Local 695, Laborers

National Labor Relations Board - Board Decisions

Mar 6, 1974

209 N.L.R.B. 410 (N.L.R.B. 1974)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 695, Laborers International Union of North
America, AFL-CIO and Mautz & Oren, Inc. Case
14-CC-876
March 6. 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 19, 1973, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions' of the Administrative Law Judge
and to adopt his recommended Order.
FINDINGS OF FACT
1. THE BUSINESS OF FHE EMPLOYERS AND THE LABOR
ORGANIZATION INVOLVED
Mautz & Oren, Inc., the charging party, is a Delaware
corporation engaged in general construction work, with its
principal office in Effingham, Illinois, and another office in
the State of Indiana. It received products valued in excess
of $50,000 during the past calendar year from points
outside the State of Illinois. Martin's IGA, an Illinois
corporation, is engaged in the retail sale of groceries,
meats, and related products. During the past year, it too
received products valued in excess of $50,000 from points
outside the State of Illinois. Martin's IGA also sold at retail
products valued in excess of $50,000 during that period. I
find that both Mautz & Oren, Inc., and Martin's IGA are
employers engaged in commerce within the meaning of
Section 8(b)(4) and Section 2(6) and (7) of the Act.
Respondent Union, Local No. 695, Laborers International
Union of North America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
i In adopting the Administrative Law Judge 's Decision we need not
place reliance upon his finding that Larimer 's alleged threat to picket was.
in any event, so minimal and isolated as not to rise to a violation of the Act"
because we agree with his further findings that it did not amount to a threat
and was not directed at Martin. (See third full paragraph of see II. B of
ALJD entitled "Discussion.")
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Effingham, Illinois, on October 2, 1973, based
on charges filed August 16, 1973, and a complaint issued
September 7, 1973, alleging that Respondent violated
Section 8(b)(4)(ii)(B) of the Act. Respondent denies any
violations of the Act. The General Counsel and Respon-
dent have filed briefs.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
i One Paul Shadwell , apparently a union member, overheard the call
from Larimer to Martin
Mautz & Oren was engaged by Clyde Martin, president
of Martin's IGA, and also mayor of Effingham, Illinois, to
construct a new supermarket for Martin, adjacent to his
old store. Respondent had futilely attempted to get Mautz
& Oren to sign a contract with it, and hire its laborers for
the job. Thereafter, Respondent Union, by its business
representative, William J. Larimer, sought to enlist Mayor
Martin's support in getting Mautz & Oren to hire laborers.
As there is no question but that Mautz & Oren was a
"primary," and Martin's IGA a "secondary." employer as
those terms are used in "secondary boycott" cases, the only
issue is whether Larimer's conduct and statements in his
conversations with Mayor Martin constituted "threats"
within the meaning of Section 8(b)(4)(ii)(B).
The testimony concerning these conversations, almost all
of it from Larimer and Martini is not in any substantial
disagreement. In essence, Martin testified that some time
in July, a group of Respondent's agents, including Larimer,
called on him at his office in the city hall of Effingham to
"sell their services," apparently in connection with two city
buildings to be constructed, as well as Martin's own store.
Nothing said in this conversation is alleged to have been in
violation of the Act. Shortly before August 9, Martin spoke
with Larimer on the phone. Larimer told Martin that
William (Tom) Arnold, Mautz & Oren's secretary-treasur-
er, did not want to employ any laborers. Martin said to
Larimer, "I thought we had that outlined before we come
to this because we went to the AFL-CIO Union with
209 NLRB No. 72
LOCAL 695, LABORERS
Mautz & Oren before and we didn't have any problems
and I didn't think we would have any problems this time."
Larimer then responded , "I don't want to cause any
trouble but we're not getting along." That, according to
Martin, "was about the gist of that conversation."
A few days after August 9. which was the day the
construction of the new store began, Lanmer came to
Martin's city hall office, and said, "Clyde, now, Tom
Arnold has not employed one man yet . . . There's going
to be trouble." Martin responded, "Bill I don't want any
trouble, I thought I employed the right people to do the
work, we had no trouble with them before and I just felt
like we would have no trouble again. Bill, I don't want any
trouble, I don't want any picket line." Lanmer replied, "I
don't want to either but there may have to be one."
