Portland Dist. Council of Carpenters

National Labor Relations Board - Board Decisions

Sep 24, 1969

178 N.L.R.B. 599 (N.L.R.B. 1969)

PORTLAND DIST. COUNCIL OF CARPENTERS 599
Portland District Council of Carpenters , AFL-CIO
and Cascade Employers Association, Inc.
Building and Construction Trades Council of
Portland and Vicinity , AFL-CIO and Cascade
Employers Association, Inc.
Building and Construction Trades Council of
Portland and Vicinity, AFL-CIO and Cascade
Employers Association , Inc. Cases 36-CC-250,
36-CC-250-2, and 36-CC-252
September 24, 1969
DECISION AND ORDER
BY CHAIRMAN MCCUI.LOCH AND MEMBERS
FANNING AND JENKINS
On May 22. 1969, Trial Examiner George H.
O'Brien issued his Decision in the above-entitled
cases. finding that the Respondent had not engaged
in certain unfair labor practices within the meaning
of the National Labor Relations Act, as amended,
and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Charging Party
filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire
record in these cases, and hereby adopts the
findings,' conclusions. and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint he, and it hereby
'These findings and conclusions are based in part on credibility
determinations by the Trial Examiner, to which the Charging Party has
excepted It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless a clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect We find no such basis for disturbing the Trial Examiner's
credibility findings in this case Standard Drt. Wall Produciv Inc . 91
NLRB 544, enfd 188 F 2d 362 (C A 3) However, we disagree with one cf
the Trial Examiner's findings, i e , that Ron Savage, partner in Die-Crane
of Oregon, initially claimed that he spoke with Earl Kirkland of the
Building and Trades Council only three times and later contradicted
himself The record reveals that although on d,cect examination. Savage
discussed three telephone conversations he had with Kirkland, he wa, not
asked then nor did he contend that these were the only times they had
spoken to one another This error does not require modification of the
Trial Examiner's other findings
is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATFMENT OF THE CASE
GI.ORGE H. O'BRIEN.Trial Examiner:'On April 2 and 3,
1969. a hearing was held in the above entitled matters in
Portland, Oregon, at which all parties appeared and
participated. The Amended Consolidated Complaint
issued February 20, 1969, alleges in material substance
that Building and Construction Trades Council of
Portland and Vicinity, herein called Council, at the behest
of Portland District Council of Carpenters, herein called
Carpenters, did from December 24. 1968, through January
2. 1969, picket the Larch Place Apartment Construction
Project of Niedo Investment Company, causing carpenter.,
employed by Nfedo to cease work, and did on January 2
threaten Niedo with a further work stoppage if Niedo
co-itinued to do business with a nonunion carpet supplier
and carpet layer, that an object of the picketing and the
threat was to force or require Niedo to cease doing
business with two individuals. Frank Nata and George
Burns, and that Carpenters and Council thereby violated
Section 8(b)(4)(i)(n)(B) of the Act.
The Consolidated Complaint further alleges that
Council, through its Executive Secretary, Earl B.
Kirkland. on January 30, 1969, and on February 4. 1969,
threatened Ditz-Crane of Oregon Inc. with picketing to
lorec Ditz-Crane to cease doing business with Jack L.
Largent, it nonunion drywall and roofing contractor, and
that Council thereby violated Section 8(b)(4)(ii)(B) of the
Act
Respondents deny the commission of any unfair labor
practice. They assert that the picketing of Larch Place
Apartments had the sole object of persuading Niedo to
recognize and bargain with Carpenters and Council as the
representatite of Niedo's employees. Respondents deny
that the picketing had any other object, deny that any
agent of either Respondent made any threat to any person
and deny that Kirkland had any conimunication whatever
with any representative of Ditz-Crane '
Upon the entire record in the case. including my
observation of the witnesses, and after due consideration
of the oral argument of counsel for Respondents. and of
the briefs filed by counsel for the General Counsel and by
the representative of the charging party, I make the
following:
FINDINGS OF FACT
I. JURiSDIC'f ION
The complaint alleges and Respondents admit.
3 b. During the calendar year 1968, Bcnwalt and its
successor Niedo purchased in excess of $50,000 worth
of goods and materials either directly from outside the
State of Oregon or from suppliers who in turn
purchased them directly from outside the State of
Oregon, which goods and materials were used in the
'rhe allegations of unfair labor practices involving Nicdo are based upon
charges in Cases 36-CC-250 and 250-2 filed respectively, on December 26
and 30, 1908 A consolidated complaint issued February s, 1969, based
upon amended charges filed the same date The allegations of unfair labor
practices involving Ditz-Crane are based upon a charge in 36-CC-252 flea
February 6 1969 and amended February 20, 1969 A motion by
Respondents ' counsel to sever the Ditr-Crane case from the Niedo cases
made alter all parties had rested, was denied as untimely
178 NLRBNo.94
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Larch Place Apartment construction project.
6.b During the past year , Largent , in the course and
conduct of its said business , purchased and received
goods, supplies and materials , shipped to it at Salem.
