Building & Construction, Etc., of Santa Barbara

National Labor Relations Board - Board Decisions

Apr 27, 1964

146 N.L.R.B. 1086 (N.L.R.B. 1964)

1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, I hereby issue the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. All drivers, yardmen , and mechanics employed at the Respondent 's South Zanes-
ville, Ohio, operations excluding office clerical employees , guards, professional em-
ployees, and supervisors as defined in the Act, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Section 9(b) of the Act.
3. At all times since October 19, 1962, the Union has been the exclusive repre-
sentative , for the purpose of collective bargaining within the meaning of Section
9(a) of the Act, of all the employees in the aforesaid appropriate unit.
4. By refusing , since October 19, 1962, to bargain collectively in good faith with
the Union as the exclusive representative of its employees in the aforesaid appropri-
ate unit , by unilaterally deciding to terminate its maintenance operation , close its
garage and lay off the mechanics , and by laying off two of its drivers without reference
to the Union , the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of William
L. George , Harold R . George, Kenneth McCutcheon, and Chester Walker, the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act.
6. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Building and Construction Trades Council of Santa Barbara
County, AFL-CIO; International Brotherhood of Electrical
Workers, Local No. 413, AFL-CIO; and International Union
of Operating Engineers Local No . 12, AFL-CIO [Sullivan
Electric Company ] and Jones and Jones , Inc., and Interstate
Employers , Inc. Case No. 21-CP-107. April 27, 1964
DECISION AND ORDER
On December 4, 1963, Trial Examiner Heiman Marx issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had not engaged in the unfair labor practices alleged in the com-
plaint and recommended that the complaint be dismissed, as set forth
in the attached Trial Examiner 's Decision . Thereafter, the General
Counsel filed exceptions to the Trial Examiner's Decision, and a brief
in support of his exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection witli
.this case to'a three-meinber panel [Chairman McCulloch and Members
Fanning•and Brown].
The` Board has 'reviewed the rulings of the 'Trial'Egaminer made
at the hearing and finds that no prejudicialerror was committed.
146 NLRB No. 138.
BUILDING & CONSTRUCTION, ETC., OF SANTA BARBARA 1087
The rulings are hereby ,affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
We find, in agreement with the Trial Examiner , that the sole ob-
jective of the Respondent's allegedly unlawful picketing was to compel
Sullivan to comply with an existing valid collective-bargaining con-
tract between the parties. However, as described fully in the Trial
Examiner's Decision, it is evident that further bargaining between the
parties would be required in order to implement the terms of this
agreement, even if Sullivan was willing to comply therewith. Thus,
by attributing a bargaining objective to the Respondent's picketing
and by resorting to a strictly literal construction of the statute, it is
arguable that the picketing falls within Section 8(b) (7)'s prohibition
against picketing to force an employer "to recognize or bargain
with, a labor organization as the representative of his employees."
[Emphasis supplied.] Nevertheless, after analyzing the overall
congressional purpose behind the enactment of this section, ' we are
convinced that the words "recognize or bargain" were not intended
to be read as encompassing two separate and unrelated terms. Rather,
we believe they were intended to proscribe picketing having as its
target forcing or requiring an employer's initial acceptance of the
union as the bargaining representative of his employees. When
viewed in this posture, it is clear that Sullivan had recognized and
extended bargaining rights to the Respondents long before the dis-
puted picketing commenced here and that such picketing therefore
was not designed to attain those statutory objectives. Accordingly,
we find, in agreement with the Trial Examiner , that the instant com-
plaint should be dismissed.
[The Board dismissed the complaint.]
