Electrical Workers Local 453

National Labor Relations Board - Board Decisions

Jun 13, 1979

242 N.L.R.B. 1130 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers, Lo-
cal 453, AFL-CIO (Southern Sun Electric Corpora-
tion) and Congress of Independent Unions. Case
17 CP 198
June 13, 1979
DECISION AND ORDER
BY MfMBERS PFNE.I.O, MURPHY, AND TRUESDALE
On November 7, 1978, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, Respondent (hereafter
called IBEW or the Union) filed exceptions and a
supporting brief, and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and that at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith. Also, in view of our
findings herein, we shall dismiss the complaint in its
entirety.
As set forth fully in the Administrative Law
Judge's Decision, the IBEW has been found in this
case to have violated Section 8(b)(7)(A) of the Act by
virtue of its actions in picketing various construction
projects for which Southern Sun Electric Corporation
(hereafter called Southern Sun or the Employer) had
been awarded the contract to do the electrical work.
The Administrative Law Judge found, contrary to
Respondent's contentions, that the object of the pick-
eting was organizational and therefore violated the
Act. Respondent, however. contends that the sole ob-
ject of its picketing was to inform the public that
Southern Sun was not paying electricians in accord-
ance with the standards established by the Union in
the area and thus its action constituted permissible
informational picketing. For the following reasons,
we find these contentions meritorious.
The pertinent facts leading up to the alleged unlaw-
ful conduct herein began when the Congress of In-
dependent Unions (hereafter called CIU), the Charg-
ing Party, filed a petition on April 12, 1976, seeking
an election in a unit of Southern Sun's electricians.
Respondent, which had intervened in the election,
was selected by the employees and subsequently certi-
fied by the Regional Director for Region 17 on May
20, 1976, as the exclusive representative of the Em-
pioyer's electricians.
While attempting, unsuccessfully, to obtain a col-
lective-bargaining agreement with the Employer dur-
ing the following certification year, Respondent filed
unfair labor practice charges alleging that the Em-
ployer violated Section 8(a)(1), (2), (3), and (5) of the
Act. These charges were dismissed at the Regional
level by virtue of a unilateral settlement agreement
between the Regional Director and the Employer
which contained a nonadmission clause. Respondent
was not a party to the settlement agreement. Under
applicable Board law' the settlement did not extend
the certification year. Thereafter, Respondent's ap-
peal of the dismissal of its charges to the General
Counsel's office of appeals was denied on October 29,
1976.
On December 1, 1977, 14 months later, the CIU
filed a second petition for the unit of electricians at
Southern Sun, and Respondent shortly thereafter
filed another unfair labor practice charge alleging
again that the Employer was engaging in 8(a)(l), (2),
(3), and (5) activity, which charges included an alle-
gation that the Employer was engaging in a general
refusal to bargain. These charges were dismissed by
the Regional Director based on insufficient evidence
supporting the assistance charge. The dismissal also
noted that Respondent had not made any request for
bargaining within the past 6 months. Respondent's
appeal of this dismissal was denied on January 27,
1978.
Respondent's charges having been finally resolved,
a second election was held on March 9, 1978, in
which both Respondent and the CIU participated
and in which the CIU was successful. Respondent's
objections to this election were dismissed at the re-
gional level and the CIU was certified. Respondent's
request for review of the decision certifying the CIU
was denied by the Board on June 27, 1978. Pursuant
to its certification, the CIl U and the Employer entered
into collective-bargaining negotiations and signed an
agreement on June 25, 1978.
Prior to the picketing, which the Administrative
Law Judge found to be organizational. Respondent's
business manager wrote letters to the owners of the
projects where Southern Sun was working stating Re-
spondent's intention to picket Southern Sun to inform
the public that its employees were being paid wages
and fringe benefits less than those achieved by Re-
spondent and offering the project owners the oppor-
tunity to submit evidence that its information about
Southern Sun was incorrect.
The Administrative Law Judge finds that the pick-
eting, which is the subject of the instant case, began
at a construction project where the Employer was
doing the electrical work on July 10, 1978, with a sign
I MJr-Ja< Poultr Comprav, Inc., 136 NLRB 785 (1962).
242 NLRB No. 160
1130
EIE(CTRICAL WORKERS, I.OCAL 453
on which the language proclaimed that the Employ-
er's employees were receiving "wages, benefits and
working conditions" substandard 2 to those received
by members of Respondent. The sign was carried by
an individual employed by Respondent who was ac-
companied by Respondent's assistant business agent,
Mike Brumley. In describing the events surrounding
the picketing, the Administrative Law Judge finds
that none of the conversations that took place be-
tween the picketers and individuals working on the
project constitute other evidence of Respondent's or-
ganizational purpose. Similarly, he finds that the na-
ture and extent of Respondent's investigation into
what were the wages and fringe benefits being paid by
Southern Sun and its failure to ascertain them exactly
does not create an inference that Respondent had an
organizational or recognitional object.
