Carpenters Local 2361

National Labor Relations Board - Board Decisions

Mar 11, 1980

248 N.L.R.B. 313 (N.L.R.B. 1980)

CARPENTERS LOCAL 2361 313
Carpenters Local Union No. 2361, United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO and Bill E. Perry, its Agent and
Adams Insulation Co., Inc.
Orange County District Council of Carpenters,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO and Adams Insulation
Co., Inc. Cases 21-CP-522 and 21-CP-523
March 11, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On October 26, 1979, Administrative Law Judge
Timothy D. Nelson issued the attached Decision in
this proceeding. Thereafter, counsel for the Acting
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, and Respondents
filed cross-exceptions and a supporting 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, except to the extent inconsistent herewith,
and to adopt his recommended Order.
The Administrative Law Judge found that on
February 15, 1979, Respondents threatened an em-
ployer with recognitional picketing. Finding this,
the Administrative Law Judge analyzed the effect
under Section 8(b)(7)(C) of the Act of an unretract-
ed threat to engage in such picketing. He conclud-
ed that a threat of recognitional picketing, though
unretracted for more than 30 days, did not consti-
tute a violation of Section 8(b)(7)(C), when, as
here, the threat is made by a union which could
qualify as the certified representative of the unit
employees. The Administrative Law Judge there-
fore dismissed the complaint in its entirety. The
Board has not been called upon to resolve this pre-
cise issue in prior cases, and, in view of our deter-
mination, infra, that there is no recognitional threat
here which would be cognizable under Section
8(b)(7)(C) of the Act, we find it unnecessary here
to pass on the Administrative Law Judge's analysis
of this issue. Nor will we resolve the issue in this
proceeding.
For the reason el forth ll his dissellt in Genera Sroici Enmplio),er
LUniton Local .No '3 a/tfilad mll Serice EnphvYcn Inrnantioal nt'iolt.
.4bfL-CIO (4-] Surltl Srvcl-, t, 224 NLRHB 434, 437 440 (1976).
Chairman Faniting %sould adopt the Administrative L.as\ Judge's conclu-
sions in this respect; he also concurs in the rationale of the majority
herein Since e fiiid here no threat f the kind the Admiistrati e I.as
248 NLRB No. 59
In November 1977, Respondents wrote letters to
Classic Development Corporation (Classic), a gen-
eral contractor, and to Adams Insulation Co., Inc.
(Adams), a nonunion subcontractor, informing
them that Respondents intended to picket at a job-
site at which Classic had subcontracted work to
Adams, and that the intended picketing would be
solely "for the purpose of advising the public that
[Adams] is not signatory" to a contract "with the
Carpenters' Union." 2 Shortly after sending these
letters, Respondents picketed the jobsite for 2 days
with signs reading:
Adams Insulation. Non-Union. Sanctioned
Orange County District Counsel of Carpen-
ters, AFL-CIO.
This picketing caused employees of some contrac-
tors other than Adams to leave their jobs.
In 1979, Classic contracted with Adams to per-
form work on a second phase of the same project.
Respondents wrote to Classic on February 15,
1979, again advising it of an intention to engage in
informational picketing. The letter said, in pertinent
part:
This is to advise you that Adams Insulation
Company is not signatory to an agreement
with the Carpenters Union and we have the
right to advertise this fact and inform the
public of this by lawful means including infor-
mative picket lines.
Should we picket Adams Inuslation Company
at this jobsite, the picketing will be directed
solely to informing the public of the fact that
Adams Insulation Company is not signatory to
an agreement with the Carpenters Union and
will not be directed against your Company or
any other employers or employees of any
other employer on the jobsite.
Such picketing will be conducted strictly in
accordance with all applicable laws. Should
you believe that any picketing activities over-
step the bounds of legality, please advise us
immediately so that we may correct the situa-
tion.
Judge discusses, Member Jenkins does not pass on his legal aalsis of
the effect of such threats
Contrary to his colleagues. Member Penello specificall) disaosss the
Administratise Lass Judge's analysis of the issue referred to abose inas-
much as it is contrary to the position Member Penello expressed in Iltter-
itatlonal Brotherhood of Electrical WorAers. Local 265 R P & .A Eictric)
236 NLRH 1333. fn 1 (1978), to wshich he continues to adhere Hoxeser.
Member Penello) joins his colleagues in finding hat no threat of recogii-
tiotal picketing sas made here
2 This represelitalioln as to the purpose of the picketilng coniforins to
the second or "publicilt" proviso to Sec 8(h)(7)(C) See fin 4. fi-a. and
ALJD at fin 12
CARPENTERS LOCAL 2361
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 22, 1979, for 1 day, Respondents pick-
eted the project with signs similar to those used in
1977:
Adams Insulation. Non-Union. Unfair to Car-
penters, Sanctioned by Orange County District
Council of Carpenters, AFL-CIO
Again, some employees of other subcontractors left
their jobs when confronted with the picket signs.
There was also evidence that representatives of Re-
spondents actively solicited employees of other
subcontractors at the site to refuse to work.
The sole issue presented in this case is whether,
in 1979, Respondents picketed with an object of
recognition, within the meaning of Section
8(b)(7)(C) of the Act, for more than 30 days.3 Re-
spondents engaged in actual picketing for only I
day. Counsel for the Acting General Counsel and
the Charging Party contends, however, that Re-
spondent violated Section 8(b)(7)(C) because of the
legal equivalent of picketing began with the Febru-
ary 15 letter. Thus, they argue that the letter con-
tained a threat of recognitional picketing which re-
mained unretracted for more than 30 days and had
the legal effect of actual picketing with a recogni-
tional object for such a period. As indicated above,
we need not reach the legal equivalency conten-
tion. For, the first question is whether there was a
threat of such picketing as Section 8(b)(7)(C) limits
to 30 days.
