Carpenters Intl. Union Loc. 345

National Labor Relations Board - Board Decisions

Jun 25, 1970

183 N.L.R.B. 1109 (N.L.R.B. 1970)

CARPENTERS INTL. UNION LOC. 345
Carpenters International Union, Local 345 and The
Kroger Company
Local 521 , Cement Masons , affiliated with Opera-
tive Plasterers and Cement Masons International
Association of the United States and Canada,
AFL-CIO and The Kroger Company. Cases
26-CC-166 and 26-CC-167
June 25, 1970
DECISION AND ORDER
By MEMBERS MCCULLOCH, BROWN, AND JENKINS
On February 24, 1970, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed, as set forth in the attached Trial Ex-
aminer 's Decision. Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the Respondents filed a
reply brief.
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
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner 's Decision, the exceptions and
briefs, and the entire record in these cases, and
hereby adopts the findings,' conclusions,2 and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' The General Counsel's exceptions directed to the credibility resolu-
tions of the Trial Examiner are without merit The Board will not overrule
the Trial Examiner 's resolutions as to credibility unless a clear preponde-
rance of all relevant evidence convinces us that they are incorrect On the
entire record , such a conclusion is not warranted herein Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
2 Contrary to our dissenting colleague, the removal of Hall's employees
from the Kroger job at the request of Kroger because of the picketing did
not convert the common situs to a secondary situs For work remained to
be performed by Hall 's employees on the Kroger store and at the beginning
of July, soon after the pickets departed, Hall's employees returned to
MEMBER MCCULLOCH, dissenting in part:
1109
Contrary to my colleagues, I would find that
Respondent Cement Masons violated Section
8(b)(4)(i) and (ii)(B ) of the Act.
The primary employer, Walker Hall, is engaged
in construction and land development. He has an
office with four office employees in the Raleigh
Plaza Shopping Center. One of the tenants of the
shopping center is the charging party, The Kroger
Company, operator of retail grocery stores and su-
permarkets.
At the time of the events in question Hall was
building a motel some distance from the shopping
center. The Cement Masons which was involved in
a labor dispute with Hall picketed the motel. There
is no question of the validity of this picketing. Hall
was also building an addition to the Kroger store in
the shopping center. By June 1, Hall's work on the
store addition was 99 percent complete; all that
remained to be done was the pouring of concrete, a
canopy, and cleanup. Hall estimated that this en-
tailed less than 10 days' work. At the same time
that Hall was engaged in constructing the addition
to the Kroger store, Kroger's own employees and
those of its subcontractors were engaged in such in-
terior construction on the store premises as in-
stalling shelves, fixtures, lights, etc.
On June 4, the Cement Masons began picketing
three of the four entrances to the shopping center
with signs reading:
Notice to the Public. Walker Hall Construction
Company does not meet the area standards
established by the Cement Local Union No.
521.
At the request of Kroger, Hall's employees did
not return to work on the Kroger addition on June
5 or at any time thereafter during the course of
picketing. Kroger notified the Cement Masons of
the removal of the Hall employees. On Saturday,
June 7, the Cement Masons doubled the number of
pickets at the shopping center and increased the
number of entrances picketed from three to four-
and this despite the fact that Hall's office was
closed on Saturday and he had no employees at
work on the Kroger addition. The Cement Masons
complete the job See , e g , Plumbers Local Union No 307, AFL-CIO
(Zimmerman Plumbing and Heating ), 149 NLRB 1361, 1367 In any event,
Hall's regular place of business , i e , its office, was located at the shopping
center , and it constitutes an integral part of Hall's operation even if no em-
ployees in dispute work there See United Steelworkers of America,
AFL-CIO ( Auburndale Freezer Corporation), 177 NLRB 791
Further , the Trial Examiner did not find only that the "picketing con-
formed to the Moore Dry Dock standards and was therefore lawful," but
concluded , in addition , that there was insufficient credible evidence of an
unlawful intention to enmesh neutrals Like the Trial Examiner, we see no
basis for inferring an unlawful motive from the facts set forth in the dissent
183 NLRB No. 113
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sought to justify the Saturday picketing on the
ground that construction offices in the area are
usually open Saturday mornings, but it admittedly
made no inquiry as to whether Hall's office was
open on that day.
The picketing at the shopping center ended on
June 13.
As a result of the picketing, the construction em-
ployees of neutral employers, Kroger and its sub-
contractors, refused to cross the picket line.
The Trial Examiner found that the picketing con-
formed to the Moore Dry Dock3 standards and was
therefore lawful. I cannot agree. From June 5 to 13,
the period of the picketing, the only employees of
Hall at work in the shopping center were the four
employees in Hall's office. These employees were
not the subject of any dispute with Respondents.
Hall's construction workers did not customarily re-
port to the office.
One of the requirements for lawful picketing in
common situs situations set forth in Moore Dry
Dock is that the picketing must be "limited to
places reasonably close to the location of the situs."
The situs of the dispute after June 5 was Hall's of-
fice. The Cement Masons made no request for per-
mission to picket in front of the office so as to
avoid or at least abate the involvement of neutrals
such as Kroger. This is a factor to be considered in
determining the Cement Masons objective.4
Similarly, the Cement Masons did not comply with
another requirement of Moore Dry Dock, that is,
"at the time of the picketing the primary employer
is engaged in its normal business at the situs."s On
Saturday, June 7, Hall's office was closed and he
had no employees at work at the Kroger store. The
picketing of the shopping center on that day could
therefore not have had a lawful impact on Hall, but
only on the neutral tenants of the shopping center .6
The excuse for the Saturday picketing, that offices
of construction firms are usually open on Saturday,
appears to me to be a lame one, particularly since
the Cement Masons apparently made no effort to
learn whether Hall's office was usually open on
Saturday. Finally, the manner in which the Cement
Masons conducted its picketing on Saturday con-
vinces me that the picketing had an unlawful objec-
tive. On that day the Cement Masons increased the
number of its pickets from two to four and the
shopping center entrances picketed from three to
four. No reasonable explanation was offered for the
increase in picketing on that day. To me the obvi-
ous one is that, as is well known, the busiest day of
the week for suburban shopping centers is Satur-
day. The maximum impact on the neutral store te-
nants could therefore be achieved by picketing on
that day. Hence the increase of Saturday picketing.
All this supports my conviction that the picketing
had an unlawful secondary objective and was there-
fore violative of Section 8(b)(4)(i) and (ii)(B) of
the Act. I would so find.'
'Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547
4 Id at 550 , Teamsters Local Union No 408 (Charles S Wood & Co ), 132
NLRB 117,125
' Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), supra,
549
' Plumbers Local Union No 519 (H L Robertson & Associates), 171
NLRB No 37, Southeast Idaho Building and Construction Trades Council
(Westinghouse Electric Corp ), 164 NLRB 773, 778, Painters District Coun-
cil No 38 ( Edgewood Contracting Company), 153 NLRB 797, 800, Sheet
Metal Workers ' International Association , Local Union No 3, AFL-CIO
(Siebler Heating & Air Conditioning , Inc ), 133 NLRB 650
' in view of the Trial Examiner' credibility determinations , I would adopt
his conclusion that the Respondent Carpenters was not engaged as a union
in the picketing and therefore that the complaint should be dismissed as to
that labor organization
TRIAL EXAMINER'S DECISION
ARTHUR M . GOLDBERG , Trial Examiner: Based
upon identical charges couched in statutory lan-
guage filed on June 6 ,1 by The Kroger Company
(herein called Kroger or the Charging Party), the
Regional Director for Region 26 on July 10 issued
an order consolidating cases , consolidated com-
plaint and notice of hearing alleging that Carpen-
ters International Union , Local 345 (herein called
the Carpenters ), and Local 521 , Cement Masons,
affiliated with Operative Plasterers and Cement
Masons International Association of the United
States and Canada , AFL-CIO (herein called the
Cement Masons ), violated Section 8(b)(4)(i) and
(ii)(B) of the National Labor Relations Act, as
amended (herein called the Act ). The complaint al-
leged that the Respondent Unions and their respec-
tive agents acted at all times material herein as
agents of one another within the meaning of the
Act. Allegedly acting with the objects of forcing or
requiring Kroger and other persons to cease doing
business with Broadmoor Investment Corporation,
the owner of the shopping center where the Kroger
facility in question is located, and causing Broad-
moor and Walker Hall, an individual proprietorship
engaged in various businesses and hereinafter found
to constitute a single employer with Broadmoor for
the purposes of this proceeding, to recognize and
bargain with the Carpenters and Cement Masons
although said labor organizations are not the cer-
tified representatives of the employees ; the Respon-
dent Unions assertedly since June 4 picketed
Kroger at the Raleigh Plaza , Broadmoor 's shopping
center ; the Carpenters, by its agent , Wainscott, on
June 4 attempted to cause a Carpenters member
and employee of Kroger to cease work by warning
him of the application of the Carpenters bylaws to
work by a member at a jobsite being picketed; the
Carpenters, by its agent , Green , on June 5 in a
i Unless otherwise noted all dates herein were in 1969
CARPENTERS INTL. UNION LOC. 345
telephone conversation threatened Kroger that to
have the pickets removed it should demand that
Walker Hall hire union members ; and, that the Ce-
ment Masons , by its agent , Davis, in a telephone
conversation threatened Kroger that to have the
pickets removed it should demand that Walker Hall
pay union scale wages . In separate answers the
Respondents denied all material allegations of the
complaint. The Cement Masons raised as an affirm-
ative defense the refusal of the Regional Director
to honor Kroger's request to withdraw the instant
charges made pursuant to its agreement with the
Respondents which ended the picketing on June
13. Upon General Counsel 's motion, Trial Ex-
aminer Seff issued an order on August 28 striking
this affirmative defense from the Cement Masons
answer.
