Thoner Development Corp.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 1456 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers' Local Union No. 652, Laborers' Interna-
tional Union of North America, AFL-CIO (Thoner
& Birmingham Construction Corp., d/b/a Thoner
Development Corporation and d/b/a Jack A. Tho-
ner) and Sullivan and Associates. Cases 21-CB-
6201-2 and 21-CB-6201 3
September 29, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND TRUESDAI.E
On March 29, 1978, Administrative Law Judge
Roger B. Holmes issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in opposition to Respondent's exeptions.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Laborers' Local Union No.
652, Laborers' International Union of North Amer-
ica, AFL-CIO, Santa Ana, California, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge: The un-
fair labor practice charge in Case 21 CB 6201 2 and the
unfair labor practice charge in Case 21--CB-6201 3 were
both filed on August 15. 1977, by Sullivan and Associates.
The Regional Director of Region 21 of the National La-
bor Relations Board, herein called the Board, acting on
behalf of the General Counsel of the Board, issued on Sep-
tember 23, 1977. an order consolidating cases, consolidated
complaint, and notice of hearing against Laborers' Local
Union No. 652, Laborers' International Union of North
America, AFL CIO, herein called the Respondent.
The General Counsel's consolidated complaint alleges
that the Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)( )(B) and Section
8(b)(3) of the National Labor Relations Act, herein called
the Act. The Respondent filed an answer to the consoli-
dated complaint and denied the commission of the alleged
unfair labor practices.
The hearing was held before me on December 6. 1977. at
Santa Ana. California. The time for filing briefs was set for
January 10, 1978. Briefs were received from the counsel for
the General Counsel and from the attorney for the Respon-
dent. Those briefs have been read and considered.
Upon the entire record in this proceeding and based
upon my observation of the demeanor of the witnesses. I
make the following:
FIINDINGS OF FACI
1. Jt RISDI)( lION
Thoner & Birmingham Construction Corp., d/h/a Tho-
ner Development Corporation and d/b/a Jack A. Thoner.
herein called the Employer. has been at all times material
herein a general contractor engaged in the building and
construction industry in Orange County, California.
The Employer has been at all times material herein en-
gaged in the construction of an apartment complex known
as the Cabrillo Palms, which is located at 1345 Cabrillo
Park Drive in Santa Ana, California. In connection with
the Cabrillo Palms project. the Employer has purchased
and received goods, supplies, and products valued in excess
of $50,000 directly from suppliers located outside the State
of' California.
Upon the foregoing facts admitted in the pleadings, as
amended at the hearing, and upon the entire record in this
proceeding, I find that the Employer has been at all times
material herein an employer engaged in commmerce within
the meaning of Section 2(6) and (7) of the Act.
11. IHi I AB()R OR(GANIZAI()ON INV()I VEI)
It was undisputed in the pleadings that the Respondent
has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act. Accordingly.
I find that fact to be so.
III. ItiE Ail.l.;1EI) 1 NFAIR L.AB()R PRA( II( ES
A. The AIsues
The principal issues raised in this case are:
1. Whether the Respondent engaged in picketing of the
Cabrillo Palms project on or about July' 26, 1977. in order
to coerce the Employer into signing an "Interim Agree-
ment," whereby the Employer agreed to be bound by the
terms of a collective-bargaining agreement negotiated be-
tween the Respondent and certain multiemployer associ-
ations.
2. Whether the actions of the Respondent restrained or
coerced the Employer in the selection of his representatives
for the purposes of collective bargaining, or the adjustment
of grievances, where the Employer had earlier revoked the
authority of one of the multiemployer associations to bar-
gain on its behalf and had notified the Union of its desire to
bargain individually with the Union.
238 NLRB No. 203
1456
LABORER'S LOCAL UNION NO. 652
3. Whether the Respondent, as the representative of a
majority of certain employees of the Employer for the pur-
poses of collective bargaining. refused to bargain with the
Employer by coercing the Employer with regard to non-
mandatory subject of bargaining or by coercing the Em-
ployer to execute the "Interim Agreement."
4. Itf any of the conduct described above occurred,
whether the Respondent has engaged in unfair labor prac-
tices within the meaning of either Section 8(b)( I )(B) or Sec-
tion 8(b)(3) of the Act.
B. The Witinesses
In alphabetical order by their last names, the following
persons appeared as witnesses at the trial in this proceed-
ing:
David .4tkinson has been a business agent of the Respon-
dent since June 1977.
David Hcrnalnd: is the business manager of the Respon-
dent and has occupied that position since June 1975.
Richard D. Thoner is in charge of construction for the
Employer. lie is the brother of the owrner of the Employer's
business. Jack A. Thoner.
C. Credibilitv Resohlion.s
Many of the findings of fact to be made herein will be
based upon the documentary evidence which was intro-
duced by the parties at the hearing. Certain other material
facts were not in dispute. However, as in many' hearings,
there were some conflicts among the witnesses in relating
their respective versions of conversations and these past
events. Thus, it has been necessary to weigh and consider
the credibility of the witnesses and the reliability of their
testimony.