We agree with the Administrative Law Judge's
finding that Respondent's past familiarity with the
wages and benefits being paid by Southern Sun to its
employees provided a reasonable basis for its assump-
tion that the wages and benefits contained in the col-
lective-bargaining agreement between Southern Sun
and CIU were substandard and that, therefore, no
inference of a recognitional object can be drawn from
the failure of Respondent to determine with precision
the economic conditions contained in this agreement.
We also agree with the Administrative aw Judge's
finding that none of the conversations which took
place between the picketers and individuals working
on the project show an organizational or recogni-
tional objective.
What we are left with then is evidence that Respon-
dent fully utilized available Board processes in fur-
therance of a recognitional claim and that, following
the Board's denial of these claims and the exhaustion
of appeals, Respondent engaged in the picketing of
the project with signs purporting to establish an area
standards objective. On the basis of this evidence, the
Administrative Law Judge concluded that the neces-
sary recognitional object was established by the
claims which Respondent had urged before the Board
and that the commencement of the picketing so soon
after these claims were denied evidenced a continuing
recognitional object.
In finding that Respondent violated Section
8(b)(7)(A) of the Act, the Administrative Law Judge
observed that it would be both naive and illogical to
conclude that the picketing was without a recogni-
2 We disagree with the Administratise Law Judge's finding in a footnote
that any doubts about the actual purpose of the picketing are dispelled by
the use of the phrase "substandard" without a credible explanation bh Re-
spondent showing its informational intent. We have long recognized that the
use of the term "substandard" is consistent with area standards objectives
and that the term. in and of itself', does not evidence a recognitional object
See Hfousitn Building and C(onsrucion Trades touncil (Claude E erett Con
srrucrion C(; npranv), 136 NI.RB 321 1962).
tional object in the circumstances of this case. We
disagree. It seems obvious to us that the Administra-
tive Law Judge has predicated the finding of the vio-
lation almost exclusively upon the timing of the pick-
eting: namely, the fact that it commenced only 14
days after a recognitional claim and only 4 days after
Respondent's disclaimer of such an interest. How-
ever, even when an illegal recognitional object has
been demonstrated and after a brief hiatus the re-
spondent engages in what purports to be area stan-
dards picketing, the briefness of the hiatus is in and of
itself not sufficient to permit an inference that there is
a continuing recognitional object. As was stated in
A ltemose Construction Co. .3
In situations where unions have been found to
have picketed for an illegal objective and then
have sought to picket for another objective, the
Board has long rejected the application of a pre-
sumption of the continuity of the illegal objective
where there is no substantial independent evi-
dence to support such a presumption. The new
picketing should be determined to be good or
bad for what it is and not by reason of the object
or purpose of earlier picketing. The concept of a
"hiatus" is a tool in determining the objective of
a union and not a rule.
Here, as previously indicated, there is nothing in
comments or conversations which occurred at the
picket line which would demonstrate a recognitional
object. Furthermore. aside from the interpretation to
be placed on the language employed on the area stan-
dards picket signs which is discussed, infra, there is no
evidence that Respondent at any relevant time
claimed recognition other than through its pursuit of
its legal right under Board processes. No adverse in-
ferences can be drawn from the pursuit of such rights:
to conclude otherwise would penalize a party for uti-
lizing the rights provided for it in the statute.
We also believe, contrary to the Administrative
Law Judge, that a reasonable explanation exists for
the briefness of the hiatus between Respondent's rec-
ognitional claim and its commencement of area stan-
dards picketing. If, as the evidence would seem to
show, Respondent was interested only in a legal vin-
dication of its claim, the exhaustion of this process
occurred on June 27, 1978. At this point Respondent
was of necessity required to pursue a different course
of action or no action at all. On July 6, 1978, it dis-
claimed any recognitional object and on July 10.
1978, it commenced area standards picketing. In the
absence of any evidence which would reflect ad-
Building and C(,nitruetio Tradei (Council t Philadelphia and I liniO,
4FI. CIO (Alrernose (onstruction ( and Strercon Industrie,r In< i. 222
NLRB 1276. 1280 1976)
1131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
versely on the disclaimer or the area standards objec-
tive, we must treat both as valid.