The Administrative Law Judge found the Febru-
ary 15 letter to be a "coded threat to engage in tra-
ditional recognitional picketing"-that is, picketing
which is restricted in duration by Section
8(b)(7)(C)-based on two preliminary findings: (1)
he found that the subsequent, March 22, picketing
exceeded the bounds of informational picketing
exempted by the "publicity" proviso to Section
8(b)(7)(C); and (2) he also found that, in 1977, Re-
spondents had engaged in picketing that exceeded
the bounds of the "publicity" proviso after sending
a letter of intention to picket solely for publicity.
The Administrative Law Judge's findings regarding
the 1977 picketing, made only for the purpose of
providing a background for the 1979 conduct, were
limited essentially to the fact that the picketing re-
sulted in employees of other subcontractors leaving
their jobs.4
3 The question of whether Respondents' conduct violated Sec 8(b)(4)
of the Act is the subject of a separate proceeding.
4 Picketing within the "publicity" proviso does not assume the absence
of a recognitional object The proviso exempts from the 8(h)(7)(C) re-
strictions on recognitional picketing those activities which have, in the
statutory language. "the purpose of truthfully advising the public includ-
ing consumers) that an employer does not employ members of. or have a
contract with, a labor organization " This exemption is forfeited. hosesv-
er, if the picketing has the effect of inducing employees of other employ-
ers not to work Building and Colrructiol Trades Council of Delaware
Accepting these preliminary findings, we think
they provide an inadequate basis on which to con-
vert the February 15 letter into a threat of recogni-
tional picketing. On its face, the letter exhibited not
only an intention to limit the picketing according
to the "publicity" proviso; it also expressly request-
ed the calling to Respondents' attention of any-
thing about the picketing which might "overstep
the bounds of legality . . . so that we may correct
the situation." Taken in isolation, this request could
be read as being consistent with an intention to
engage in lawful 8(b)(7)(C) picketing, outside the
"publicity" proviso, for up to 30 days. However,
such an intention is negated by the context in
which the request appears, and what remains is a
reaffirmation that the picketing will be conducted
within the bounds of the proviso.
Whatever light the March 22, 1979, picketing
might cast on Respondents' intentions on February
15, it can hardly convert this letter, retroactively,
into a threat to picket in a manner inconsistent
with the proviso. It is immaterial whether or not
Respondents had a recognitional object when they
"threatened" informational picketing on February
15. 5 Even if Respondents intended, on February
15, contrary to the letter, to "overstep the bounds"
of the proviso, the question is whether they threat-
ened to do so. Only if the letter could be so con-
strued do their intentions become relevant. See In-
ternational Brotherhood of Electrical Workers, Local
No. 278 (Felix Kelinske d/b/a Kelinske Electric
Company), 232 NLRB 1044, 1045, fn. 3 (1977). The
question is whether the legal equivalent of recogni-
tional picketing continued for more than 30 days-
that is, whether Respondents exerted the pro-
scribed coercion for a longer period than Congress
has permitted. The theory of the affirmative case is
that the legal equivalent began with a threat of
such picketing. But the coercion of a threat can
begin only when it can reasonably be perceived to
be a threat. A threat cannot, for this purpose, be
created retroactively. It must be determined to
have occurred or not based on what is contempo-
raneous or past.
This brings us to the effect Respondents' 1977
conduct had on the construction to be given their
February 15, 1979, letter. The Administrative Law
Judge found persuasive the fact that, in 1977, Re-
spondents warned of informational picketing but
then engaged in picketing which exceeded the
bounds of the "publicity" proviso. He thought this
made the 1979 letter construable as a threat of the
(Peitinaro Construction Co., Inc.) 215 NLRB 624 1974) Thus. the Ad-
ministraive Lass Judge's findings as to the 1977 picketing here ,ere suf-
ficient to remove the picketing from the "publicity" exemption
' See fn. 4. supra.
CARPENTERS LOCAL 2361 315
same pattern of conduct. We start again from the
actual content of the letter. This was not a letter
that went to the brink of a threat of unlawful con-
duct. The avowed threat of "publicity" picketing
was followed by what to all intrinsic appearances is
a good-faith statement of intention to cooperate
promptly to remedy any overstepping. The letter
must, of course, be interpreted in the light of all
the pertinent surrounding circumstances. Since the
letter speaks clearly, however, extrinsic evidence
warranting a construction contrary to its stated in-
tention must be quite persuasive. We do not think
the burden is met by citing Respondents' conduct
of some 15 months earlier. The Administrative
Law Judge's finding that the 1977 picketing over-
stepped the "publicity" proviso did not involve the
manner in which the picketing was conducted, but
only the fact that it resulted in some employees' re-
fusing to work behind the picket signs. This find-
ing, thus, tells us nothing about Respondents' inten-
tions with regard to complying with the "public-
ity" proviso, either in 1977 or in 1979. But let us
suppose that it showed an intention in 1977 to
engage in traditional recognitional picketing. It is
one thing to say that, having once pursued a cer-
tain course of conduct, a person might do it again.
To rest a finding of unlawful conduct on such a
hypothesis, however, requires a determination of
whether it is a reasonable prediction or a tenuous
speculation. Even where a party has recently
threatened an unlawful act, a statement of intention
to act within lawful guidelines is not to be inter-
preted as a threat to breach those guidelines merely
because the statement followed the unlawful threat.
See General Drivers, Chauffeurs, and Helpers, Local
Union No. 866 (The Stephens Company), 133 NLRB
1393, 1395-96 (1961); District Council of Painters
No. 48 and Paint Makers Local Union No. 1232
(Hamilton Materials, Inc.), 144 NLRB 1523, 1524-
25, 1531-32 (1963). Where, as here, a substantial
time has elapsed between the background conduct
and the statement sought to be construed, the force
of the background conduct is further diminished. 6
Were its 1977 conduct sufficient to discredit any
disclaimer however clear, Respondents would for-
ever be precluded from alerting persons who might
be affected of an intention to engage in "publicity"
picketing. The purpose of the Act to limit the
scope of labor disputes would not be served by
such a result. What other purposes of the Act
might be served remain obscure.
