Local 41, Hod Carriers

National Labor Relations Board - Board Decisions

Jun 30, 1971

191 N.L.R.B. 840 (N.L.R.B. 1971)

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 41, International Hod Carriers , Building and
Common Laborers Union of America; Lake County
District Council of Carpenters , United Brotherhood
of Carpenters and Joiners of America , AFL-CIO;
and United Brotherhood of Carpenters and Joiners
of America, Local Union $599 and Howard Morris,
Inc. Cases 13-CC-706 and 13-CC-712
June 30, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On May 4, 1971, Trial Examiner Sidney Sherman
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in the unfair
labor practices alleged in the complaint and recom-
mending that the complaint be dismissed in its entirety,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief. The
Respondent filed exceptions to certain conclusions of
the Trial Examiner and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this proceeding to a three-member
panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in this proceeding, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner and hereby orders that the com-
plaint herein be, and it hereby is, dismissed in its en-
tirety.
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The initial charge in
this proceeding was served upon Respondents on November
5, 1970,' the complaint issued on December 18, and the case
was heard on February 18, 1971. The only issues litigated
were alleged violations of Section 8(b)(4)(ii)(B) of the Act.
Briefs were filed by the General Counsel and Respondents.
' All dates hereinafter are in 1970, unless it otherwise appears
Upon the entire record ,' the following findings and recom-
mendations are made:
1. JURISDICTION
The Atlantic Richfield Company, hereinafter call ARCO,
is a Pennsylvania corporation, engaged in the business of
refining and processing fuel oil and related petroleum
products. It operates an oil refinery at East Chicago, Indiana,
from which during 1970, it shipped more than $50,000 worth
of products to out-of-State points. The other employers in-
volved herein, Foster-Wheeler Corporation, hereinafter
called Wheeler, and Howard Morris, Inc., hereinafter called
Morris, also had a sufficient volume of commerce during 1970
to meet the Board's jurisdictional standards.
II THE UNION-RESPONDENTS
Local 41, International Hod Carriers, Building and Com-
mon Laborers Union of America, hereinafter called Local 41,
Lake County District Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America, hereinafter called
the District Council, and United Brotherhood of Carpenters
and Joiners of America, Local Union # 599, hereinafter
called Local 599, are labor organizations under the Act.
III. THE MERITS
The only issue raised by the pleadings is whether Respond-
ents violated Section 8(b)(ii)(B) of the Act by threatening
ARCO and Wheeler with reprisals with an object of forcing
ARCO and others to cease doing business with Morris.
A. Sequence of Events
At East Chicago, Illinois, on premises comprising about
700 acres, ARCO operates a refinery, consisting of a complex
of integrated plants, which are connected by underground
pipe lines. During 1970, ARCO was engaged in the construc-
tion of a number of new plants at those premises, including
a hydro-desulphurization unit. The contract for that unit was
awarded to Wheeler, which began construction in June. For
this purpose there was reserved to Wheeler and its subcon-
tractors an area of 10,000 square feet, enclosed by a fence.
Wheeler had a contract with Local 41 covering its laborers.
At various times during 1970, Morris performed certain la-
boring work for ARCO at the East Chicago location. Morris
had no contractual relations with Local 41 nor, so far as the
record shows, with any other union.
In July, Local 41's business agent, Trippeer, noticed that
some Howard-Morris' employees were working inside the
Wheeler enclosure and called this to the attention of Perry-
man, Wheeler's project superintendent. There was conflicting
testimony, discussed below, as to whether Trippeer on that
occasion made any coercive remark.
During the last week of October, the District Council's
business agent, Farkas, called ARCO's resident manager,
Schmidt, to complain about the employment of Morris by
ARCO and, as a result of that call, Schmidt met the next day
with Farkas and Trippeer to discuss their objections to Mor-
ris. Conflicting testimony about alleged threats uttered in the
course of the foregoing conversations will be detailed below.'
For corrections of the transcript, see the order of March 24, 1971.
Allegations of the complaint relating to two other incidents, one in July
and another in October, were dismissed at the hearing. These involved Local
41's steward, Weber, and the only evidence offered by the General Counsel
was that Weber told Perryman there would be "trouble with Howard Mor-
ris" because of the actual or assumed presence of its employees within the
Wheeler enclosure. Admittedly, there was no threat of any action directly
against Wheeler nor any specification as to what action would be taken
191 NLRB No. 143
LOCAL 41, HOD CARRIERS 841
B. Discussion
1. The July incident
Late in July, shortly after a fence had been built by ARCO
around the area reserved for Wheeler's operations, Local 41's
business agent, Trippeer, detected the presence of certain
Morris employees working in that area. According to Perry-
man, Trippeer pointed to the intruders, declared that he had
men who could do that work and that Perryman had better
get them out of the area. Trippeer's version was that he
merely apprised Perryman that the intruders were employees
of Howard Morris and he promised to take care of the matter.