The Carpenters July 17 motion to the Regional
Director to sever the case against it from that
against the Cement Masons was denied by order
dated July 23. In his order the Regional Director
noted that " the facts and circumstances underlying
the allegations in both cases are interrelated" and
that "consolidation of the cases for hearing , ruling
and decision by one Trial Examiner would avoid
unnecessary costs and repetition of evidence." This
motion was renewed by the Respondents at the
opening of the hearing herein and again denied.
However, Respondents were granted leave to renew
that portion of their motion praying for severance
of the cases for purpose of decision . The parties
were advised that I would rule on such motion after
full consideration of the record and such arguments
on the motion as would be presented in the briefs
of the parties and in their responses to an order to
show cause which would issue before I made my
ruling . Said order to show cause issued on January
22, 1970 . General Counsel and the Respondents
filed timely responses to said show cause order. In
his response General Counsel sets forth the reasons
for denying the motion to sever cited by the Re-
gional Director in his order denying the original
motion . The Unions each claimed prejudice and
denial of due process by the conduct of the cases
against them in a consolidated proceeding, con-
cluding with a prayer that " the alleged charges
against the Carpenters Union be hence dismissed.
The dismissal of the charge against the Carpenters
would , in the opinion of counsel for the Respon-
dent Masons , also be an additional and further
reason for the dismissal of the complaint against the
Cement Masons Local 521." After giving due con-
sideration to the arguments advanced by General
Counsel and the Respondents both in their briefs
and the responses to the show cause order, I con-
clude that no good reason has been advanced to
sever these cases for the purpose of decision and
for the reasons cited by the Regional Director again
deny the motion to sever.
All parties participated in the hearing in Mem-
phis , Tennessee , on September 9, 10, and 11, 1969,
and were afforded full opportunity to be heard, to
introduce evidence, to examine and cross -examine
witnesses , and to present oral argument . Respon-
dents ' motion to dismiss the consolidated complaint
is disposed of in accordance with my findings
below . Oral argument was waived and briefs were
filed by General Counsel and the Respondent
Unions.
Based upon the entire record in the case, my
readings of the briefs , and from my observation of
the witnesses and their demeanor , I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
The complaint alleged , the answers admitted, and
I find that Walker Hall, an individual proprietor-
ship , maintains his principal office and place of
business at the Raleigh Plaza , Raleigh , Tennessee,
where he is engaged in various businesses. In the
course and conduct of his business operations,
Walker Hall annually purchases and receives goods
and materials valued in excess of $50 ,000 directly
from points outside the State of Tennessee. At all
times material herein , Walker Hall has had under
construction a motel located at Macon Road and
Interstate 40, near Memphis , Tennessee , which is to
be known as the Welcome Inn Motel.
I find that Walker Hall is and has been at all
times material herein a person engaged in com-
merce or in an industry affecting commerce within
the meaning of Section 8(b)(4)(B ) of the Act and
is an employer engaged in commerce and in an in-
dustry affecting commerce within the meaning of
Section 2 ( 6) and ( 7) of the Act and meets the
Board's standards for assertion of its jurisdiction.
The complaint alleged , the answers admitted, and
I find that Broadmoor Investment Corporation
(herein called Broadmoor ), maintains its office and
place of business at the Raleigh Plaza , Raleigh,
Tennessee , where it is engaged in the management
and maintenance of the Raleigh Plaza . Broadmoor,
in the course of its business , collects annually from
tenants of the Raleigh Plaza gross rentals in excess
of $100 ,000 of which in excess of $25,000 is
derived from tenants who meet the Board 's stan-
dards for assertion of its jurisdiction.
I find that Broadmoor is and has been at all times
material herein a person engaged in commerce or
in an industry affecting commerce within the mean-
ing of Section 8(b)(4)(B ) of the Act.
The complaint alleged certain jurisdictional facts
concerning Kroger's operations . The answers, while
acknowledging that Kroger has a retail grocery
business at the Raleigh Plaza Shopping Center, pled
insufficient information to either affirm or deny the
jurisdictional averments of the complaint as to
Kroger . General Counsel adduced no evidence to
support these allegations of the complaint . Further,
the answers admitted the conclusionary allegation
that Kroger is an employer and a person engaged in
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce or in an industry affecting commerce
within the meaning of the Act. I find insufficient
basis in the record to support a finding that Kroger
meets the Board's standards for assertion of its ju-
risdiction. However, during the entire time of the
events herein there existed a dispute between the
Cement Masons and Walker Hall concerning Hall's
failure to compensate his employees at the level
established by the Cement Masons. I find that it
would effectuate the purposes of the Act for the
Board to assert jurisdiction over all the events and
persons herein. The actions of the Cement Masons
against Walker Hall affected the operations of
Kroger and the business of Walker Hall which,
standing alone, meet the jurisdictional require-
ments. Cf. Commission House Drivers, Helpers, and
Employees Local No. 400. I.B.T. (Euclid Foods,
Inc.), 118 NLRB 130.
Walker Hall is president of Broadmoor. He and
his brother are the sole owners of Broadmoor,
Walker Hall holding a 75-percent interest. Walker
Hall pays the rent on the office at Raleigh Plaza
which office is shared by Broadmoor as well as
several other companies in which Hall has an in-
terest. Until the weekend preceding the hearing
herein there was a sign on the office door reading,
"Office of Walker Hall Investments." There are
four employees in the office on Walker Hall's
payroll who prepare his and Broadmoor's payrolls.
The same accountant prepares Hall's and Broad-
moor's reports. While the agreement providing for
construction of an addition to the Kroger store at
Raleigh Plaza was entered into by Kroger and
Broadmoor, Walker Hall negotiated and signed all
contracts including those with the subcontractors
employed in the construction. In performing the
work on the Kroger addition not contracted out,
Hall utilized his own permanent crew which was
used as well at the motel. While working at the
motel the men were on Hall's payroll and when
shifted to the Kroger addition they went on Broad-
moor's payroll. Robert Pafford was employed as job
superintendent on both the motel and Kroger addi-
tion. Walker Hall supervised both jobs, his compen-
sation for the Kroger addition being the difference
between the contract price agreed to by Broadmoor
and Kroger and the cost of construction. In his brief
General Counsel states, "It is not contended by
Counsel for the General Counsel that Broadmoor
and Walker Hall are separate individual entities.
..." I find that for the purposes of this proceeding
Walker Hall and Broadmoor are a single employer
within the meaning of the Act. B & B Industries,
Inc., 162 NLRB 832.
H. THE LABOR ORGANIZATIONS INVOLVED
Carpenters International Union, Local 345, and
Local 521, Cement Masons , affiliated with Opera-
tive Plasterers and Cement Masons International
Association of the United States and Canada,
AFL-CIO, are and have been at all times material
herein labor organizations within the meaning of
Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The motel is picketed and Walker Hall contacts
the Carpenters
On or about March 1, the Cement Masons,
whose members had at one time worked for Walker
Hall, placed a picket at his motel jobsite. The
picket carried a notice to the public advising that
Walker Hall did not meet the Cement Masons area
standards. Cordis Davis, the Cement Masons busi-
ness agent, did not contact Walker Hall before
placing the picket at the motel and to the time of
the hearing herein had never spoken to Hall.