No imilar cnduct occurred in the inlrim r Repondens I senl a Jleter
to another contractor, silatng Ihal i might picket Adams fir publicityl
purpscs. in Auguisl 1978 N.i picketing fllk. ssd
Having found that no threat occurred that could
have started the 8(b)(7)(C) clock running, we shall
dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge:
These consolidated cases were heard before me in Los
Angeles, California, on May 21-22, 1979.1 They involve
an alleged violation of Section 8(b)(7)(C) of the National
Labor Relations Act, as amended (herein called the Act)
on a joint and several basis by the named Respondents.
There is the following pertinent procedural history:
Adams Insulation Co., Inc. (herein called Adams) filed
substantially identical charges with the Regional Direc-
tor for Region 21, on March 22-in Case 21-CP-522,
against Carpenters Local Union No. 2361, United Broth-
erhood of Carpenters and Joiners of America, AFL-CIO
(herein called the Local), and Bill E. Perry (Perry), as
the Local's agent; and, in Case 21-CP-523, against
Orange County District Council of Carpenters and Join-
ers of America, AFL-CIO (herein called the Council).
On April 20, the Regional Director issued an order con-
solidating cases, consolidated complaint, and notice of
hearing against all above-named Respondents. The hear-
ing date was later ordered advanced by the Regional Di-
rector. Respondents' common answer to the consolidated
complaint acknowledges due service of the underlying
charges and the formal papers establish due service on
Respondents of the consolidated complaint and notices
of hearing.
The Issues
Stated generally, the main issue herein is whether the
Council's unretracted letter of February 15 announcing
an intention possibly to engage in picketing of Adams, to
advertise Adams' failure to be a signatory to a collective-
bargaining agreement, coupled with I day of picketing of
Adams at a common construction site on March 22,
amounts to a perfected violation of Section 8(b)(7)(C) of
the Act. Subsidiary issues involve questions relating to
the character of the March 22 picketing, as well as con-
sideration of the significance of a similar pattern of con-
duct by the Council 1-1/2 years earlier in 1977.
Upon careful consideration of the post-hearing briefs
timely filed by all parties, and upon the entire record
herein, including my assessment of the witnesses' demea-
nor and credibility, I hereby render the following:
' All dales art I 197q. lllies Olher, l.se sptiltiled
C A R PE N T E R S L O C A L 2 3 6 1 1 ~~~~~~~~~~~
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges, and Respondents' answer, as
amended at the hearing, admits that, at all times material
herein, Adams has been an insulation subcontractor in
the building and construction industry in Southern Cali-
fornia, operating from principal offices in the city of
Santa Ana, and normally makes annual purchases of
goods and services directly from points outside the State
of California, valued in excess of $50,000. I so find.
II. LABOR ORGANIZATION
Respondents' answer to the complaint likewise admits
that the Local and the Council are each "labor organiza-
tions" as defined in Section 2(5) of the Act and that
Perry is, and has been at all times material herein, the
agent of both the Local and the Council, holding the po-
sitions of secretary and business representative for the
Council. I so find.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Adams is nonunion. Respondents have been displeased
by this fact, and have taken unsuccessful measures to
alter this situation since at least 1974.2 In 1977, Adams
was the insulation subcontractor on the first phrase of a
residential development job for general contractor Clas-
sic Development Corporation (herein called Classic) in
the city of Orange, California (herein called the Orange
project). On November 2, 1977, the Council, through its
attorney, notified Classic and Adams by separate letters3
that the Council intended to picket Adams at the Orange
project for the purpose of ". . . advertis[ing] to the
members of the public that [Adams] is not signatory to
an agreement with the Carpenters Union." Those letters
contained further disclaimers of any intention to disrupt
the work of, or deliveries of supplies to, any contractor,
including Adams, working, at the Orange project.
On November 10-11, 1977, picketing of Adams at the
Orange project occurred with signs which read:
Adams Insulation. Non-Union
Sanctioned Orange County District Council of
Carpenters, AFL-CIO4
Adams' work on that site was not disrupted by the
picketing, but other craft employees for other subcon-
tractors left their jobs. For reasons discussed infra, no
further findings are necessary regarding the location or
conduct of the pickets and the related conduct of Perry
at the site. Suffice it to state that Adams set up a "re-
2 See. Rodtner and Judith 4da , dh/a A da I lion Comllpanyi, 219
NLRB 211 (1975)
GC. Exh 2 and Resp Exh 3. respectively
4 nless otherwise staled findings about the nature of picketling arid
related conduct are derived from the testirnonly f Rodnlle Adams, x A hose
recall seemed clear, and ails not cotradicted excep h Classic's job su-
perintendent Wood. whose recall was poor
served gate" system which, at some later point on No-
vember 10, 1977, the pickets "honored" for the rest of
that day and during picketing on November 11. No
unfair labor practice charges were filed about that con-
duct.
In August 1978, Perry, on behalf of the Council, sent a
letter (C.P. Exh. 1) to another general contractor respon-
sible for a different job on which Adams was scheduled
to work, which contained a message essentially similar to
the above-described November 2, 1977, letter. However,
no picketing took place on that latter job. No charges
were filed in that connection either.
B. Events in 1979
The above-described pattern in 1977 on the Orange
project was essentially repeated in 1979 when Adams re-
ceived a second insulation subcontract from Classic for a
second phase of residential construction there. Thus, on
February 15, Perry dispatched a letter to Classic (but
not, this time, to Adams) advising that the Council be-
lieved that it had a right to "advertise" the fact that
Adams was not signatory to an agreement with "the
Carpenters Union," including by "picket lines" calculat-
ed "... to inform the public of this .... "5 Rodney
Adams, Adams' president, was shown a copy of that
letter by one of Classic's representatives.