Perryman impressed me as the more candid withness. Ac-
cordingly, Perryman is credited and it is found that by the
threat implicit in Trippeer's demand for removal of Morris'
employees Local 41 coerced Wheeler with an object of forcing
it to terminate the activities of such employees within the
Wheeler enclosure. The question remains whether that was
such an object as is proscribed by Section 8(b)(4)(ii)(B).
ARCO had retained Morris to do cleanup work and make
test borings throughout ARCO's East Chicago premises, in
preparation for the construction of various new facilities and
on the occasion discussed above Morris was making such
bormgs in connection with the proposed construction of a
substation by an unidentified contractor. However, from the
testimony of ARCO's resident manager of engineering,
Schmidt, it appears that there was no reason for such borings
to be made within the Wheeler enclosure and that the Morris
employees had extended their activities to that area through
some error in their calculations. Moreover, it is clear that
there was an understanding between ARCO and Wheeler
that, absent any specific instruction to the contrary from
ARCO, no work was to be done within the Wheeler enclosure
except by its employees and those of its subcontractors. It
follows that Morris' employees had no license to enter that
enclosure and were in effect trepassers there. The Board and
the courts have given a broad scope to the interdiction in
Section 8(b)(4) against the interrruption of business relations,
but I am aware of no case holding that such interdiction
applies to a situation like the present. While it is well settled
that the purpose of Congress in enacting Section 8(b)(4) was
to protect an employer from involvement in a controversy
that was not his own, Congress sought to accomplish this
purpose by forbidding the exertion against neutrals of pres-
sures aimed at the interruption only of certain defined busi-
ness relationships-namely, "using, selling, handling, trans-
porting, or otherwise dealing in the products of any other
producer, processor, or manufacturer, or ... doing business
with any other person.... "' Clearly, there was no such rela-
tionship between the neutral, Wheeler, and the primary em-
ployer, Morris. One who is rightfully occupying certain
premises is not "doing business" in any sense with one who
happens to stray thereon. It may be urged that ARCO was
doing business with Morris and the threat to Perryman was
calculated to coerce him to request ARCO to remove Morris
from Wheeler's enclosure. However, even if it be assumed
that this would constitute coercion of Wheeler to "force or
require" ARCO to remove Morris from that area, there
would still remain the question: what business relationship
between ARCO and Morris was sought to be disrupted
thereby? Morris' presence in that area was admittedly not
authorized by its contract with ARCO nor by any instruc-
tions from ARCO and, moreover, conflicted with ARCO's
avowed policy of segregating the employees of its various
contractors engaged in construction work from those who,
like Morris, were doing maintenance work.' I am unable to
perceive, therefore, how the termination of Morris' errant
activities, whether by ARCO or Wheeler, may be deemed to
fall within the proscription of 8(b)(4)(ii)(B).
It is accordingly found that Trippeer's demand for the
removal of Morris' employees from the Wheeler enclosure
was not for an object proscribed by Section 8(b)(4).6
2. The October meeting
It was agreed that late in October, Farkas, a business agent
for the District Council, called Schmidt and arranged to meet
with him the next day to discuss the continued employment
of Morris by ARCO and that the meeting was attended by
Schmidt, Farkas, Trippeer, representing Local 41, and Perry-
man, representing Wheeler.' There was considerable dispute
as to what was said on both dates.
According to Schmidt, in the foregoing telephone conver-
sation Farkas said:
I understand that Howard Morris is working in the plant
and if they continue to work we'll have to take out the
building trades.
Schmidt added that at the meeting on the 30th, Farkas again
warned that if ARCO continued to use the services of Morris,
it would be necessary to "take the building trades out"; that
Trippeer claimed that he had laborers who could do the same
work as Morris' employees; and that, when Schmidt in-
dicated that it was not feasible to use Local 41's laborers for
that work, Trippeer, likewise, threatened a strike.
Both Farkas and Trippeer denied that they uttered any of
the threats ascribed to them by Schmidt. According to Far-
kas, when he called Schmidt on October 29, he complained
only about the failure of Morris to pay the prevailing wage.
Farkas continued:
'I asked him for his help ... in getting Howard Morris to
pay the prevailing wage or help us to get the son of a
bitch out....