' International Hod Carriers, etc., Local 840, AFL-CIO (Charles A. Blinne, d/b/a
C. A. Blinne Construction Company), 135 NLRB 1153.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
The complaint' alleges that the Respondents , three Tabor organizations (called
herein , for convenience of reference , the Santa Barbara Council , Local 413, and
Local 12),2 violated Section 8(b) (7) (C) of the National Labor Relations Act, as
amended (29 U.S.C. 151 et seq.; also called the Act herein ), by engaging in proscribed
1 The complaint was issued on July 10, 1963, and is based upon a charge filed with the
National Labor Relations Board on May 20, 1963 . Copies_ of the complaint and charge
have been duly served upon each of the Respondents.
2 As used herein, the names Santa Barbara Council , Local 413; and Local 12 refer, re-
spectively , to Building and Construction Trades Council of -Santa Barbara County, AFI-
CIO ; International Brotherhood of Electrical Workers, Local No. 413, AFI-CIO ; and
International Union of Operating Engineers , Local No. 12, AFL-CIO.
744-670-65-vol. 146-70
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picketing of an employer named Sullivan Electric Company.3 The Respondents
have jointly filed an answer which, in material substance, denies the commission of
the unfair labor practices imputed to them in the complaint.
Pursuant to notice duly served by the General Counsel of the National Labor
Relations Board upon all other parties, a hearing has been held in this proceeding
before Trial Examiner Herman Marx at Los Angeles, California. All parties
appeared and were afforded a full opportunity to be heard, to examine and cross-
examine witnesses, adduce evidence, file briefs, and submit oral argument. No
briefs have been filed.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
I
Sullivan Electric Company (herein called the Company) is a corporation; main-
tains a place of business at La Habra, Orange County, California; is there engaged
in business as an electrical contractor in the building and construction industry; and
is and has been at all times material to the issues, an employer within the meaning
of Section 2(2) of the Act.
During the year preceding the issuance of the complaint, the Company, in con-
nection with the conduct of its business, purchased and received some materials from
sources located outside California, and some from suppliers within the State, who,
in turn, had purchased and received the products they supplied from sources outside
California. The aggregate value of materials shipped directly to the Company from
locations outside California, and of those shipped to, and furnished by, its California
suppliers, as described above, exceeded $50,000. By reason of its purchase and
receipt of such products, the Company is, and has been at all material times, engaged
in interstate commerce, and in operations affecting such commerce, within the mean-
ing of the Act; and the National Labor Relations Board has jurisdiction over the
subject matter of this proceeding. The assertion of such jurisdiction will effectuate
the policies of the Act.4
II. THE LABOR ORGANIZATIONS INVOLVED
The Council, Local 413, and Local 12 are, as the record establishes without
dispute, . labor organizations within the meaning of Section 2(5) of the Act.
3 The pertinent statutory provisions are contained in the following excerpt from Sec-
tion 8 of the Act:
(b) It shall be an unfair labor practice for a labor organization or its agents-
(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed,
any employer where an object thereof is forcing or requiring an employer to recognize
or bargain with a labor organization as.the representative of his employees, or forcing
or requiring the employees of an employer to accept or select such labor organization
as their collective bargaining representative, unless such labor organization is cur-
rently certified as the representative of such employees:
(C) where such picketing has been conducted without a petition under sec-
.tion 9(c) being filed within a reasonable period of time not to exceed thirty days
from the commencement of such picketing: Provided, That when such a petition
has been filed the Board shall forthwith, without regard to the provisions of see-
tion 9(c) (1) or the absence of a showing of a substantial interest on the part of
the labor organization, direct an election in such unit. as the Board finds to be
appropriate and shall certify the results thereof: Provided further, That nothing
In this subparagraph (C) shall be construed to prohibit any picketing or other
publicity for the purpose of truthfully advising the public (including consumers)
that an employer does not employ members of, or have a contract with, a. labor
organization, unless an effect of such picketing is to Induce. any individual em-
ployed by any other person in the course of his employment, not to pick up,
deliver or transport.any goods or not to perform any services.