While Thoner had not previously been involved in collec-
tive-bargaining matters and was not experienced in the la-
bor relations field, he gave the impression of being a candid
and truthful witness who was relating the facts to the best
of his recollection. Whether he was testifying on direct ex-
amination or on cross-examination. Thoner was not eva-
sive, nor did he appear to be concealing the facts. He
seemed to be giving his answers without regard as to
whether his answers supported or detracted from the Em-
ployer's legal position. For these reasons, I have found Tho-
ner's testimony to be credible. and I have relied upon his
testimony throughout this decision. Although I have
weighed and considered the versions given by Atkinson and
by Hlernandez, I have based the findings of fact upon the
credited version by Thoner.
D. The Collective-Bargaining Histor)
For at least the 9 years that Richard D. Thoner has been
employed by the Employer, there have been successive col-
lective-bargaining agreements between the Employer and
the Respondent. Prior to the events which gave rise to this
proceeding, Richard Thoner had not been involved in col-
lective-bargaining matters. He had not handled industrial
relations or grievances for the Employer. In the past, he had
never participated in collective-bargaining with any union,
and he had never signed any collective-bargaining agree-
ment on behalf of the Employer.
A copy of the contract between the Respondent and the
Employer. which was in effect from May 1, 1974, to June
15, 1977, was introduced into evidence as General Coun-
sel's Exhibit 2. (See art. IX, entitled, "Term. Termination
and Renewal.") The union-recognition clause is set forth in
the preamble of the contract. but the appropriate-unit de-
scription was stated more succinctly in paragraph 5(a) of
the General C'ounsel's consolidated complaint, which alle-
gation was not disputed by the Respondent. (See G.C. Exh.
I(e) and I(f).) Accordingly, I find the appropriate bargain-
ing unit to be:
All laborers employed by the Employer. excluding ex-
ecutives, civil engineers, civil engineer helpers, master
mechanics. office clerical employees and supervisors as
defined in the Act.
With regard to the majority status of the Respondent, the
fbllowing allegations of paragraph 51b( of the consolidated
complaint were admitted:
At all times since at least July 1. 1976, and continuing
to date, Respondent has been the representative for the
purposes of collective bargaining of a majority of the
employees in the unit described in paragraph 5(a)
above, and. by virtue of Section 9(a) of the Act, has
been, and is now, the exclusive representative of all the
employees in said unit for the purposes of collective
bargaining with respect to rates of pay,. wages, hours of
employment. and other terms and conditions of em-
ployment.
On February 21, 1977, the Employer sent the following
letter to the District Council of Laborers and the Building
Industry Association of California, Inc. (See Resp. Exh. I.):
The undersigned does hereby revoke the authority of
the Building Industry Association of California, Inc. to
bargain collectively with the union above addressed on
our behalf. The undersigned will, if called upon to do
so, bargain separately with the union.
The undersigned will not be bound by any renewal or
extension of the master labor agreement currently in
effect with the union.
The findings of fact in this section have been based upon
the testimony of Thoner and documentary evidence.
E. The Correspondence in Julyv 1977
On July 18, 1977, David Hernandez, business manager of
the respondent, sent 'he following letter to the Employer
(see G.C. Exh. 3):
Negotiations with respect to the Construction Laborers
Master Labor Agreement have been concluded.
In order that we may continue doing business without
interruption and so that the workmen receive their re-
troactive wage increase checks as quickly as possible,
we have enclosed for your signature four (4) copies of
the "Interim Agreement" which will serve as our
Agreement while awaiting the printing of our new
Agreement.
1457
I)ECISIONS OF NATIONAL LABOR RE1.ATIONS BOARD
Upon receipt of your signed copy of the enclosed In-
terim. both parties shall be bound by the terms therein,
fringe benefit contributions shall be acceptable by the
Construction Laborers Trust Funds, and in order to
protect the interest of our members which are also
your employees and to comply with Federal laws.
Listed below are the first year wage and fringe benefit
increases you are to implement immediately:
Wages.: 30¢ per hour increase to all classifications, El
feetive 7/1/77
Effective
Per hour 7/1/77 Total
Increase Contribution
Vacation: -0- $ .50
Health & Welfare: 10¢ 1.05
Pension: 355¢ 2.30
Training: -0- .10
Supplemental Dues 5¢ .10
Please immediately complete and sign all four (4) cop-
ies. Retain one (I) copy for your records and return the
remaining three (3) to this office. Should you have any
questions regarding the above information. please do
not hesitate to call this office, =542 5684 or # 542
7203.
'The "Interim Agreement" provided, in pertinent part, as
follows:
either party on fifteen (15) days' written notice before
the negotiations described above are concluded.
Thereafter on the document were spaces for the date and
signature lines for the Employer, the Southern California
District Council of Laborers, and the Respondent local
union, as well as other details not significant herein. (See
i.C. Exh. 4.)
On July 22. 1977. a notice to independent contractors
was sent out on the letterhead of the Southern California
District Council of Iaborers. The first page of that 4-page
document was introduced into evidence as General ('oun-
sel's Exhibit 5. In pertinent part, it states:
NOTICE TO INDEPENDENT CONTRACTORS
Under the terms of the new Laborers' Construction
Agreement covering Eleven Southern California Coun-
ties, the following shall go into effect as set forth be-
low:
(Contractor Members of the AGC. BIA. ECA. and
SCCA have been notified of the increase under their
agreement by their respective association.)
FOREMEN: All Laborer Foremen shall be paid not
less than 60C per hour more than the hourly wage rate
of the highest classification over which they have lead-
ership.
