Bldg. and Constr. Trades Council

National Labor Relations Board - Board Decisions

Jun 29, 1971

191 N.L.R.B. 788 (N.L.R.B. 1971)

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Building and Construction Trades Council of Alameda
County, AFL-CIO; Plumbers & Gas Fitters Local
Union No. 444, United Association of Journeymen
& Apprentices of the United States & Canada, AFL-
CIO and John Birges d/b/a John Birges Landscap-
ing. Case 20-CP-363
June 29, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner and hereby orders that Respond-
ents, Building and Construction Trades Council of
Alameda County, AFL-CIO; Plumbers & Gas Fitters
Local Union No. 444, United Association of Journey-
men & Apprentices of the United States & Canada,
AFL-CIO, their officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's recommended Order.
On April 27, 1971, Trial Examiner Herman Marx
issued his Decision in the above-entitled proceeding,
finding that the Respondent Council and the Respond-
ent Plumbers Local 444 had engaged in and were en-
gaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. There-
after, the Respondent Council filed exceptions to the
Trial Examiner's Decision and a brief in support
thereof. Respondent Plumbers Local 444 adopted and
joined in these exceptions. General Counsel filed a brief
in answer to Respondents' exceptions and in support of
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner.
Respondents except to certain of the Trial Examiner's credibility reso-
lutions It is the Board's policy, however, not to overrule a Trial Examiner's
credibility findings unless, as is not the case here, the preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Productions, Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C A 3)
' In agreeing with the Trial Examiner's conclusion that Respondents'
picketing was for an object proscribed by Sec. 8(b)(7)(A) of the Act, we have
considered the evidence in its total context. Thus, either version of the July
17 conversation between Birges and Bochman reflects an unlawful objective
under Sec. 8(b)(7)(A) only when viewed in light of Childers' later conversa-
tion with Barges, on or about July 26, wherein Childers told Birges the reason
for the picketing and conditioned its discontinuance upon the signing of a
contract
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
HERMAN MARx, Trial Examiner: The complaint, as
amended, alleges in substance that an individual, John Birges
(herein Birges), who is engaged in business under the name
John Birges Landscaping, has, for some years, lawfully recog-
nized, and now so recognizes, a labor organization, Service
Employees' International Union, Local No. 18 (herein Local
18),' in accordance with the National Labor Relations Act2
(herein the Act), as the exclusive collective-bargaining repre-
sentative of Birges' "construction employees"; that since
about July 22, 1970, in a period when a question concerning
the representation of these employees could not be appropri-
ately raised under Section 9(c) of the Act, the Respondents,
Building and Construction Trades Council of Alameda
County, AFL-CIO (herein the Building Trades Council) and
Plumbers & Gas Fitters Local Union No. 444, United As-
sociation of Journeymen & Apprentices of the United States
& Canada, AFL-CIO (herein the Plumbers Union), although
not "currently certified as the collective-bargaining represent-
ative" (sic) of the said employees, have picketed, or caused to
be picketed, construction operations of Birges, with an object
of forcing or requiring Birges to recognize or bargain with the
Respondents as "the collective bargaining representative" of
the said employees, or forcing or requiring such employees to
accept or select the said Respondents as such "representa
tive"; and that by such conduct, the Respondents have vi-
olated Section 8(b)(7)(A) of the Act.'
Each of the Respondents has filed an answer which, in
material substance, denies the commission of the unfair labor
practices imputed to it.4
Pursuant to notice duly served by the General Counsel of
the National Labor Relations Board upon all other parties,
a hearing on the issues in this proceeding was held on Febru-
ary 16, 1971, in San Francisco, California. The General
Counsel and the Respondents appeared through respective
counsel. The Charging Party did not enter an appearance. All
parties were afforded a full opportunity to adduce evidence,
examine and cross-examine witnesses, and submit oral argu-
ment and briefs.
The full name of Local 18 appears as corrected in testimony at the
hearing
2 29 U.S C Sec. 151, et seq.
29 U.S .C. 158 (b)(7)(A)
The complaint was issued on September 9, 1970, and , as amended on
December 29, 1970 , is based on a charge filed by Buges on August 3, 1970,
an amendment thereof filed by him on August 24, 1970 , and a second
amendment of the charge filed by him on November 3 , 1970 Copies of the
complaint , the amended complaint, the charge, and amendments thereof,
have been duly served upon the Respondents
191 NLRB No. 138
BLDG. AND CONSTR TRADES COUNCIL 789
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having read and considered the
briefs filed with me, I make the following:
FINDINGS OF FACT
I JURISDICTION
John Birges is engaged, as "a sole proprietor," under the
name of John Birges Landscaping, in business as a landscape
contractor; maintains his principal place of business at
Clovis, California; and is, and has been at all material times,
an employer within the meaning of Section 2(2) of the Act
In the course and conduct of his business operations during
the year immediately preceding the issuance of the complaint,
he derived gross revenue in excess of $50,000 for services
performed for the city of San Leandro, California; and during
that period, the said city purchased and received productions
in excess of $50,000 directly from suppliers located outside
the State of California. By reason of the services rendered to
the city of San Leandro, and that community's interstate
purchase and receipt of products, described above, Birges is,
and has been at all material times, engaged in interstate com-
merce, and in operations affecting such commerce , within the
meaning of Section 2(6) and (7) of the Act. Accordingly, the
National Labor Relations Board has jurisdiction of the sub-
ject matter of this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
The Building Trades Council, the Plumbers Union, and
Local 18 respectively are, and have been at all material times,
labor organizations within the meaning of Section 2(5) of the
Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Building Trades Council's membership consists of
construction trades unions, including the Plumbers Union,
that do business in Alameda County (in which San Leandro
is situated). Its functions include assistance to its member
organizations in organizing employees, "enforcing con-
tracts," "speaking for the group (members) as a whole," and
"coordinating the activities" of its members. Its secretary-
treasurer is one Lamar Childers who, as he testified, is the
Council's principal "coordinator."
