Building and Construction Trades

National Labor Relations Board - Board Decisions

Jun 9, 1977

230 N.L.R.B. 42 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Building and Construction Trades Council of Dela-
ware and Pettinaro Construction Co., Inc. Case 4-
CP-256
June 9, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On November 10, 1976, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs, and
the Charging Party joined in the General Counsel's
exceptions. The General Counsel also filed a brief in
answer to Respondent's exceptions and brief, and the
Charging Party filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Building and
Construction Trades Council of Delaware, New
Castle, Delaware, its officers, agents, and representa-
tives, shall take the action set forth in the said
recommended Order.
We find merit in the General Counsel's limited exceptions to the
Administrative Law Judge's finding that the carpenter employed by
Pettinaro when picketing commenced was being paid less than union wages
and benefits. The Administrative Law Judge correctly found that the
carpenter. Mannucci, who began work on or about February 9, 1976. was
paid S10.98 per hour including fringe benefits. Although it appears that the
Council's rates were raised to S 1 1.57 on May I, 1976. the record reveals that,
prior to May 1, 1976, when Mannucci was hired and at the time the
picketing commenced on April 1, 1976. the Council's wage rate was $10.98
including fringe benefits. Thus it is clear that Pettinaro was paying
Mannucci in accordance with area standards at the time picketing
commenced on April 1, 1976. Further, we note that Respondent has
presented no evidence that establishes that Pettinaro was not in fact
complying with area wage standards at the time its picketing commenced on
April 1,1976.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This case
was heard before me at Philadelphia, Pennsylvania, on
August 26, 1976, pursuant to charges filed on May 6, 1976,
and a complaint issued July 23, 1976, wherein it is alleged
that the Respondent, Building and Construction Trades
Council of Delaware, violated Section 8(bX7X)(C) of the
Act. The Respondent denies any violations of the Act.
Upon the entire record, including my observation of the
witnesses as they testified, and after due consideration of
the posthearing briefs filed by the General Counsel, the
Respondent, and the Charging Party, I make the following:
FINDINGS AND CONCLUSIONS
I. BUSINESS OF THE CHARGING EMPLOYER
The complaint alleges, the answer as amended at the
hearing admits, and I find that Pettinaro Construction Co.,
Inc. (hereinafter variously referred to as Pettinaro, the
Employer, and the Company), is, and has been at all times
material herein, a Delaware corporation, with its principal
offices located in Wilmington, Delaware, engaged as a
contractor in the building and construction industry; that
Pettinaro, during the past year, has provided goods and
services valued in excess of $50,000 to firms which in turn
annually sell and ship goods valued in excess of $50,000
directly to points outside the State of Delaware; and that
Pettinaro is, and has been at all times material herein, and
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the National Labor Relations Act,
as amended (herein referred to as the Act).
1. THE LABOR ORGANIZATIONS
The complaint alleges, the answer as amended at hearing
admits, and I find that Building and Construction Trades
Council of Delaware (sometimes referred to herein as the
Respondent, the Council, or the Union), is, and has been at
all times material herein, an unincorporated association
composed of affiliated labor organizations in the building
and construction industry in Delaware and is a labor
organization within the meaning of Sections 2(5) and 8(b)
of the Act. I further find, as the complaint alleges and the
Respondent admits, that Theodore W. Ryan is, and has
been at all times material herein, the president of the
Council and an agent of the Respondent within the
meaning of Sections 2(13) and 8(b) of the Act.
The complaint further alleges, and the Respondent
denies, that the Council and its president, Theodore W.
230 NLRB No. 4
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BLDG. & CONSTRUCTION TRADES COUNCIL OF DELAWARE
Ryan, are agents of the Council's affiliated labor organiza-
tions. I find that the Respondent and its president,
Theodore W. Ryan, acted as agents for and on behalf of its
affiliated labor organizations in conducting the picketing
herein and the communications between the Council and
Pettinaro at the behest of the local unions and pursuant to
a vote of the board of business agents composed of
business agents of the Council's affiliated local unions,
each of which business agents was acting on behalf of its
respective locals.' I would further note that the picketing
itself was done by members and business agents of the
locals utilizing a council sign.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts2
Pettinaro placed a bid on the U.S. Postal Service Project
located in New Castle County, Delaware, in late October
1975, seeking to be the general contractor for the
construction of a general mail facility and a vehicular
maintenance facility at a project value of $7,625,000. At no
time material has Pettinaro had any collective-bargaining
agreements with any labor organization.