In the event Contractor at his option elects to use a
laborer Foreman to supervise other Laborer Foremen,
he shall be paid not less than 60c per hour more than
the hourly rate of the highest classified Laborer Fore-
man over whom he has leadership.
INTERIM AGREEMENT
THIS AGREEMENT, made and entered into bv and
between the undersigned Contractor and the Southern
California District Council of ILaborers and its affili-
ated Local Unions:
(I) The undersigned Contractor acknowledges that
he is aware that the Union is presently in negotiations
with the Associated General Contractors of California.
Inc., the Building Industry Association of California,
Inc., the Engineering Contractors' Association, and the
Southern Califbrnia Contractors Association for the
negotiation of a successor to that contract commonly
known as the Southern Califbrnia Master I abor
Agreement.
(2) The undersigned Contractor agrees to be bound
by each and every term of' the Agreement ultimately
entered into between the aforesaid Associations and
the Southern California District Council of' Laborers
with the same force and effect as if' the undersigned
Contractor were a party thereto except that by the ex-
ecution hereof, the undersigned Contractor excludes
any reference to such Associations in his agreement
and substitutes his own name, and further excludes
any reference to the grievance machinery and the no-
strike clause. In the event the aforesaid Master Labor
Agreement provides for any form of retroactivity, that
agreement shall likewise be binding upon the under-
signed. This Interim Agreement may be canceled by
The I aborers' Classifications have been categorized
into five Groups.
Effective and retroactive to July 1. 1977. the follow-
ing minimum hourly Base Wage Rates shall apply:
GROUP
I
II
III
IV
V
BASE RATE
$7.95
8.10
8.30
8.45
8.60
TIhe findings of fact in this section are based upon docu-
mentary evidence.
F. The Eivents Prior to JlduI 26. 1977
By July 15, 1977. some residents had begun occupying
some of the apartments in the Cabrillo Palms. The apart-
ment complex consists of 272 units in 19 buildings. At the
times material herein, some of those buildings had been
completed and some were still under construction. Thoner
estimated that the Employer had 8 to 10 employees work-
ing as laborers on July' 25 and 26, 1977. since the project
was nearing completion.
1458
L ABORER'S L OCAI UNION NO 652
About the beginning of the third week in July 1977, his
brother. Jack TIhoner. had departed on a trip to Europe.
During the afternoon of July 25, 1977. Richard T'honer
said that he received a telephone call from his assistant
superintendent. who advised Thoner that there was going
to be a picket at the jobsite the next day. As a result of the
call. Thoner said that he tried to contact Business Manager
Hernandez by telephone. but Hernandez was not in his ot-
fice, so Thoner left a message asking I ernandez to call him.
The findings of fact in this section are based upon the
testimony given bh Thoner.
G. 7he Ewrent on July 26, 17Y'
1. 1The first conversation between Thoner and Atkinson
On July 26, 1977, Thoner drove to the C'abrillo Palms
and observed eight persons picketing. fie also saw what
appeared to Thoner to he a skirmish between Dann> Val-
dez. the Employer's ftreman, and David Atkinson. the
business agent of the Respondent. lie saw Atkinson walk
away. so he met Atkinson at his vehicle.
Thoner asked Atkinson. "What the hell is going on?"
Atkinson replied. "If you want to know anything, you'll
have to come down to the Union." At that point. Atkinson
drove away.
The foregoing findings of fact are based upon the testi-
mony of Thoner. Business Agent Atkinson's version of' that
first conversation on that date between Atkinson and Tho-
ner was not significantly different. Hlowever. Atkinson as-
serted that the reason for the picketing was the presence of
nonunion laborers on the C(abrillo Palms project.
According to Business Agent Atkinson. he had received a
telephone call from someone on the previous day that non-
union persons were working at the Employer's jobsite on
Cabrillo. Therefore, he said. he and Danny Cabera. another
agent. went to the jobsite that day and observed persons
spreading redwood shavings and putting scalloped bricks
alongside the sidewalk. In Atkinson's opinion, he believed
that task was laborer's work. He said at that time he also
believed that there was a collective-bargaining agreement in
existence between the Employer and the Respondent.
Atkinson testified that he took pictures at the jobsite. and
he also talked with the laborers involved there. Then he
returned to the Respondent's office and discussed the sub-
ject with Business Manager Hernandez. He said that they
decided to picket the project and that the picketing was
authorized by the Building Trades Council based on the
recommendation of Atkinson.
In the version related by Atkinson. the picketing of the
Employer's project began at 7:30 in the morning on July
26, 1977. That afternoon he had the first of three conversa-
tions that day with Richard Thoner. Atkinson testified on
direct examination by the attorney for the Respondent:
On the afternoon of the 26th Mr. Richard Thoner saw
me on the job site: he asked me what was going on. I
said I had a picket on the job site. He said, "Why?"
And I said, "I can't tell you here. You have to come
down to the hall and I would be more than happy to
discuss the problem with you." I said, "At this time I
cannot discuss this problem on the job site."
)uring cross-examination. Atkinson also related a con-
versation with Danns Valdez at the jobsite prior to lho-
ner's conversation. Htowever. he stated that 1honer "
didn't speak to me as far as ansthing to do with Dann,
\aldei."'' According to Atkinson, the following took place
bet een him and \aldez:
V\aldez came running up to me, "What was going on?"