Birges is licensed as a contractor by the State of California,
and is authorized, by such licensing, to undertake a variety
of projects, including landscaping and installation of irriga-
tion facilities.
In or about June 1970,5 following competitive bidding,
Birges was awarded a contract by the city of San Leandro for
the installation of irrigation facilities in a golf course owned
by the city. Because the awarding body was a municipality,
the contract was subject to provisions of the California Labor
Code requiring such public bodies to determine "the general
prevailing rate(s) of per diem wages" to be paid for the "pub-
lic work" (Lab. C. § 1770), and the inclusion of such rates in
the contract specifications (Lab. C. § 1773); and subjecting a
contractor who fails to pay the required rates to prescribed
monetary penalties recoverable by the Division of Labor Law
Enforcement of the California Department of Industrial Re-
lations (Lab. C. § 1775). In conformity with the statutory
requirements, the specifications of the contract awarded
Birges set forth the prevailing rates applicable to the project.
' Unless otherwise specified, all dates mentioned herein occurred in
1970
He commenced performance of the contract on or about
July 13 and completed it early in September, employing some
seven or eight men on the project, most of them, regularly in
his employ. He complied with the statutory and contractual
wage requirements, paying the employees who worked on the
project in accordance with the prescribed, rates, and furnished
"payroll evidence" of compliance to the city, as required by
it.,
Birges and Local 18 have, over a period of some years, been
parties to successive collective-bargaining contracts, prescrib-
ing wages and other terms and conditions of employment for
his employees. The current contract is dated May 16, 1968;
has been in effect at all material times since; by its terms, is
to remain in effect until May 15, 1971, and thereafter "from
year to year" unless modified or terminated in accordance
with specified notice procedures; provides that Birges "recog-
nizes the Union (Local 18) as the sole collective-bargaining
agency for all employees"; and contains provisions for mem-
bership in Local 18 as a condition of employment, and for
checkoff of union dues and initiation fees. Birges has for some
years checked off the dues of his employees, remitting them
to Local 18 (or to a sister local when the employees were
working in the territorial jurisdiction of such other local).
Neither the Building Trades Council nor the Plumbers
Union is currently certified as the bargaining representative
of any of Birges' employees; nor, for that matter, does either
claim that it has represented any of these employees at any
time material here; nor does either, whether by evidence or
argument, challenge the representative status of Local 18 or
the legality of that organization's current, or any predecessor,
contract; and I find upon the whole record that at all times
material to this proceeding, Local 18 has been "lawfully
recognized" by Birges, "in accordance with the Act," as the
collective-bargaining representative of his employees, includ-
ing those employed at the San Leandro project, and that at
all such times, "a question concerning representation" could
not have been appropriately raised under Section 9(c) of the
Act.
B. The Picketing and Its Legality
On or about July 21, 1970, approximately a week after
Birges' crew began work at the golf course, a picket appeared
outside, and in the near vicinity of, a gate used by the crew
to enter and leave the construction area. The picket carried
a banner or sash containing the legend "Picket, AFL-CIO,"
displaying no other sign. The same picket, carrying the same
legend, and generally in the same place, continued to picket
during a period of about 2 weeks until the activity was en-
joined by a state court in an action brought by Birges against
the Council, the Plumbers Union, and others.'
The decision to post the picket was made by Childers who,
as he testified, told a business agent of the Plumbers Union,
Seymour Bochman "to put a picket on the job." Bochman
then posted the picket. The record amply warrants a conclu-
sion, and I find, that Childers and Bochman acted in concert
6 Barges' testimony that he paid in accordance with the rates is undis-
puted. See, also, G C Exh 5, a certified copy of a memorandum dated
August 10, 1970, from the assistant public works director of San Leandro
to the public works director, certifying that the assistant director had exam-
ined Birges' payroll records for the period from July 13 to 31, 1970, and had
satisfied himself that the wages paid for the period had "equalled or ex-
ceeded the prevailing rates applicable" to the project.
' I find no materiality in a point made by the Building Trades Council at
the hearing that although the state court dissolved its restraining order after
it had been in effect for about a week, the picketing has not been resumed,
but note, in passing, some indication in the record that the United States
District Court has restrained the picketing pendente lite under Section 10
of the Act.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the course of their respective duties as agents of their
respective principals, that the picketing is thus imputable to
the Building Trades Council and the Plumbers Union, and
that both these organizations are thus responsible for the
activity.'