4 Siemons Mailing Service, 122 NLRB 81. -
BUILDING & CONSTRUCTION; ETC., OF SANTA BARBARA 1089
III: THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
Local unions in the building and constructions trades in southern California are
affiliated with one or another of 12 labor organizations, each of which is called a
"Council" and functions in a separate county. The organizations include the
Building and Construction Trades Council of Orange County (herein called the
Orange Council) and the Respondent Santa Barbara Council. As stipulated at the
hearing, the "jurisdiction" of the former "is limited" to Orange County, and that
of the latter to Santa Barbara County.
Local 413, which represents electricians, and Local 12, which represents operating
engineers, are affiliated with the Santa Barbara Council. The "jurisdiction of Local
413 . . . is limited to Santa Barbara County." Local 12 functions in much of
southern California, including Los Angeles, Orange, and Santa Barbara counties, but
transacts its business in those areas through a separate office. It is also affiliated
with the Orange Council.
On April 17, 1959, the Company and the Orange Council entered into a written
contract, dealing, among other matters, with terms and conditions of employment
affecting individuals employed by the Company. A summary of some of the contract
provisions follows, and will suffice for decisional purposes here.
The agreement sets forth the names of all the Councils, including the Santa
Barbara organization, as parties, although, the Orange County Council was the only
one of the 12 to sign. The Company agreed, among other things, "that all work
performed under the jurisdiction of any union affiliated with the Councils shall be
performed pursuant to an executed agreement with the appropriate union .
affiliated with the Council -in the area in which the work is performed"; and that
the Company would "abide by all the terms and conditions of the agreements of the
respective crafts employed," and "with the hiring provisions and union security
clauses of the appropriate agreements of the respective crafts employed to the full
extent permissible." The contract was to remain in effect until August 1; 1960, and
from year to year thereafter unless "either party" gave at least 60 days' written
notice to the other prior to August 1, 1960, or August .1 of any succeeding year, of
its desire to modify .or terminate the contract.5 It may be noted, in that regard,
that no notice of modification or -termination has been given, as provided in the
agreement.
The Orange Council executed the agreement not only for itself but on behalf of
the other Councils and their affiliates and, more to the point, acted as agent for the
Santa Barbara Council and Locals 413 and 12, which, upon execution of the contract,
in effect became parties thereto (albeit Locals 413 and 12 are not named therein)
and bound by its terms.6
5 The contract does not, In terms, specify August 1, 1960, as the initial permissible date
of termination. Prior to the execution, the printed form, which embodies the contractual
terms, provided blank spaces for the insertion of a day and month, followed by the year
"1957," in print, to signify the date the agreement was "entered into." The concluding
paragraph set forth "August 1, 1958," also in print, as the first permissible terminal date.
The contract, as noted earlier, was "entered Into" on April 17, 1959. The day and month
were inserted.in the spaces provided, and the printed "7" In "1957" was changed, in script,
to "9" to set forth the correct year; but the printed date, "August. 1, 1958" was not
-comparably changed. That date, of course, antedates the date of execution, and obviously
its retention was an oversight.. The printed form signifies an intent that it be used in
1957, and be subject to modification or termination on August 1 of the following year.
I think it reasonable to believe that when the form was adapted for use in 1959, the.con-
tracting parties comparably intended that the first permissible modification or termination
date be August 1 of the.following year, 1960, and 1 have made a corresponding finding
above. In any case, the important point to bear in mind Is that the contract was never
modified or terminated as provided therein, and is still in effect at least so far as the
Company and the Respondents are concerned.
e The authority of the Orange Council to bind the Respondents. Is plainly inferable from
.a stipulation in evidence that ".[alt the time" of. execution of the contract "it was
.applicable to any work Sullivan [Electric Company] would perform In the area of the
eleven [actually twelve] Building Trades Councils named therein" ; and that such Councils
"and their affiliated local unions were also bound thereby."' By its terms, the stipula-
tion is limited to "the purposes of this proceeding only." Hence, I expressly note that the
findings based upon the stipulation are limited to such purposes.