At or about the same time as the picket was
placed at the motel Asa Terhune, a local plumbing
contractor, suggested to Walker Hall that he meet
with Winford Green, business manager of the Car-
penters. Hall testified that he called Green's office
and after some calling back and forth Green and
Hall met in the latter's office at the Raleigh Plaza.2
At the time of this meeting there were no carpen-
ters working at the motel jobsite nor was there an
agreement for the Carpenters to furnish workers to
Hall. Green asked if Hall could use union carpen-
ters on the motel and Hall explained that he em-
ployed his own crew year round, that he could not
change his manner of operation, and was not able
to use union carpenters. Hall testified that the con-
versation was limited to the possibility of his using
union carpenters.
After Hall explained his feeling that he owed a
responsibility to the men who stayed with him
throughout the year, the matter was dropped.
Since this conversation with Green, Hall has had
no further contact with any union official.
2. The Raleigh Plaza Shopping Center
Although encompassing a much larger area held
for future expansion, the Raleigh Plaza Shopping
Center, as presently developed, consists of a wedge-
shaped area, fronting on Austin Peay Highway.
Standing at the entrance on Austin Peay Highway
(designated as entrance 3 during the hearing) fac-
ing the Raleigh Plaza, one sees, across a large
paved undivided parking area, the two main large
buildings of the shopping center which are divided
by an arcade leading to the rear of the buildings.
This arcade is approximately 270 feet on a direct
line from entrance 3. From this same spot at en-
trance 3, entrance 4, also on Austin Peay Highway,
is approximately 400 feet to the right. The Kroger
' Green testified that Terhune made the first in the series of calls which
led to the meeting There is no conflict however on the fact that Hall, and
not Green , asked for the meeting
CARPENTERS INTL. UNION LOC. 345 1113
store is located at the left end of the shopping
center buildings as one faces them from entrance 3.
The addition to the Kroger store was built to the
left of the existing structure. In the same shopping
-center building with Kroger are a large Walgreen
store and several smaller establishments. The other
building houses a Kress store, Shainberg depart-
ment store, several smaller retail establishments,
and Walker Hall's office.
From entrance 3 the shopping center property
runs some 360 feet to the left along Austin Peay
Highway, at which point the property line curves up
along Jones Road for approximately 550 feet to
Powers Avenue. About 240 feet up from the inter-
section of Jones Road and Austin Peay Highway is
entrance 2. The Kroger store is about 150 feet on a
straight line from entrance 2.
At the point where Jones Road intersects Powers
Avenue the property line makes a right turn and
continues up Powers Avenue. Entrance 1 is approx-
imately 200 feet from this intersection. From en-
trance 1 one can proceed along blacktop paving
directly to the rear of the shopping center buildings
to Walker Hall's office, which is located in the
building separated by the arcade from that housing
the Kroger store. Hall's office is some 400 feet from
the Kroger store. As one faces these buildings from
Austin Peay Highway (at entrance 3), the area to
the right of the Walker Hall office (across the width
of the shopping center from entrance I on Powers
Avenue) is unpaved and there is no access through
that area to the office.
Thus, one can go directly from entrance 3 on
Austin Peay Highway, across a parking area for 300
cars, to the arcade which leads to the rear of the
buildings and the Walker Hall office. From en-
trance 2 on Jones Road one can go around the
Kroger store to the rear of the buildings and on
blacktop reach the office. Or, one can proceed
directly to the rear of the buildings and to the office
from entrance I on Powers Avenue along blacktop.
There is a large sign in the arcade between the
buildings which announces, among other things, the
location of the Walker Hall office with an arrow
pointing in its direction.
Behind the shopping center buildings, in the un-
developed and unpaved area, are a number of
sheds. One is used to store equipment used by
Broadmoor's maintenance man in his work around
the shopping center. Hall testified that another shed
"might" have his name on it. Although this area is
not used for storage of materials, Walker Hall has
some usable scrap there, including a small quantity
of bricks.
3. The addition to the Kroger Store
In September 1968 Kroger and Broadmoor ex-
ecuted a modification of their existing lease agree-
ment providing that Broadmoor construct an addi-
tion to the existing Kroger store at the Raleigh
Plaza. Work began shortly thereafter. As heretofore
noted this agreement was signed for Broadmoor by
Walker Hall as president. Walker Hall supervised
construction of the addition, using his permanent
crew who went onto Broadmoor's payroll while
working at Raleigh Plaza. Walker Hall's men did
the carpentry work, poured cement, and did the
cleanup and common labor tasks. Steel erection,
sheetrock installation, plumbing and wiring were
contracted out. The panels and footings had been
poured for the Kroger addition by the time the
weather turned bad at which time Walker Hall's
men returned to their work at the motel, reverting
to Walker Hall's payroll. Work on the Kroger addi-
tion was suspended because at that point the exist-
ing store side had to be opened, exposing customers
and inventory to the winter weather. With the
return of better weather work resumed on the
Kroger addition.
While at the Raleigh Plaza Walker Hall's con-
struction crew worked from 8 a.m. to 4:30 p.m.,
Monday through Friday.
Material for use in construction of the addition
was stored on the Jones Road-Powers Avenue side
of the existing building, close to the job. Vehicles
and persons involved in the construction could
enter the Raleigh Plaza through any of the en-
trances and no signs were posted designating one or
more of the entrances for their use.
Broadmoor paid for all of the materials used in
erecting the addition but the order for the heating
plant was placed by Kroger for Broadmoor.
By June 1 Walker Hall's work on the Kroger ad-
dition was 99 percent completed. All that remained
to be done was the pouring of a concrete canopy
and cleanup. Hall estimated that this entailed less
than 10 days' work.
At the same time the interior of the Kroger store
was disrupted as Kroger employees, including car-
penters, and electrical contractors installed shelves,
fixtures, lights, and other equipment in the addition
and preexisiting structure. The entire store was af-
fected by this work.
B. "Since on or about June 4, 1969, and continuing
to date, Respondent Cement Masons and Respondent
Carpenters have picketed, or caused to be picketed, or
threatened to picket, or caused to be picketed, the
facilities of Kroger located in the Raleigh Plaza at
Raleigh, Tennessee. "3
1. The decision to picket the Raleigh Plaza
Cordis Davis, the Cement Masons business agent,
testified that he decided to place pickets at the
Raleigh Plaza about June 1 when he learned that
Walker Hall's office was located there. On June 4
' The facts as developed at the hearing are presented herein under
headings of the complaint allegations to which they pertain The language
quoted above constitutes par 12 of the consolidated complaint
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis took two pickets to the Raleigh Plaza, placing
them, he stated, as close to the Walker Hall office
as possible. On June 4 the pickets were stationed at
entrances 2 and 3, the Jones Road entrance and
that on Austin Peay Highway facing the arcade
between the two shopping center buildings. Davis
testified that he first learned of the construction at
the Raleigh Plaza on June 4 when he arrived with
the pickets. Davis ordered the pickets to patrol
from 8 a.m. until 4 p.m., as long as Hall's people
were present. The picket was to be on duty Monday
through Friday and on Saturday if the office was
open that day.
Davis testified that in conversations at the motel
with Hall employees he had ascertained that Hall
did not meet the Cement Masons area standards
and because of this he placed the pickets at the
Raleigh Plaza.
2. The events of June 4
The pickets were first observed by people work-
ing in and about the Kroger store at or about 8:15
a.m. on June 4. Walker Hall's attention was called
to the picketing by his superintendent. Hall ob-
served that the picket was the same man he had
seen picketing at the motel. Verlon Parks, manager
of the Kroger Raleigh Plaza store, was told of the
picketing at 8:15 a.m. by one of the carpenters
working for Kroger in the store. Parks noted that
the pickets were stationed at the entrances on
Jones Road and Austin Peay Highway. Warren
"Buck" Coleman, Kroger's foreman on the store
remodeling and a member of the Carpenters, told
Parks that the picketing was directed against
Walker Hall and Parks transmitted this information
to Fred Gruel, Kroger's engineer.
Parks testified that on June 4 the bread rack in
the store was lying in the middle of the floor, two
electricians and two refrigeration men were work-
ing on the frozen food cases in the rear of the store
and three carpenters, Walker Hall employees, were
erecting a framework to support cement in the
front of the store. Three carpenters, Coleman,
Baty, and Hardy, were working for Kroger in the
store. Baty and Hardy left shortly after noon and
Coleman worked out the day. The refrigeration
men were Kroger employees and the electricians
were employed by contractors engaged by Kroger.
The electricians worked out the day. The Walker
Hall employees left at 4:30 p.m., their regularly
scheduled time.