The basic issue is whether an object of the picketing, in
contravention of Section 8(b)(7)(A) of the Act, was, as the
General Counsel maintains , to force or require Birges to
recognize or bargain with the Plumbers Union as the repre-
sentative of any employees on the project, or, as the Respond-
ents contend, in effect, whether the picketing object was "to
protest and publicize their good faith belief' that Birges was
not complying with legal and contractual prevailing wage
requirements applicable to the project.'
Explaining his decision, Childers gave testimony to the
effect that in a conversation in his office, attended only by
Bochman and himself, and held about July 20, Bochman told
him that the Birges' bid for the San Leandro project was
"quite low," leading Bochman to believe that Birges did not
intend to pay the rates prevailing in the area for the various
crafts, including plumbers, required for the project; that he
(Bochman) "had check the job," and "as far as he could
determine" the employees there held no union membership;
that he had seen "a considerable pile of (pipe) fittings" at the
project, which had involved "plumbers' work," but was una-
ble "to find out when it was done or by whom, or what wage
rates were being paid" for such work; that Birges had mani-
fested antagonism toward him and had made "unsatisfac-
tory" responses when he had asked Birges whether the latter
had a union contract; and that "to the best of his knowledge
and belief," Birges had none. According to Childers, on the
basis of Bochman's report, he concluded that there was "rea-
sonable cause to believe that prevailing rates weren't being
paid according to the contract (for the golf course project),
and ... state law"; and he therefore directed Bochman "to
put a picket on the job," suggesting, in addition, that "the
work being done" at the project be photographed in order to
provide evidence of "violations of the prevailing wage rates."
This account of a private conversation between representa-
tives of parties who share a common interest is, in the nature
of things, beyond the capacity of any adversary party to
contradict, and as the reliability of the claimed conversation
is a focal point in this case, Childers' account must be care-
fully examined in the light of the whole material record.
Bochman, it may be noted, does not mention any such discus-
sion in his testimony, and there is some lack of clarity in
Childers' testimony as to the point in his dealings with Boch-
man when he made the picketing decision," but, more impor-
tant, Childers' version of what Bochman told him regarding
his dealings with Birges up to that point does not quite hang
° The Council in effect admits (by not denying or otherwise responding
in its answer to relevant allegations of the complaint, as amended) that at
all material times, "Childers "has been an agent" of the Council and the
Plumbers Union, "acting on their behalf, within the meaning of Section
2(13) of the Act." The Plumbers Union, although admitting that Bochman
has been its "business representative" at all material times, in effect denies
in its answer that Childers and Bochman acted on its behalf in connection
with the picketing. Without necessarily accepting all of Childers' self-serv-
ing account of his dealings with Bachman, it is at least evident from Child-
ers' testimony, and Bochman's account of his own activities regarding the
Birges project, that he acted as the agent of both his own organization and
the Council in posting the picket
Respondents Brief, p. 2.
The sense of Childers' testimony, under direct examination , is that he
had but one conversation with Bochman regarding the Birges project prior
to posted the picket, and that the picketing decision was made on the
occasion of the conversation, but elsewhere he testified that the decision
"might have been (made) a day or so" later, and at another point, that "this
conversation may have been over two days "
together with the evidence of what had taken place between
Birges and Bochman.
Birges and Bochman had but one conversation prior to the
start of the picketing, and that discussion occurred on July
17." Regarding that episode, Bochman gave testimony to the
effect that he came to the job site on the relevant occasion to
ascertain whether Birges was going to subcontract the plumb-
ing work, as he had on, a,prior occasion, "or if he was going
to hire our people" (meaning , as I infer, members of the
Plumbers Union);i2,that he asked Birges whether he was
going to subcontract Ithe work; that Birges replied in the
negative, stating, too; that he "was going to use his own
people"; that he (Bochman); said that the Plumbers Union
"had qualified mechanics" and "would be glad to furnish him
(Birges) with men," to which Birges responded that he was
"going to use his own men," and "wouldn't sign a contract"
with the Plumbers Union;, and that he then told Birges, that
that organization would supply plumbers for the project,
without execution of a, contract, so long as Birges would
"guarantee" the Plumbers Union that he,would pay "proper
wages and fringes." According to Bochman, also, during the
course of the conversation, he informed Birges that the
project was subject to prevailing wage requirements, and
Birges responded that he, was aware of that.i3
Describing the same conversation, Birges testified that
Bochman came to him at the job site and asked whether he
was employing "his (Bochman's) plumbers" (in other words,
members of the Plumbers Union) at the project; that he re-
plied that he did not need any plumbers, explaining that he
was not required to use plumbers on such "irrigation" work,
and had "pipe-layers" in'his:employ available for it; and that
)}ochman then said that if Birges did not "use any of my
plumbers ... (w)e will make it hard for you and we will
picket you." Birges responded, according to his account, that
Bochman was "welcome" to take such a course, or, in other
words, that Birges would not yield to the threat.