A few days later, Larimer, while shopping with his wife
at Martin's store, met Martin in the aisle . Larimer said that
Arnold ". . . has not employed one of my laborers. Martin
said "I don't want any problems, I don't want any picket
line," and Larimer responded "1 don't either but there may
have to be." Martin told Larimer that he would go talk to
Arnold. Martin emphasized that it was he, and not
Larimer, who used the word "picket," that Larimer never
used that word. Martin agreed that Larimer's attitude
during the telephone conversation reported above was that
of a "peaceful and law-abiding citizen," and that the
conversation was "congenial and friendly in nature
consisting of a continuation of the events that took place at
City Hall." 2
Larimer's testimony did not, as noted above, differ from
Martin's in any substantial manner. Larimer placed the
first contact with Martin (other than the group of union
agents visiting Martin to "sell their services ,") as August 9,
the day of groundbreaking at Martin's store. The following
conversation ensued, according to Lanmer, after he met
Martin in the aisle of the store. Martin invited Larimer to
go to the back of the store where the groundbreaking was
to take place; Larimer replied that he had "better not go
because I figured Tom Arnold would file charges against
me." Martin said "Well, I thought that Tom was all right.
They built the other store and I figured he was 100 percent
Union." Larimer replied "No, we are having a problem of
getting our contract negotiated," and Martin said, "Well, I
don't have to give him the contract. I will talk to him and
see what 1 can get done." Larimer commented that "If you
could that would be fine with me. The least trouble we
would have and the less trouble we get involved in the
better I like it" Martin said he would talk to Arnold, and
that he thought he could "work it out." The meeting
concluded with Larimer telling Martin that he would call
Carl Moore, the Union's "district man," that he was
waiting on word from Moore as to what to do, and that
"whatever the order is from the district or the international
I will talk to you about it before I do anything. It doesn't
make any difference what it is, negotiations or anything,
I'll talk to you first." This last portion of Larimer's part of
the conversation was in response to Martin saying he did
not want picketing or trouble.
411
About 4 or 5 days later, Lanmer called Martin to ask
him what he had accomplished- Martin said he talked to
the architect, and perhaps also to Arnold, and was told it
was not his business, and added that he was "going to talk
to them some more and see if I can get the thing
straightened out."
A final conversation with Martin occurred just after
Mautz & Oren filed the charges in this case, on August 16,
with Larimer visiting Martin at city hall. Larimer showed
Martin the charges, and asked Martin whether he agreed to
what was said in them . Martin replied "I don't agree to all
of it. All we talked about was in good faith." Larimer said
"There wasn't a word of `picket' ever mentioned," and
Martin answered "No threat."
The complaint, as amended at the hearing , alleges that
there were three occasions on which "threats" were made,
the first about August 1 in a telephone call, the second (the
amendment made at the hearing) about August 6 at the
mayor's office, and the third about August 8 at Martin's
store . Martin's testimony , as noted above , places the first
incident, the telephone call, a few days before the August 9
groundbreaking, the second, at city hall, about August 16,
and the third, at Martin's store, about August 13 or 14.
Larimer places the first incident as occurring at the store,
on groundbreaking day, August 9, the second , a telephone
conversation, 4 or 5 days later, about August 13 or 14, and
the third, at the council room of Effingham city hall,
shortly after the charges were filed on August 16, 1973.
Both with respect to the dates and the other minor
discrepancies mentioned below , there is ito question in my
mind but that both Martin and Lanmer were giving their
best recollection of what occurred , and when, with no
attempt to dissemble or color matters. Because of the
surrounding circumstances testified to by Larimer of the
meeting at the store , and because of the tie -in with the
charges as to the city hall meeting, I am inclined to believe
that Larimer's recollection was somewhat more accurate
than Martin's. For this reason , I am also inclined to resolve
the minor discrepancies toward Lanmer 's version, al-
though, as I shall note, the result of this case would be the
same were I to find the facts precisely as testified to by
Martin.
B. Discussion
As stated, the only issue in this case is whether in the
three short "friendly" and "congenial" conversations
between Union agent Larimer and neutral employer
Martin , the former threatened the latter within the
meaning of Section 8(b)(4)(ii)(B). The words "trouble,"
"problem," and "picket" were all used to varying degrees
during the three conversations , but whether , in their usage
and context, they sustain the General Counsel's positions
that threats were made cannot be resolved by the use of the
words alone.
I have accepted Larimer's version of what was said and
when it was said as more accurately representing what
actually occurred, except as noted below. At the first
2 Referring, obviously , to the Union 's attempt to "sell their product" late
in July
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation, occurring August 9 at Martin's store, the
critical portion of the conversation has Larimer telling
Martin that it was "fine with me" for Martin to talk to
Arnold because "The least trouble we would have and the
less trouble we get involved in the better I like it," followed
by Larimer saying that whatever Carl Moore told him to
do was, essentially, what he would have to do. I cannot
conclude that the use of the word "trouble" by Larimer in
this context was intended as, or construed by Martin as, a
threat of trouble for Martin, who had already agreed to use
his influence with Arnold to attempt to have Mautz &
Oren use laborers on the job. Nor can I conclude that
Lanmer's remark that he would consult Moore and do
whatever he was told to do constitutes a threat. The use of
the word "trouble," in my opinion, clearly referred to
trouble with Mautz & Oren, not to a prediction or threat of
trouble with Martin, and similarly there is no reason to
conclude that following the orders of Moore connoted a
threat of some adverse action against Martin. Starting, as
we must, with the proposition that the General Counsel has
the burden of proving a violation of the Act, and taking
into account that Martin himself testified as to the
"congenial" and "friendly" nature of this and the other
conversations between him and Larimer, to infer that other
union officials might order action directly against Martin,
and that this was the message either that Lanmer intended
Martin to get or inherent in the words used would stretch
speculation to the breaking point.