Winford Green, the Carpenters business
manager, testified that during the morning of June
4 he received a telephone call from Baty, Carpen-
ters steward employed by Kroger, who told Green
there was a picket line at the shopping center and
" The parties stipulated that the picket sign read "Notice to the Public
Walker Hall Construction Company does not meet the area standards
established by the Cement Local Union No 521 "
5 A separate paragraph of the complaint alleges that in this conversation
Wainscott attempted to cause Coleman to cease working for Kroger by
asked what the picketing was about. Green testified
that he advised Baty he did not know there was a
picket or why it was there and that because he was
tied up at a meeting that morning he would send
James Wainscott, the Carpenters assistant business
agent, out to the Raleigh Plaza to find out whose
picket it was and what the picketing was about.
Wainscott later reported to Green that it was a Ce-
ment Masons picket directed against Walker Hall.
Green told Wainscott that he could not tell the car-
penters employed by Kroger that they were to work
or not to work.
Wainscott testified that when he arrived at the
Raleigh Plaza he approached one of the pickets,
read the sign ,4 and asked the picket what it was all
about. The picket pointed to his placard and told
Wainscott to read the sign . Wainscott noted that
there were two pickets but he only approached one.
Coleman then joined Wainscott at the picket line.
Wainscott testified that Coleman was very upset.
Coleman testified that he asked Wainscott what the
trouble was and Wainscott replied that they were
picketing Walker Hall. Coleman stated that he told
Wainscott he could have come up and notified
Coleman when he put the picket up, that now the
men were working behind a picket line. To this,
Coleman testified, Wainscott replied that he did not
know Coleman was working at the store. Coleman
stated his feeling that it was not fair to place the
pickets and not notify the men. ". . . that is about
all that was said," Coleman testified. Wainscott
testified that he told Coleman it was not a Carpen-
ters picket, that the picket line had been
established by the Cement Masons. Wainscott told
Coleman to read the picket signs . Further, Wain-
scott testified, Coleman asked him what Coleman
should do. To this Wainscott replied that Coleman
should "use your own prerogative. You can work
or you don't work what ever you want to do. I
won't tell you what to do."5
T. H. Hardy, a member of the Carpenters for 13
years, started his day at the Kroger store at 8 a.m.
At or about 9 a.m. Hardy was told of the picket line
by a Kroger store employee. Although told by Baty
that the latter had called the Carpenters office for
information, Hardy, on his own, packed his tools
and prepared to leave. No mention was made of
whose picket was at the shopping center, but as
Hardy testified, as long as it was a union picket line
he would not work. General Counsel insisted on
knowing why Hardy left work on June 4, asking:
Q. I want to know specifically what was
your reason for leaving the Kroger job on the
morning of June 4, 1969.
A. I don't work behind no picket.
Hardy left the Kroger job and proceeded to the
Carpenters office where he waited until Green ar-
warning Coleman of the Carpenters bylaws and constitution concerning
work by a member at a jobsite being picketed The testimony concerning
this alleged incident is stated below under the heading of that complaint
paragraph
CARPENTERS INTL. UNION LOC. 345
rived at 4 p.m. Hardy asked Green what the picket-
ing was about and Green replied that he knew
nothing about it. Hardy then asked when Green
thought the situation would be settled and Green
again answered that he did not know because he
had nothing to do with the picketing.
Coleman remained on the job at Kroger. He
claimed to have had a second conversation with
Wainscott on June 4 at the picket line at or about 3
or 3:30 p.m. with Cordis Davis, the Cement Masons
business agent, present. Coleman testified that he
asked Wainscott if he had any news about the
picketing and that Wainscott replied that all he
knew was that the pickets would remain. Wainscott
denied returning to the Raleigh Plaza at any time
after his visit there the morning of June 4. Davis
testified that he visited the picket line during the af-
ternoon of June 4 but denied seeing either Wain-
scott or Coleman that day.6
Coleman called the Carpenters office at closing
time, 5 p.m., and spoke to Green. In reply to
Coleman's query about the picketing Green ex-
plained that it was a Cement Masons picket against
Walker Hall. Coleman testified that he asked Green
how long the picket would be at the Raleigh Plaza
and that Green answered "until we get that job
straightened out." Coleman stated that he again ex-
pressed his displeasure at the picket line being
established without his having been given advance
notice. Green testified that Coleman said he could
not understand why a picket had been placed
against Kroger and Green explained the picket was
not against Kroger and that Coleman was free to
return to work or not as he saw fit. In reply to
Coleman's complaint that he had been caught be-
hind the picket, Green testified that he told
Coleman he had not known about the picketing be-
fore the call from the Carpenters steward employed
by Kroger and his dispatch of Wainscott to the
Raleigh Plaza to ascertain the facts.
3. The events of June 5
The Walker Hall crew did not return to work on
the Kroger addition on June 5. Walker Hall
testified that he received a call from Gruel,
Kroger's engineer, asking Hall to take his men off
the job. Hall returned his crew to the motel where
they reverted to Walker Hall's payroll.
Coleman did not report to Kroger at Raleigh
Plaza on June 5, explaining, "I do not cross
nobody's picket line." Instead Coleman worked at
the Kroger shop where fixtures and other materials
are prepared for installation in the stores.
One of the electrical contractor's employees re-
ported for work at the store but after the pickets
appeared and the electrician had called his superi-
ors he told Store Manager Parks that he had to
leave.
As hereinafter demonstrated Coleman was a confused witness Wain-
scott and Davis were credible witnesses who gave no reason to discredit
1115
Gruel visited the store on June 5 in an effort to
restore order so that customer traffic could be han-
dled. Gruel asked the pickets what union they be-
longed to, and was told by one that he was a
member of the Cement Masons and by the other
the Carpenters. Gruel asked if the picket had seen
Green. The picket replied that he had not but that
he expected Green to be out that morning. Gruel
told the picket he wished to see Green when he ar-
rived. Though Gruel was at the Raleigh Plaza some
5 hours he did not see Green that day.
Green testified that he again spoke to Coleman
on June 5, explaining that there was no Carpenters
picket line and Coleman could work or not as he
saw fit, Green would not tell him what to do.
Coleman testified that he asked Green when the
situation would be straightened out and Green
replied that he had no information.
4. The events of Saturday, June 7
The Kroger store is open from 8:30 a.m. until 9
p.m., Monday through Saturday and from 10 a.m.
until 7 p.m. on Sunday.
On Saturday, June 7, there were four pickets at
the Raleigh Plaza, at entrances 1, 2, 3, and 4, the
two on Austin Peay Highway and on Jones Road
and Powers Avenue. The pickets left at 1 p.m.
Davis testified without contradiction that con-
struction company offices are usually open Satur-
day mornings but that he had made no inquiry as to
whether Hall's office was open on that day.
5. The Kroger truck incident
Verlon Parks, manager of the Kroger store at the
Raleigh Plaza , testified that at or about 9 a.m. on
Saturday , June 7, he observed a Kroger truck, bear-
ing the legend "Kroger-Live Better For Less,"
proceed along Austin Peay Highway, turn onto
Jones Road to entrance 2, where it stopped. Parks
testified he did not know why the truck stopped in
the entrance . As the truck turned into entrance 2
the picket there was walking across the entrance.
Kroger trucks normally enter the shopping center
at entrance 2 on Jones Road.
From his vantage point 150 feet from the en-
trance, Parks testified , he observed the picket
speak to the truckdriver . Parks claimed to have
seen the picket 's mouth moving. The store manager
could not see if the driver spoke . At that point the
truck was headed toward the store from where
Parks observed the incident . Shortly thereafter the
truck backed out of entrance 2, the driver parked
on the side of the road and went across the street to
a service station . At or about 10 a.m., the truck
drove into the Raleigh Plaza.
The driver of the Kroger truck was not called as
a witness.
their testimony on this point I do not credit Coleman 's account of a second
conversation with Wainscott on June 4
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The pickets
As noted, when Fred Gruel, Kroger's engineer,
questioned the pickets at the Raleigh Plaza on June
5 he learned that one was a member of the Cement
Masons and the other of the Carpenters.
Cordes Davis, Cement Masons business agent,
testified that at the motel some of the pickets were
members of the Cement Masons and some be-
longed to other unions. For the picketing at Raleigh
Plaza, among other pickets, Davis utilized the ser-
vices of a Carpenters member, Johnson. Davis
testified that he was acquainted with Johnson and
sought him out for picket duty.
All pickets used at the Raleigh Plaza were paid
and all received the same rate of compensation.
The Respondents called a number of business
agents from the Memphis area who testified as to
the practice followed in securing pickets.7 M. R.