The construction contract was awarded to Pettinaro on
or about January 16, 1976.3 Pettinaro Vice President
Bertomeu credibly testified that, about 2 weeks before the
award, he and President Pettinaro called Council President
Ryan to meet with them at the Company's offices in
Wilmington, Delaware. The conversation between the
three, at the Company's office, lasted from 10 to 15
minutes. 4 The testimony of Bertomeu developed by
General Counsel on direct examination reads, in pertinent
part, as follows:
Q. Was there any particular reason why you
wanted to talk to him about the project?
A. Yes. We were concerned because -
MR. KATZ: I object to his motivation, his uncommuni-
cated motivation, your Honor.
JUDGE WOLFE: Well, I'll agree that his motivation is
probably uncommunicated at this time, but I'll overrule
the objection and let him communicate it into the
record for whatever relevance it may have.
Q. (By Miss Schick) Proceed, Mr. Bertomeu.
A. We were concerned at the time - at the time all
this took place, the common situs picketing bill was on
the President's desk for his signature, and we wanted to
know if we were going to have a problem with this job
because traditionally we operate open shop, which
means we use union and nonunion subcontractors. We
were concerned if the President did sign the bill if we
were going to have the cooperation of the Building
Trades Council or were we going to have to go the
other way and use only nonunion people.
Q. Now, how did the conversation (sic) in your
office begin?
I See Building and Construction Trades Council of Delaware (Petinaro
Construction Co.. Inc.), 215 NLRB 624 (1974).
2 The facts set forth herein are based on a synthesis of the credited
aspects of the testimony of the witnesses, the exhibits, the stipulations of the
parties, and careful consideration of the logical consistency and inherent
probability of the facts.
A. Mr. Ryan come in, the normal small talk, and
then we went into the Post Office Project, common
situs, and wanted to know what Mr. Ryan's position
would be if, you know, if we were going to once again
be picketed and bothered by the Building Trades
Council.
Q. And what did Mr. Ryan communicate to you
was his position?
A. He said that he could not speak for his
membership.
Q. Did he say anything else?
A. Yes. He said, well - however, he would like -
he said we are the biggest nonunion contractors in the
state and he would like us to sign an agreement, to be
the first to sign an agreement to use only union
subcontractors.
Q. Did he ever show you an agreement that he
wanted you to sign?
A. No.
On cross-examination by the Respondent, the following
testimony was elicited from Bertomeu:
Q. All right. Now getting back to this conversation,
do I understand that you asked Mr. Ryan for some
assurances?
A. Correct.
Q. And Mr. Ryan's response to you was that he
didn't think he could control his membership and
therefore could not give you any assurances?
A. He said he couldn't speak for the membership.
Q. Oh, couldn't speak for the membership - okay.
And was it as part of that conversation that he said,
'Why don't you agree to use only union subcontrac-
tors?'
A. Yes.
MR. MASTRO: I - Well -
MR. KATZ: Okay.
Q. (By Mr. Katz) And that, in fact, was his request,
was it not? To use only unionized subcontractors?
A. To sign an agreement to use only subcontrac-
tors, yes.
Q. To use only union subcontractors?
A. Yes.
Q. And that statement came at the tail-end, did it
not, of discussion of the problem of the common situs
picketing, if you can recall?
A. That's tough to recall.
Q. It was in there some place?
A. The statement was there.
Q. Okay - it was in there some place, but you
don't know exactly where, right?
A. Correct.
Q. Did he offer to send you a contract?
A. No.
3 All dates hereinafter referred to occured in 1976 unless specifically
noted otherwise.
4 Neither Mr. Ryan nor Mr. Pettinaro testified with regard to this
meeting.
43
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. As a matter of fact, he said, did he not, that
Building Trades Council doesn't even have a contract
like that?
A. Not that I recall.
Q. Okay. Was there any discussion, at all, as to
whether such a contract existed between the Delaware
Building Trades Council and any contractor?
A. No - Well, he said -you know -'We would
like you to be the first.' So, you know - you assume
from that that there are no others.
There have been no other meetings between the parties
since this conversation.