"Neither Birges nor Bochman describes any conversation or other con-
tact between them between the July 17 discussion and an occasion some
days after the start of the picketing when a fracas between the two occurred
over picturetaking at the jobsite That Birges and Bochman had no conversa-
tion between that of July 17 and the start of the picketing is particularly
evident from Buchman's testimony. He stated that "the first time" following
the July 17 discussion that he went "onto the job site" was about a week
later. He seemed uncertain whether the picketing had begun, stating that he
did not "think" so, but he is probably mistaken in this, for the picketing
began on or about July 21 In any case, on the occasion of this second visit,
Bochman took pictures without any interference from the men at work at
the project, and admittedly had no contact with Birges on that occasion. The
fracas occurred, according to Bochman, "about two days later," and the
picketing, Bochman testified, had then been in progress for from "two to five
days.,'
11 Although claiming later that what he meant by "our people" were
plumbers "to do the plumbing work," there can be no question that Boch-
man's allusion was to members of the Plumbers Union, for after stating the
purpose of his visit to Birges, he testified that he told Birges that "we had
qualified mechanics that did this type of work," and that by the pronoun
"we" he meant the Plumbers Union.
" Blrges' version of the conversation contains no reference to prevailing
wage requirements, and Buchman's testimony that he informed Birges that
the project was subject to them came, on his direct examination, in response
to a leading question whether there was "any discussion of prevailing
wages " Bearing in mind that Birges is a licensed contractor of some years
of experience, that the contractual job specifications expressly cite the appli-
cable statutory prevailing rate provisions and set forth the rates, as required
by law, and that Bachman was aware that the specifications set forth the
rates, it does not quite appear why he would undertake to inform Birges that
the project was subject to prevailing rate requirements. In any case, whether
or not he mentioned that fact, the end results in this proceeding are the
same
BLDG. AND CONSTR. TRADES COUNCIL 791
There are variances between the two versions, notably
Birges' reference to the picketing threat and the absence of
such a reference in Bochman's version, but the two accounts
have some basic similarities. An important one is that both,
in effect, depict Bochman as attempting to induce Birges to
hire members of the Plumbers Union, and Birges as rejecting
such a proposal; and it is evident from both that Bochman's
effort was the focal point of his conversation with Birges. Yet
Childers' account of Bochman's report of the conversation
makes no reference to the attempt and its result. For reasons
that will appear later, I am convinced that there was a causal
connection between Birges' refusal to accede to Bochman's
request and the picketing that followed, and it will suffice for
the present to say that Childers' omission to include in his
account of Bochman's report of his conversation with Birges
any reference to the focal point of that discussion of itself
raises a substantial question whether Childers has made a full
disclosure of the reason or reasons for the picketing.
That is not to say that I disbelieve all of Childers' testimony
regarding the report. There is no reason to doubt that Boch-
man, as he claims and as his conversation of July 17 with
Birges attests, regarded some aspects of the golf course
project as involving "plumbers' work," and I think it likely
that he reported that belief to Childers. Moreover, there are
indications in the record (notably the evidence of a conversa-
tion between Childers and Birges after the picketing began)
that prior to the picketing Childers had some suspicion, at
least, that Birges had no union contract." This would reason-
ably give rise to a related belief that Birges was paying less
than the union scale for "plumbers' work."" In fact, Boch-
man, at least, must have been aware at the time of his July
17 conversation with Birges that the prevailing hourly rates
for "plumbers" ($5.605 for "irrigation" work and $8,57 for
"journeymen") set forth in the specification for the, golf
course project were lower than the Plumbers Union's scale of
$9.24 (excluding "fringe" benefits), for, as he testified, he
"examined" the specifications in June, and had a discussion
about July 10 regarding classifications and rates set forth in
the specifications with San Leandro's director of public
works. In the circumstances, although I have much doubt
that Childers' self-serving account of Bochman's report accu-
rately reflects what Bochman told him of his July 17 conver-
sation with Birges, I believe it likely that Bochman did tell
" One may fairly doubt, however, that the suspicion that Birges had no
union contract was based, as Childers would have one believe, on a report
by Bochman, prior to the picketing, that he had been unable to ascertain
from Birges whether the latter was under union contract Neither version
of the July 17 conversation between Birges and Bochman contains any
indication that the subject of Birges' existing union contractual relations was
discussed, or that Bochman even so much as asked Birges whether he was
subject to union contract.
's As is evident, a union scale for work is not necessarily a prevailing
wage rate, and there is no basis in the record for equating the prevailing wage
rates required by law and contract for the golf course project with the wage
scale maintained by the Plumbers Union The Respondents assert, in fact,
that the question whether Birges was complying with the prevailing rate
requirements is not presented for determination (Resp. Br., p 9), although
making something of a point at the hearing and in their brief (pp 14-15)
that Birges had made some underpayments for overtime to employees. A
finding on the question of compliance with the prevailing rate requirements
is appropriate, and I have made it earlier, but to bring the overtime under-
payments into proper focus, it is worth noting that they consisted of a
mistake of some 2 cents per hour in computing overtime for 1 or 2 weeks,
that Birges' wife, who appears to be his bookkeeper, discovered the mistake
toward the end of August, about a month after the picketing began, that the
mistake was voluntarily corrected by payment of the sums due (amounting
to as little as 56 cents for some employees); and that the computation error
has no connection with the picketing, and is thus wholly immaterial to any
issue here.
Childers, in substance, that he suspected that Birges "had
ideas ... of paying less than the craft rates in the area."