And, Farkas and Trippeer agreed that at the meeting the
next day all that was discussed was the $7 hourly rate for
labor being paid by ARCO to Morris, the hourly rate of $2.50
to $3 being paid by Morris to its employees,' and various
suggestions by Farkas and Trippeer that Schmidt solicit bids
against Morris. Even if the foregoing remark be deemed a threat to picket
Morris, it is well settled that notice by a union to one contractor of intent
to picket another contractor on the same job, who is a primary employer,
does not violate 8(b)(4). Leo E. Murray, Inc., 135 NLRB 329; Neil Ake, 172
NLRB No. 122
The only other object proscribed by 8(b)(4) is forcing "any other em-
ployer to recognize or bargain with" a union. However, it would seem too
farfetched to infer from Trippeer's demand that Perryman remove Howard
Morris' nonunion employees from an area where they were serving no
legitimate, business purpose of their own employer that Trippeer had any
expectation that such removal would somehow influence Howard Morris to
recognize Local 41 as the representative of its laborers Moreover, there was
no evidence that Local 41 was seeking or desired such recognition, and the
case was litigated only on the theory that Respondents' object was the
interruption of one of the business relationships quoted above from the Act.
S Schmidt cited this policy at the meeting of October 30, discussed below,
in explaining to Trippeer why it was not feasible for ARCO to assign to
Local 41's laborers on the project the work being done by Morris and, as
noted above, the Wheeler operation had been fenced in by ARCO for the
express purpose of keeping out unauthorized persons.
6 In view of this disposition of the matter there is no need to consider
whether, in making such demand, Trippeer was merely seeking to,enforce
the work preservation clause in Local 41's contract with Wheeler.
' There was conflicting testimony as to whether the foregoing telephone
call was made on October 28 or 29. As the exact date is immaterial, it will
be assumed for the purpose of this decision that the latter is the correct date
and that the ensuing meeting was held on the 30th.
3 The record indicates that the prevailing wage for labor in the area was
$5 60 per hour.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from "fair" contractors and replace Morris with such a con-
tractor if an acceptable bid was submitted.
Schmidt acknowledged that there was some discussion of
his entertaining a bid by a "union" contractor but disputed
the testimony of Farkas and Trippeer that he disclosed to
them that ARCO was paying Morris $7 per hour for labor
and that it was paying its labor $2.50 to $3 per hour. How-
ever, Schmidt admitted that ARCO was in fact paying Morris
$7 per hour and the record fails to suggest how else Farkas
and Trippeer could have learned that fact, if not from
Schmidt. Accordingly, I am inclined to credit Farkas and
Trippeer as to this aspect of their discussion with Schmidt.
As to whether Farkas and Trippeer, in addition, uttered
the threats described by Schmidt, the following considera-
tions are deemed pertinent:
Of all the witnesses who testified about the events of Octo-
ber 30, I was most favorably impressed by Perryman. Al-
though he was called by the General Counsel and was present
throughout the meeting on the 30th, he denied that he heard
any threats. The General Counsel attempted to mitigate the
damaging effect of this denial by eliciting from Perryman an
acknowledgment that he did not pay close attention to the
conversation at the meeting, because he did not consider
himself an interested party. However, he testified that he did
recall a discussion by the others of the comparative cost to
ARCO of using Morris and Union contractors and of the
relative level of union and nonunion wages and that Schmidt
had proposed that Trippeer solicit some "fair" contractors to
submit bids to ARCO. It seems improbable that if he was
sufficiently attentive to overhear these remarks, which were
of no direct concern to him, the alleged threats to pull out all
the building trades employees or all the laborers, which
threats did directly affect him, would have escaped his notice.
Accordingly, I regard his denial of overhearing any such
threats as entitled to substantial weight as evidence that such
threats were not made. -
Even more damaging to Schmidt's credibility was a written
statement admittedly prepared before trial by a Board agent,
on the basis of an interview with Schmidt on November 4.
Although he did not sign the statement, the only reason he
gave at the hearing for not doing so was that he was uncertain
about the accuracy of a negative answer he had given Farkas
when, as alleged in the statement, he called Schmidt on
November 4 and asked if Morris used any carpenters. At the
same time Schmidt insisted that he did give Farkas such an
answer. The implication of this was that the written state-
ment correctly reported his remarks to the Board agent (ex-
cept for an alleged omission discussed below) but he refused
to sign it for the curious reason that he was uncertain that the
answer which he in fact gave to Farkas was accurate. A more
likely explanation for Schmidt's refusal to affix his signature
to the statement is afforded by several apparent contradic-
tions between the statement and certain facts disclosed by the
testimony at the hearing.