Oregon , from outside the State of Oregon valued at
more than S50,000
I find that Niedo and Largent are employers engaged in
commerce and in business affecting commerce within the
meaning of Section 2(6) and (7) of the Act, and that it
will effectuate the purposes of the Act for the Board to
assert jurisdiction in Cases 36 -CC-250 and 250-2 on the
basis of the business of "secondary employers at the
location affected " and in 36-CC -252 on the basis of the
"entire business of the primary employer." Local Union
No. 299 Sheetmetal Workers International Association
(S. M Kisner and Sons ), 131 NLRB 1196; Madison
Building & Construction Trades Council (H. & K
Lathing Co .). 134 NLRB 517
IT. THE LABOR ORGANIZATIONS INVOLVED
Respondent , Portland District Council of Carpenters,
herein called Carpenters ; respondent, Building and
Construction Trades Council of Portland and Vicinity,
herein called Council : and Carpet and Linoleum Lavers
Union Local 1236, herein called Carpet Layers, are labor
organizations within the meaning of Section 2(5) of the
Act.
III. THE ALLhGFD UNFAIR LABOR PRACTICES IN THE
NILDO CASES
A. The Issues and Arguments of Counsel
The issues are (1) whether an object of Respondents'
picketing was to force or require Niedo to cease doing
business with Nata and Burns, (2) whether any statement
made by Earl Kirkland to Margaret Dowsley on January
2, 1969, constituted a threat to, or coercion or restraint of
Niedo and (3) whether Kirkland's failure to specifically
exclude Nata and Burns from the coverage of the
subcontracting provisions in the agreements which he
tendered to Dowsley is a per se violation of Section
8(b)(4)(ii)(B) of the Act.
The General Counsel argues that Dowsley's testimony
establishes that she was forced to sign a contract with a
subcontracting clause by threats of continued and renewed
picketing and that Kirkland threatened to shut the job
down if Niedo continued to permit Nata and Burns to
work on the project, and that the following facts
demonstrate that Council's picketing was for a proscribed
object: (1) Carpenters employed by Niedo continued to
work during legal picketing by Carpet Layers, (2) Both
Carpet Layers and Carpenters are affiliates of Council, (3)
Carpenters' agent, when he called at the project was
accompanied by Carpet Layers' agent, and (4) The banner
worn by Council's picket did not identity Niedo.'
Counsel for Respondent argues that Dowsley's
testimony, where contradicted by Kirkland is unworthy of
credit, that rather than being forced to sign Council's
standard agreement, she was anxious to sign, that she
raised no question about the content of the agreement,
and that there is no credible evidence in this record of any
connection between the Carpenters dispute with Niedo and
the Carpet Lavers dispute with Nada and Burns. He
'I find that the name "Niedo Investment Company" did appear on
Council 's picket banner
asserts that the complaint should be dismissed for failure
of proof of proscribed object.
B. Sequence of Events
In 1967 Walter Niedermeyer and Ben Niedermeyer, a
partnership doing business as Benwalt Construction
Company commenced the construction of Larch Place
Apartments in Beaverton, Oregon. On September 1, 1968,
Ben Niedermeyer bought out his partner, and continued
with the Larch Place Apartments Project. doing business
under the name of Niedo Investment Company. From the
inception of the project William D. Wells, a member in
good standing of the Carpenters Union, was
superintendent with authority over carpenters and laborers
employed successively by Benwalt and by Niedo and over
most of the subcontractors. The office work was handled
in Portland by Margaret Dowsley, Secretary to Ben
Niedermeyer.
The carpeting for the Larch Place Apartments was
purchased from Frank P. Nata, who with his wife do
business under the name of Frank's Carpets. under an
oral agreement. Nata, in turn, subcontracted the carpet
laying to George Burns d/b/a Advance Carpet, also under
an oral agreement. There were three entrances to the
project. At one of these entrances a sign was placed which
bore the text "For Frank's Carpets, Their Employees and
Subcontractors". There was no sign at either of the other
entrances to the project.
On several occasions prior to mid-December 1968 Nata
was approached by Joe Snedecker, a business agent of
Carpet Layers. About 2:30 p in. on Tuesday, December
17, while Nata was laying carpet, a picket appeared
bearing the sign, "Frank's Carpets Observes Sub-Standard
Wages and Other Working Conditions. Carpet and
Linoleum Lavers Local 1236". The picket did not parade
but remained adjacent to the entrance designated for
Frank's Carpets. There was no cessation of work by any
employee
On Wednesday, December 18, Dan J. Fraser, a
business representative of Carpenters went to the project
with Mr. Snedecker. Fraser inspected the cards of four
carpenters then working and ascertained that all were
members in good standing of the Carpenters Union.
Superintendent Wells asked Fraser if he and his men, all
of whom were directly employed by Niedo, should
continue to work behind the Carpet Lavers picket and
Fraser replied that they should keep on working. Fraser
told Wells that Niedo did not have a union contract, (this
was news to Wells) that he would try to get hold of Ben
Niedermever to get him to sign a contract, and that if the
Carpenters could not get a deal with Niedermever they
would have to put up a picket. Wells phoned Dowsley,
told her of Fraser's call and asked if Niedo had a working
agreement with Carpenter's Union. Dowsley replied that
"at that time they did not." Wells then told her that
Fraser was trying to get hold of Ben Niedermeyer to get
an agreement from him.
On December 20, 1968, Earl B. Kirkland, Executive
Secretary of Council at the request of Mr. Webber,'
Executive Secretary of Carpenters addressed the following
letter to Ben Niedermeyer:
Please be advised we represent a majority of your
construction employees at your project on S. W.
Spencer Street in Beaverton, Oregon.