However, that falls far short of making the Respondents'
case on the picketing issue. Section 8(b)(7)(A) of the Act
forbids picketing "where an object thereof is forcing or re-
quiring an employer to recognize or bargain with , a labor
organization" in circumstances described in the relevant
statutory provisions; and thus, assuming that an object of the
picketing was "to protest and publicize" a failure by Birges
to meet what the Respondents regarded as proper wage stan-
dards, whether measured by the union scale or legal prevail-
ing rate requirements, the picketing was unlawful if it also
had an object of compelling Birges to recognize or bargain
with the Plumbers Union.
Although it matters not whether the Respondents had the
first object, if they also had the second, it is nevertheless
appropriate to note a number of considerations that make for
a substantial doubt, to say the least, that the Respondents had
any real concern that Birges was not complying with legal
prevailing rate requirements.
For one thing, there was nothing about the picketing to
indicate a purpose to "publicize" the Respondents' claimed
"good faith belief' that Birges was not meeting prevailing
wage requirements. Indeed, the picketing did not even com-
municate a message that the prevailing rates for "plumbers"
set forth in the specifications, and known to Bochman, were
below the Plumbers Union's scale. One would think that if
the picketing was designed to publicize some dissatisfaction
with wage conditions applicable to the project, the picket
would display some statement indicating the focus of the
Respondents' discontent, instead of merely displaying the
phrase "Picket, AFL-CIO." It is beside the point to say that
the quoted legend does not of itself indicate a proscribed
object, for it is the ,Repondents who claim that the picketing
was aimed at publicizing their belief that Birges was paying
substandard wages for "plumbers' work," and it is a fact that
the very instrument allegedly selected for that purpose did
nothing of the sort.
For another matter, notwithstanding the emphasis Child-
ers now places on his alleged belief that Birges was violating
the prevailing wage requirements, it is a fact that Childers
admittedly never filed allegations of such violations with the
state authorities charged by law with the responsibility for
enforcing the statutory penalties, and had no contact with
any San Leandro municipal official about the matter until
about a week after the picketing began, when, according to
Childers, he told the city's director of public works that
Birges "was not paying prevailing rates." (The city did not
agree, as is evident from a memorandum dated August 10,
addressed to the director by the assistant director of public
works, certifying that for the period beginning July 13, when
work on the Birges project began, and ending July 31, Birges
had complied with the prevailing wage requirements. The
municipality sent Childers a copy a day or two after August
10.) Moreover, it may fairly be inferred from Bochman's
testimony that prior to the picketing he never complained to
any municipal or other governmental authority that Birges
was violating the required wage standards." Significantly,
too, Bochman voiced no such complaint to Birges at any time
11 Bochman could recall only one conversation regarding prevailing
wages with any city official prior to the start of the picketing, and that
discussion, according to Bochman, occurred about July 10 (before Birges
began work on the project), and on that occasion substantially all that he
did was to ask the director of public works for information regarding the
basis for wage rates set forth in the specifications for various job classifica-
tions
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to the start of the picketing, as is evident from both
accounts of the July 17 conversation.
True, Bochman and another business agent of the Plum-
bers Union named Stacey took pictures of Birges' crew and
materials at the project, and this gives some support to the
Respondents' claim that they suspected that Birges was not
meeting prevailing wage requirements, but it is something
else to say that such a suspicion was the causative factor in
the picketing decision." There is even reason to question that
the photography was undertaken for the sole purpose of es-
tablishing noncompliance by Birges with the requirements.
The pictures were taken on a number of occasions over a
period of about 2 weeks, starting about the time the picketing
began, and were turned over to Childers, but, so far as ap-
pears, all that was done with any of them beyond that was
that about a week or 10 days after the picketing began, Boch-
man showed one or more pictures of three employees of
Birges, taken while they were at work on pipe in a ditch, to
San Leandro officials, telling the latter that "we would expect
Mr. Birges to be paying prevailing wages to a number of
plumbers that were doing plumbers' work." One may fairly
say that the photography was a disproportionately large effort
for so small a result, especially as the expectation Bochman
claims he voiced was no more than the law and the contract
required of Birges in any case; and the practically negligible
use made of the pictures, considered in conjunction with
other aspects of the record, suggests the possibility of another
purpose for the photography than the one the Respondents
now stress as their sole objective. Against the background of
the scant use to which the pictures were put, if it is true, as
Birges claims , that Bochman threatened, on July 17, to
"make it hard" on him, and to picket the project, if he refused
to employ members of the Plumbers Union, there is at least
reasonable ground for suspicsion that the repeated pic-
turetaking, with its implication of some future use to the
possible detriment of Birges or those photographed, was an
implementation of the threat, aimed at harrassing or in-
timidating Birges into yielding to Bochman's request for em-
ployment of members of the Plumbers Union; or that the
photography was undertaken in the hope that it would turn
up some information that would be of use as an instrument
of reprisal against Birges because of his rejection of the re-
quest that he hire members of the Plumbers Union.
But even if it be assumed that the Respondents did have
a "good faith belief' that Birges was not meeting prevailing
wage requirements, and undertook the photography to verify
the belief, with an aim of taking steps to protect their wage
" Some 2 or 3 days after the picturetaking and picketing began, Birges
objected to the photography, and when Bochman refused to desist, at-
tempted to push Bochman off the property where the work was in progress.