1090 DECISIONS OF NATIONAL LABOR RELATIONS . BOARD . .
However, neither the Santa Barbara Council nor Local 413 nor Local 12 became
aware of the contract for some 4 years. This, it may be noted, in passing, is not as
incongruous as may appear on the surface, for from the total record, particularly
the fact that the agreement is, in substance, a form in which the names of all 12
Councils are set forth, in print, as parties, one may reasonably infer that it was the
practice of the Orange Council (if not, indeed, of all of the Councils as well) to
contract with building trades employers not only for itself, but for the other
Councils, with a view to binding such employers to observe craft union working
conditions in any of the 12 affected counties in which they had occasion to work on
projects. With that as a background, it is readily conceivable that a Council named
in the agreement as a party could remain unaware of the existence of the contract
until a construction project in its county provided an occasion for it to look into
its contract rights. In any event, whatever practice any or all of the Councils
followed, it is a fact that the Respondents were bound by the terms of the agreement
involved here, but unaware of its existence until it came to their attention under
circumstances that will presently be described.?
In or about the latter part of February 1963, the Company commenced work on
a construction project in Santa Barbara County. Since the execution of its contract
with the Councils almost 4 years earlier, this was the first occasion it had had to
perform any work in that county. There had thus been no prior occasion for the
Santa Barbara Council or any of its affiliates to invoke or apply the contract in the
area.
On March 11, 1963, Local 413 wrote to the Company, advising it that Local 413
intended, beginning March 14, "to conduct informational picketing on any [of the
Company's] jobsites . . . in Santa Barbara County for the purpose of advertising
to the public that you are not paying . prevailing wages and benefits"; and
stating that Local 413 did not represent the Company's employees, and was not
interested in having the Company sign a collective bargaining agreement, and that
the union's sole dispute with the Company was over the latter's "failure to pay the
prevailing wages for this area."
By letter dated March 15, 1963, Local 12 also wrote to the Company in much
the same vein, similarly expressing an intention to picket the Company's Santa
Barbara's operations, and for the same purpose; and disclaiming any right to repre-
sent the employees and any interest in securing a collective-bargaining agreement.
On or about March 15, 1963, Locals 413 and 12 began picketing the Company's
operations at its Santa Barbara project, using signs bearing. the legend: "Sullivan
Electric Co. Not Paying Prevailing Wages and Benefits."
In the early part of May 1963, while the picketing mentioned above was still in
progress, the contract between the Company and the Councils came to the attention
of the Respondents' attorney, and he informed them of its existence. That was the
first knowledge of the contract any of the Respondents had.
On May 6, 1963, a few days after receipt of the information, the Santa Barbara
Council wrote a letter to the Company, noting that it had been advised of the
existence of the agreement, and stating that the contract obligated the Company
to perform its work in Santa Barbara County "pursuant to an executed Agreement
with the appropriate Unions having work jurisdiction" in that county; that work at
the project "falls within the jurisdiction of the International Brotherhood of Elec-
trical Workers [an allusion to Local 413], the Operating Engineers [meaning Local
12], the Carpenters, the Laborers, Cement Masons and Teamsters' Unions, which are
all affiliated with this Building Trades Council"; and that the Company was "in
violation of each of these Unions' labor agreements" because its employees at the
Santa Barbara jobsite had not been hired through the respective hiring halls of such
affiliates, had not joined the appropriate union as required by provisions for union
7 There is evidence to the effect that during the course of various operations in Orange
County in 1959 ( and perhaps 1960 ) following execution of the contract, the Company, in
connection with the employment of an operating engineer, conformed to certain aspects
of the agreement ( apparently by complying with various provisions of a contract Local 12
had with other employers ), but this does not mean that Local 12, which, as noted 'earlier,
functions in both Orange and Santa Barbara Counties , was aware of the contract between
the Company and the Councils prior to May 1963, when the Respondents ' counsel in this
proceeding notified them of the ' existence of the agreement between the Company and the
Councils. The fact is that the parties in this proceeding stipulated at the hearing that
"at [the] ' time" of such notification the Respondents "were unaware of the existence" of
the contract , or, in other words, that, it..was-not until such notification that they learned
of the agreement.