The first employee of Pettinaro who worked at the postal
project was carpenter Mannucci who began work on or
about February 9, as shown by the Employer's payroll
which reflects that Mannucci worked 40 hours during the
week ending February 15. The next Pettinaro employee on
the job was apprentice carpenter Berrios who first appears
on the payroll of the week ending March 28. Mannucci was
paid $10.98 per hour (including fringe benefits) and Berrios
$4.39. The Council's wage rate for carpenters in New
Castle County is $11.57 including fringe benefits. The
parties stipulated that the first laborer hired by Pettinaro
was hired on April 5. The parties further stipulated that, if
called as a witness, Project Manager Anderson would
testify that he posted the wage rates determined and issued
by the U.S. Postal Service Project for all crafts that might
possibly work on the project, and that the rates were posted
inside the jobsite trailer on February 10 and on the bulletin
board outside the trailer on March 4, and were reposted on
March 24. The parties further stipulated that no represen-
tatives of the Union ever saw the posted rates.
According to Council President Ryan, it was reported to
him by a couple of business agents (he specifically names
Bricklayers Business Agent Viscount) in February or early
March that Pettinaro's men working on the job, more
specifically one laborer whose name is unknown, were
being paid less than the Union's wage rates, and the
Council referred the matter to its attorney for further
investigation of the wage rates. Thereafter, the Council
conducted its communication with Pettinaro through its
attorney who engaged in an exchange of letters, and in one
instance a telegram, with the Company. These communica-
tions are set forth below, in pertinent part, in sequential
order.5
1. February 23-the Respondent to Pettinaro
As you are aware, the Council is encharged with the
responsibility of policing the observation of area wage
standards. It is our understanding that as the general
contractor on the above noted job, you are employing
laborers, carpenters, cement masons, etc., under pay
and benefit standards which are substantially beneath
those which prevail in the area.
5 I do not view the two letters by the Respondent to the Regional Oflice,
prior to the filing of the instant charge, setting forth its position with regards
to the Pettinaro picketing as having any evidentiary value or placing any
burden on the Board agent to advise the Respondent, during an
investigation of a related secondary boycott charge, of the wage and benefit
Accordingly, it is the intent of the Council to
commence picketing for the sole and limited purpose of
protesting the destruction of standards which will result
from your pay and benefit practices.
At such time as you are willing to conform these
practices to economic levels which our Council is
obliged to enforce, the question of picketing may be
avoided ...
2. February 26-Pettinaro to the Respondent
1. It is our understanding that the U.S. Department
of Labor is 'Encharged with the responsibility of
policing the observation of area wage standards' and
not the Building Trades Council of Delaware.
2. Your understanding that our pay and benefit
standards are substantially beneath those that prevail
in the area is incorrect.
3. March 22-the Respondent to Pettinaro
Thank you for your letter of February 26, 1976. The
standards of labor costs with which the U.S. Depart-
ment of Labor concerns itself may at time vary with the
area standards with which the Building Trades Council
is concerned.
For your information, the labor costs for the trades
that you employ directly are as follows:
Cement Masons: $8.50 per hour; formen $9.15;
General foremen $9.25; plus $.78 per hour to
Welfare and $.72 per hour to Pension.
Carpenters: $9.70 per hour; $.54 to Pension; $.74 to
Welfare and $.02 to Apprentice Funds.
Laborers: $7.30 per hour to $8.55 per hour depending
on type of work; plus Welfare Fund $.60 per
hour; Pension $.40 per hour.
These rates will be increased as of May I, 1976.
It is our understanding that you do not in fact pay
these wages and that these are not the wages that will
be observed on the job in questions. If you are willing
to pay these wages and benefits or any equivalent type
of labor costs, then the matter may easily be resolved.
If I do not hear from you or your attorney within five
days of the date of this letter, I will assume that there is
a substantial disparity between these labor costs levels
and your pay practices and that standards picketing is
appropriate.
4. March 29-Pettinaro to the Respondent
In response to your letter dated March 22, 1976,
please be advised that Pettinaro Construction Compa-
ny is now complying with area standards for all of its
employees on the Post Office job in question. Accord-
ingly, any picketing would be a violation of the Act,
and will be met with all appropriate legal recourse.
levels paid by Pettinaro. Nor do I agree with the Respondent that the Board
agent's failure to furnish this information justified a conclusion by the
Respondent that area standards picketing was appropriate. Therefore I have
neither included herein nor adverted to these letters in reaching my
conclusions.