The Respondents assert in their brief that Birges' conduct "demonstrates"
that he was attempting to conceal a failure to meet his prevailing wage
obligations. I do not agree, especially in the light of the undisputed evidence
of Birges' compliance with the standards Moreover, the Plumbers Union,
through Bochman or Stacey, or both, had previously taken pictures of the
work and jobsite on a number of occasions without interference from Birges
or anyone else. Without condoning Birges' use of force to implement his
subsequent objection, it is at least as reasonable to say that his objection was
rooted in such considerations as annoyance with the repetition of the pho-
tography, or with the picketing, or with both, or in an unarticulated concern
for his right of privacy, or that of his employees, or in the existence of safety
hazards on the project, which he pointed out to Stacey, as to say that his
attitude "demonstrates" a design to conceal nonobservance of the wage
requirements. Indeed, there is no indication that Birges was even aware at
the time of his fracas with Bochman of any claim or suspicion that he was
not complying with the wage standards. It is worth noting, in that connec-
tion, that he asked Stacey at one point for the purpose of the pictures, and
Stacey expressly declined to state it beyond saying that they were for use
as "evidence against you in a court."
standards, that does not necessarily mean that the suspicion
fathered the picketing decision , nor exclude the existence of
multiple aims in the picketing , one of them the legitimate one
the Respondents ascribe to themselves , and the other a ,pro-
scribed object. A forbidden purpose is clearly visible in either
version of the July 17 conversation , viewed in the light of the
total record.
In essence , both versions , although with differing terms
and emphasis, portray Bochman as seeking to induce urges
to hire members of the Plumbers Union , and Birges as declin-
ing to do so; and the objective fact is that the picketing began
a few days later , without any prior complaint either to Birges
or the San Leandro municipal authorities that Birges was not
complying with prevailing wage requirements . Either ver-
sion , in short , harnessed to the fact of the picketing soon
thereafter , warrants an inference that Birges' refusal to hire
members of the Plumbers Union was at least one causative
factor in the picketing , and that an object of the picketing was
to compel Birges to hire members of the Plumbers Union for
work at the project.
That object plainly implied an aim to force or require
Birges to recognize or bargain with the Plumbers Union as
the representative of those it was seeking to compel Birges to
hire. On that score, it would be disingenuous to claim that the
Plumbers Union was not seeking recognition or contract
terms from Birges , for in almost the very breath that Boch-
man, in his testimony , describes himself as telling Birges that
he would furnish plumbers for the project, without requiring
Birges to sign a contract , he quotes himself as posing the
condition that Birges would "guarantee" the Plumbers Union
that he would pay the men supplied "proper wages and
fringes"; or, in other words, as I infer, that he would pay them
the union scale and the fringe benefits usually provided by the
organization 's contracts with employers . The very posing of
the condition was a species of attempted bargaining , and the
"guarantee," if given, would have amounted to a contractual
commitment by Birges to the Plumbers Union . The sum of
the matter is that Bochman 's own version of his'conversation
with Birges spells out not only an effort to induce Birges to
hire members of the Plumbers Union, but an ' aim by that
organization to establish a collective-bargaining relationship
on behalf of such members between itself and Birges.
Any doubt about the matter is dispelled by'the evidence
that in their July 17 conversation , Bochman threatened
Birges that the Plumbers Union would "make it hard" on
Birges and would picket him unless he hired members of the
organization for work at the golf course project . Bochman, it
may be noted, does not, in terms at least, deny that he made
the threat imputed to him, 1I and the very fact that the picket-
ing began soon after the unsuccessful attempt to induce
Birges to hire members of the Plumbers Union adds weight
to his testimony that the threat was made. I credit that tes-
timony.
What has been said above amply warrants a conclusion
that an object of the picketing was to compel Birges to hire
members of the Plumbers Union , and to recognize and bar-
gain with that organization , and I am convinced, on the basis
of the findings made above that such an object was a root
cause of the picketing , but, in addition, the evidence of a
telephone conversation between Childers and Birges about 5
days after the picketing began is worth noting for the bearing
it has on the picketing motivation.
18 A denial by Bochman that he threatened "any consequences if (Birges)
didn't sign a contract" is not a denial that he threatened Birges with "conse-
quences" if the latter did not employ members of the Plumbers Union at the
project
BLDG. AND CONSTR. TRADES COUNCIL 793
There is no dispute that Birges initiated the call and that
he asked Childers for the reason for the picketing. According
to Birges, Childers replied that the reason was that Birges'
enterprise was nonunion; Birges responded that he has a
"valid contract with the Trade Building Service, Local 18"
(sic); and Childers stated that he had never heard of the
organization." Then, Birges testified, he put several of his
employees on the telephone, in turn, to tell Childers that they
were union members, and following that, he asked Childers
what he would have to do to have the picket removed, and
Childers replied that that would be done if Birges "signed a
contract with us."