The alleged threat to picket, in my opinion, did not
amount to a threat, was not directed at Martin (or Martin's
store under construction), and was, in any event, so
minimal and isolated as not to rise to the level of a
violation of the Act. Martin specifically testified that he,
not Lanmer, first used the word "picket" in their
conversation.3 He said, in essence , that he did not want
any problems, or any picket line, and Lanmer responded
that he didn't either, but "there may have to be."4 As with
the word "trouble," there is nothing to suggest that
Lanmer had in mind, intended Martin to think, or that
Martin did think, that any such picketing would be other
than lawful primary picketing against Mautz & Oren.
Indeed, in the light of the friendly and congenial nature of
the conversation between Lanmer and Martin, and the fact
that there was never any actual picketing against which to
test the alleged threat, the latter conclusion, that Larimer
had in mind at most lawfully picketing Mautz & Oren, and
that Martin would so construe Larimer's response, is the
more probable inference. Considering also that what
Larimer said was in response to Martin's statement, so that
Lanmer did not himself bring up or even mention the word
picket, and the isolated and minimal nature of the so-called
threat to picket, I find that the General Counsel has failed
to prove a violation of Section 8(b)(4)(ii)(B) in this respect.
As I stated above , were I to accept Martin 's version of
the conversations as completely accurate, I would not
come to a different conclusion . As to the threat to picket, I
have already accepted Martin 's version of what was said,
but have concluded that it was only said on one occasion.
The same response by Larimer to the same remark by
Martin on two , rather than one, occasions , would remove
only the above-stated reason that the statement was
isolated , but would not affect my principal reasons for
concluding that there was not any unlawful threat to picket
proven by the General Counsel.
As to the threat of "trouble ," accepting Martin's version
would have Lanmer , as the first to use the word, rather
than using it in an "I don ' t want trouble either" manner, as
Larimer testified . Again , this would not suffice , in all the
other circumstances , and for the reasons set forth above, to
alter my conclusion that the General Counsel did not
prove that "trouble" for Martin was intended by Lanmer,
or implied by Martin. See, e .g., Construction, Building
Material and Miscellaneous Drivers Local Union No. 83,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Inc. (Marshall & Haas),
133 NLRB 1144,1145-46.
The many cases cited by the General Counsel to support
nis position are largely inapposite , the bulk involving
actual picketing , and others direct threats to a neutral
accompanying specific cease -doing-business demands. The
only two cases cited that are at all "in the ballpark," are
International Brotherhood of Electrical Workers, Local No. 5
AFL-CIO (Jonel Construction Co., Inc.), 164 NLRB 455,
and Lafayette Building and Construction Trades Council
(Southern Construction Corporation ), 132 NLRB 673. In the
former , the Board affirmed a Trial Examiner's conclusion
that a Union violated Section 8(b)(4)(ii)(B ) by threatening
a neutral with "trouble." There, however , the threat was for
the direct and specific purpose of causing the neutral to
cease doing business with the primary employer , and was
followed by unlawful picketing when the neutral , a general
contractor, did award the subcontract to the "bad"
subcontractor. In the latter, the threat of trouble on which
the violation was based was also specifically directed at a
general contractor because of a specific "bad" subcontrac-
tor and was also followed by unlawful picketing. Further-
more , in both these cases , the facts show an affirmative
and direct statement that there would be trouble for the
neutral, rather than the indirect and ambiguous type of
language , the friendly and congenial setting , and the fact
that the language constituting the alleged threats was
largely in response to statements by Martin, the "neutral."
For all these reasons , I find that the General Counsel has
failed to prove that Respondent Union violated Section
8(b)(4)(ii)(B) of the Act.
3 Martin testified to the use of the word on two separate occasions , ° i accept Martin's version of Larimer's response in this connection, as
describing them in virtually identical language I am satisfied , and find , that Larimer was rather imprecise in his recollection of what he said, or exactly
only in the August 9 conversation at Martin' s store was the word used what Martin said, although agreeing, on cross-examination , that Martin
said something about not wanting any picketing or any trouble
LOCAL 695, LABORERS
CONCLUSION OF LAW
The evidence does not establish that Respondent
engaged in the unfair labor practices alleged in the
complaint.
413
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
5 In the event no exceptions are filed as provided by Sec. 102 46 of the 102 48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings , its findings. conclusions and order, and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec deemed waived for all purposes