There remains for our consideration the Adminis-
trative Law Judge's "furthermore" argument that in
any case a recognitional object is demonstrated by
the language used on the area standards picket signs.
Specifically, the Administrative Law Judge found
that the sign's reference to working conditions which
were substandard to those received by the members
of Respondent was ambiguous, and in the absence of
any credible explanation should be interpreted as ex-
tending beyond matters of purely economic concern
and requiring compliance with all of the working con-
ditions established in Respondent's collective-bar-
gaining agreements. Thus, the Administrative Law
Judge concluded that such a vague reference to work-
ing conditions showed a recognitional object. We
must disagree because such a broad interpretation of
the language of the picket sign is not warranted under
the facts presented here.
Although we do not disagree with the Administra-
tive Law Judge's statement that the Board has on
occasion concluded that a broad reference to non-
union conditions is some evidence of a recognitional
object, the cases cited by him are factually inapposite.
In both McDonald's System of California, Inc.4 and
Jack-In-The-Box,5 the language of the picket signs
made no reference to substandard wages, benefits, or
working conditions. They merely noted that they
were protesting the particular employer's "non-union
conditions." Also, in each of the cases, there was evi-
dence apart from the language employed on the
picket signs which demonstrated a recognitional ob-
ject and it was in light of this other evidence that the
language used on the picket signs was interpreted.6
Here, the protest language of the sign complains
that the employees of Southern Sun Electric are "re-
ceiving wages, benefits and working conditions that
are sub-standard to that received by members of Lo-
cal Union #453 I.B.E.W." We find it significant that
the term "working conditions" is coupled with mat-
ters which are purely economic in character; namely,
wages and benefits. Also, the protest that these bene-
4 San Francisco Local Joint Executive Board of Culinary Workers, Bartend-
ers, Hotel, Motel and Club Service Workers, AFL-CIO (McDonald's System
of California, Inc.), 203 NLRB 719 (1973).
5 San Francisco Local Joint Executive Board of Culinary Workers, Bartend-
ers, Hotel, Motel and Club Service Workers, AFL-CIO (Jack-lIn-The-Box),
203 NLRB 744 (1973).
6 The Administrative Law Judge also placed reliance on Steamfitters Local
Union No. 614, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO
(Trumbo Welding and Fabricating Company), 199 NLRB 1026 (1972). This
reliance is misplaced. There, the picket sign stated: "Trumbo Co. does not
meet the standards of wages, fringe benefits and working conditions as estab-
lished in the Memphis area. Steamfitters Local 614, AFL CIO." In evaluat-
ing the language of this sign, the Board clearly stated that it was rejecting the
contention of the General Counsel that the legend on the sign was evidence
of a recognitional object.
fits are not being received suggests an economic moti-
vation rather than one requiring observance of all
union requirements.7
In our judgment, the evidence here fails to support
an inference that the language on the picket signs
went beyond purely economic concerns.8
In view of the foregoing, we conclude that the Gen-
eral Counsel has failed to sustain his burden of show-
ing that Respondent evidenced a recognitional object
during the relevant period. Accordingly, we shall dis-
miss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
Steamfitters Local Union No. 614 (Trumbo Welding and Fabricating Com-
pany), supra, fn. 6.
8 Cf International Brotherhood of Electrical Workers, Local 265 (RP&M
Electric), 236 NLRB 1084 (1978).
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me in Springfield, Missouri, on Au-
gust 25, 1978,' based on a complaint issued on July 28, by
the Regional Director for Region 17. It is based on a charge
filed by the Congress of Independent Unions (herein called
the CIU) on July 14. The complaint alleges that Interna-
tional Brotherhood of Electrical Workers, Local 453, AFL-
CIO (herein called Respondent), has violated Section
8(b)(7)(A) of the National Labor Relations Act, as
amended, by picketing two Southern Sun Electric Corpora-
tion jobsites, in Springfield, in July.
Issue
The principal issue is whether or not Respondent
picketed the Southern Sun jobsites with a recognitional ob-
ject at a time when that employer had lawfully recognized
(and entered into a collective-bargaining contract with) an-
other labor organization, the CIU.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel, Respondent, and the Charging Party.
Southern Sun, the Intervenor, did not file a brief.
Upon the entire record of the case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
I Hereinafter all dates are in 1978, unless otherwise noted.