Fethey, business representative of Painters Local
Union 49 for 23 years prior to his retirement on
January 1, testified that his policy was to use mem-
bers of his own union as pickets whenever possible.
However, Fethey testified, if "no members [were]
available there was always some one loafing on the
back porch of the labor temple I could go down
and get one of them to work the picket line. Some-
times it would be iron workers or different crafts."
Frank Long, business representative of the Elec-
trical Workers Union Number 474, testified to the
same effect.
Gruel testified that when he informed Stanley C.
Hungerford, vice president of the Memphis division
of Kroger, that one of the two pickets was a Car-
penters member, Hungerford replied, "He does not
have to be a member of the striking local or the
picketing local. He can be hired."
7. The events of June 13
The picketing at the Raleigh Plaza ended on
Friday, June 13.
Store Manager Parks testified that at or about 3
p.m. that day he received a telephone call from
Kroger Engineer Gruel who asked Parks to bring
one of the pickets to the phone to receive a call
from "the lawyer for the Local." Parks brought a
picket to the phone but no such call came through.
After some 30 minutes the picket said he would call
Green to see if the Carpenters business representa-
tive knew anything about such a telephone call.
Both the picket and Parks spoke to Green who de-
nied knowledge of the matter but said he would at-
tempt to reach the attorney. The picket returned to
his station.
Green testified that at or about 4 p.m. he
received a call from Attorney Jacobs in Atlanta
who advised Green that he had made an arrange-
ment with Kroger's attorneys for the picketing to
' Only two of these business agents were permitted to testify following
my ruling that further testimony along this line would be cumulative
end and Kroger to dismiss the $50,000 damage ac-
tions it had brought against the Cement Masons
and Carpenters and to withdraw the charges it had
filed with the Board. Jacobs said he had been una-
ble to reach Davis to withdraw the pickets and
asked Green to contact one of the pickets and ask
that the picketing end until Jacobs could speak to
Davis. Green first tried to contact Davis and when
unable to do so called the store, asked a store em-
ployee to bring a picket to the phone, and relayed
Jacobs' message to the picket. As it was now close
to the time the pickets ended their daily patrolling
the picket said they would come to the Carpenters
office where Green could tell them what had trans-
pired. One picket said they would check with Davis
to see what he had to say. Green testified that prior
to June 13 he had been in contact with Jacobs con-
cerning Kroger's lawsuit.
Davis, who had also been in touch with Jacobs
concerning Kroger's lawsuit and charges, learned of
the arrangement to dismiss the court action and
Board charges after the picketing had ended. A
picket advised Davis that Green had given them
word to end their activities and in a subsequent
conversation with Jacobs learned of the arrange-
ment with Kroger.
C. "Respondent Carpenters, by its agent, J.J.
Wainscott, on or about June 4, 1969, at the Raleigh
Plaza, attempted to cause an employee of Kroger and
a member of Respondent Carpenters to cease work by
warning him of Respondent Carpenters by-laws and
constitution concerning work by a member at a
jobsite being picketed."8
In his direct testimony Warren "Buck" Coleman,
the Kroger employee and Carpenters member al-
legedly warned by Wainscott, first testified that in
his conversation with the Carpenters agent in the
morning of June 4, Coleman asked Wainscott what
the trouble was, Wainscott replied they were
picketing Walker Hall. Coleman then complained
that Wainscott could have come up and notified
Coleman before the picketing began and Wainscott
answered that he didn't know that Coleman "was
up there." Coleman then expressed his feeling that
it was not fair for "the Union boys" to put the
picket up and not notify the men. Coleman con-
cluded this testimony by stating, "And that is about
all that was said."
In response to a question as to whether Wain-
scott said anything further, Wainscott stated, "No,
that was all that was said about the pickets in that
conversation."
General Counsel then asked, "Did he tell you to
remember anything?" After objections and col-
loquy by counsel, Coleman was shown his prehear-
ing affidavit and asked by General Counsel to read
8 Par 13 of the consolidated complaint
CARPENTERS INTL. UNION LOC. 345 1117
the second full paragraph on page 2 of that docu-
ment. General Counsel then asked Coleman:
Q. Do you recall anything further of that
conversation with Mr. Wainscott on June 4?
A. Yes. I asked him about us working up
there and he said just remember your bylaws.
So, I knew what they were without him telling
me.
General Counsel then asked Coleman if he knew
what was in the bylaws and to explain. Coleman an-
swered:
Well, I do not know whether it is in the book
or not where you can 't cross a picket line. But
I always felt when you join the union you al-
ways honor the picket line regardless of what
craft it was.
On cross-examination Coleman admitted there
was nothing in the bylaws about crossing a picket
line but he stated, "I have always been taught ever
since I joined the Union what would be the use of
having a picket line if you had some people who
would cross it." Coleman then reiterated his
testimony that when he asked Wainscott how the
picketing of Walker Hall would affect him, Wain-
scott replied, "Just remember your bylaws."
At this point Coleman was asked by Respon-
dents' counsel to read the eighth paragraph on the
first page of his affidavit.
Paragraph 8 on page 1 of Coleman's affidavit
reads:
The assistant business agent Wainscott did
not say anything to me about the union bylaws
and constitution.
The second full paragraph on page 2 of the docu-
ment reads:
I now recall that when the pickets were first
out there and I spoke to Wainscott he said to
me, "remember the bylaws." I didn't reply. He
asked me if I was working up there and I
replied, "Hell, no."
The following series of questions and answers fol-
lowed:
Q. (By Respondents' counsel) The question
was whether or not when you made the state-
ment to Mr. Coran if you did not give him the
information and sign the affidavit which con-
tains these words, I now recall that when the
pickets were first out there I spoke to Wain-
scott and he said to me remember the bylaws. I
didn't reply.
A. (By Coleman) I don't think he ever did
mention the bylaws.
Q. When you say he mentioned the bylaws
who do you mean?
A. Mr. Wainscott.
Q. In other words now, is this correct, sir,
that your testimony now is that you do not re-
member the conversations you had with Mr.
Wainscott about this matter on June 4, that at
any time he said to you, remember the bylaws?
A. I don't think he said anything about the
bylaws.
Coleman's last words on the subject came during
redirect examination in the following exchange:
Q. (By General Counsel) During this con-
versation, the first one you had with Mr. Wain-
scott on June 4 where the picket was located,
did he then tell you to remember the bylaws as
stated in your affidavit?
A. To the best of my knowledge I do not
think that he mentioned anything about the
bylaws or anything.
Wainscott denied having mentioned the bylaws in
his conversation with Coleman on June 4.
D. "Respondent Carpenters, by its agent, Winford
Green, on or about June 5, 1969, in a telephone
conversation at Memphis, Tennessee, threatened
Kroger that in order to have the pickets removed
from the Raleigh Plaza, Kroger should demand that
Walker Hall hire union members."9
Stanley C. Hungerford, vice president of the
Memphis division of Kroger , gave testimony in sup-
port of this allegation of the complaint . Hungerford
testified that Fred Gruel had told him that the
pickets were from the Carpenters and Cement
Masons and acting on the understanding that the
Carpenters were picketing he called Green, the
Carpenters business representative.
Hungerford stated that he called Green's office
on June 5 and upon being informed that Green was
out asked that he call back. Later that afternoon
Green returned the call and introduced himself.
Hungerford told Green the purpose of his call, that
he understood that Green had one of his men
picketing at the Raleigh Plaza and Hungerford
wanted to know why they were picketing because
to the best of his knowledge there were no carpen-
ters on the job. Hungerford expressed his concern
that the Carpenters were picketing. Hungerford
testified that Green informed him that the Carpen-
ters were picketing and that Green was helping the
Cement Masons. Hungerford told Green that
Kroger was 100 percent union, had cooperated
with the union for many years, and that all persons
working in the store were union people. Hunger-
ford told Green he considered it very unjust for
Green to picket a store where all employees were
union members. Hungerford told Green they had
been progressing very nicely in their work inside
the store and would complete the store remodeling
within a week or 10 days but that they were at a
crucial point in the work because the store was
upset as the new equipment was being put in place.
Hungerford testified that he asked Green what
Kroger had to do to get their remodeling work
finished. Green replied that he had nothing against
Kroger and had not told anyone they could not
work. Hungerford replied that he was aware of this
' Par 14 of the consolidated complaint
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but he had been informed by people on Kroger's
payroll that if they crossed the picket line they
would be fined and probably be put out of the
union . Green denied having told that to anyone.
Hungerford said he was aware of that but "they"
had told him this was in the rule book. Green
replied , in Hungerford 's words , "Well, they know
the rules and they abide by the rules."