And he was charging me and I put my hand up and
said "Wait a minute" and that was the extent of it.
Atkinson said that he left the jobsite after speaking with
Thoner the first time. but he returned a few, minutes later.
I have considered and weighed the version related b,
Atkinson. hut for the reasons previously stated. I have
based the findings of fact in this section upon the testimony
of' I'honer.
2. The second conversation between T1honer and
Atkinson
About 5 or 10 minutes after their first conversationn that
da. 'I honer observed Atkinson making a U-turn at the end
of the block, so he followed Atkinson and stopped him on
Wellington Street east of Padilla Park D)rie. I'honer asked
Atkinson, "Dave, what's going on'? I can't seem to get a
phone call from anybody. What's the reason for the picket-
ing."
Atkinson responded. "If',ou want to know ani thing, Sou
are going to h to to come down to the hall." TIhoner then
said, "Now, wait a minute. I need more intormation than
that. ('an't you get a hold of Mr. llernandcz aMid see it' he
will talk to me at ieast'?"' At that point. Atkinson contacted
}iernandez by radio.
Thoner testified. "lie did tell me that our compans had
not signed a new contract and that was the reason for the
picketing." On cross-examination. IThoner conceded that
Atkinson mia also have told him, "You have non-U nion
people on the job,"'' hut he said that Atkinson gave no spe-
cifics.
The foregoing findings of fact in this section are based
upon the testimony of Thoner. Atkinson said that he did
return to the jobsite a few minutes later and that Thoner
did ask him if Hernandez was in the office. Atkinson said
that he replied that he did not know. but he called on the
radio and learned that Hernandez was in the office. He said
that Thoner told him that he would go down and talk to
Hernandez. For the reasons previously stated, I have cred-
ited Thoner's testimony and based the findings of fact upon
his version.
3. The telephone conversation between Thoner and
Hernandez
Following his second conversation that day with Atkin-
son at the jobsite. Thoner returned to his office. where he
telephoned Business Manager H-ernandez.
Thoner testified on direct examination by counsel for the
General C'ounsel:
I explained to Mr. Hernandez that I was simply an
employee for my brother and I have never negotiated
any Union contracts: I am not in a position to speak
1459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for my brother in those matters; and he was in Europe
on vacation and I couldn't reach him. That I didn't
want to sign anything as a result. He indicated to me
that in order for the pickets to come down, I had to
sign an agreement.
While he was at his office. Thoner searched the Employ-
er's records and found a copy of the "Interim Agreement,"
which has been previously referred to in section D herein
and which was introduced into evidence as General Coun-
sel's Exhibit 4. He read it and discussed the document with
his brother's longtime secretary, Jerri Feeley. He also spoke
with the Employer's bookkeeper, Ruth Nuchols. Thoner
was of the opinion that the "Interim Agreement" contained
an "escape clause," that is, in his view, the Employer had
the option of canceling the agreement within 15 days.
In any event, Thoner made a copy of the "Interim Agree-
ment," and he signed it.
He said that he was unable to contact his brother at that
point in time. Later, he said that his brother had been hos-
pitalized following an accident in Europe.
The findings of fact in this section are based upon the
credited testimony of Thoner, although the version given by
Business Manager Hernandez has been considered. Accord-
ing to Business Manager Hernandez, he received a tele-
phone call about July' 26, 1977, from someone who was
with the Employer. Hernandez testified that the person told
him ". . . that they would like to sign an agreement or
something about an agreement and I said fine, they are
welcome to come in any time they wished."
Hernandez did not recall with whom he spoke on the
telephone, and he said that he did not see the person when
he came to the Respondent's office.
At that point in time, Hernandez said that he "... knew
there was some kind of dispute" between the Respondent
and the Employer, "but I didn't know the whole situation."
On both direct examination by the attorney for the Re-
spondent and on redirect examination, Hernandez was
questioned on the subject matter of the picketing as fol-
lows:
Q. Was there any discussion about whether the
pickets would be pulled if the agreement was signed or
the pickets would not be pulled if the agreement was
not signed by the company?
A. Not to my knowledge.
Q. Was there ever a time when you told anybody
from Thoner that the picketing was going to continue
unless Thoner signed an interim agreement?
A. Not to my knowledge, no.
For the reasons previously stated, I have credited the
version of Thoner, and I have based the findings of fact on
his version.
4. The third conversation between Thoner and Atkinson
Thoner next went to the Respondent's office, where he
met with Atkinson and two other persons who were not
identified.
Thoner testified on direct examination by counsel for the
General Counsel:
Q. Tell us about that meeting?
A. Well, during this meeting, when we sat down at a
table, there were numerous photographs brought out
relative to the scope of the work on the job, laborers
performing certain tasks and their contention was that
was Union work and it was my contention it was a
completed project in that portion of it and these were
merely maintenance people.
So, we probably talked ten or fifteen minutes on this
matter and it was concluded that when my brother
returned that they would discuss it more.
I also indicated to them at that time that this interim
agreement was signed by me, that I interpreted the
agreement as having an escape clause in it which upon
the return of my brother he could cancel it himself and
I merely signed my name at that time to get the job
completed.
We had people moving in and I could not afford to
have any delay on the job.
Q. Did the picketing end soon after you signed that
agreement?
