketing. In Consolida-
tion Coal Co., 709 F.2d 882 (4th Cir. 1983), the court traced
origin of the ‘‘mass action’’ theory from Carbon Fuel Co.
v. UMWA, 444 U.S. 212 (1979); 500 F.2d 750 (2d Cir.
1975), and found, in its case, that ‘‘mass action’’ was
‘‘establishe[d]’’ because not only members but ‘‘all officers’’
of a defendant local union ‘‘participated in the work stop-
page.’’ I find the Burgreen, Sheet Metal Workers, Teamsters
Local 85, and Consolidation Coal Co. cases above fully dis-
tinguishable from this fact situation, and reject their applica-
bility. Even Eazor, supra, was a timid presentation of the
theory, for the passage of Eazor from the court of appeals
quoted in the Charging Party’s brief followed a reference to
the so-called mass action theory about which, without hold-
ing it as a well-defined doctrine, the court only noted that
‘‘many courts’’ had held unions responsible. See Eazor v.
Teamsters, 520 F.2d 951, 963 (3d Cir. 1975). In summary,
I reject the mass action theory as having application to this
case.
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
CONCLUSIONS OF LAW
1. BE&K Construction Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Iron Workers Local 783, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL–CIO
is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent labor organization did not engage in
unfair labor practices as alleged.
Disposition
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The complaint is dismissed in its entirety.