Hungerford then asked what Kroger had to do to
get the pickets off the store . Green answered that
he knew it was putting Hungerford in an unpleasant
situation but they had been trying to get Walker
Hall to get his people to join the union . Green men-
tioned that Hall had other jobs going and they had
been trying to get Hall to pay union wages "and
then join the union ." Hungerford said that Kroger
was only a lessee and had no control over Hall.
Green repeated a number of times that the main
objective was to get Walker Hall to pay closer to
union wages and then get his employees organized.
Hungerford testified that in the discussion of how
Kroger could get the pickets off and get the store
back in operation Green mentioned, "Walker Hall
to get his men organized and we would have no
problem ." ( Hungerford 's words.)
At one point in the conversation Hungerford
asked Green for the name of the Cement Masons
agent , saying he would speak to Davis about remov-
ing his pickets.
During cross-examination Hungerford stated that
Green advised him that it was the Cement Masons
who had the dispute with Walker Hall and that they
were picketing his motel . Green advised Hunger-
ford that it was Davis to whom he should speak
with respect to the pickets . During this examina-
tion , on the subject of possible union fines , Hunger-
ford stated that he "was the agressor on this and
not asking the question but telling the point." In
fact, Hungerford testified that he could not recall if
Green said the Carpenters had no $50 fine because
"I was the agressor in this thing ." Hungerford did
recall Green saying , "We don't have anything that
says there will be a fine ." Hungerford reiterated his
earlier testimony that when he asked Green what
was necessary to get the pickets off the job, Green
replied , "Get Walker Hall to get his men to join the
Union."
Fred Gruel testified that late in the afternoon of
June 5 Hungerford told him of his conversations
with Green and Davis. Hungerford told Gruel that
he looked for a resolution of the situation whereby
Kroger 's employees would be allowed to resume
work on June 6 without their doing so being con-
sidered by the unions involved as a violation of the
picket line. On June 6 , Gruel stated , he called
Green, asked if Green had spoken to Davis, and
stated his understanding that an arrangement was
to be made to permit Kroger 's fixture crew to
resume work without such action being considered
a crossing of the picket line. Green said he knew of
no such arrangement and that nothing in that vein
had been discussed . During cross -examination
Gruel stated that he had been present when Hun-
gerford spoke to Green. Gruel was asked:
Q. And do you remember [ Hungerford]
relating anything to you to the effect that it
was not [Green 's] picket line?
A. I don't specifically remember but I am
sure he did because as I understand it at that
time by both of us [sic].
Green testified that on June 5, as he returned to
his office from the field and was at his secretary's
desk , Hungerford called and Green took the call
there . The secretary was present and Wainscott, the
assistant business agent , was in the outer office,
some 12 feet away . Hungerford asked what the
trouble was out at the Raleigh Plaza and Green
replied that he had no trouble there but had
received a report that the Cement Masons were
picketing Walker Hall at the shopping center.
Green told Hungerford the Carpenters had nothing
to do with the picketing , as far as the Carpenters
were concerned Kroger was a good employer and
he had not told his members to work or not to work
and was not planning to do so . Green testified he
told Hungerford , " It was a man 's prerogative to do
what he wants to do as far as working on the job is
concerned."
Hungerford then asked Green to contact Davis to
try to help Kroger in view of the longtime good
relations between Kroger and the Carpenters.
Green stated that he told the Kroger official that he
knew of nothing he could accomplish by calling
Davis "other than to talk to him and maybe try to
reach an arrangement whereby he would let the
people in the Kroger store go ahead and work."
Hungerford expressed his appreciation for such an
effort.
When Hungerford repeated his inquiry to Green
as to why "we had a picket up," Green emphasized
that it was the Cement Masons , not the Carpenters,
who were picketing . Hungerford brought up the
subject of fines , telling Green that he had been told
that members would be fined or expelled from the
local for working behind a picket line. Green
replied that he knew of nothing in the constitution
or bylaws that provided for such action.
At Hungerford 's request Green supplied Davis'
telephone number.
Green denied telling Hungerford or anyone in the
Kroger organization that to have the pickets
removed Kroger should demand that Walker Hall
hire union members.
The following day Gruel called Green asking why
the Kroger employees could not work. Green
testified that he explained to Gruel that it was not a
Carpenters picket line , the Cement Masons were
picketing and Green was not telling his members to
work or not to work. He told Gruel that he could
not do anything about the picket line because they
were not his pickets.
Connie Taylor, the Carpenters office secretary,
testified that she remembered Hungerford's call
because he contacted the office only on that occa-
CARPENTERS INTL. UNION LOC. 345
sion . She testified that Hungerford had tried to
reach Green a number of times on June 5 and had
finally spoken to the Carpenters official as he was
standing at Taylor's desk. Taylor testified that she
heard only part of Green's end of the conversation.
She recalled Green saying that he understood the
pickets were those of the Cement Masons and the
picketing had nothing to do with his union . Further
Green told Hungerford that he could not ask "our
people" to go back to work and could not ask them
not to work, that this was their own "prerogative."
Taylor also heard Green tell Hungerford he would
talk to Davis and see what he could do to help Hun-
gerford.
Wainscott testified that he was in his office about
15 feet from Taylor's desk. Wainscott heard little of
the conversation. He did recall Taylor telling Green
that Hungerford was calling and Green advising
Hungerford that it was not a Carpenters picket but
rather that of the Cement Masons. The only other
part of the conversation Wainscott overheard was
Green telling Hungerford that the picketing was not
directed against Kroger and that the Carpenters
had always had good relations with Kroger.
E. "Respondent Cement Masons, by its agent,
Cordis E. Davis, on or about June 5, 1969, in a
telephone conversation at Memphis, Tennessee,
threatened Kroger that in order to have the pickets
removed from the Raleigh Plaza, Kroger should
demand that Walker Hall pay union scale wages to
Hall's employees."10
After his conversation with Green, Hungerford
testified, he called Davis, reaching him at his home
at or about 6:30 p.m. Hungerford introduced him-
self and repeated much of what he had said to
Green. Hungerford stated his understanding that
one of the pickets was from the Cement Masons
and told Davis about the adverse effect the picket-
ing was having on the remodeling work in the store.
Hungerford said that he was not concerned about
the outside of the store, his main interest was
getting the selling area organized.
He told Davis, Hungerford stated, that all Kroger
employees were union, and wondered why, now
that Walker Hall had taken his cement finishers off
the job, the Kroger work could not continue. Davis
said he was not aware that Hall had taken his men
off the job. Hungerford repeated that to the best of
his knowledge Hall had done so.
Davis assured Hungerford that he had not told
any employees not to work. Hungerford testified, "I
know you haven't, apparently, but the men tell me
you have rules and apparently under the rules they
will be fined $50 and possibly get thrown out of the
union ." Davis replied that he knew of no reason
why the men couldn't work. Hungerford said that
1119
the men would not work because they will be fired
and thrown out of the union . To this Hungerford
testified, Davis replied, "They know their rules and
by-laws. "
Davis then stated that he had no dispute with
Kroger, his problem was with Walker Hall, and the
Cement Masons were not insisting that Hall's em-
ployees join the union but that Hall ought to pay
closer to the union scale. In Hungerford's words,
Davis said, "If [Hall] would only pay a little closer
to the union scale I think it would be satisfactory."
Hungerford disclaimed any influence over
Walker Hall. To this Davis allegedly replied that if
Hungerford could tell Hall to take his men off the
job he must have some control over Hall. Hunger-
ford then said he didn't know if Hall had taken his
men off the job, all he knew was that a Kroger man
had asked Hall's foreman to leave the job, the
foreman had done so but Hungerford did not know
if Hall would agree with this course of action when
he learned what had been done.
Davis then said he would see what he could do to
help Hungerford, the Kroger official testified, and
that Davis would talk to Green to see what could be
done. Hungerford said he would appreciate Davis
doing so.
Hungerford testified that he asked Davis what
Kroger could do to have the pickets removed and
that Davis replied his quarrel was with Walker Hall
because he was paying below union scale and asked
what Hungerford was doing to get Walker Hall to
bring his pay scale up closer to the union rate.
In either his conversation with Davis or Green,
one of the union agents mentioned to Hungerford
that Walker Hall had an office at the Raleigh Plaza.
Fred Gruel testified that Hungerford told him of
this talk with Davis about 7 or 8 p.m. on June 5.
Hungerford told Gruel that he looked for an ar-
rangement whereby Kroger employees could
resume work without their doing so being con-
sidered a violation of the picket line. Hungerford
did not say that he had a promise from Davis to
remove the pickets.