A. Yes, it did, the following day.
Thoner also recalled that he had signed the "Interim
Agreement" prior to his going to the Respondent's office
that day. He estimated that he was at the Respondent's
office for about 30 minutes and that most of that conversa-
tion was regarding the scope of the laborers' work. Thoner
felt that it was appropriate for nonunion persons to perform
such tasks as furniture moving, washing blocks, et cetera,
because they were working on the portion of the project
which had been completed. During cross-examination by
the attorney for the Respondent, Thoner testified:
Q. You wanted to straighten out specifically one
problem where you had non-Union workers perform-
ing what you felt was non-laborers work; correct?
A. I wasn't entirely clear what the contention was at
that point until I got down there, at which time I was
shown the photographs and I then found out why they
were picketing.
Q. When you got to the Union hall, you found or
you learned that the reason the picket was up, the
pickets were placed at your project on the 26th, was
because you had non-Union people performing work
which the Laborer's considered their work.
A. That was their contention.
However in the field I was advised by Mr. Atkinson
that the pickets were there and Mr. Hernadez by tele-
phone, they' were there because we had not signed an
agreement, our contract had expired, we had no con-
tract and that is why the pickets.
The photographs were subsequent to that conversation.
Thoner was of the opinion that no agreement was
reached on the scope-of-the-work issue raised by the Re-
spondent and that there was to be further discussion be-
tween the parties when his brother returned from Europe.
Thoner testified on redirect examination, "That was my
feeling, there was no agreement. I really felt I was right on
1460
LABORER'S LOCAI. UNION NO. 652
the matter and it was still up for further conversation with
my brother at a later time." Thoner also recalled telling
Atkinson of his interpretation of the "Interim Agreement,"
that his brother would have 15 days after July 26, 1977, in
which to cancel the agreement. Thoner explained at the
hearing that his brother was due to be home from Europe
prior to that 15-day period.
The findings of fact in this section are based upon the
credited testimony of Thoner. However, consideration has
been given to the contrary version of that conversation as
related by Atkinson. On direct examination by the attorney
for the Respondent, Atkinson testified:
Q. Did you have another conversation with him
that day?
A. Later on in the afternoon, close to 5:00 o'clock,
Mr. Richard Thoner came to the office.
We sat down. I showed him the particular pictures
of the reason I had pickets on the job site.
I showed him various laborers at work doing what I
considered Laborers' work.
He told me at that time that this work was not part
of the original agreement and construction of the proj-
ect, he didn't think it had to be Union.
I contended it is my job, my work coverage and I
would like to have it done.
We reached an agreement that since I couldn't prove
one way or the other whether it was in the original
agreement in contracting that, as long as he kept non-
affiliated people on one side of the property and my
Union people on the other side of the property, that I
would not picket his job site, until we get it straight-
ened out at a later date with Jack Thoner.
Q. At that time he had an executed interim agree-
ment with him; is that correct?
A. He did have.
Q. He gave this to you?
A. He gave that to me.
Q. And indicated he was willing to bind the com-
pany to the new collective-bargaining agreement?
A. He said he was willing. He said it had a cancella-
tion clause in it. He figured that would take care of
itself in case he couldn't get a hold of Jack Thoner or
he came back from Europe in time to take care of the
problem, but he did sign the interim agreement.
Atkinson further testified, "I at no time asked him to
execute an agreement." He also denied that he made an
agreement with Thoner whereby the pickets would be re-
moved in exchange for Thoner's signing the "Interim
Agreement." Atkinson said that he did remove the pickets
on Wednesday morning, July 27. 1977.
For the reasons previously stated, I have based the find-
ings of fact upon the testimony given by Thoner.
H. Conclusions
While the Employer over at least the past 9 years had
been a party to successive collective-bargaining agreements
with the Respondent, the Employer made it clear by its
letter dated February 21, 1977, that it had revoked its au-
thority to a multiemployer association to bargain on behalf
of the Employer. Instead, the Employer expressed the de-
sire to bargain on an individual basis with the Respondent.
(See sec. D herein.)
Significantly, the picketing of the Cabrillo Palms by the
Respondent took place soon after a copy of the "Interim
Agreement" had been submitted to the Employer and a
"Notice to Independent Contractors" had been sent. (See
G.C. Exh. 3 dated July 18, 1977. and G.C. Exh. 5 Dated
July' 22, 1977.) The picketing lasted only 1 day, July 26,
1977, and was ended after the Employer submitted an ex-
ecuted copy of the "Interim Agreement" to the Respon-
dent. Thus, the timing of these events, when considered in
connection with the conversations among Thoner, Atkin-
son, and Hernandez, suggests that an object of the Respon-
dent's picketing of the Cabrillo Palms was to coerce the
Employer into signing the "Interim Agreement."
More important than the timing of the events, however,
are the statements made to Thoner by Atkinson and Her-
nandez. As set forth in more detail in section G, 2, herein,
Atkinson told Thoner ". . . that our company had not
signed a new contract and that was the reason for the pick-
eting." As set forth in more detail in section G, 3, herein,
Hernandez told Thoner ". . . that in order for the pickets to
come down, I had to sign an agreement."
Therefore, I conclude that the statements of the Respon-
dent's agents to Thoner reveal that the real objective of the
picketing of the Employer's apartment project was to co-
erce the Employer into signing the "Interim Agreement."