44
BLDG. & CONSTRUCTION TRADES COUNCIL OF DELAWARE
5. April I -Pettinaro to the Respondent NOTCE
Demand is made that you cease immediately all
picketing at the United States Post Office Project. We
refer you to our recent letter confirming that we meet
Prevailing Wages and Standards. You're so called
'Area Standards' picketing is clearly unlawful and
unless ceased immediately we will take all legal steps
necessary, including damages.
6. April 2-the Respondent to Pettinaro
. . . My letter of March 22, 1976 sets forth certain
specific wage and benefit levels. The wage determina-
tion made by the government at any particular job does
not necessarily conform to the area wage standards
which a labor organization has a right to protect. The
specific standards are those which I made reference in
my letter, although they may be paid in any form or
variety which the employer sees fit.
I take it from you letter that Pettinaro Construction
has no intention of meeting those levels and that
appropriate picketing would be the only avenue of
recourse....
7. April 5-Pettinaro to the Respondent
(telegram)
This is to advise that Quigley Boulevard which is
directly adjacent to the new post office site is a public
road a separate reserved gate has been established for
Pettinaro Construction Company Incorporated its
suppliers and employees on Quigley Boulevard approx-
imately 1/2 mile from Route 13.
A separte reserve gate has also been established for
all other contractors on Quigley Boulevard approxi-
mately 1/2 mile from Route 273.
All picketing directed against Pettinaro Construction
Company Incorporated must be limited to its exclusive
entrance.
8. April 7-Respondent to Pettinaro
Dear Mr. Bertomeu:
Apparently your letter of April 1, 1976 was dis-
patched prior to the time you were advised of my last
letter to your attorneys.
If your Counsel has now supplied you with a copy of
this letter, I should assume that you recognize the
legitimacy of the picketing and the important purposes
which the Council is obliged to achieve.
The Council commenced picketing at U.S. Postal Service
Project of Pettinaro on April I and thereafter continuously
picketed without interruption until July 19. The pickets
carried signs reading:
a Building and Construction Trades Council of Philadelphia and Vicinity,
AFL CIO (Altemose Construction Co.), 222 NLRB 1276 (1976); The Building
Pettinaro Construction Company Is Destroying
Building Industry Standards We Protest Against
Pettinaro Construction Company Not Observing
Area Wages and Standards Building Trades
Council
No petition for a Board-conducted election has been filed.
B. Discussion and Conclusions
Succinctly put, the General Counsel and the Charging
Party contend that an object of the picketing was
recognitional, and that this is shown by Ryan's conversa-
tion with Bertomeu and Pettinaro as it relates to a request
for an agreement to subcontract work only to union
subcontractors. It is further contended that the Respon-
dent's investigation into whether or not Pettinaro was
meeting area wages and standard's was superficial and
legally insufficient to meet its burden of thorough investi-
gation of the wages paid by Pettinaro before engaging in
picketing; and that the Respondent's claims of legitimate
area standards picketing are nothing but pretext. On the
other hand, the Respondent claims that the sole object of
the picketing was to protest "the destruction of the area
wage standards caused by the Pettinaro Construction
Company's pay and benefit policies," and that its unsuc-
cessful efforts to secure from Pettinaro information
regarding its wage and fringe benefit structure were a
sufficiently thorough investigation, with no adequate
response from Pettinaro, to warrant an honest conclusion
that area standards picketing was appropriate.
It is now established law that a building and construction
trades council's objective of seeking a subcontractor's
agreement from a general contractor who has direct
employees who perform work of a type encompassed by
such an agreement has, in and of itself, a recognitional
objective, because of the effect such an agreement would
have on the employees of the general contractor employed
in trades represented by the council's constituent member
unions.6 Pettinaro does employ carpenters, laborers, and
other employees in trades represented by the Respondent's
affiliated labor organizations. It is therefore necessary to
carefully examine the comments of Ryan relating to
subcontracting made to Bertomeu and Pettinaro during
their January meeting, and divine the true import of those
comments. I credit Bertomeu, who impressed me as a
truthful witness careful to relate only that of which he was
certain, and find that Ryan did request the Charging Party
to sign an agreement to use only union subcontractors,
which plainly means those subcontractors who had a
collective-bargaining relationship with labor organizations
affiliated with the Council. I further find that Ryan told
Bertomeu and Mr. Pettinaro that he (Ryan) would like
Pettinaro to be the first to sign such an agreement for the
asserted reason that Pettinaro is the biggest nonunion
contractor in the State of Delaware. The Respondent urges
that, taken within the total context of the testimony, the
conversation between Ryan, Bertomeu, and Pettinaro is
and Construction Trades Council of Philadelphia and Vicinity (Samuel E.