'Deceased prior to date of hearing herein
PORTLAND DIS'I COUNCIL OF CARPENTERS 601
We desire to meet with you immediately and enter
into bargaining. Please let me know immediately when
we can meet.
In the event that we fail to hear from you at once we
shall take such action as is necessary to protect our
legal interests
Under date of December 21, Mrs. Dowsley replied
I am sorry that Mr. Niedermcyer is again in the
Providence Hospital. and has recently been transferred
from the Coronary Care Unit to a private room
You can see it is impossible for him to meet with
you However, it seems to me that the difficulty
occasioned, as I understand it from out superintendent,
is not with any complaint with our men. but. rather,
with some other union of carpet layers, over which we
have no control, and with whom we have a firm legal
contract between them and ourselves which they must
execute.
It appears as though you are directing your
complaint to Mr. Niedermeyer whereas it should be
directed to some other party. Not one man in our
employ has voiced a complaint or grievance.
The letter was signed "N[EDO INVEST MENT CO.,
M. Dowsley, Manager" and copies were sent to the
Officer in Charge of the Portland Office of the National
Labor Relations Board and to M r Well
On every working day from December 18 through
Monday, December 23 the Carpet Layers picket remained
adjacent to the Frank's Carpets entrance, and the union
carpenters continued to work.
On Monday December 23 Fraser informed Wells by
telephone that there would be a picket the next day. Wells
passed the word to his men and told them they should
exercise their discretion. When Wells reported at the
project at 7:30 a in. on Tuesday. December 24 he observed
a picket, patrolling the entire length of the project wearing
an apron banner with the legend.
"Unfair, This Contractor Does Not Observe Union
Conditions and Wages, Building Trades Council,
A.F.L."4
Only one of the four carpenters reported for work, and he
left as soon as he observed the picket.
On Thursday, December 26 the original charge in Case
36-CC-250 was filed, naming "Portland District Council
-)I Carpenters" as the "Labor organization against which
charge is brought", naming "Advance Carpet Co. and
Niedo Investment Co. of Vancouver and Beaverton,
Oregon" under "Name of Employer" and naming
"Cascade Employers Association Inc. for the above noted
firms,"5 under "Full Name of Party Filing Charge". The
Charge alleged that Dan 1- raser "did threaten, coerce and
remove members of Carpenters from the job site of Niedo
Investment Co. at 355 S.W. Spencer, Beaverton, Oregon,
to force Niedo to cease doing business with Advance
Carpet Co.. of Vancouver. Washington. That this same
union representative did perform the same threats on or
about October 22, 1968 and again about December 18.
1968."
'My findings as to the words on tht, picket banner are based on the
testimony of Wells and Kirkland Welts' original notes had been destroyed
and he had no recollection as to whether or not Niedo's name appeared
Kirkland testified that when the apron banner left his office it had stapled
to it a plce.c of venal cloth bearing the words, "Niedo Investment
Company."
'The words "for the above noted firms" do not appear in the amended
charge filed February 4, 1969 The original and the amended charge were
both signed by Pat Blair
On some date between December 24 and January 2,
Mrs. Dowsley spoke to Ben Niedermeyer and received
instructions "to keep the men working."
On January 2 about 1:15 p.m. Kirkland and Dowsley
met in Kirkland's office. There they signed a short form
Building Trades Council Agreement and a separate
"Letter of Understanding". The Building Trades picket
was removed that evening, and Niedo's carpenters
returned to work on January 3
On January 24. 1969, Ben Niedermeyer signed an
application for membership in Cascade Employers
Association Inc , of Salem, Oregon. which contained the
statement* "It is my understanding that we may ask the
Association to represent us in all matters concerning labor
relations On February 11, 1969, Ben Niedermeyer
dispatched the following letter to Mr Kirkland'
This is to advise you that Mrs. Dowsley under no
condition had authority to enter into any contract with
your union or any other union.
Therefore, we have forwarded this date our check in
the sum of $ .. under protest, with the provision that it
is being forwarded for refund should we prevail at the
hearing or legal action which transpires as a result of
her illicit signing of a contract at your insistence
C The Meeting in Kirkland 's Office January 2. 1969
1. The testimony of Margaret Dowsley
On direct examination Dowsley testified that on
December 27 or 28 she received a telephone call from Mr
Kirkland who "said that we didn't have a contract with
the Carpenter's Union, and he wanted us to sign a
contract and he wanted to bargain with us." Dowsley
replied that she was not in a position to bargain and that
it wasn't her job to handle matters like that, but agreed,
nevertheless. to meet with Kirkland in his office at I p.m.
on Thursday, January 2. In answer to questions by the
General Counsel as to what transpired at this meeting,
Mrs Dowsley testilied:
Well, Mr. Kirkland said it was necessary for its to
sign an agreement with his union, and I said that I
wasn't in a position to sign a document like that. I had
no authority to sign it, and that, if I did sign it, I'd
have to sign subject to Mr Niedermeyer's approval,
and he told me that he'd been instructed by his attorney
that that wasn't sufficient, he would have to I would
have to sign as an alternate signer He stressed then he
showed me one of the agreements I was going to have
to sign, and he stressed
He paiticularly stressed Paragraph IV [short form
Building Trades Agreement]. lie wanted me to be
aware of the implications in the Paragraph IV and said
I realize that, when we sign this agreement. that any of
the subcontractors on the job would have to belong to a
union, and as I recall, he brought up the name of
Frank's Carpets, and the implication was that he was
going to . . . . Well, he said we would have to sign I'd
have to sign this agreement in order for our men to get
back to work . We had quite a discussion about how
I was going to sign it, and 1 finally signed it as Office
Manager. . Well he did say that, if we had people
working on the job who didn't belong to a union, lie
would shut the job down. . . He insisted on me signing
a letter of understanding. . . [after Dowsley and
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kirkland had signed both documents ] I said to him that
I hoped I didn't lose my job over this, and he said.