Cordis Davis testified that he received Hunger-
ford's call at his home. Bill Austin, a Cement
Masons member, was with Davis during the conver-
sation with Hungerford.
Hungerford asked him, Davis stated, why the Ce-
ment Masons had put a picket on Kroger as Kroger
had no union problems. Davis replied that they
were not picketing Kroger, had no dispute with
Kroger, and that the picket was directed against
Walker Hall. Hungerford then said that the picket-
ing was interfering with Kroger's work and Davis
replied that he could not help that, the Cement
Masons were not trying to stop anyone from work-
ing for Kroger. When Hungerford told him that
Hall's people were off the job and Davis should
10 Par 15 of the consolidated complaint The date of the alleged viola-
tion reads as amended at the hearing
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remove his pickets from the Raleigh Plaza, Davis
answered that he didn't care whether Hall took his
men off the Raleigh Plaza job because Hall main-
tained his office at the shopping center and there-
fore Davis would keep the pickets there.
Hungerford claimed that the picketing was il-
legal. To this Davis said Hungerford should talk to
his attorney. The Kroger official asked if it was all
right for Kroger's employees to go back to work.
Davis replied that if they wanted to work it was
agreeable to him, the Cement Masons dispute was
with Walker Hall. Hungerford asked if Davis would
try to help get the workers back in the store. Davis
said if he could be of any help he would.
Davis denied having told Hungerford that he
would talk to Green to see if the Carpenters could
work on the Kroger job Further, Davis denied hav-
ing said that in order to have the pickets removed
Kroger should demand that Hall pay union scale to
his employees.
Bill Austin, a Cement Masons member, testified
that he was at Davis' home during the evening of
June 5 in connection with the apprenticeship pro-
gram. Austin heard Davis' conversation with Hun-
gerford. Davis told Hungerford that the problem
was not with Kroger, it was with Walker Hall and
that they were picketing the Raleigh Plaza because
Hall had his office there. Davis said the picket line
was there because Hall did not meet area standards.
After the conversation Davis told Austin that Hun-
gerford was connected with Kroger.
F. Conclusions and Findings
1. The alleged threat to invoke the Carpenters
bylaws
The sole witness presenting evidence in support
of the complaint allegation that the Carpenters, by
Assistant Business Agent Wainscott, "attempted to
cause [Coleman] to cease work by warning him of
the Respondent Carpenters by-laws and constitu-
tion concerning work by a member at a jobsite
being picketed" was Coleman."
Coleman first testified that in his conversation
with Wainscott during the morning of June 4 he
asked Wainscott what the trouble was, Wainscott
replied that the picketing was against Walker Hall
and thereafter Coleman complained that he had not
been advised before the picket was put up.
Coleman finished his testimony on the conversation
with the statement, "And that is about all that was
said." When asked by General Counsel if there was
more to the conversation, Coleman reiterated the
limited nature of his talk with Wainscott, saying,
" For the purposes of my findings herein I deem it immaterial that the
Carpenters bylaws and work rules contain no reference to work behind a
picket line and that the constitution provides penalties only for working be-
hind a picket line authorized by the International union or one of its af-
"No, that was all that was said about the pickets in
that conversation."
Shown his affidavit taken during the precom-
plaint investigation of the case and asked to read
only one paragraph on the second page of his state-
ment Coleman then added to his testimony con-
cerning the conversation with the statement, "I
asked him about us working up there and he said
just remember your bylaws. So, I knew what they
were without his telling me."
On cross-examination Coleman first repeated his
testimony that Wainscott had told him to remember
the bylaws. Asked to read a paragraph on the first
page of his affidavit, Coleman then testified, "I
don't think he ever did mention the bylaws."
In the paragraph on the first page of the affidavit
Coleman had stated, "The assistant business agent
did not say anything to me about the union bylaws
and constitution." The second page of the affidavit
contains a paragraph reading in pertinent part, "I
now recall that when the pickets were first out
there and I spoke to Wainscott he said to me 're-
member the bylaws."'
Finally during redirect examination Coleman
again denied that Wainscott had referred to the
bylaws or constitution, saying, "To the best of my
knowledge I do not think that he mentioned
anything about the bylaws or anything."
Thus in his affidavit Coleman both claimed and
denied that Wainscott had asked him to remember
the bylaws and during his appearance on the stand
Coleman twice affirmed that Wainscott had told
him to remember the bylaws and twice denied that
the assistant business agent had referred to the Car-
penters bylaws.
In his brief General Counsel asks that I credit
Coleman's later statement in his affidavit that
Wainscott uttered the offending words rather than
the affiant's earlier denial. This is urged on the
basis of an unsupported assertion that the denial on
page 1 of the affidavit was engendered by
Coleman's reluctance to incriminate the union with
which he had been affiliated for 24 years. I find this
basis for choosing between Coleman's conflicting
sworn statements unpersuasive. And if I am to
prefer Coleman's last position in his affidavit why
not credit his last words on the subject while testify-
ing, that Wainscott did not mention anything about
the bylaws.
The burden of establishing matters pled in the
complaint at all times remains with General Coun-
sel. The search for the truth cannot be resolved by
the game of best two out of three or four out of
seven. I find that General Counsel has failed to
come forward with probative evidence to support
this allegation of the complaint and shall recom-
mend dismissal of this allegation.
filiates Were Ito find that Wainscott had made the statement sometimes
attributed to him by Coleman this narrow prohibition in the constitution
would not preclude a finding of violation General Truck Drivers and Hel-
pers Union Local 467, et a! (J B Electric), 171 NLRB No 90
CARPENTERS INTL UNION LOC. 345
2. The allegations that the Carpenters and Cement
Masons threatened Kroger that to be rid of the
pickets it must demand that Walker Hall hire union
members and pay union scale wages
Here again General Counsel relies upon the
testimony of one witness, in this instance Stanley C.
Hungerford, vice president of the Memphis division
of Kroger, to sustain these allegations of the com-
plaint. I find Hungerford's version of his June 5
conversations with Green and Davis less than per-
suasive.
Hungerford testified that Fred Gruel had told
him that the pickets were from the Carpenters and
Cement Masons and acting on the understanding
that the Carpenters were picketing he called their
business representative. Yet Gruel, Hungerford's
subordinate, testified that when he told Hungerford
that one of the pickets was a member of the Car-
penters, Hungerford replied, "He does not have to
be a member of the striking or the picketing local.
He can be hired."
Hungerford ascribed to Green and Davis identi-
cal replies to his statements to them that employees
had informed him they would be fined or expelled
from the union if they worked behind a picket line.
To this each replied, Hungerford testified, that the
members know the rules and they abide by them. It
should be noted that Kroger employs no Cement
Masons and for Hungerford to have raised this issue
with Davis would have no relevancy to any discus-
sion between them. As to Green, the absence from
the Carpenters bylaws and work rules of any men-
tion of picket line penalties and the limitation in the
union 's constitution of fines for violations only of
picket lines authorized by the International union
and its affiliated bodies makes Hungerford's
testimony suspect. It is one thing to find reasonable
a rank-and-file member's conclusion that a "legal"
picket line is a duly authorized one.12 It is another
matter to attribute such a conclusion to a union of-
ficial of long standing. Further, Hungerford claimed
that Green admitted to him that the Carpenters
were picketing and that Green was helping the Ce-
ment Masons. It seems farfetched that the Carpen-
ters business agent after disclaiming any connection
with the picketing to Coleman and Hardy, members
of the union of long standing, would make such a
damaging admission in a telephone conversation
with a man he had never met and whose interests
were adverse to those of the Carpenters.
Finally, Hungerford claimed that when he asked
what Kroger could do to end the picketing Green
had said that if Walker Hall got his men organized
there would be no further problem and that Davis
in response to a similar inquiry told Hungerford
that Kroger should demand that Walker Hall pay
' t General Truk Drivers and Helpers Union Lot at 467, et at (J B
Electric), 171 NLRBNo 90
" While neither Taylor nor Wamscott claimed to have heard all of
1121
his employees at a rate closer to the Cement
Masons scale.