Perry's February 15 letter further disclaimed any in-
tention to direct picketing against Classic " . . or any
other employers or employees of any other employer on
the jobsite." The letter closed with an invitation to Clas-
sic to advise the Council should Classic believe that any
picketing might "... overstep the bounds of legality
On March 22, picketing took place at Perry's direction
during a portion of workday at the Orange project. The
picket sign read:
Adams Insulation. Non-Union
Unfair to Carpenters, Sanctioned by
Orange County District Council of
Carpenters, AFL-CIO
Again, Adams' work at the site was not disrupted.
Again, although some details are lacking, the record
shows that some employees of other contractors at the
Orange project left their jobs during the picketing.6
The Orange project contains "model homes" and sales
offices maintained by Classic near one entrance to the
project. The March 22 picketing was conducted else-
GC Exh 3
s Charges arising from the picketing conduct were also filed b Adams
under Sec (b)(4)(i) and (ii)(H) of the Act in Cases 21-CC-219 ad 21-
CC-2170 A consolidated complaint againsl Respondetls i those cases
issued on May 14, setting a hearing thereon for October 21 The' were
not ordered collsolidated wilh the instant (bh)(7)(C) cases. notithstalld-
ing their common n ll .at ires. for rasonl explaied h\ cotlnselI for the Gcln-
eral Counsel To the extet possible. I hc trie d To is oid making find-
inags o fact pertlllng tl i ssues which may he decided on a different
record hb ai differenlt adnmil rat e I, il ludge in the scheduled 8(b)(41
cisrC
CARPENTERS LOCAL 2361 317
where-in general, at points where employees and sup-
pliers of contractors entered and left the project.
A "reserved" gate system was established between 7
and 9:30 a.m. on the morning of March 22, designating
one gate for Adams' employees and suppliers and an-
other gate for the other contractors, their employees,
and suppliers. At 9:30 a.m., after erecting the reserved
gates, Adams approached Perry, who was still picketing
at the non-Adams, or "neutral" gate. Adams pointed out
the gate systems and asked Perry to "lawfully observe"
them. Perry replied that he had placed a call to Respon-
dents' attorney and was waiting to hear from him.
Adams then left, but as he did so he observed Perry
move approximately 70 feet to the south of the neutral
gate, that is, referring to General Counsel's Exhibit 4, a
site diagram, to a point on Ecoff Street approximately 70
feet south of the neutral gate at Ecoff and Cherry
Streets. The "primary" gate for Adams was substantially
farther away, being located on Cherry, east of the Bever-
ly Drive intersection. (See also Resp. Exh. 1.)
The precise conduct of picketing, thereafter, on March
22 is in dispute. Rodney Adams testified that he occa-
sionally saw Perry or one or more other pickets patrol at
times to points within 20 feet of the neutral gate. Adams'
testimony here was somewhat nonspecific since he ac-
knowledged that Perry and other individuals who had
carried picket signs were not carrying them at all times
that he observed them near the neutral gate. Perry testi-
fied, however, that he tried to picket away from directly
in front of the neutral gate, but nevertheless came as
close as 40 feet to it. It is found that after first moving 70
feet south of the neutral gate, Perry (and perhaps other
pickets), thereafter, tended to place themselves nearer to
the neutral gate. Although the record is confusing, the
primary gate was apparently also being picketed during
this period.
Between 9:30 a.m. and 1:30 p.m., some employees of
neutral contractors working on the site left their jobs
even though their scheduled work had not been complet-
ed. These included carpenters, glass installers, and
drywallers. In this regard, Adams credibly stated that
about 10:30 a.m. he observed three unnamed "business
agents"7 go to a point in the project, which was blocked
from his view by a house, and return about 3 minutes
later. About 2 or 3 minutes thereafter, two carpenters
walked out of the "identical area," got into a pickup
truck, and left the project. At some unidentified point
during the same period, Adams credibly testified that he
saw Perry, another of Respondents' agents named Napo-
lis, and a third unnamed individual, grouped near a truck
bearing the legend "United Sanitation" which regularly
visited the Orange project to clean the portable toilets on
the site. The truck was at the point of entering the neu-
tral gate, but was stopped. The unnamed person with
Perry and Napolis handed the United Sanitation driver a
sheet of paper and spoke with him through the window.
The truck then drove away from the site, later returning,
and entering through the primary gate.
t In content, however, it is concluded that they were Respondents'
representatives, since Adams as responding to a line of questioning fol-
los ing his affirmation that he had seen ". conversations betseen indi-
viduals who had been picketing and other persons on the jobsite"
Adams was instructed by Classic not to work at the
Orange project on Friday, March 23, but, rather to
return on Saturday the 24th, to continue his insulation
work. This was to permit Adams to work at times when
no other contractors were scheduled to be at the project,
and to thereby avoid picketing disruptions. No picketing
was conducted on that Saturday when Adams worked
alone at the Orange project; nor thereafter, when Adams
by pre-arrangement, worked at times when other trades
were not at the site.
Other incidents were also litigated. Undisputed testi-
mony from Rodney Adams shows that Perry had a con-
versation with Rodney Adams on March 23, which argu-
ably suggests that Respondents' March 22 picketing had
purposes beyond merely "truthfully advising the public"
of Adams' nonunion status. Similarly, there was a con-
versation involving Perry and another of the Council's
business representatives, Randy Thornhill, and two of
Adams' employees, Jack Angove and Michael Williams.
The latter conversations took place roughly a week after
the March 22 picketing and at a different construction
project, where Adams was working as a subcontractor.