"Well, don ' t worry about that: if you do run into
trouble, we ' ll just shut the job down again" I
asked him if I signed the articles of agreement if he
would remove the pickets and he said "yes".
Article TV of the short form agreement reads:
The EMPLOYER agrees that if he shall subcontract
any work. provision shall be made in such subcontract
for all of such work on any job or construction site to
be performed pursuant to an executed current
agreement with the appropriate union having work and
area jurisdiction affiliated with the COUNCIL
The letter of understanding recites
It is hereby understood that Pat Blair and/or the
Cascade Employers Assn. Inc. of Salem , Oregon, to my
knowledge do not represent Mr. Niedermeyer or Niedo
Investment Company in any capacity.
It is further understood that on January 2 . 1969. 1.
Margaret Dowsley, have hereby signed the standard
agreement of the Building and Construction Trades
Council of Portland and Vicinity.
It is further understood and agreed that all
construction people working on Niedo Investment
Company's projects shall belong to one or the other
respective craft unions affiliated with the Building and
Construction Trades Council of Portland and Vicinity.
Under cross-examination Mrs. Dowsley testified that
her call from Kirkland could not have been received on
January 27 because she was not in the office on that day,
nor on the 28th. because that was Saturday so it must
have been on either the 30th or 31st. She recalled telling
Mr. Niedermeyer that she was going to see Mr. Kirkland
but could not remember what she said or what Ben
Niedermeyer said "because 1 don't think this is
important" She identified Henry M cCarthy as having
been present during part of her conversation with
Kirkland, but insisted that he was in and out of the office,
and that no other person was present . When she told
Kirkland that she did not want to sign the contract,
Kirkland asked if Mrs Niedermeyer would sign it.
Dowsley replied that she did not think so, because Mrs.
Niedermeyer had no knowledge of the business. After
about half an hour she went out to a pay phone. Being
unable to reach Mrs . Niedermeyer, she called the NLRB
office and asked Hedges what she should do. Hedges' only
advice was to speak to her lawyer if she had one (She
was not asked whether she attempted to communicate
with Ben Niedermeyer). After 10 minutes she returned
and told Kirkland she would sign the contract as "office
manager " The conversation with Kirkland then continued
until about four p.m. When asked to relate the entire
conversation she answered : "There was obviously more
conversation , but I can't tell you what we said . It wasn't-
I remember the important parts of it." She further
admitted that Mr . Kirland had told her that her problem
with the carpet layers union was separate and distinct
from the problem with the Carpenters , and that the
documents which she signed settled only the Carpenters'
strike. She also reiterated her testimony that "if we let
[Nata and Burns ] continue to work on the project, if they
didn 't belong to a union that he would shut our job
down."
2. The Testimony of Earl B . Kirkland
Earl B . Kirkland testified that he had been Executive
Secretary of the Council for 3 years , its President for 5
years prior thereto, and a labor representative for 17
years. He wrote the letter of December 20 at the request
of Carpenters and authoriLed the picketing at the request
of Carpenters When the picket sign left his office it had
stapled to it on a piece of vinal cloth, the words: "Niedo
Investment Company" Kirkland was on vacation from
December 24 through January 1, and made no business
calls during that period. On the morning of January 2, he
received a call from Mrs. Dowsley She wanted to know
what position she was in with the Building Trades
Council. Kirkland told her to read his letter of December
20. She asked if signing an agreement would take care of
her problem. Kirkland offered to show her the agreement
and they agreed to meet in Kirkland's office at 1 p.m. the
same day. Kirkland was 15 minutcb late returning from
lunch and found Dowsley in the office which he shared
with McCarthy Dowsley said she would sign an
agreement if it would take care of the problem. Kirkland
told Dowsley that he would accept her signature only if
she would assure him that she had the authority to sign.
Dowsley said she would go to a pay phone and make a
call She was gone about 30 or 40 minutes. When she
returned, she said she had the authority. Kirkland then
handed Dowsley a copy of the contract and asked her to
read it. Dowsley perused it lightly and signed. Before
Kirkland signed he asked Dowsley whether Niedo was
represented by Cascade Employers Association or y Pat
Blair Dowsley answered that it was not. Kirklan then
asked Dovvsley if she would sign a statement tc , that
effect. She said she would. In explanation of the last
paragraph in the "Letter of Understanding" Kirkland
testified
I asked her if she agreed to the terms of the agreement
and if she understood that the agreement meant that
they would have union employees on the job under the
employ of Niedo Investment Company, and she said
.,yes, she understood that". I said, then, 1 could put this
in a letter of understanding also, and she could not
disagree with this."