1132
ELECTRICAL WORKERS, LOCAL. 453
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Southern Sun Electric Corporation (herein called the
Employer or Southern Sun) is a Missouri corporation en-
gaged in the construction industry as an electrical contrac-
tor. In the course and conduct of its business it annually
purchases goods and services valued in excess of $50.000
from sources located within Missouri, which sources in turn
purchase such goods and services directly from sources lo-
cated outside Missouri. Respondent admits, and I therefore
find, that the Employer is engaged in commerce within the
meaning of Section 2(2). (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOI.VE)
Respondent admits, and I find, that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act. Respon-
dent, however, has denied that the CIU is a labor organiza-
tion within the meaning of the Act. It appears, however,
that the CIU's labor organization status was fully litigated
during a representation proceeding in Case 17-RC-8418. In
that proceeding on February 9, 1978, the Regional Director
for Region 17 found the CIU to be "an organization in
which employees participate and which exists for the pur-
pose, in whole or in part, of dealing with employers con-
cerning grievances, labor disputes, wages, rates of pay.
hours of employment, or conditions of employment." He
concluded that the CIU was a labor organization within the
meaning of Section 2(5) of the Act. Respondent did not
seek Board review of the Regional Director's decision and,
accordingly, under Section 102.67(f) of the Board's Rules
and Regulations his decision is binding herein. Accord-
ingly, I conclude that the CIU is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As noted, Southern Sun is an electrical contractor in the
building and construction industry. It generally performs
work in and around the city of Springfield, Missouri. On
April 12, 1976, the CIU filed a petition (Case 17-RC-7996)
seeking a representation election in a union of Southern
Sun's electricians. Respondent intervened in that proceed-
ing. On May 12, 1976, an election was conducted which
was won by Respondent, and on May 20 the Regional Di-
rector for Region 17 certified Respondent as the exclusive
collective-bargaining representative of the Employer's elec-
tricians.
During the certification year, Respondent attempted to
obtain a collective-bargaining agreement but failed to do
so. During the course of this attempt it filed an unfair labor
practice charge (Case 17-CA-1728) accusing the Employer
of having violated Section 8(a)(l), (2), (3), and (5) of the
Act. On September 15, 1976, the Regional Director entered
into a unilateral settlement agreement with the Employer
which contained a nonadmission clause and dismissed the
charge. The agreement purported to remedy certain viola-
tions of those sections of the Act. Contrary to Respondent's
allegations. however, the Regional Director did not find the
Employer had engaged in surface or bad-faith bargaining
during the certification year (though the Regional Director
did find that the Employer violated Section 8(a)(5) by di-
rectly dealing with its employees). The settlement did not
extend the certification year under the Mar-Jac doctrine.2
Believing the settlement agreement insufficient, Respondent
on September 24, 1976, filed an appeal with the General
Counsel's Office of Appeals. On October 29, 1976. the ap-
peal was denied. Respondent did not then contend that the
Employer failed to comply with the terms of the unilateral
settlement agreement. However, it continued to maintain its
belief that the settlement agreement was inadequate.
On December 1. 1977, the CIU filed a second election
petition, Case 17-RC-8418, again seeking an election in the
same unit. Respondent. attempting to protect its 1976 certi-
fication, countered by filing on December 15, 1977. another
unfair labor practice charge, Case 17-CA-8030. This
charge also accused the Employer of engaging in Section
8(a)(). (2). (3), and (5) activity, including an allegation that
the Employer was engaging in a general refusal to bargain.
The Regional Director dismissed that charge on December
28, 1977, stating that Respondent had submitted no evi-
dence supporting its allegation that the Employer was un-
lawfully assisting a rival union and also noting that Respon-
dent had not made any requests for bargaining within the
past 6 months. On January 6, 1978, Respondent appealed
the Regional Director's dismissal to the Office of Appeals,
reasserting its claim that the earlier settlement agreement
was not sufficient and contending that the Employer had
not complied with it because it had continued to give sup-
port to the CIU even though it had promised not to do so.
It also reasserted its belief that the Employer had engaged
in bad-faith and surface bargaining. On January 27, 1978,
the appeal was denied, adopting the Regional Director's
rationale.
In the meantime, the CIU's petition, Case 17-RC-8418.
proceeded to hearing and Respondent intervened on the
basis of its certification although the certification year had
expired on May 20, 1977. On February 9 the Regional Di-
rector issued his Decision and Direction of Election, and on
March 9 an election was conducted in which both Respon-
dent and the CIU participated. The CIU won this election
handily. Respondent filed objections to the election which
the Regional Director overruled on May II11. Those objec-
tions included the assertion that the Employer had com-
mitted unremedied unfair labor practices in 1976 and 1977
and had failed to comply with the terms of the unilateral
settlement agreement. The Regional Director dismissed
both of those objections on the basis that they had been
fully considered in the investigation of Case 17-CA-8030,
which had been dismissed for lack of evidence and that
Respondent had presented no new evidence of that con-
duct. Simultaneous with his Supplemental Decision, the
Regional Director certified the CIU as the representative of
the Employer's employees. Thereafter, Respondent filed
with the Board an application for review of the Regional
Director's Supplemental Decision. By wire dated June 27.
the Board denied Respondent's request for review.