Those conversations arguably show that Respondents
were engaging in "organizing" activity among Adams'
employees. No detailed findings are entered regarding
those incidents because they either may be taken as cu-
mulative evidence that Respondents' March 22 picketing
was organizational or recognitional in character, or
they have more direct relevance to the yet-to-be-litigated
8(b)(4)(B) proceedings
IV. ANALYSIS AND CONCLUSIONS
Section 8(b)(7)(C) of the Act outlaws recognitional or
organizational picketing by an uncertified union without
an election petition having been filed ". . . within a rea-
sonable period of time not to exceed thirty days from the
commencement of such picketing." Normally, under the
construing cases, this means that recognitional' ° picket-
ing may take place for up to 30 days without violating
Section 8(b)(7)(C), even absent the filing of a petition."
It is plain that picketing within the 6 months prior to
the instant charge took place on only one date, March
22. Thus, even assuming that Respondents' picketing was
the type of recognitional picketing proscribed by Section
8(b)(7)(C), and was not, as Respondents contend, pro-
It is ultimately concluded that the major premise underlying the
8(b)(7)(C) complaint is untenable even if the March 22 picketing was or-
ganizational or recognitional in character. In any case. it may be conclud-
ed. without reference to the additional incidents, that the March 22 pick-
eling was recognitional or organizational and vwas not of the protected.
"second proviso" species (see "Discussion and Analysis." infra)
9 See fn 6. supra.
' "Recognitional" is the term used hereafter to indicate picketing for
either recognitional or organizational purposes
i See. e g. Ventura County District Coiicil of Carpenters. LUnited
Brotherhood of Carpenters and Joiners of .lmerica, AFL-CIO (Compositor
Constructionl 242 NLRB No 155 (1979). and cases cited in ALJD. fn
10 Compare cases, unlike herein. shere picketing for less than 30 days is
held to be unreasonably lengthy due o special factors. such as violence
on the picket line See. eg.. Disirtc 65. Retail. Wholesale d Departlneui
Store Union. 4FL-C0I (Eastern Ca,,meru & Photo Shop Corp.). 141 NLRB
991 (1963)
CARPENTERS LOCAL 2361
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tected "second proviso" picketing,' it is quite obvious
that the General Counsel's complaint assumes some
theory which takes into account more time than the 1
day on which picketing occurred.
The General Counsel advances several alternative the-
ories, themselves requiring acceptance of subsidiary con-
tentions, to support the claim that Respondents' conduct
in 1979 violated Section 8(b)(7)(C). In the most brief out-
line, the major alternative claims are as follows:
A. Theory I
I. When a threat to enage in recognitional picketing
continues unretracted for more than 30 days, a perfected
violation of Section 8(b)(7)(C) is made out.2. Respondent's February 15 letter, considered against
the above-described 1977 background, was a "threat" to
engage in recognitional picketing, notwithstanding its
stated intention to engage in protected "second proviso"
picketing.
3. Therefore, the February 15 "threat," having contin-
ued unretracted for more than 30 days, violated Section
8(b)(7)(C).
B. Theory II
1. (The same "major premise" set forth above as"A".)
2. Assuming that the 1977 background did not taint
the February 15 letter ab initio, as soon as it became
clear by the conduct of Respondents' March 22 picketing
that the picketing was for recognitional purposes, this
fact requires the conclusion that the February 15 letter
was "really" a coded threat to engage in recognitional
picketing. 13
3. Therefore, the February 15 "threat," having contin-
ued unretracted for more than 30 days, violated Section
8(b)(7)(C).
Thus, under either of the above theories, it is also nec-essary to accept the conclusion that the picketing which
actually took place (in 1977, or in 1979, or during both
periods, depending on the theory) was of a recognitional
character. For, only if one has drawn that conclusion
2 Referring to the second proviso to Sec 8(b)(7)(C), a concession to
constitutional concerns under the first amendment, which exempts fromthe general ban against unreasonably lengthy recognitional picketing,
picketing or other publicity for the purpose of truthfully advisingthe public (including consumers) that an employer does not employ mem-bers of, or have a contract with, a labor organiation . . That ex-emption is circumscribed, however, by the further qualification that suchpicketing must not hase " an effect . [ofl inducing] any individual
employed by any other person not to pick up. deliver or transport
any goods or not to perform any services" (The "effects" qualification tothe second proviso.) Picketing pursuant to the second proviso is not in-consistent with a recognitional object-indeed, it almost certainly denotes
such aii object-but. so long as the second proviso tests are satisfied itmay be conducted indefinitely without violating the proscriptions of Sec8(b)(7)(C) See, e g. Local Union 429. International Brotherhood of Electri-
cal Workers, AFL CIO (Sarl .11M Meloson d b/a Sam Melson. General Con-
tractor), 138 NLRB 460, 461 (1962), and cases citedla Admittedly. Theory 1 1 might also invite reference to the 1977 back-
ground in order toi determine the "real" purpose or intention underlying
the February 15 letter Under Theory 1, however, the 1977 background isargued as sufficient by itself to impute to the February 15 letter a inten-tion. notwithstanding its terms, to engage in recognitional picketingTheory II differs from Theory i. therefore. only in that it allows for thepossibility that it might he necessary to wa it until post-February 15 pick-
eting actually took place in order to divine the "real" intention underly-
ing the issuance of the February 15 letter
would one have even a threshold basis for treating the
seemingly innocuously worded February 15 letter as a
coded "threat" to engage in picketing for a recognitional
purpose. And only on reaching that conclusion about the
"true" meaning of the February 15 letter would there be
a case warranting consideration of the validity of the
major premise common to the General Counsel's alterna-
tive theories. 14
For reasons discussed hereafter, I do not find the
major premise relied upon by the General Counsel to be
legally well founded and, accordingly, it is unnecessary
to determine whether or not the picketing in 1979 (and,
for similar reasons, the picketing in 1977) was recogni-
tional in character. Were it necessary to determine this
question, however, I would have no hesitancy in con-
cluding that the picketing on March 22 was recogni-
tional, and that it was not of the type protected by the
second proviso. Rather, the picketing was conducted in
such a manner as to "signal" to organized labor that
there was a dispute in progress. Such activity is inconsis-
tent with the type of picketing which the second proviso
protects. Local 3, International Brotherhood of Electrical
Workers AFL-CIO (Jack Picoult), 144 NLRB 5, 8 (1963),
enfd. 399 F.2d 600 (2d Cir. 1964).'5 The presence of
pickets at or near gate areas reserved for the unionized
subcontractors on the Orange project, coupled with the
absence of picketing when Adams was working there
alone, clearly indicates such a "signal" purpose. So too
does the fact that Respondents' representatives engaged
in conversations with the United Sanitation driver who
then left the site and, as I infer, with the carpenters who
left the site shortly after the three union agents were
seen walking to an area where those carpenters had been
working. Considering as well that the picketing was
never conducted at times and places where the "public"
might be found (such as at the "model home" and sales
offices located at an entrance to the project well away
from the entrance used by the unionized tradespeople), it
seems quite clear that the picketing was not solely, if at
all, for the purpose of "truthfully advising the public"
that Adams was nonunion.