BUILDING & CONSTRUCTION'', ETC., OF SANTA BARBARA 1091
security, and were not being paid wage and fringe benefits, required by the respective
craft union agreements. The letter concluded: ". . unless you [Rhe Company]
immediately comply with the terms and conditions of the Building Trades Agreement
[the Company's contract with the Councils], this Council intends to commence
picketing at any jobsites on which you are working in Santa Barbara County because
of your breach of contract, as aforesaid."
On May 9, 1963, the Santa Barbara Council filed a charge with the office of the
Board's Twenty-first Region in Los Angeles, alleging that the Company had violated
Section 8(a)(1), (2), (3), and (5) of the Act. As of the time of the hearing in
this proceeding there had been no disposition of the allegations of violation of
Section 8(a)(1), (2), and (3),,but the Regional Director of the Twenty-first Region
had declined to issue a complaint on the 8(a)(5) allegations which charged the
Company with unlawful refusals to bargain .8
Whether the Company has ever made any reply to the letter of May 6 does not
appear, but it is evident that the communication produced no results satisfactory
to the Santa Barbara Council, for it commenced picketing the Company' s Santa
Barbara jobsite on May 22, 1963, and the picketing was still in progress at the time
of the hearing in this proceeding. With the start of the Council's picketing, the
picketing signs previously used by Locals 413 and 12 "were changed" to read:
"Sullivan Electric Unfair in Breach of Contract with Santa Barbara Building and
Construction Trades Council and Affiliated Unions, AFL-CIO." While the record
is not explicit on the point, one may reasonably infer from the full context of events,
and I find, that not only the Santa Barbara Council has picketed with the "changed"
signs since May 22, 1963, but that Locals 413 and 12 have done so as well, whether
directly or through the instrumentality of the Council as their agent.
None of the Respondents has ever been certified by the National Labor Relations
Board as the collective-bargaining representative of employees of the Company, nor
has any of Respondents filed a representation petition under Section 9(c) of the Act
within "a reasonable period of time" after the start of the picketing which is the
subject of inquiry here.
B. Discussion of the issues; concluding findings
The General Counsel makes no claim that the picketing preceding the Santa
Barbara Council's letter of May 6 was unlawful, conceding, in substance, that its
object was to publicize alleged noncompliance by the Company with "area standards,"
and thus not within the proscriptions of Section 8(b)(7)(C) 9 He contends, how-
ever, that that object changed following the Respondents' discovery of the existence
of the contract, and that, as evidenced by the letter of May 6, an object of the picket-
ing since that date has been to force or require the Company "to recognize or
bargain" with uncertified labor organizations, the Respondents; and thus, as no repre-
sentation petition has been filed within the "reasonable period" required by. Section
8(b) (7) (C), the picketing has violated that section.
The Respondents, on the other hand, pointing out ,that they' already had a contract
with the Company, maintain that the object of the picketing in issue has been to
publicize breaches of the contract, and to secure compliance with its' terms. The
General Counsel seeks to meet this with a claim that the parties to the agreement
had "abandoned" it at some point prior to the Respondents' discovery of its existence,
and that it was therefore not in existence during the picketing.