Kirkland denied making any threat to shut the job down,
testified that there was no discussion of the possibility of
Dowsley losing her job, and that near the conclusion of
their meeting-
All the terms of the contract were pointed out. After
the agreement and the letter were signed, Dowsley
asked if this would remove the carpet layers banner
from the job and I told her that was a separate problem
that I had nothing to do with that, and she would have
to deal directly with them. She nodded her head and
that ended the conversation.
3. The testimony of Robert L. Stanfill
Robert L. Stanfill, Secretary of the Oregon State
Building and Construction Trades Council (of which the
Portland Council is a constituent member) testified that
he covered Kirkland ' s desk while Kirkland was on
vacation and had lunch with Kirkland on January 2.
When they returned to the office about 1:15 Dowsley was
waiting. Stanfill overheard part of the conversation, heard
Kirkland ask Dowsley if she had authority to sign a
contract, heard her negative reply, saw her leave the office
and heard her state when she returned_ about 30 to 45
minutes later that she did have the authority. He also
heard Kirkland state that any problems Niedo had with
Carpet Layers was a separate grievance between her and
them.
PORTLAND DIST. COUNCIL OF CARPENTERS 603
4. The testimony of Henry McCarthy
Henry McCarthy occupies a desk about 5 1/2 feet from
Kirkland's desk in the same office. When Dowsley arrived
on January 2, he introduced himself and they talked about
the weather until Kirkland arrived. McCarthy was waiting
for a long distance call and listened to the entire
conversation between Kirkland and Dowsicy. Kirkland did
not threaten to shut the job down if she had nonunion
people working Dowsley asked, if she signed the
agreement, would that get rid of the linoleum workers
picket. and Kirkland replied that that was a problem
which she would have to take up with Carpet Layers.
Kirkland did not say "as long as you've got those carpet
layers on there that are nonunion he's going to close down
the job." Dowsley was gone about 40 minutes while she
made her phone calls. When she came back she said she
would sign the agreement as office manager of the
company. At the conclusion of the interview McCarthy
drove Dowsley to her bus stop, and they talked about
heart attacks, Ben Niedermeyer's, and McCarthy's.
Dowsley voiced no complaints.
D Concluding Findings in the Niedo Cases
1. Kirkland did not by words or actions threaten,
coerce, or restrain Dowsley or Niedo. Nothing said or
done by Kirkland can be construed as evidence that any
part of the object of any action of either respondent was
to cause a cessation of the business dealings between
Niedo and Nata, or between Nata and Burns.
I credit the testimony of Kirkland as to what was said
and done in his meeting with Dowsley on January 2 He
was open and forthright both on direct and under cross
examination and his testimony is wholly consistent with
the uncontroverted facts in this record . Kirkland, at the
request of Carpenters wrote to Niedermeyer stating that
he represented a majority of Niedo's employees and
requesting a meeting to negotiate a contract . Upon receipt
of Dowsley's letter , he issued a picket banner on an apron
with the name of Niedo Investment Company attached.
Niedo's employees ceased work . The next move was
obviously up to Niedo. There was no reason for Kirkland
to call Dowsley . There was every reason for Dowsley to
call Kirkland Dowsley did call Kirkland on the morning
of January 2 and asked Kirkland what she would have to
do to get her men back to work . Kirkland told her to read
his letter ; i.e., negotiate a contract . Dowsley asked for and
received an appointment . When Dowsley arrived , Kirkland
refused to discuss contract terms until he was assured that
Dowsley had the authority to negotiate . Upon receiving
that assurance he tendered the short form agreement to
Dowsley Her only question was whether signing the short
form would get Niedo ' s employees back to work. Upon
being assured that it would, she signed the agreement. She
raised no question about any of its terms Kirkland,
desiring to make sure that she knew what she was signing,
went over every term of the agreement with her . She still
raised no objection. Kirkland was aware that Pat Blair,
purporting to represent Niedo, had filed a charge alleging
that Carpenters were engaging in a secondary boycott,
and before he signed the contract which Dowsley had
already approved requested assurance that Pat Blair did
not in fact represent Niedo. Dowsley gave him that
assurance and acquiesced in a statement to be included in
a separate letter intended to assure that all persons
directly employed by Niedo would be members of unions
affiliated with Council . Then and only then did Dowsley
inquire whether the agreements which she signed would
remove Carpet Layers picket. She was told by Kirkland
that it would not, and she was satisfied with that answer
Her instructions from Niedermeyer were to "keep the
men working." Carpet Layers picket had not interfered
with the job in the past, and she correctly understood
from Kirkland that it would not interfere in the future.
Niedo's employees returned to work on January 3
Whether Carpet Layers continued to picket on or after
January 3 is not established on this record.
I do not credit Dowsley on any point where she is
contradicted by Kirkland. She was a loyal and devoted
secretary carrying out the instructions of her employer
She was carrying out his instructions when she signed the
agreement and the letter in Kirkland's office on January
2. When Niedermeyer on February 11 falsely accused
Dowsley of an "illicit" action, she reconstructed,
rearranged and added to her recollection of the events of
January 2 and the days preceding. Cross-examination
developed small but significant inconsistencies in her
testimony. Dowsley had testified that Kirkland called her
on either the 28th or 29th of December and related the
conversation clearly and in detail . She could not recall in
any detail her conversation with Ben Niedermeyer which.
she testified, immediately followed her telephone
conversation with Kirkland Having first placed the
Kirkland conversation on January 27 or 28, she recalled
that she was not in her office on January 27. When she
was reminded that the 28th was Saturday , she moved
Kirkland's call up to the 30th or 31st
2. General Counsel has not established by a
preponderance of the evidence that Council's picket
banner did not bear the words, "Niedo Investment
Company."