" The General Counsel asserts a "fall back" position, in addition to
the above-noted theories. That is. that even if the March 22 picketingswere treated as being of the second proviso type, it was not protectedthereby. because i occasioned the "effects" w hich remove that proviso'sprotection But this is simply a variation on one of the two major alterna-tive theories urged, and likewise requires acceptance of the major prem-ise common to them. Thus, assuming that the March 22 picketing were ofthe "second proviso" type. but, because of its "effects." it thereby lostthat proviso's protection, it would then be treated simply as "normal" re-cognitional picketing. itself permissible under the statute for a reasonable
period of time not to exceed 30 days. Since the picketing herein only oc-curred on I day, it would be just as lawful as picketing for da s with anundisguised recognitional object Therefore, the illegality in the situation,if an),. would not lie in the fact of I day of picketing for such a purpose,but, rather, would derive from the fact that ai unretracted "threal" toengage in such picketing had continued for more than 30 days Thus, ac-ceptance of the General Counsel's major premise discussed above is again
required to find merit to even this "fall back" position
See also Hoisting and Portable Enginreers .L ocal Union 101, affiliated
iith he Interriationa LUnioin Operating Engireers AFL-CIO (Sherwood
Conslrtrction Compne. Incr.), 140 NLRB 1175. 1179 (1963) iuramersr
Local U'n'ion r o. 5. a/,' Iriternational Brotherhood of Teamsers, Chauf-fears. Warehousemenr & Helpers. hind (Barbe r Brlthers Cotracing Co..
Inc, 171 NLRB 30. 32 (1968).
---
-^ -
CARPENTERS LOCAL 2361 319
Accordingly, I am prepared to accept that Respon-
dents' March 22 picketing was for recognitional pur-
poses. Moreover, especially in the light of the 1977 pat-
tern of picketing conduct which was similarly preceded
by a letter announcing an intention merely to engage in
protected "second proviso" picketing, I am prepared to
interpret the February 15 letter as essentially being a
coded threat to engage in traditional recognitional pick-
eting, notwithstanding its invocation of a "second provi-
so" purpose. Thus, were I to find the General Counsel's
major premise legally acceptable, i.e., that an unretracted
announcement of an intention to engage in recognitional
picketing violates Section 8(b)(7)(C) after 30 days has
passed, I would be compelled on this record to sustain
the General Counsel's complaint.
As the basis for his major premise, the General Coun-
sel relies on General Service Employees Union Local No.
73, affiliated with Service Employees International Union,
AFL-CIO (A-I Security Service Co., et al.), 224 NLRB
434 (1976), enfd. 578 F.2d 361 (D.C. Cir 1978). In A-i,
the Board (then Chairman Murphy and then Member
Fanning dissenting)'l held that ". . . Section 8(b)(7)(C)
of the Act proscribes a threat to picket where the union
cannot be certified as collective bargaining representa-
tives because it admits into membership both guards and
nonguards." Id. at 434.
Briefly, the pertinent facts in A-I, were that the union
seeking to represent a unit of the employer's guards was
disqualified under Section 9(b)(3) of the Act from obtain-
ing certification in such a unit because it admitted non-
guards to membership. That union had threatened to
picket in support of what was found to be a recogni-
tional purpose, and that threat continued unretracted for
more than 30 days. No picketing ever ensued, however.
The Board majority, using language that is the underpin-
ning of the General Counsel's major premise herein,
stated:
A threat continues in effect unless it is retracted.
Thus, a threat to picket for a proscribed object is
operative until such time as the union clearly indi-
cates that it no longer intends to pursue the threat-
ened picketing.
ingly, the majority reasoned, had that union picketed for
recognitional purposes ". . . for whatever duration . . ."
such picketing would have violated Section 8(b)(7)(C).l7
Under those peculiar circumstances, therefore, i.e.,
where the union might otherwise be able to obtain by
threats that which it could not lawfully obtain by even
the briefest picketing, the Board majority felt compelled
to treat an unretracted "threat" to picket for a pro-
scribed object the same as picketing for a proscribed
object. i s
If this analysis of A-i is correct, then it does not auto-
matically follow from A-i alone that a threat to picket
for recognitional purposes made by a union which is ca-
pable of obtaining certification in the unit sought be-
comes unlawful if it continues unretracted for more than
30 days. This is because, unlike the A-i situation, such
actual picketing for no longer than a reasonable time not
to exceed 30 days would be unlawful when engaged in
by a union capable of receiving certification. And, in this
regard, it ought to be borne in mind that while a recog-
nitional objective is sometimes referred to as a "pro-
scribed" objective, it is not really that "object" which is
proscribed when held by a union capable of receiving
certification, but, rather, it is the means by which that
objective is attempted to be secured (i.e., by unreasonbly
lengthy picketing) which is proscribed by Section
8(b)(7)(C). 9 Thus, unlike the A-i situation, a "threat" by
a union capable of receiving certification to picket for re-
cognitional objectives is not necessarily a threat to do
something which the statute proscribes.