Dealing, first, with the "abandonment" thesis, I find no. substance in it. It rests,
in the main, on testimony by the Company's president, M. K. Sullivan, to the effect
that for much,of the time since the execution of the contract, the Company has not
complied with requirements, established by agreements between employers and craft
unions, including Local 12, affiliated with the Orange Council, or, in other words that
the Company has repeatedly violated its contract with the Councils, which, as noted
earlier, requires the Company "to abide by all of the terms and conditions of the
6 All the parties have agreed in a stipulation, -dated September 20 and 24. 1963, and filed
with me since the close of the hearing, that the General Counsel, on September 11, 1963,
sustained the Regional Director's refusal to issue a complaint with regard to the 8(a) (5)
allegations. The General Counsel objects to the receipt of the stipulation on grounds of
relevancy and materiality. The objection is overruled (see Charles A. Blinne, d/h/a
C. A. Blinne Constrmct.ion Company. 135 NLRB 1153), and the stipulation is received
and hereby made part of the evidentiary record in this case.
9 Among other cases, see Houston Building and Construction Trades Council ( Claude
Everett Construction Company ), 136 NLRB 321.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreements" of various craft unions in the areas covered by the contract.1° The
thrust of the argument with respect to these breaches appears to be that the parties
to the contract did nothing about them, and that therefore such omissions connote
abandonment of the agreement.
There are patent fallacies in this. To begin with, the Santa Barbara Council and
Local 413, which function only in Santa Barbara County, had no occasion to invoke
the contract until 1963 when the Company undertook its Santa Barbara County
project; and how these labor organizations, at least, could possibly be affected by
the failure of other organizations to enforce the agreement in other counties does not
appear. But to cap the matter, it is an obvious essay in illogic to say, as does the
General Counsel in effect, that the Respondents abandoned an agreement in the
period when they were not even aware of its existence. Nor is there any greater
logic in a theme advanced by the General Counsel to the effect that omission by the
Orange Council in a prior case, and by one of its local affiliates (in no way con-
nected with this proceeding) in another, to invoke the contract demonstrates its
abandonment." It would be an inexcusable digression from the issues here to de-
termine whether the contract was in any way material to the cases in question, and
I dispense with an exploration of the matter, for it is enough that the record in this
proceeding is barren of any basis for a finding that what the Orange Council or its
affiliate did, or failed to do, in -any other case in any way binds the Respondents here.
The sum of the matter is that the agreement, at least so far as the Company and the
Respondents are concerned, has been in effect at all times material to the issues, and
is still in effect.
Turning to the aims of the picketing since May 6, 1963, as is evident from the
letter of that date and the changes in the signs, the Respondents' objects were to
publicize what they conceived to be breaches of the contract, and to compel com-
pliance with its terms. But that finding does not preclude a holding that an aim of the
picketing was to compel bargaining, and, indeed, puts one on the road to such a
conclusion.
Fairly read,-the contract itself visualizes at least the possibility of additional bar-
gaining to carry out its terms. This is evident from article I, which requires the
Company to perform its work "pursuant to an executed current agreement with the
appropriate union having work and territorial jurisdiction"; and article VI, which
provides that if the Company "fails to execute a current agreement with the ap-
propriate union, as hereinabove provided" (meaning, in other words, as provided
in article I) the Company would "be liable for wage rates computed" under certain
standards (not relevant here). The letter of May 6, 1963, invokes the Company's
obligation "to perform your work pursuant to an executed Agreement with the ap-
propriate Unions," and thus one may reasonably infer that one of the alleged con-
tractual breaches protested by the picketing was the performance of work in Santa
Barbara County without "executed" agreements with Locals 413 and 12, specifying
wages and other terms and conditions of employment; and that an,aim of the picket-
ing was to secure such agreements. Any doubt about the matter is dissipated by
the charge filed by the Santa Barbara Council on May 9, 1963, alleging, among other
things, the existence of the Company's contract with the Councils, and that it had
violated Section 8(a)(5) of the Act by refusing "to bargain collectively with the
charging party [the Santa Barbara Council] and its affiliated unions." Thus, al-
though the picketing was intended to protest alleged failures by the Company to
comply with whatever hiring hall, wage, union security, and fringe benefit require-
ments of building craft union contracts were in effect in Santa Barbara County,
10 Apart from an agreement with an Orange County electrical workers' local (not a
party to this proceeding), and some vague references in Sullivan's examination and testi-
mony to "the Operating Engineers' agreement," it does not appear that the Company was
a party to any contract executed directly by a craft union, whether in Orange County or
elsewhere. No such instrument is in evidence, and, in the posture of the record, one can
only guess whether one allusion or another to the "Operating Engineers' agreement" refers
to the Company's contract with the Orange Council, or an agreement between the Company
and Local 12 in some area outside of Santa. Barbara County,'or a contract between one or
more other employers and the "Operating Engineers." In any case, the results in this
proceeding remain the same whether or not the Company had,•or was required to observe,
any contract-outside of Santa Barbara County.