Notwithstanding the showing of the photographs to Thoner
and the discussion of the scope of the unit work, I conclude
that the true object, or the quid pro quo for removal of the
pickets, was the execution of the "Interim Agreement."
Counsel for the General Counsel persuasively argues that
the Board's Decision in Retail Clerks Union, Local 770, Re-
tail Clerks International Association, AFL-CIO (Fine's Food
Co.), 228 NLRB 1166 (1977), is applicable to this case.
While there are some differences in the facts of the two
cases, I conclude that the legal principles underlying the
Board's Decision are applicable here. See also the numer-
ous Board precedents cited by Administrative Law Judge
Russell L. Stevens at footnotes 4 through 7. Administrative
Law Judge Stevens' findings and conclusions with regard to
the 8(b)(1)(B) and 8(b)(3) violations found in Fine's Food
Co. were adopted in their entirety by the Board in that case.
I have given consideration to the Reipondent's argument
to the effect that the picketing of the Cabrillo Palms did not
interfere with the Employer's selection of a bargaining
agent, since the negotiations had already been concluded
between the Respondent and the multiemployer associ-
ations. The Respondent correctly points out that the Re-
spondent's letter dated July 18, 1977, so indicates. (See the
opening sentence of G.C. Exh. 3.) The "Interim Agree-
ment" indicates to the contrary when it states that ". .. the
Union is presently in negotiations with the Associated Gen-
eral Contractors of California, Inc .... " and in the second
paragraph when it speaks of ". . . the Agreement ultimately
entered into . . ."; "In the event the aforesaid Master Labor
Agreement provides for . . " and, finally "This Interim
Agreement may be canceled by either party on fifteen (15)
days' written notice before the negotiations described above
are concluded." (See G.C. Exh. 4 as quoted in pertinent
part in sec. E herein.)
1461
I)I( ISI()NS OF NATIONAI. I.A()OR RIEI.ATIONS BOARI)
In any event, the subsequent notice dated July 22. 1977.
speaks of"... the terms of the new l.aborers' C'onstruction
Agreement . " ('onsidering all of' the foregoing. I con-
clude that the Respondent had reached an agreement with
the multiemployer associations before the time of' the pick-
eting on July 26. 1977. Nevertheless, I conclude that this
distinguishing factor does not negate the legal conclusions
of the Fine's Fod (Co. case, where the employer therein
signed the interim agreement on August 14. 1975, and the
contract between the union and the multiemployer associ-
ation in that case was not reached until September I I. 1975.
The rationale for that conclusion is that the "Interim
Agreement" in this case clearly bound the Employer to
what the multiemployer associations had agreed to and did
not allow the Emplover to designate its own representative
for collective-hargaining negotiations with the Respondent
or to bargain separately with the Respondent. as the Em-
ployer had expressed the desire to do. In effect. the "In-
terim Agreement" here. as the one in Finc' Food ('o.. re-
sulted in "... forcing the (ompany against its will to
designate the Council as its collective-hargaining represent-
ative .... (IFrlei, Foodi C'o., 228 NL RB at 1170.)
I have also given consideration to the Respondent's argu-
ments regarding the 8(b)(3) allegations to the effect that the
Respondent did bargain with the Employer on July 26,
1977. The attorney for the Respondent states in his brief':
As a result of that discussion, it was agreed between
Richarid Thoner and David Atkinson, acting for re-
spoident, that the non-union laborers would he limited
in number and would perform only certain designated
work and the ultimate resolution of the dispute would
await the return of Jack Thoner., the president of the
corporation. 'Ihis is bargaining. Bargaining is the pro-
cess of discussion which leads to a collective bareain-
ing agreement or an agreement that no collective bar-
gaining agreement can be reached. Both sides secured
some benefit and both sides yielded something. This is
bargaining in its traditional sense and can hardly be
viewed as a retfusal to bargain.
As indic;lted above. I conclude that the position taken by
tli Respon.lcat ,sith respect to the scope of' the Laborcrs'
work was not the real objective of the picketing of the ('a-
brillo Palms on 1uib, -'. 1977. nor was the inconclusive dis-
cussion hetseel iit i Respondent and the E mployer on that
date regarding the pr sence of' nonunion laborers on the
project the precipitating reason for the Respondent to re-
move its pickets. Both sides took opposing views with re-
gard to the scope of the unit work, and the matter was not
concluded, but instead it was left open for further discus-
sion upon Jack I honer's return from Europe.
Nevertheless, the Respondent is correct in asserting that
the two parties did discuss that subject matter. However, I
conclude that the Respondent's willingness to discuss the
scope of the unit work does not negate the fact that it was
the Respondent's picketing which coerced the Employer in-
voluntarily to agree to a nonmandatory subject of bargain-
ing--the designation in effect of the multiemployer associ-
ations as the Employer's bargaining representative- and
the involuntary agreement of the lmployer to be bound to
the agreement negotiated by the multiemployer associ-
ations to which the I mploycr did not belong. See in/c"t
t ood C., tqroa.
After considering all of the tforegoing and the entire rec-
ord. I conclude that a preponderance of the evidence estah-
lishes that the Respondent has engaged in unfair labor
practices within the meaning of both Section 8( b)( I)() and
Sectionii 8(h)(3).
(C()( I l Si)NS ) I sA\w
ilpon the basis of the foregoing findings of tact and upon
the entire record in this proceeding. I make these conclu-
sions of law.