3. The fact that employees of Niedo continued to work
despite the picket of a sister union at a "reserved gate" on
the same premises cannot be construed as evidence that
subsequent picketing by Council had as an object, the
removal of Nata and Burns from the job. Los Angeles
Building and Construction Trades Council ( Gasket
Manufacturing Company). 175 NLRB No. 43.
4. The fact that a representative of Carpet Layers and a
representative of Carpenters visited the project on the
same day does not constitute evidence of any common
object. Los Angeles Building and Construction Trades
Council (Cecil Mays). 161 NLRB 729
5 The short form agreement signed by Dowsley
contains no term alleged to be unlawful . In the absence of
evidence that the subcontracting clause therein was
directed at Nata or Burns, a strike to compel Niedo to
sign this contract would not be unlawful . Los Angeles
Building and Construction Trades Council (Couch Electric
Company Inc.), 151 NLRB 413. Kirkland ' s assurance that
the contract signed by Dowsley did not settle the Carpet
Layers dispute and the fact that all of Niedo ' s direct
employees returned to work as soon as the contract was
signed is the equivalent of the Respondent's statement in
Couch Electric that it was not opposed to Couch's
completion of his work on the project.
6. The final paragraph of the Letter of Understanding
was intended to and did apply only to persons who were
or might be employed directly by Niedo . Any ambiguity
in the language of the memorandum should be construed
in favor of legality. N.L.R.B v. News Syndicate Co , 365
U.S. 695.
7. There is no credible evidence on this record that any
action of either respondent had as an object the removal
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the project of any identifiable nonunion
subcontractor.
IV. TiiE ALLEGED UNFAIR LABOR PRACTICES IN TTTF
I)iTZ-CRANF CASE
A. The Issue, and Arguments of Counsel
The issue in the Ditz-Crane case is whether the General
Counsel has established by a preponderance of the
evidence that Earl B. Kirkland, executive secretary of the
Building and Construction Trades Council of Portland
and Vicinity, is the individual who had a series of
telephone contacts with Ditz-Crane of Oregon between
January 28, 1969, and February 7, 1969. The General
Counsel argues that identity is established (I) by the
testimony of Savage that on at least one occasion he
looked up the number of the Building Trades Council,
called this number, asked for Mr. Kirkland, and had a
conversation with this person, and (2) that the substance
of the several telephone conversations contain internal
evidence that the speaker was Earl Kirkland
Respondent objected in timely and proper manner to
the receipt of any evidence as to the content of the
telephone conversations because of the failure of the
General Counsel to lay a proper foundation by showing
either (1) that the voice of the caller was known to the
witness or (2) that the witness placed the call to the place
of business of Earl Kirkland I overruled this objection on
the ground that there might be internal evidence in the
conversation itself which could establish identity °
When the General Counsel rested, and after
Respondent' s motion to dismiss had been denied,
testimony was received from Earl B. Kirkland and from
Henry McCarthy. Respondent argues as additional
grounds for dismissal (1) that I should credit the
testimony of Earl Kirkland that he has never spoken on
the telephone to any person in the office of Ditz-Crane of
Oregon, (2) that the testimony of Kirkland and McCarthy
establishes that Earl Kirkland was in a meeting and could
not have been the person who placed the call to
DitL-Crane on the afternoon of Monday, February 3,
1969, and (3) that the internal evidence of the subject of
the phone calls. and the surrounding circumstances all
point away from, and not toward, Earl B Kirkland as the
speaker.
B. The Business of Dttz-Crane of Oregon
Ronald Savage, who describes himself as a partner in
Ditz-Crane of Oregon testified that it began business
November 1, 1968, that its business is the construction of
residential homes, that all of its construction work is
subcontracted and its only employees are himself and his
secretary, who occupy separate but adjoining offices.
C. The Telephone Calls
1. The testimony of Inez Potticary
Potticary testified that she received a call from a man
who identified himself as Mr Kirkland of the Building
Trades Council on January 28 or 29. The same person
For complete definitions of the legal principles governing the
admissibility of and the weight to be accorded testimony relating to
telephone conversations see 8 Wigmorc Evidence , Sec 669 and 2155 (3d
ed 1940)
called every day that week, on each occasion he asked for
Mr. Savage. On each occasion Potticary made a note of
his name and telephone number and gave the note to Mr.
Savage The person may have called as early as Monday,
January 27. On one occasion which may have been
Friday, January 31, or may-have been some time the
following week the person said he would picket
Ditz-Crane's "Mountain Park" job because Mr. Savage
was using Largent Roofing Company which was a
nonunion contractor and sometime later in the week this
person said he had reached the saturation point and
wanted some action from Mr. Savage so far as Largent
was concerned.
Potticary had a clear recollection of only one
conversation. This was on February 7 when she was on an
extension phone with Mr. Savage. "Mr. Kirkland" told
Potticary that he had not threatened to put pickets on the
job and Mrs. Potttcary replied: "You certainly did". As to
the threat itself, Potticary could not remember whether it
was made on Friday or was made on some other day. She
was only sure that the threat was made and she conveyed
it to Mr Savage. In explanation of her failure to recall
any other details she testified "I'm just repeating what
was asked me to repeat". She has no note of any
telephone conversation. having given all her notes to Mr.