"The cases in question are Couch Electric Company, 143 NLRB 662 ; and Building and
Construction Trades Council of Orange County, AFL-CIO (Sullivan Electric Company),
140 NLRB 946.
BUILDING ,:& CONSTRUCTION, ETC., OF SANTA BARBARA 1093
I find that an additional object of the picketing was to compel the Company to bar-
gain and enter into agreements with Locals 413 and 12 to carry out or implement
terms of the contract between the Company and the Councils.
At first blush, it might appear that as an object of the picketing was to compel
the Company to bargain, and as the Respondents, although uncertified, have picketed
longer than "a reasonable period" without filing a representation petition, the picket-
ing is literally within the relevant proscription of Section 8(b) (7) (C), but an exami-
nation of the statutory aim leads me to a different conclusion.
The congressional purpose, as the Board has summarized it, "was to settle, when-
ever possible, by means of an expedited election, problems resulting from recogni-
tion and organizational picketing." 12 But that purpose is inoperative here. The
General Counsel makes no claim that the picketing had an "organizational" object,
and as for "recognition," the Respondents already have it, for the Company, in legal
effect, at least, recognized their representative status by the very act of entering into
the contract with them. -By plain implication and intendment, the agreement, the
legality of which is not questioned here by the General Counsel or any other party,
obligates the Company to bargain with the Santa Barbara Council and its affiliates
to the extent necessary to carry out its terms, which includes an undertaking by-the
Company, implied at least, to enter into. a "current agreement with the appropriate
union" if none is yet in effect. The General Counsel makes no claim, ,nor is there any
evidence, that the Respondents were insincere in the claims of contractual breaches
set forth in the May 6 letter and the picketing signs. Thus what emerges from the
record is not "blackmail" picketing, the evil at which Section 8(b)(7)(C) was
primarily aimed,13 nor any necessity for an election to resolve any "problems" re-
sulting from picketing to secure recognition or to organize employees; but, rather, as
I find, picketing by three labor organizations, already recognized by the Company,
to remedy what they regarded as breaches by the Company of contractual obliga-
tions, including an undertaking to bargain.
No doubt, enforcement of a contractual bargaining obligation fits neatly into the
Section 8(b)(7) phrase, "forcing or requiring an employer to ... bargain," but to
make such literalness the measure of the statutory reach in this case is to disregard
the intended congressional purpose of providing machinery for the ' resolution of
"problems resulting from recognition and organizational picketing." What is more,
such a reading would tend to encourage breaches of contractual obligations to bar-
gain, and to that extent, at least, operate to defeat the statutory aim, expressed in
Section 1 of the Act, of "encouraging the practice and. procedure of collective bar-
gaining." One may safely assume that in enacting Section 8(b) (7) (C), Congress
intended no dilution of this fundamental statutory objective.