Long, Inc.), 201 NLRB 321 (1973).
45
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not significant. I reject this contention because it is clear
that Pettinaro, who had no contract with any union and
had been subjected to illegal recognitional picketing by the
Council in 1974,7 only met with Ryan for the purpose of
ascertaining whether or not the postal project was going to
be picketed by the Council. Ryan's initial response to the
Employer's question as to whether or not the job would be
picketed was the noncommittal statement that he couldn't
speak for the memberships I cannot believe, and I do not
believe, that Ryan was only making small talk when he
broached the question of a union subcontracting agree-
ment. Rather, I conclude that his request that Pettinaro
sign an agreement to use only union subcontractors was
the Respondent's real response to Pettinaro's inquiry about
the probabilities of picketing by the Respondent and was a
clear signal to the Employer that picketing could be
avoided by signing such an agreement. It is of no moment
that Ryan did not physically show a copy of such an
agreement to Pettinaro. I have no doubt that had Pettinaro
agreed to Ryan's request he would have been happy to
provide Pettinaro with a written agreement to sign.
The foregoing conclusions are not, however, dispositive
of the issues in this case. The question remains as to
whether or not the picketing for more than 30 days,
without a petition for election having been filed, has as an
objective the procurement of the subcontractor's agree-
ment requested. It does not necessarily follow that the fact
that Ryan requested the Employer to sign the agreement
and, in context, implied that this would eliminate picketing
establishes, without more, that the picketing had as part, or
all, of its objective the securing of such an agreement.
It is clear from the testimony of Ryan, if he be credited,
that the Respondent had only an unsubstantiated rumor at
best that some unnamed laborer was being paid less than
union wages, coupled with speculative expectation that
Pettinaro would pay less than the union rate to members of
other crafts whom it might later employ on the job, at the
time it referred the matter to its attorney for further
inquiry. Ryan concedes that the information then at the
Respondent's disposal was insufficient, in its opinion, to
warrant picketing at that time.
It was stipulated at the hearing that Pettinaro employed
no laborers until April 5, and the Employer's payroll shows
that the only employee of Pettinaro on the job prior to
March 22 was a carpenter receiving $10.98 an hour and
that the next employee was an apprentice carpenter who
first worked on March 22 at $4.39 an hour. I note that the
Respondent's first letter to Pettinaro was dated February
23 and conclude from this, and Ryan's claim that he
received the reports about the low paid laborer in late
February or early March prior to the referral of the matter
to Respondent's counsel, that the purported reports to
Ryan regarding an allegedly underpaid laborer were false,
if they were in fact made. Further, at the time Ryan claims
the decision was made to picket in early March there as yet
were no laborers on the job. I do not believe that business
agents went on the job and received information from a
I Building and Construction Trades Council (Pettinaro Construction Co.),
215 NLRB 624.
8 I construe "membership" in this context to refer to the labor
organizations affiliated with the Council.
nonexistent laborer which they reported to Ryan, or that a
business agent or agents deliberately made false reports to
Ryan that a laborer was not being paid the "prevailing
wage." From all the foregoing, a careful consideration of
Ryan's entire testimony, and my observation of Ryan on
the witness stand as he testified, I conclude that his
assertions regarding reports of low paid employees made to
him by business agents are not worthy of credit.