Savage. who disposed of them
2. The testimony of Ron Savage
Savage on direct examination testified that he had three
conversations with a person who called himself "Mr
Kirkland". The first was on Monday, February 3, 1969.
"Mr. Kirkland" was the caller. Mr. Kirkland said that he
would like to have a contract signed by Mr. Largent, and
by Mr. Savage and by the Building Trades Council, and
requested that Savage bring Largent to "Kirkland's"
office and all three sit down. About 2 days later Savage
received a message from Potticary that "Mr. Kirkland"
had phoned and said he was going to put pickets on the
job. As soon as he got this message, Savage called
Kirkland. In this second conversation "Mr. Kirkland"
said that if something was not done he would have to shut
Savage down. Savage then called Largent, who directed
Savage to go to Mr. Blair, which he did, and Mr. Blair
took care of the matter by filing the instant charge on
February 6. The next day, February 7, "Mr. Kirkland"
phoned and spoke to Savage_ for the third and last time.
"Mr. Kirkland" denied that he had threatened Savage
with picketing. Savage asked Potticary to get on the
phone. Potticary told "Mr Kirkland" that he had told her
that he would picket Dttz-Crane if the Largent problem
was not straightened out Under cross examination on the
first day of this hearing Savage testified that Potticary
placed the call on the sole occasion when Savage called
Kirkland.
Under further cross examination on the second day of
hearing, Savage fixed the time of his first conversation
with "Mr. Kirkland" as about 3 p m. on Monday.
February 3, and testified that its substance was as follows:
Mr Kirkland identified himself and stated that he was
with the Building Trades Council and said that he
wanted to discuss with me the problem that we had out
there. lie was very cordial; we had a nice conversation
about the fact that I was using Largent. and 1 believe
that I explained why I used Jack, and that I wasn't
even aware of what subs that I used were union or
nonunion , but that I would call Jack and explain that
we had a problem and that I would call Mr. Kirkland
PORTLAND DIST. COUNCIL OF CARPENTERS 605
back, and the first conversation, as I remember, was
fairly cordial and fairly short
The second conversation was Wednesday morning,
February 5. Savage arrived at his office about 9.30 a.m.
looked at his notes and called Kirkland. Savage testified:
In this particular conversation we were still talking
about getting Mr. Largent in, and I asked Mr. Kirkland
if it would be all right with him and with the other
unions involved it Mr. Largent's company paid health
and welfare and did not join the union, and Mr.
Kirkland said, no, that that was not right because they
had had problems with Mr. Largent in the past, and
"He may be able to get away with this in Salem, but he
can't do this in the Portland area", and I said that I
didn't really care what was done between the two
parties, but I did want to get the dispute ironed out,
and Mr. Kirkland wanted me to bring Mr. Largent in.
and come in myself, to which I didn't really want to do
but I said I would get back to Mr. Largent and I would
call Mr. Kirkland back
His third conversation was on Thursday, February 6
about 3 p.m., "at that time Mr. Kirkland and I had a
discussion about Mountain Park and about my company
and about our relations with the unions and . as I
recall, he wanted to know why I didn't use a union
contractor, and I replied that I used Mr. Largent because
he is a personal friend, regardless of what his price is or
whether there are union contractors in the area."
Savage testified that his fourth conversation with
Kirkland was on Friday, February 7:
1 called Mr. Kirkland and identified myself and said I
had been having trouble reaching Mr. Largent, that 1
would appreciate it if he wouldn't put a picket on the
job, and that I would call him back as soon as I got
hold of Mr. Largent. At this time I think we went into
the discussion of the subs and why I used Mr. Largent.
Without any particular reference to any of the
foregoing conversations Savage did testily on the second
day of hearing.
A. However, I reached Mr. Kirkland by phone
myself once.
Q. You did?
A. Yes, sir, I did
Q. When was that?
A. As far as the particular date, sir, I coudn't tell
you.
Q. Well, this is quite important, sir, and I'd like to
try and pin you down, because there is a credibility
issue.
A. Well, could I refer to the - well, let's see - - I'll
backtrack. It was the - itwas the time after he had
spoken to my secretary and had made the statement of
the pickets, and I called him back immediately. and she
was busy, and unless --- in other words, my normal
procedure is that she makes my phone calls unless it's
something that is very, very important that I want done
now; then, I make the phone call. And in this case, I
felt that it needed to be taken care of immediately, so I
phoned at that time.
Q. And this was the telephone number that your
secretary supplied you with on one of these memo
pads?
A. No sir. I looked this one up myself.
Q. Oh, you did look this one up?
A. Yes, sir.
Savage destroyed all notes of all telephone calls from
or to "Mr. Kirkland."
3. The testimony of Earl B. Kirkland
Kirkland testified on direct examination that he first
heard of Ditz-Crane when he received a copy of Pat
Blair 's charge on March 12. 1969 He does not know
Savage, never made any phone calls to Savage and never
received any telephone call from Savage He has never
received any request from any union to take action
against Ditz-Crane, and had nothing in any file on
Ditz-Crane. He has had no contact with Largent since
becoming secretary of the Building Trades Council. On
Monday, February 3, 1969. he was at a meeting of the
Multnomah Labor Council, and did not leave the meeting
from the time it started at 1.30 p.m. until it adjourned
sometime between 3:30 and 4:30 p.m. Under cross
examination he testified that he had heard of Largent,
that Largent's reputation with unions was not good, that
Largent was an antiunion contractor, and one of the first
contractors that Pat Blair had as a client in Salem,
Oregon.