Accordingly, there is a distinguishing gap between the
"uncertifiable union" situation in A-i and the "certifiable
union" situation posed herein. And I would not uncriti-
cally apply the "unretracted threat" doctrine from A-I to
the instant situation, absent some solid bridge of addition-
al authority over that gap.
The General Counsel relies on the Board's decision in
Laborers International Union of North America, Local
Union No. 652, AFL-CIO (Richard Sewell, Inc.), 238
NLRB No. 140 (1978), as just such a bridge, since it in-
volved, as here, a "certifiable" union. In Sewell, supra,
the Board panel of Chairman Fanning and Members Jen-
kins and Murphy affirmed 20 Administrative Law Judge
Richard J. Boyce in finding that the union involved
therein had violated Sections 8(b)(4)(i) and (ii)(B) and
4-1. supra at 436
' Hence the following related sentences in the majorit, opinion ap-
pearing al .--1. sipra at 436:
Only i the [alutuory] language means hat u e hae set forth. wsill
Section (bl(7)(C) accomplish the congressional objecmtie
Onls finding that both picketing and the threat to picket sere the
same proscribed object will meet with the siatutor5 language and the
congressional intent expressed therein
Se,. generails. l, crlationol/ oid Carrtr, Butldg aid (.,,,,, ,. l.a-
h, cr I /' 4temrwa. Local 840) 4- L- CIO (C 4 Bh,im (,i;ruc;tott
Co, I35 NlRB 1153, 1154 (1962)
2 Ch iltanr Fanning and Member Niurph:. speclficallN noted the pro
fiorma characler of their affirmance of the finding of the X(h)(7)(C) x Iola-
lionI homicser, citing the fact thai no eceptilnlls had been tiIken to the
firliltig f the Adniistrate Las Judge i this regard. led further itilig
their os] i diis ts in -I . iuprl Sd,(/' mifr;), fn I
* * * * *s
. . . with threats to picket, the applicable [reason-
able period of time not to exceed 30 days] runs
from the date the threat is made until the date it is
retracted. [Id. at 436, fn. 8.]
Were .4-1, the only source for the General Counsel's
major premise herein, however, I would not view that
case as dispositive of the instant one. It was of critical
significance to the Board majority in A-I, that the union
which threatened recognitional picketing was statutorily
disqualified from obtaining representation rights for the
unit of guards in which it sought recognition. Accord-
in The dissenters expressl disagreed swith a construction of Sec
8(h)(7) and its subpart (C) '4hich treated unreiracted threats the same as
picketing I hen Chairman Murph? cm Oltuided. iiiir u/i. that this ould
make the prnoseripnpins of S. g(hb It(C) more seerc as to
speech than as tiio. tail eciomiic actil " Id at 47. fr 12
CARPENTERS LOCAL 2361
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b)(7)(C) by conduct which included a threat by the
union to picket for recognitional purposes, coupled with
actual picketing for that purpose for approximately 20
days. In pertinent part, and relying solely on the "unre-
tracted threat" doctrine derived from A-l,supra, Admin-
istrative Law Judge Boyce reasoned as follows:
Regarding Section 8(b)(7)(C), a violation vested
with the lapse of over 30 days following [the
union's] November 11 threat to shut the project
down if Pelayo failed to appear at the hall on the
15th to discuss signing a contract. For, without an
election petition being filed, Respondent not only
failed ever to retract that threat, which had a mani-
fest recognitional object, but reaffirmed it on No-
vember 15 when Hernandez declared that Pelayo
had no intention of signing and that the project
therefore would be picketed or shut down, and
acted consistently with both threats by picketing
Pelayo from December 7 to 27. [Sewell. supra at
ALJD.]
Sewell is not binding precedent on the point at issue,
however, since a majority of the Board panel affirming
Administrative Law Judge Boyce on this point did so
pro forma, in the absence of exceptions, and expressly
noting their continuing disagreemnt with the "unretract-
ed threat" concept which was articulated in A-i (see fn.
19, supra). And, while Administrative Law Judge
Boyce's reasoning, which favors the General Counsel's
theory herein, should not be disregarded in my analysis
of the instant case, neither am I bound to adhere to it,
where the Board has not expressly affirmed it on its
merits.
As noted above, contrary to Administrative Law
Judge Boyce in Sewell, supra, I believe that the distinc-
tions between the A-I "uncertifiable union" situation and
the "certifiable union" situation posed herein are critical
and dispositive. Thus, even interpreting the February 15
letter herein as a coded announcement of Respondents'
intention to engage in recognitional picketing, such an
announcement is not, per se, a"threat" to do something
which is unlawful. For such an announcement to trigger
the application of the A-I "unretracted threat" doctrine,
it would have to be susceptible of being interpreted as a
statement of an intention to do something which Section
8(b)(7)(C) outlaws,2l and not merely as stating an inten-
tion to do something which is lawful provided it is not
continued beyond a reasonable time. The February 15
letter is, at best, an example of the latter.
Moreover, to apply the "unretracted threat" doctrine
to a certifiable union's statement of intention to engage in
recognitional picketing would lead to seemingly incon-
gruous and undesirable consequences in the labor rela-
tions arena-consequences which it is doubtful were
within the contemplation of Congress in enacting Section
21 For example, if a certifiable union vere to tell an employer that it
intended to picket the employer for more than 30 days to obtain recogni-
tion, and did not in tend to file a petition during that period, this would
arguably constitute something roughly parallel to the threat found viola-
tive in A, siupru. And even then, under the ;4-1 reasoning. more than 30
days would have to elapse before the union's statement would constitutl e
a violation of Sec 8(b)(7)(C).