On direct examination, Childers' version was, in material
substance, that he told Birges that the reason for the picketing
was that "he didn't believe that (Birges) was paying the right
wages"; that Birges challenged him to "order these people
(Birges' employees) off the job"; that Childers replied that he
had no intention; that Birges then had three of his employees
take the telephone, in turn, to speak to Childers; that the
latter interrogated them about their type of work, wage scale,
and union affiliation; and was told by one that he was a
member of an operating engineers' local, by the other two
that they had no union affiliation, and by all three that they
did not know what their wage scale was; that resuming the
conversation, Birges "finally said that he had a contract with
"Building Trades, Local 18"; that Childers said he had never
heard of the organization; that Birges was unable to furnish
the names of representatives of Local 18 with whom he dealt;
that Childers then said again that he knew of no such union,
and asserted that in view of the responses from the three
employees, it appeared to him that Birges was "not telling the
truth"; and that Birges invited Childers to tell him that in
person, adding that he had a gun, and knew how "to take care
of people like" Childers.
The material question raised by the two versions is the
nature of the reason for the picketing given by Childers, and
whether he gave the condition for removal of the picket at-
tributed to him. In passing on the issue, one must take an
appropriately cautious approach to Birges' testimony regard-
ing the claimed condition, for on the surface, at least, the
claim appears somewhat pat, fitting neatly the necessities of
Birges' case . Yet, on a total view of the record, and my
observation of both participants in the conversation, put to a
choice between the two versions, I am persuaded that that of
Birges has more qualitative weight than that of Childers.
To begin with, on the very issue of the reason he gave
Birges for the picketing, Childers contradicted himself, shift-
ing from testimony, under direct examination, that the reason
was his belief that Birges was not "paying the right wages"
to a claim, under cross-examination, that the picketing reason
he gave was that "we were not satisfied ... with his (Birges')
responses to Mr. Bachman, that he (Birges) had a bunch of
non-union people on the job there." The reference to Birges'
unsatisfactory "responses" to Bochman is a matter for inter-
pretation, and it appears to me that the allusion is to Boch-
man's alleged report that Birges' replies to Bochman's effort
to ascertain whether Birges had a union contract had been
"unsatisfactory." This interpretation is clearly supported by
the phrase "he (Birges) had a bunch of nonunion people on
the job there" that follows the reference to Birges' responses."
In any case, whatever Childers meant by his allusion to "re-
sponses," according to his own account, under cross-exami-
nation, he told Birges that the latter's employment of "non-
" It does not appear whether Birges is more familiar with a foreign
language than with English, but he occasionally evidences some difficulty in
the use of locutions in English, as in his identification of Local 18 as "Trade
Building Service, Local 18 "
union people" had led to the picketing; and this, in substance,
corroborates Birges' claim that the picketing reason given
him was that his enterprise was nonunion. That claim is
buttressed, moreover, by the clear indications in Childers'
account of his telephone discussion with Birges, and then
with the employees, that he was preoccupied with the ques-
tion whether Birges' operations were unionized. 20 I am con-
vinced, in short, that the picketing reason given Birges by
Childers was to the effect that his enterprise was nonunion.
To give Birges that reason for the picketing is, in the con-
text of circumstances, but a small step from telling him that
the picketing would cease if he would unionize his operations
by entering into "a contract with us" (in other words, into an
agreement with the Plumbers Union, as may fairly be in-
ferred). And, especially in the light of Bochman's admitted
prior effort to induce Birges to hire members of the Plumbers
Union, and commit himself to "guarantee" that he would
meet that organization's wage and fringe benefit standards,
and of the fact that the picketing followed soon after the
failure of the effort, I find it wholly plausible that Childers
would pose the condition for the cessation of the picketing
that Birges imputes to him.21 I conclude , in sum, that the
telephone conversation between Childers and Birges took
substantially the course described by Birges and credit his
account.
The picketing decision, and its underlying motivation,
were formed much before this conversation, and as previously
indicated, I am convinced, quite apart from the credited evi-
dence of that discussion, that an object of the picketing was
to compel Birges to hire members of the Plumbers Union for
work at the golf course project, and to recognize and bargain
with the Plumbers Union as the representative of the em-
ployees performing such work; but, in addition, the existence
of such an object is clearly evidenced by the reason given
Birges for the picketing, and the condition for its discontinu-
ance expressed by Childers.
Summarizing the results I reach, I find that the picketing
had such an object; and that by reason of the picketing, the
Building Trades Council and the Plumbers Union violated
Section 8(b)(7)(A) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Building Trades Council and the
Plumbers Union, set forth in section III, above, Occurring in
connection with the operations of Birges, described in section
I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several states, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V THE REMEDY
Having found that the Respondents have engaged in unfair
labor practices in violation of Section 8(b)(7)(A) of the Act,
I shall recommend that they cease and desist therefrom and
take certain affirmative actions designed to effectuate the poli-
cies of the Act.
20 One of the employees, Joaquin Garcia, testified, and he contradicts
Childers' version of their conversation, stating that he told Childers, in
response to the latter's query, that he was a union member (identifying it
as "Local 18, from Oakland"), and denying that Childers said anything
about his wage rate. I dispense with a resolution of this subsidiary credibility
issue, as it would not alter the ultimate results here.
21 I note, also, that Childers' testimony contains no express denial that
he made a statement regarding removal of the picket to the effect attributed
to him by Birges An intimation in a question put to Childers in cross-
examination that he had entered such a denial is erroneous.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon
the entire record in this proceeding, I make the following
conclusions of law:
1. John Birges, d/b/a John Birges Landscaping, is, and has
been at all material times, an employer within the meaning
of Section 2(2) of the Act.