Insofar as the Respondent's investigatory efforts are
concerned, it would seem that had the Council been
seriously bent on ascertaining the wage rates of Pettinaro it
would have, at the least, investigated sufficiently at the
jobsite to read the rates openly posted by the Employer on
March 4 and 24. Further, Ryan admitted that he was aware
that the wages required by the Department of Labor were
printed in the Federal Register, and that the Respondent
did not check the Federal Register. Turning to the written
communications between the parties on the matter, they
amount to declarations by the Respondent that it had
information Pettinaro was not giving "laborers, carpenters,
cement masons, etc." the wages and benefits prevailing
under local area standards; that it did not care whether or
not Pettinaro was meeting "the standards of labor costs
with which the U.S. Department of Labor concerns itself";
that the standards it was referring to were those set forth in
union contracts; and that the Respondent understood that
Pettinaro did not pay union wages and benefits and would
not pay them to future employees. Pettinaro's consistent
reply was that the Respondent's understanding was
incorrect and that it was complying with area standards for
its employees on the post office job. The Respondent at no
time presented Pettinaro with any specific information in
support of its assertions that it understood Pettinaro was
not paying and would not pay the amounts that it
considered consistent with area standards. Indeed, as set
forth hereinabove, the Respondent had no such informa-
tion. The Respondent chose to treat Pettinaro's claim that
it was meeting area standards and its failure sua sponte to
provide the Respondent with its wage rates as evidence
that the Employer was not meeting area standards. Thus,
the Respondent had nothing more than its own ipse dixit to
support its asserted conclusion that Pettinaro was not
meeting area standards. This will not suffice. I regard West
Coast Cycle Supply Co. 9 as dispositive of the question of
adequate investigation and the inferences to be drawn from
the failure to adequately investigate. The following state-
ment by the Board in West Coast Cycle Supply Co. 10 is
squarely applicable to the case at bar:
The foregoing can hardly be characterized as a bona
fide attempt by Respondent to determine that, in fact,
the Employer's labor costs were substandard, which is
the duty of a union that seeks to engage in lawful area
standards picketing. Clearly, if Respondent, under the
circumstances herein, had been seeking such a lawful
object, it should have and would have met the
Employer's assertion that it was paying area standards
by presenting to the Employer the contrary information
9 Automotive Employees, Laundry Drivers & Helpers, Local No. 88
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
ofAmerica (West Coast Cycle Supply Co.), 208 NLRB 679 (1974).
10 Id at 680.
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BLDG. & CONSTRUCTION TRADES COUNCIL OF DELAWARE
it allegedly possessed and proceeded from there to
determine whether, in actuality, the Employer's labor
costs were substandard. Respondent's failure to do so
belies both its claim of possession of information
regarding the Employer's substandard labor costs and
its denial that it was picketing for recognition. (Citation
omitted.)
Like the respondent in West Coast Cycle, the Respondent
herein did not meet its burden of adequate investigation or
provide Pettinaro with the information it purportedly had,
and its claim of possession of information and its denial of
a recognitional objective is belied.
The Respondent's argument that the "hiatus" between
Ryan's statements to Bartomeu and Mr. Pettinaro relating
to subcontracting and the February 23 letter of the
Respondent to the Employer means that the letter's
declaration that any future picketing would have "as the
sole and limited objective the coping with the area
standards problem" must be viewed as a "conclusive
absolute" is rejected. Inasmuch as I have found that the
Respondent asked Pettinaro to sign an agreement to
engage only union subcontractors, had no evidence that
Pettinaro was not meeting area standards other than mere
suspicion, and did not go forward with its duty to extend
some reasonable bona fide effort to find out whether or not
Pettinaro was in fact not meeting area standards, before it
picketed, I regard the February 23 letter as nothing more
than a statement of a fixed intent to picket on the basis of
information it did not have for a purpose based on a
conclusion unsupported by any reasonable modicum of
evidence. Consequently, the February 23 letter is but a self-
serving document void of probative worth, and the lapse of
time between Ryan's subcontractor statements and the
letter lends no more stature to the letter than it thus enjoys.
Similarly, although I agree with the Respondent that the
wording on picket signs is a factor to be considered, it is
well settled that picket signs do not of themselves establish
the legality of picketing or its real object or objects," and
in view of the circumstances of this case I find that the sign
herein utilized is not a truthful reflection of the Respon-
dent's objective. The Respondent also appears to contend
that because it appears from the evidence adduced at the
hearing that Pettinaro, on and after the day the strike
began, was paying less than union wages and benefits, the
Respondent's belief was thereby confirmed and its motiva-
tion shown to be lawful. This contention will not bear close
scrutiny, for if the Respondent's motive was unlawful ab
inirio the picketing founded in whole or part on that motive
was illegal, and the subsequent discovery that the Respon-
dent might have had a valid reason for invoking lawful
area standards picketing, which it did not know of when
the picketing commenced, will not work retroactively to
make that lawful which was unlawful. In this connection, I
agree with the General Counsel that the plain language of
the statute requires only that "an object" of the picketing
need be recognitional to bring it within the confines of
Section 8(b)(7) of the Act.
I Local 3, International Brotherhood of Electrical Workers. AFL CIO
(Mansfield Contracting Corporation). 205 NLRB 559, 564 (1973).