Thus, although it was agreed at the hearing that on Octo-
ber 29, there was a telephone call by Farkas to Schmidt in the
course of which Farkas objected to ARCO's use of Morris'
services and that the next day there was a meeting to discuss
the matter, the foregoing statement contains no reference to
either of these events nor to any of the threats which, accord-
ing to Schmidt's testimony, were uttered on both those occa-
sions. In fact, the only reference in the foregoing statement
to any telephone call by Farkas to Schmidt regarding Morns
is to the effect that such call was made on November 4, only
hours before Schmidt's interview with the Board agent, and
that Farkas merely asked whether ARCO had been using
Morris and whether Morris employed any carpenters and
proposed a meeting to discuss Morris' status. Finally, the
foregoing account contains a categorical denial that any agent
of Local 41 had ever "contacted" Schmidt about ARCO's
"contract with Howard Morris." Schmidt 's efforts at the
hearing to reconcile the foregoing aspects of the November
4 statement with his testimony were far from convincing.
Thus, he insisted that he did in fact inform the Board agent
of the threats allegedly uttered on October 29 and 30 by
Farkas the implication being that the Board agent had ne-
glected to include that information in the statement. How-
ever, it is not believable that a Board agent investigating a
charge based on such alleged threats would be so negligent
as to omit from a pretrial statement such an important sub-
stantiation of the charge . Moreover, if there had in fact been
such a serious omission by the Board agent, it would seem
that Schmidt would have cited that as his reason for not
signing the statement , rather than the dubious reason noted
above. As for the November 4 telephone call, Schmidt in-
sisted at the hearing that there was such a conversation on
that date as was described in the statement . However, the
thrust of the statement at that point would seem to be that
the issue of Morris' role at the jobsite was raised for the first
time on November 4 and this led to a request for a meeting
about that subject, which had not yet been held . To that
extent the pretrial statement was contrary to the admitted
facts as to the events of October 29 and 30. As for the denial
in the foregoing statement that he had ever been contacted by
Local 41 about ARCO's contract with Moms, Schmidt ex-
plained rather unconvincingly that he had meant by this only
that no representative of Local 41 had ever discussed with
him the terms of that contract.
There seems to be no escape from the conclusion that at the
time of his pretrial interview Schmidt was reluctant to dis-
close to the Board agent that there had already been a meet-
ing on October 30 and what was said there and chose instead
to confuse the issue by citing a nonexistent telephone call on
November 4, proposing such a meeting .' While, this reluc-
tance may have been inspired by fear of antagonizing the
representatives of the construction crews on ARCO's project,
it is difficult, in assessing Schmidt's credibility , to ignore the
fact that whatever his motive he made misrepresentations to
a Board agent about material facts in this case. Although it
is conceivable that Schmidt later saw the light and told only
the truth at the hearing,1O one would be ill-advised under the
circumstances to give more weight to Schmidt 's testimony
than to that of witnesses , who, whatever other shortcomings
they may have had, were not impeached in the foregoing
fashion.
Finally, Schmidt 's testimonial version of the October 30
interview contains a material self-contradiction with respect
to Trippeer's alleged threat . Initially, Schmidt imputed to
Trippeer only the warning that if ARCO continued to use
Morris, Local 41 would "have to consider taking out the
laborers." However , later in describing the same incident,
Schmidt quoted Trippeer as saying:
... if you continue to use Howard Morris we will have
to take out the building trades.
' Farkas testified that he had a telephone conversation with Schmidt
about a week after October 30, but that it concerned a matter not here
relevant. Under the circumstances, I credit him.
10 Schmidt gave a later statement to a Board agent, which he signed and
which coincides in the main with his testimony at the hearing That affidavit
was rejected at the hearing but upon reconsideration I advised the parties
after the hearing that I would entertain a motion by the General Counsel
to introduce the affidavit and to reopen the hearing to adduce any other
evidence that might tend to rehabilitate Schmidt's credibility. For my ruling
on such motion, see the order of April 29, 1971.
LOCAL 41, HOD CARRIERS 843
Thus, a warning that Local 41 would consider calling a strike No violation having been found, it will be recommended
only of the laborers became an unqualified threat to take all that the complaint be dismissed.
the building trades employees off the job.
Upon consideration of all the foregoing matters, including RECOMMENDED ORDER
Perryman's denial of hearing any threats at the October 30 It is ordered that the complaint herein be, and it hereby is,
meeting and Schmidt 's aforenoted deficiencies as a witness , I dismissed in its entirety.
do not credit his testimony concerning any of the alleged
threats and credit instead the denials of Farkas and Trippeer.