2. The Building Trades Council, the Plumbers Union, and
Local 18 respectively are, and have been at all material times,
labor organizations within the meaning of Section 2(5) of the
Act.
3. By picketing operations of Birges for an object pro-
scribed by Section 8(b)(7)A), as found above, the Building
Trades Council and the Plumbers Union have engaged in
unfair labor practices within the meaning of Section
8(b)(7)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices ' affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclu-
sions of law and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended order:22
Building and -Construction Trades Council of Alameda
County, AFL-CIO, and Plumbers & Gas Fitters Local
Union No. 444, United, Association of Journeymen & Ap-
prentices of the United States & Canada, AFL-CIO, their
officers, agents, and assigns , shall:
1. Cease and desist from picketing, or causing or threaten-
ing to picket, John Birges, d/b/a John Birges Landscaping,
where the said Birges has lawfully recognized, in accordance
with the National Labor Relations Act, as amended, Building
Service Employees' International Union, Local No. 18, or
any other labor organization, and a question concerning rep-
resentation may not appropriately be raised under Section
9(c) of the said Act, with an object of forcing or requiring the
said John Birges, d/b/a John Birges Landscaping, to recog-
nize or bargain with the said Plumbers Union or the Building
Trades Council as the collective-bargaining representative of
employees of the said John Birges, d/b/a John Birges Land-
scaping, to accept the Plumbers Union or the Building Trades
Council as their collective-bargaining representative, unless
the said Plumbers Union or Building Trades Council, as the
case may be, is currently certified as the representative of such
employees.
2. Take the following affirmative actions which, I find, will
effectuate the policies of the Act:
(a) Post in conspicuous places at their respective principal
offices and usual membership meeting places, copies of the
attached notice marked "Appendix." Copies of said notice,
on forms provided by the Regional Director for Region 20 of
the National Labor Relations' Board, shall, after being signed
by a duly authorized representative of each of the Respond-
ents, be posted by each immediately upon receipt thereof, and
be maintained by each for 60 consecutive days thereafter in
conspicuous places, including all places where notices to its
members are customarily posted. Reasonable steps shall be
taken by each Respondent to insure that the said notices it
" In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations and recommended order herein shall, as
provided in Sec 102 48 of the Rules and Regulations, be adopted by the
National Labor Relations Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed wavied for all purposes.
posts are not altered, defaced or covered by any other
material.
(b) Forthwith mail copies of the said notice to the said
Regional Director of Region 20 of the Board in San Fran-
cisco, California, after such notice has been signed as pro-
vided above, for posting by John Birges, d/b/a John Birges
Landscaping, if he so agrees, in places where he customarily
posts notices to his employees."
(c) Notify the said Regional Director, in writing, within 20
days from the date of receipt of a copy of this decision, what
steps the Respondents have taken to comply therewith.24
:' In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
:" In the event that this recommended Order is adopted by the National
Labor Relations Board, after exceptions have been filed, par. 2(c) thereof
shall be modified to read "Notify the said Regional Director, in writing,
within 20 days from the date of this order, what steps the Respondent has
taken to comply therewith "
APPENDIX
NOTICE
To ALL EMPLOYEES OF- JOHN BIRGES, D/B/A JOHN
BIRGES LANDSCAPING
To ALL MEMBERS OF BUILDING AND CONSTRUC-
TION TRADES COUNCIL OF ALAMEDA COUNTY,
AFL-CIO, AND PLUMBERS & GAS FITTERS LOCAL
UNION No 444, UNITED ASSOCIATION OF
JOURNEYMEN & APPRENTICES OF THE UNITED
STATES & CANADA, AFL-CIO
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National Labor
Relations Board has found that we have violated the National
Labor Relations Act, and has ordered us to post this notice:
WE WILL NOT picket, or cause or threaten to picket,
John Birges, d/b/a/ John Birges Landscaping, where
the said John Birges, d/b/a John Birges Landscaping,
has lawfully recognized, in accordance with the National
Labor Relations Act, Building Service Employees' Inter-
national Union, Local No. 18, or any other labor organi-
zation , as the collective-bargaining representative of em-
ployees of the said John Birges, d/b/a John Birges
Landscaping, and a question of representation may not
appropriately be raised under Section 9(c) of the said
Act, with an object of forcing or requiring the said John
Birges, d/b/a John Birges Landscaping, to recognize or
bargain with either of us as the representative of the said
employees of John Birges, d/b/a John Birges Landscap-
ing, or forcing or requiring the said employees to accept
either of us as their collective-bargaining representative,
unless either, as the case may be, is currently certified as
the representative of such employees.
BUILDING AND
CONSTRUCTION TRADES
COUNCIL OF
ALAMEDA COUNTY,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
BLDG. AND CONSTR. TRADES COUNCIL 795
Dated By
PLUMBERS & GAS
FITTERS LOCAL
UNION No.
444, UNITED
ASSOCIATION OF
JOURNEYMEN
& APPRENTICES
OF THE UNITED
STATES & CANADA,
AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60, consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 450
Golden Gate Avenue, Box 36047, San Francisco, California,
Telephone 556-0335.