8(b)(7)(C). Thus, if the General Counsel's major premise
applies herein, it follows that a union which has an-
nounced an intention to engage in recognitional picketing
violates Section 8(b)(7)(C) as soon as 30 days has elapsed
without the filing of a representation petition, even if no
picketing actually occurs. By contrast, a union which ac-
tually pickets for up to 30 days with such an object, nor-
mally will not be found to have violated Section
8(b)(7)(C).
This result alone seems anomalous and beyond Con-
gress' contemplation since it suggests that up to 30 days
of actual picketing is somehow less extortionate than a
mere announcement of an intention to do so which con-
tinues unretracted for 31 days.22 I would not lightly at-
tribute to Congress the view that 30 days of actual pick-
eting carries with it less potential for mischief than does
the mere passage of 31 days after receipt from a certifi-
able union of a stated intention to picket for recognition.
The facts of this case alone demonstrate the difficulty
of accepting such a view. Respondents' February 15
letter had absolutley no indentifiable effect on the ability
of Adams and other contractors on the Orange project
to perform their normal work. The only discernible
effect of the February 15 letter was to give those con-
tractors some advance warning that picketing might
occur at the project, thus enabling them to prepare them-
selves against such an eventuality by readying reserve
gate signs and by making standby scheduling arrange-
ments calculated to minimize the effects should picketing
actually occur. Contrasted with these seemingly desirable
effects of the issuance of an advance warning by Respon-
dents, 23 the actual picketing on only I day had demon-
strably disruptive effects on the performance of sched-
uled work.
Viewed in a slightly different way, if the General
Counsel's "unretracted threat" theory is correct as ap-
plied to this type of case, it seems certain that certifiable
unions contemplating a recognitional picketing campaign
against an employer will simply abandon the use of ad-
vance warnings and will tend to resort to surprise picket-
ing appearances on jobsites, with predictably more dis-
ruptive consequences to the targeted employer and
others working in proximity to him, than if some ad-
vance warning had been received. Again, if a certifiable
union may picket for recognition for up to 30 days with-
out running afoul of Section 8(b)(7)(C), but the same
union will violate Section 8(b)(7)(C) 31 days after
making an unretracted statement of intention to picket
for recognitional purposes (and without ever picketing),
unions will tend to renounce the latter activity and to
embrace the former.
22 Although invited at the hearing to comment on this seemingly
anomalous result, and to disabuse me of this viewr by citation to legisla.
tive history or otherwise. neither the General Counsel nor the Charging
Party has addressed the question in their othervwise extensive post-trial
briefs
23 These observations should not be read as condoninig ir encouraging
the use of disingenuous. self-serving. or misleading -"%arning" letters by
unions whose true purpose is to conduct a recoglintionllal picketing cam-
paign Rather. the point is that such letters. hosever self-serving or mis-
leading as it the true purpose harbored by the union. at least permit the
targeted employer and others wsho may be affected by picketing to take
precautions to minimize the impact of any actual picketing v.hich may
fiolloxk
CARPENTERS LOCAL 2361 321
Nothing has been called to my attention which sug-
gests that Congress, through Section 8(b)(7)(C), intended
to encourage "surprise" or "ambush" picketing cam-
paigns and to discourage the use of prior warnings. Yet,
this is a predictable consequence of adopting and apply-
ing to this type of case the major premise relied upon by
the General Counsel.
Accordingly, I conclude that Section 8(b)(7)(C) does
not make it unlawful for a certifiable union to issue and
"continue" for more than 30 days a statement of inten-
tion to picket an employer for recognition. Since a con-
trary theory is at the heart of the complaint herein, it is
recommended that the complaint be dismissed.
2 4
24 An, other contentionls contrar to this recommended result are like-
wise rejected In this regard. I have in mind another "fall-hack" theory
briefly argued at the close of the General Counsel's brief, to it: that the
I day of picketing in 1979 should be treated as a mere continuation of the
2 days of picketing in 1977. and, accordingly. the intervening 1-1/2 years
should be treated as a period of constructive" picketing which exceeded
the 30-dav "grace period" allouwed for in Sec 8(b)(7)(C) The cases relied
on by the General Counsel in this regard each involve "intermiltent"
picketing during a relatisely brief period (albeit more than 30 days) hut
'swhere the days of actual picketing totaled ferrer than 30 days (See. e g
Internarioina/ L nlion of Operatinlg Engllieeri. Local 4. ei al (Seward Co,1-
struciron Crnmpan, Ilc, 193 NLRB 632 (1971). and case cited at fn. I
As the General Counsel concedes, hoa ever, the Board has niever applied
the intermittent picketing doitrine so as to find iolatixe of Sec
8(b)(7)(C) only 3 days of actual recognitional picketing over a -1/2->ear
period Especiall shere, as here. Respondellts lay dormant for 1-1/2
years before emerging to pickel Adams on I da!. I find the General
Counsel's theorY in this regard to he siihouli merit
CONCLUSIONS OF LAW
1. Adams is, and at all times material herein has been,
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Local and the Council are, and have been at all
times material herein, labor organizations within the
meaning of Section 2(5) of the Act, and William Perry
has, at all times material herein, acted as agent for each
of them.
3. Those Respondents did not, singly or collectively,
violate Section 8(b)(7)(C) of the Act by allowing the
statements contained in their February 15, 1979, letter to
continue unretracted for more than 30 days, even if those
statements be construed as reflecting an intention to
engage in recognitional picketing against Adams.
4. Respondents' 2 days of picketing against Adams in
1977, coupled with I day of picketing against Adams in
1979, did not violate Section 8(b)(7)(C) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein, and pursuant to
Section 10(c) of the Act, I hereby issue this recommend-
ed:
ORDER 2 5
The complaint is dismissed in its entirety.
25 In the event no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102 48 of the Rules and Regulations. he adopted b} the Board and
become is findings. conclusions. and Order. and all objections thereto
shall he deemed raived for all purposes
CARPENTERS LOCAL 2361 321