1. Ie hc emploscr is an ernployer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. I he Respondent is a labor organization within the
meaning of Section 215) of the Act.
3. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the mean-
ing of' Section 9(h) of' the ,Act:
All laborers employed hb the Emplloyer, excluding ex-
ecutis es. civil engineers. civil engineer helpers. master
mechanics. office clerical elmplohees and supervisors as
defined in the Act.
4. At all times material herein, the Respondent has been
the exclusive representative of all emplos ees of the I m-
plover in the above-described appropriate unit for the pur-
poses of collective bargaining.
5. By picketing the Cabrillo Palms project on or about
July 26. 1977. in order to coerce the I mployer into signing
the "Interim Agreement.' whereb' the Employer agreed to
be bound bv the terms of 'a collective-hargaining agreement
negotiated between the Respondent and certain multiem-
ploscr associations, to which the i mployer had not dele-
gated the atithoritx to bargain on its behalft the Respondent
has restrained and coerced the Employer in the selection of'
its representatives for the purposes of collective bargaining
or the adjustment of grievances and, thereby. the Respon-
dent has engaged in unfair labor practices within the meian-
ing of Section 8(b)( I )(B) of the Act.
e. Bv coercing the Employer to agree to a nonmandatory
subject of' bargaining, i.e.. the designation of muIltiemplover
associations as its bargaining representatives. and hb coerc-
ing thc Employer by the picketing described above to ex-
ecute the "Interim .Agreement." the Respondent has re-
fused to bargain collectively with the Employer, as the
representative of the employees of the Employer in the unit
described above. and. thereby, the Respondent has engaged
in unfair labor practices within the meaning of Section
8(bh)(3) of' the Act.
7. The ulnfair labor practices set forth above affect com-
merce awithin the meaning of Section 2(6) and (7) of the Act.
TIFr RIlm I)Y
Since I have found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(b)(I )(B) and (hb)(3) of the Act. I shall recommend to the
Board that the Respondent be ordered to cease and desist
from engaging in those unfair labor practices.
1462
I-ABORFIR'S L OC AL L NION NO( 6,2
I shall also recommend to the Board that the Respondent
take certain affirilati'se action in order to eftlectuate the
policies of the Act.
In accordance with the Board's decisiol in Jilatc's I,,od
Co.. supra at 1171. 1 shall recomnmend to the Board that the
same hroad order he imposed here as was done in that case.
which reads as follows:
In anN other manner restrainng or coercing :ine's
Food Co. or ans other employer in the selection of
their representati]ve tior the purpose of colletis e har-
gaining.
Upon the hasis of the torecoing fing ings otf fact. conclu-
sions of law, and the entire record in this proceeding. and
pursuant to the provisions of' Section 10(c ) o1 tile Act. I
hereby issue the f'ollowins:
ORDI )R
'Ihe Respondent I ahorers' I ocal [Inion No. 652. Lahor-
ers' International I nion of North Armerica. A :I ('10. it
officers. agents, and representativ es, shall:
I. ('ease anlid desist front:
(a) Restranineii or coercing I honer & Birnlinlham ('on-
struction ('orp., d ;'ha ' honeir I)evelopment ( orpor;tion
and d b/a , ack A. lhoner, in the selection of its represen-
tatives tor the purposes of' collective hargaining or the ad-
justment of grieIances.
(h) Retusing to hargain collecti:eln ith the I lrploser.
as the representative of' the emplo ees of the i mplos er in
the unit descrihed helow., hs coercing the I mplo eir to
agree to a non;lantlator! subject of hbargaiinlg. i e.. the
designation of' multienmploser associations is the I nlplo}-
er's hargaining represerntatl es, and h\ coercing the Iim-
ployer to he hound h\ the terms ofl a collective-hairiaining
agreement negotiated hetween the Respondent aincd certain
multiemployer associatiolns to ,hich the I mnplo er had not
delegated the authorits to hargain on its helhiltf.
'Ihe appropriate hargaining unit is:
All lahorers enmplo\ed h! the i mpIoser. excluding ex-
ecutises. civil engineers, ciMil engineei helpers. mnaster
mechanics. office clerical emplo'sees andl suipcrx isoi s ai
defined in the Act.
(c) Applhing. enf'rcing, or giving eff'ect the "Intemriln
Agreement" signed on Jul! 20. 1977. h\ the I Frnploer.
(d) In ainls otlhe malinner restraining or coercincg I honer
& Birmingham C(onstruction (orp.. d h a 1 holler I)e el-
opment ('orporation and d/'h'a lack A. I ho Ineir o anll
other eniployer. in tie selection of' its l'epi'escntatil\ s toir the
purpfose of collecti\e hargaini ng.
2. 'lake the foilloingg aftirnlatite action which is deeilced
to he necessars to etiectuate the policies of the Act:
(a) Upon request. hargain \with the EImploh ei its oflicers,
agents. and representativ es designated foir thai purpose.
with respect to wages. hours a nid other termns and conditions
In the cxcnt Ihal nlo creption iare filecd a pr o,ided hs Set 111241 i ti he
Board's RuIlc, llld ReguLlaltno . the tillilgs, COICtll 1 5h0-l. .ld d r[Ctlillltl"dIC
Order herein sh.ll. ah, pfoli ecd in Sec. 11(2.48X t thi e iiid',i Rtles .i1a
Regulati.mns, h do pted b het Boa rd id .sa 1ll hccOnIe 1, 1i1tdilre , 1ilg. -tll
,si,,ns, ind ()rdter .rand al ohibctlorls thereto shaldl hb decriled ic ,lcd te r A.
purposes
of emplos menl oft' its emplo !ees in the unit described aho\e
anid. it' an agreenmenl is reached. emhbds\ the term\ iin a
signed contract.