To be sure, the evidence does not establish that the Company has, in fact, breached
its contractual bargaining obligation, but that, it seems to me, is beside the point,
for, whether or not there was such a breach, the fact remains that in the contract,
at least by implication, the Company obligated itself to bargain, and that the relevant
object of the picketing was to remedy what the Respondents believed to be a breach
of the obligation.14 Assuming the legality of;the obligation, as I must, on this record,
the "problems" of, picketing for such an object are within the realm of collective
bargaining and not, in my view, within the intended reach of Section 8(b)(7)(C).15
12 Chicago Printing Presanen's Union.No. 3 et al. (Moore Laminating, Inc.), 1.37 NLRB
729, 732-733. See also Dayton Typographical Union No. 57 v. N.L.R.B., 326 F. 2d 634
(C.A.D.C.), which includes a comprehensive summary of the relevant legislative history;
Chefs, Cooks . etc., Local . 89, Hotel and Restaurant Employees Union et al . ( Stork
Restaurant, Inc.), 130 NLRB 543; and Greene v. International Typographical Union,
182 F. Supp. 788 (D.C. Conn.). -
Is See Dayton Typographical Union No. 57 v. N.L.R.B., supra, and cited legislative
history.
14 Needless to: say, the fact that the General Counsel has declined to issue a complaint
on the Section 8(a) (5) charge filed by the Santa Barbara Council.. does not necessarily
mean that the Company has met its contractual obligation. That issue. has .not been
litigated here. I note, also, that the record does not reflect .the reason for dismissal of
the charge.
15 As no claim is made that the contract is unlawful, there is no need to consider what
the result would be if the agreement were illegal. I note, also, that I find it unnecessary
to consider the effect upon the picketing of a.provision in the contract expressly recogniz-
ing the right of the labor organizations involved "to induce" any employee to refuse to
perform work for the Company or "enter upon [its] premises" in the event it is placed
upon an "unfair list."
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, for the reasons stated , the picketing in issue here has not violated Section
8(b)(7)(C ), and I shall, therefore , recommend dismissal of the complaint.
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. Sullivan Electric Company is, and has been at all material times, an employer
within the meaning of Section 2(2) of the Act.
2. Building and Construction Trades Council of Santa Barbara County, AFL-CIO,
International Brotherhood of Electrical Workers, Local 413, AFL-CIO, and Inter-
national Union of Operating Engineers , Local No. 12, AFL-CIO, respectively are,
and have been at all material times, labor organizations within the meaning of Sec-
tion 2(5) of the Act.
3. By picketing a construction project of Sullivan Electric Company, as found
above, the Respondents have not violated Section 8(b) (7) (C) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the
entire record in this proceeding , I recommend that the National Labor Relations
Board enter an order dismissing the complaint.
Local Joint Executive Board , Hotel & Restaurant Employees
and Bartenders International Union Locals 19, 266, 420, 503,
and 655 of the Hotel & Restaurant Employees and Bartenders
International Union and Nationwide Downtowner Motor Inns,
Inc., d/b/a Downtowner and Downtowner Motor Inn. Cases
Nos. 17-CB-354 and 17-CP-26. April 27, 196.4.E
DECISION AND ORDER
On August 26, 1963, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in any unfair labor practices requiring
the issuance of a remedial order, and recommending dismissal of the
complaint in its entirety, as set forth in the attached Intermediate
Report. Thereafter the Charging Party and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.'
The Respondent filed certain exceptions to the Intermediate Report
and a brief in support of the Trial Examiner's recommended dismissal
of the complaint.
The Board 2 has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
1 Member Fanning notes that Cartage and Terminal Management Corporation, 130
NLRB 558 , cited by the General Counsel and the Charging Party in support of their allega-
tion that a violation of Section 8(b) (7) (C ) exists here, is distinguishable on its facts.
Unlike his colleagues in Cartage, Member Fanning based his finding of a violation in that
case on his belief that the picketing there "had as its objects recognition as majority rep-
resentative of applicants [ Riss ' drivers ] for employment with Cartage at a time when
Cartage had no employees." See 130 NLRB 559, footnote 2. Accordingly, Member
Fanning 's conclusion in Cartage is not applicable to the present case.
2 Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three-member panel ['Chairman McCulloch and
Members Fanning and Brown].
146 NLRB No. 139.