4 The testimony of Henry McCarthy
McCarthy testified that he sometimes takes calls for
Mr. Kirkland when he is out of the office and that he
never received any call from Savage, Potticary,
Ditz-Crane or Largent He attended the Monday,
February 3 meeting of the Multnomah Labor Council and
knows that Kirkland remained in the meeting from the
time it started at 1:30 until it ended sometime between
3:45 and 4 o'clock.
D. Concluding Findings in the Ditz-Crane Case
It is obvious that the calls from the man who said he
was "Mr. Kirkland" do not identify the caller as Earl
Kirkland. If Savage had in fact looked up the number of
the Building Trades Council in the telephone book and
had called that number and asked for Mr. Kirkland, and
a voice had then come on the telephone, acknowledging
that he was Mr. Kirkland, there would be at least prima
facia identification I find that he did not. Savage had in
his possession at least three notes from Potticary with the
number which the caller had given to her. Savage testified
on cross examination on the evening of April 2 that he did
not look in the telephone book, that his secretary placed
the call, and that he placed the call to Kirkland on
February 3 or 4, the day after his secretary got the
message that there was going to be picketing. It was only
on the second day of his testimony that he said he looked
up the number. His testimony is otherwise filled with
contradictions. From his initial testimony that he spoke to
Kirkland only three times, and that two of these calls
were initiated by Kirkland, there developed four and
possibly five conversations, two of which were initiated by
Savage. When asked on cross-examination to describe the
Monday conversation in full, it came out without any
reference to threat or picketing. When he described a
conversation of Wednesday in full, immediately before
Mr. Blair agreed to take care of the problem, again there
was no threat. He corrected this deficiency by recalling a
fourth conversation. When Savage was asked to read his
pretrial statement which lacked consistency with either his
direct or his cross-examination he explained that the
statement was not entirely accurate, stated that he had
called this fact to the attention of the Board agent who
took the statement and that the Board agent had asked
him to sign it anyway. The credibility of neither witness is
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enhanced by Potticary' s statement that she was just
repeating what she was told to repeat or improved by her
explanation that she meant she was told to repeat what
she had put in a pretrial statement
There is nothing in the content of any conversation that
would identify Earl Kirkland, other than the caller's
naked assertion. I have found that Savage did not call the
number listed for the Building Trades Council in the
telephone book. Ditz-Crane had been in business for less
than three months, yet the caller knew its telephone
number, knew that Mr. Savage was directing its
operations, and knew that a contract had been awarded to
Jack Largent. Earl Kirkland did not know Savage and
cannot be presumed to know anything of his background
or attitudes. There was pending in the Board's regional
office a charge filed by Blair alleging that Kirkland had
made unlawful threats against Niedo. Kirkland believed
that Largent was antiunion and that he had been
represented by Blair for many years. That Earl Kirkland
in this situation, and with these beliefs would ask a
complete stranger to arrange a meeting with him to
persuade Jack Largent to sign a union contract and would
follow this request with a naked threat to shut down
Savage's operation simply defies credulity.
I am asked by the General Counsel to assume that no
person or organization other than a Building Trades
Union could be interested in the fact that Jack Largent
was nonunion , to infer from this assumption. that a
Building Trades Union must have asked Earl Kirkland for
assistance , and to conclude from this inference that Earl
Kirkland made the telephone threat to Ditz-Crane. I do
not grant his assumption and cannot draw the inference
which he requests.
I credit the testimony of Earl Kirkland that his first
knowledge of Ditz-Crane and Savage came from reading
the charge filed by Pat Blair in the instant case. I credit
the testimony of Earl Kirkland and Henry McCarthy that
Earl Kirkland was in a meeting at the time that "Mr
Kirkland" placed a call to Savage on Monday, February
3. 1 find that Earl B. Kirkland has not been identified as
the individual who threatened to picket the Ditz-Crane
project. Since he is the only person alleged by the
complaint to have made threatening statements and since
he did not, no violation by Council has been established.
CONCLUSIONS OF LAW
1. Ben Niedermeyer , doing business as Niedo
Investment Company is an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Ben Niedermeyer, doing business as Niedo
Investment Company, Frank Nata, doing business as
Frank's Carpets and George Burns, doing business as
Advance Carpeting Installations are persons in an
industry affecting commerce within the meaning of
Section 8(b)(4)(i)(n)(B) of the Act.
3. Jack L. Largent is an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
4. Jack L Largent and Ditz-Crane of Oregon are
persons in an industry affecting commerce within the
meaning of Section 8(b)(4)(ii)(B) of the Act.
5. Portland District Council of Carpenters and Building
and Construction Trades Council of Portland and
Vicinity, and Carpet and Linoleum Layers Union Local
1236 are labor organizations within the meaning of
Section 2(5) of the Act.
6. The allegations of the consolidated amended
complaint that 'Portland District Council of Carpenters,
and Building and Construction Trades Council of
Portland and Vicinity have engaged in unfair labor
practices within the meaning of Section 8(b)(4)(t)(ii)(B) of
the Act have not been sustained
RECOMMENDED ORDER
It is recommended that the consolidated amended
complaint be dismissed in its entirety.