(b) Notifs the E mploer. in \vriting. that the Respondent
\ill not insist upon a nonmandator! subject ttof hargaining,
i.e.. the designatioln f r1ultieimpploeCr iss)ciations as the
I mplovser's hargaining representatives
(c) P'ost at its Santa Ana. (alifornia. offices andl meeting
places copies (of the aIttalChed lnotice marked ".\ppeldii.." "
Ihe Regional Director oft Region 21 of' the Boiard ill pi o-
vide copies of the notice to the Respondent.t A\fter the Re-
spondent's representative has signed those copies. the Re-
spondient shall post the notices immediatel\ after recei- ing
t Ihm e Responldenit shall m iintliln isuch notieces tr (t()
consecutise dass after thes h ase heen postedl in onspictl-
otul places. including all of the places w\here the Respondent
culstoiuiirils posts notices to its menihers. I he Respo)ndelnt
shall also take reasonable steps to insuret thilt the notices are
inot altered. deleced, or co\ered h! a.n% other imateri;il Juir-
ing the postilg period.
(1) I urnish to the Regional I)irector of Region 21 oit the
Board signed copies of the notices for posting hs I'honcr &i
Birnilingharn (Construtction (Corp.. c h a I honer [)cselop-
mellt ('orporation and d ih ; lack A. I'lloner. it' thie I l-
ploser is willing to do so, at the locations khere notices It)
that I nlrploser'l erilploees ;irc cULstMonIail Pstecld.
(e) 'Notit\ the Regional I)liectoi ot' Region 21. im \\rit-
inm. within 20( da\s triom the date of this O()rder. hat steps
the Respondent has taken to co,1iipl herew. ith.
Ill lt' Ct ClT IL hat tile [tarid' ()rdecr 1i o otel,.C h l i1,,l11ellntill It the
nlited Statcs ( 'urt .\1 ppca., the .ordlr in Ihe nol iuk re.lring "I'-,teJd ,
()rder ot Ihc Nailrnal Irlh Relatiors Boaird" h rdl t i thlimgcd to rIad
"Ios.teit ltrsl.mllvr t I[i 1 htd.II tgII il/ n t t tC 1illted stll t,> ( it ,-l 'I,\i e
nIoriing ini ()rder ,t the N` t.r t d I rhor ReL.t, ir ,.11> B
AP|PI N )IX
N ) ( t: I i() 11'l() I I S AN ) \1l I t Rs
PIISl 1) tit ()R13h R olfI I1
N 0tir.\ l IABoIR R}i \1I ()iNs r()IAR
An Agenct of the l :nited States (io\ernnllint
' \'\ Ix I Ni I restrain or tcoerce Thoner & Birmiig-
ham (Construction ('Corp .. h: aI honer D)eselopnlcnt
('orporation anld d1 b a lack \ I'honer. in the selec-
tion ot its repr-csenitatil\es for the purposes of' cllecti\
hargalinirg- or the atiusltilent ot' griesainces.
,: x, ll No )I ret use to hargain collecti elR\ , ith the
I nmplos er. as the representative of' the emplos ees of'
the I niploser in the unit described belos\. h. coercilng
the f nplocr to agree to a nonmandatOr\ suhjiect of
hargaining, i.e.. the designation oft multieniplocri asso-
ciatilons as the Emnploer's hargaining represeitailises,
and hs ciercing the I mploer to he hound hN the
terrims of' a collective-hargairning agreement negotiated
hetweeni our I'nion and certain multielnployer associ-
atiolls to uhich the -mniplo\er had not delegated the
;luthorits to harailn on its hehalf.
'Ihe appropriate hargaining unit is:
\1 liahorers emiploed hc the .nemplo er. excluLding
executisCes. cis il engineers. chiil engineer helpers.
1463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
master mechanics, office clerical employees, and su-
pervisors as defined in the Act.
WE WILL NOT apply, enforce, or give effect to the
"Interim Agreement" signed on July 26, 1977, by the
Employer.
WE WILL NOT in any other manner restrain or coerce
Thoner & Birmingham Construction Corp., d/b/a
Thoner Development Corporation and d/b/a Jack A.
Thoner, or any other employer, in the selection of its
representatives for the purpose of collective bargain-
ing.
WE WIlL bargain, upon request, with the Employer,
its officers, agents, and representatives designated for
that purpose, with respect to wages, hours, and other
terms and conditions of employment of its employees
in the unit described above and, if an agreement is
reached, embody the terms in a signed contract.
WE WILL notify the Employer, in writing, that our
Union will not insist upon a nonmandatory subject of
bargaining, i.e., the designation of multiemployer asso-
ciations as the Employer's bargaining representative.
LABORERS' LOCAL UNION No. 652, LABORERS' IN-
TERNATIONAL UNION OF NORTH AMERICA, AFL-
CIO
1464