I am persuaded from all the foregoing that the Respon-
dent's picketing was conducted for the purpose of inducing
or coercing Pettinaro to sign an agreement to hire only
union subcontractors, and that this, in combination with
the Respondent's failure to adequately investigate the
wages paid by Pettinaro, establishes that the picketing was
conducted for recognitional purposes as alleged in the
complaint. Accordingly, since the picketing occurred while
neither the Respondent nor any of its affiliated labor
organizations was certified as collective-bargaining agent
of any of Pettinaro's employees and for a period in excess
of the statutory 30 days, without the filing of a petition for
a Board election, the Respondent thereby violated Section
8(bX7)(C) of the Act.
The General Counsel has not, however, shown by a
preponderance of the evidence, or indeed any evidence at
all, that the picketing has induced employees of suppliers
or other persons to cease doing business with Pettinaro or
otherwise refuse or fail to perform other services at the post
office project, and that allegation set forth in paragraph 7
of the complaint will be dismissed.
THE REMEDY
Having found that the Respondent, through picketing,
has engaged in unfair labor practices, and considering the
fact that this is the second time in 2 years that the
Respondent has been found to have engaged in similar
unfair practices12 thereby exhibiting a propensity to
continue or repeat its illegal acts, I will recommend that the
Respondent be ordered to cease and desist from engaging
in such conduct with respect to any employer and take
affirmative action designed to effectuate the purposes of
the Act, including the posting of appropriate notices by the
Respondent and each of its affiliated local labor organiza-
tions.
CONCLUSIONS OF LAW
I. The Respondent, Building and Construction Trades
Council of Delaware, is a labor organization within the
meaning of Section 2(5) of the Act.
2. Pettinaro Construction Co., Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. By picketing the Pettinaro Construction Co., Inc.,
jobsite (U.S. Postal Service Project) for an object of forcing
or requiring Pettinaro to recognize or bargain with local
unions affiliated with the Respondent Council as the
representatives of its employees, although the Respondent
Council or these local unions are not certified collective-
bargaining representatives, without a petition having been
filed within 30 days after the commencement of such
picketing, the Respondent Council has engaged in unfair
labor practices within the meaning Section 8(b)(7X)(C) 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.
12 Building and Construction Trades Council (Pettinaro Construction Co.),
supra.
47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The allegation of paragraph 7 of the complaint has
not been proven.
Upon the above findings of fact, conclusions of law, and
the entire record in this case and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER '3
The Respondent, Building and Construction Trades
Council of Delaware, New Castle, Delaware, its officers,
agents, representatives, and affiliated local labor organiza-
tions, shall:
1. Cease and desist from picketing or causing to be
picketed, or threatening to picket or cause to be picketed,
Pettinaro Construction Co., Inc., or any other employer,
where an object thereof is forcing or requiring said
Employer to recognize or bargain with Respondent
Council or its affiliated locals, as the collective-bargaining
representative of its employees, or for the purpose of
forcing or requiring the employees of said Employer to
accept or select Respondent Council or its affiliated locals
as their collective-bargaining representative, under circum-
stances which would violate Section 8(bX7)(C) of the Act,
as amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post in conspicuous places at Respondent Council's
business office and all places where notices to its affiliated
labor organizations are customarily posted and in the
business office of its affiliated labor organizations and all
places where notices to their members are customarily
posted copies of the attached notice marked "Appendix." 14
Copies of said notices on forms provided by the Regional
Director for Region 4, after being signed by the duly
authorized representative of the Respondent, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in such
conspicuous places. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Furnish the Regional Director for Region 4 signed
copies of said notice for posting by Pettinaro Construction
Co., Inc., if willing, in places where notices to employees
are customarily posted.
(c) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
13 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, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
14 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties participated and offered
evidence, the National Labor Relations Board has found
that we violated the law and has ordered us to post this
notice and take the action indicated in it. We intend to
carry out the Order of the Board and we hereby notify you
that:
WE WILL NOT picket or cause to be picketed, or
threaten to picket or cause to be picketed, Pettinaro
Construction Co., Inc., or any other employer, where
an object thereof is forcing or requiring said employer
to recognize or bargain with us or our affiliated locals,
as the collective-bargaining representative of its em-
ployees, or for the purpose of forcing or requiring the
employees of said employer to accept or select us or our
affiliated locals as their collective-bargaining represen-
tative, under circumstances which would violate Sec-
tion 8(b)(7XC) of the Act, as amended.
BUILDING AND
CONSTRUCTION TRADES
COUNCIL OF DELAWARE
48