Though aware that Walker Hall undercut the Ce-
ment Masons established wage pattern, Davis had
scrupulously avoided any contact with Hall because
of his conviction that to do so would lead inevitably
to a confrontation with the Board. The Cement
Masons picketing of the motel is free of any intima-
tion of illegality. Green had one contact with
Walker Hall, instigated by Hall, at which Green had
asked Hall to use Carpenters members and when
Hall said he was unable to do so, Green had not
pressed the matter. Hall's testimony concerning this
conversation confirms that of Green. At all times
after the picket appeared at the Raleigh Plaza
Green took the position with longtime members of
his union, men whom he should have some reason
to trust, that the Carpenters were not involved in
the picketing, that it was a venture of the Cement
Masons only, and that the Carpenters would take
no position as to whether its members should work
behind the picket, they were free to do so if they
wished. In light of Davis' refusal to expose himself
to legal entanglement by any contact with Hall; that
the one meeting between Green and Hall was of the
latter's doing and that Green did not press any de-
mands; that Green, to persons known to him, con-
sistently denied any interest or Carpenters purpose
in the picketing; and, the fact that Hungerford was
totally unknown to either Green or Davis before he
called them, I cannot credit the testimony that
Green and Davis "would have uttered statements so
blatantly violative of the Act as those which" Hun-
gerford attributed to them. Central Electronics, Inc.,
179 NLRB 833. I shall recommend dismissal of
these allegations of the complaint."
3. The picketing
The evidence detailed above establishes that at
all times the picketing conformed with the stand-
ards set forth by the Board for determining
whether the picketing of a primary employer at a
common situs violates Section 8(b)(4)(B) of the
Act. Sailors ' Union of the Pacific, AFL (Moore Dry
Dock Company ), 192 NLRB 547, 549. At all times
material Walker Hall, the primary employer, main-
tained his office and principal place of business at
the Raleigh Plaza and was engaged in the construc-
tion of the addition to the Kroger store at the
shopping center. The picket signs clearly stated that
the Cement Masons dispute was with Walker Hall
and with no one else . All entrances to the Raleigh
Plaza can be used to reach the Walker Hall office
or the construction site, although the entrances on
Powers Avenue , Jones Road , and the center en-
trance on Austin Peay Highway, three of the four
Green 's side of his conversation with Hungerford , to the extent they were
able to testify about the conversation , their testimony corroborates Green
Austin's testimony similarly corroborates Davis
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picketed, were the most convenient for that pur-
pose. These three entrances were also the most log-
ical to use for reaching the Kroger store. The hours
of picketing were confined to those of construction
personnel, 8 a.m. until 4:30 p.m., Monday through
Friday, and 8 a.m. until 1 p.m. on Saturday.
Although Davis made no attempt to learn whether
the Walker Hall office was actually open on Satur-
day, his testimony that construction company of-
fices in the Memphis area are usually open on
Saturdays is the only record evidence on this sub-
ject. In determining whether the picketing was
limited to those times when the situs of the dispute
was at the common situs, it must be noted that
Kroger's business hours at the Raleigh Plaza ex-
ceeded the hours of picketing, the store remaining
open until 9 p.m. on Monday through Saturday and
from 10 a.m. until 7 p.m. on Sunday, when there
was no picketing at all.
However, General Counsel argues that picketing
which on its face conforms with the Moore Dry
Dock criteria acquires the taint of illegality when
surrounding circumstances, in themselves violative
of Section 8(b)(4)(B), establish a cease doing busi-
ness object on the part of the picketing labor or-
ganization . Highway Truckdrivers and Helpers,
Local 107, I.B.T.C.W. (Riss & Company, Inc.), 130
NLRB 943, 949-950, enfd. 300 F.2d 317 (C.A. 3).
In support of his contention that the surrounding
circumstances herein negated compliance with the
Moore Dry Dock conditions General Counsel points
to the alleged invocation by Wainscott of the Car-
penters bylaws in his June 4 conversation with
Coleman, the alleged violative statements by Green
and Davis in their conversations with Hungerford
on June 5, the failure of a Kroger truck to cross the
picket line into the shopping center on June 7, and
the theory that since the picketing hurt Kroger it
must have been intended to do so.
I have heretofore found that General Counsel has
failed to establish that Wainscott on June 4 sought
to cause Coleman to cease work by reminding him
of a bylaw restriction on work behind a picket line
or that Green and Davis uttered the offending state-
ments to Hungerford in their conversations of June
5. Similarly, on the evidence adduced by General
" There is not even evidence of an enigmatic Mona Lisa smile Truck
Drivers and Helpers Local Union No 728, etc ( Brown Transport Corp ),
144 NLRB 590, 603
15 General Counsel cites my decision in Local 134, International Brother-
hood of Electrical Workers, AFL-CIO, et al (Polly Electric Company),
175 NLRB 507, and argues that there I "found conduct, similar to that
engaged in by Respondents' picket, to constitute a violation of Section
8(b)(4)(i)(B ) of the Act " (G C br ) In Polly Electric the truckdriver,
whose employment was in no way connected with the Charging Party, gave
direct evidence of inducement and his testimony was credibly cor-
roborated The allegations are similar , the proof is not
16 In his brief General Counsel notes that Carpenters Business Agent
Green knew that Hall's office was at the Raleigh Plaza because of his visit
there in April General Counsel then urges that Davis ' explanation of why
he did not picket the Raleigh Plaza before June 4 should be discredited
Davis can be charged with Green's knowledge of the location of the office
only if Green and the Carpenters were agents of the Cement Masons as al-
leged in the complaint The evidence does not support this contention
Counsel relating to the Kroger truck incident I can-
not find as urged in his brief "that Respondents'
pickets by blocking the path of a Kroger truck
seeking entrance to the Raleigh Plaza, caused it to
turn around and not make its scheduled delivery to
the Kroger store." The sole evidence adduced as to
this incident is the testimony of Parks, manager of
the Kroger store. Parks, standing some 150 feet
away, saw the Kroger truck turn into the shopping
center entrance where it stopped. The picket then
came to the side of the truck, Parks saw the
picket's mouth moving, the truck backed away to
the side of the road and entered the Raleigh Plaza
about an hour later. The driver of the Kroger truck,
presumably under the Charging Party's control, was
not ;alled to testify. Therefore, there is no evidence
as to what was said by the picket and the driver, if
he spoke at all, or what caused the driver to delay
the delivery.14 On this evidence I cannot find un-
lawful inducement by the picket.'5
It is clear that Kroger was hurt by the picketing,
but this alone does not establish an intention to en-
mesh the secondary in the dispute with Walker
Hall. The Cement Masons had been picketing
Walker Hall's motel construction site for months.
His office, clearly identified as such, was at all
times material herein in the Raleigh Plaza. Davis'
contention that he placed the picket at the Raleigh
Plaza soon after learning that Hall's office was
there was not rebutted.ls Had it been the Cement
Masons intention to involve Kroger the picketing
would not have been limited to construction indus-
try hours as the Hall office was in the shopping
center at all times that the Kroger store was open to
the public. Further, if Davis had known of the of-
fice before the picketing began and it had been his
purpose to hurt the Kroger store operation why did
he wait until the job was all but finished. Picketing
at an earlier time would have caught Kroger with
the store wall open to the weather.
I shall recommend dismissal of the complaint in
toto.
CONCLUSIONS OF LAW
1. Walker Hall, Broadmoor Investment Corpora-
tion and the Kroger Company are, each of them,
Green 's visit to Walker Hall in April, brought about at Hall's initiative, was
limited to a discussion of Hall's possible use of Carpenters members Wain-
scott's visit to the picket line on June 4, reasonably explained by the Car-
penters steward asking his union for information about the picketing, does
not constitute evidence of a common object Portland District Council of
Carpenters , AFL-CIO (Cascade Employers Association, Inc ), 178 NLRB
599 The testimony by Coleman and Hungerford that Green had indicated
to them that the Carpenters were "intimately involved in the picketing and
its objective " is as suspect as their testimony concerning the alleged bylaws
incident and the alleged threats to Kroger Green's involvement on June 13
in the removal of the pickets is explained not by an agency relationship
between the Cement Masons and the Carpenters but rather by Kroger's
lawsuits and Board charges making the two unions codefendants in those
proceedings Certainly Green 's willingness to carry out the settlement
designed to relieve his union as well as the Cement Masons from further
legal involvement does not evidence his working for the Cement Masons
throughout
CARPENTERS INTL. UNION LOC. 345 1123
engaged in commerce within the meaning of the
Act.
2. Carpenters International Union, Local 345,
and Local 521, Cement Masons, Affiliated with
Operative Plasterers and Cement Masons Interna-
tional Association of the United States and Canada,
AFL-CIO, are labor organizations within the mean-
ing of Section 2(5) of the Act.
3. The allegations of the consolidated complaint
that the Carpenters and Cement Masons have en-
gaged in unfair labor practices within the meaning
of Section 8(b)(4)(i ) and (ii )(B) of the Act have
not been sustained.
RECOMMENDED ORDER
It is recommended that the consolidated com-
plaint be dismissed.
427-258 O-LT - 74 - 72