2 .Uar-Jac Poultn Coompany, Inc.. 136 NLRB 785 (1962).
1133
I):(CISIONS Of NAII()NAI LABOR RELATIONS BOAR)
B. he ('Il and the Emnplover Sign ( olleclive-Bargaining
,4 greemnent
Alter the Regional Director certified the CI! on May 1,
1978. the ('Ili and the Employer entered into collective-
bargaining negotiations. After two meetings. an agreement
was signed on May 25. That agreement is in evidence as
General (Council Exhibit I I. The duration of the agreement
is from June 1I 1978 to May 31. 1981, and contains clauses
typically found in collective-bargaining agreements., includ-
ing a union-shop clause, a grievance-arbitration clause, and
clauses dealing with rates of pay, hours, and other condi-
tions of employment.
For journeymen electricians, during its first year. the con-
tract calls for an hourly rate of $5.50. For apprentices, de-
pending upon length of experience, the pay rate ranges
from $3.25 to $5.25 per hour. An expediter receives $5 per
hour. In the second and third year of the contract each
employee in those classifications is to receive a wage in-
crease ranging from 25 to 50 cents per hour.
C. The Picketing
In late 1977 and early 1978, Stanley Inman. owner of
some commercial property across the street from Southwest
Missouri State University in Springfield. began to develop it
as a shopping mall. It is known as the SMSLU Mini-Mall.'
As noted, supra, on June 27 the Board denied Respon-
dent's request for review in Case 17 R 8418, in which the
CIU had become the certified representative of Southern
Sun's electricians. Two days prior to that wire Southern
Sun and the CIU had signed a collective-bargaining agree-
ment.
Respondent employed at material times an individual
paid to picket various projects in and around the city of
Springfield. During the time in question that individual was
Ronald Morelock. He testified that as early as July 5 he
began carrying in his pickup truck the picket sign to be
directed at Southern Sun. He and Assistant Business Agent
Mike Brumley had made the sign shortly before that time. 4
The sign read as follows:
Notice to Public
Employees of Southern Sun Electric are doing electri-
cal work on this job. receiving wages, benefits and
working conditions that are sub-standard to that re-
ceived by members of Local Union 453 I.B.E.W. We
have no dispute with any other Employer.
Although Southern Sun emplomee Gene Nelson testified
that the picketing began on Friday. July 7. Morelock's
picket log, which I credit. shows the picketing did not begin
I)espite the use of the university's initials, neither Inman nor the mall
have any business connection it, the tUniversity.
4Since Brumley became an assistant business manager on July 5. I pre-
sume the sign was made on that day and not beibre. Brumle 5 had never been
emploed by the Union in any official capacity before that date.
until July 10. On that day Morelock and Brumley appeared
and picketed the SMSUI Mini-Mall project from noon until
4 p.m. They also picketed the following day. July II. from
8:15 I to 10:15 a.m.. when Southern Sun's electricians left the
job at Inman's request in the face of a pending walkout by
bricklayers employed by another subcontractor.
On July 24, using the same picket sign, Respondent
picketed another Southern Sun jobsite, the O'Reilly Auto-
motive Building under construction on South (Campbell
Street in Springfield.
On July 6 and 12. respectively. Respondent's business
manager, Jim liensley, wrote letters to the owners of those
projects (with copies to the Employer) saying Respondent
intended to picket Southern Sun at those sites to inform the
public that its employees were being paid wages and fringe
benefits less than those achieved by Respondent. The letter
claimed that this \was the sole purpose of the proposed pick-
eting and offered the project owners the opportunity to sub-
mit evidence that Respondent's information about South-
ern Sun was incorrect.
During the course of the mini-mall picketing, three
Southern Sun employees were insolved in conversations
with the two pickets. The first was between Nelson and
Brumley. Nelson reports Brumley as telling him Respon-
dent was picketing "to help us improve our wages and
benefits and everything. because him and the IBEW felt
like we were being paid unfair wages and everything like
that."
Nelson went on to describe other elements of the conver-
sation, including a supposed recommendation by Brumley
that Nelson join the I BEW apprenticeship program. Nelson
rejected that, saying Respondent's Business Manager Jim
HensleN had screwed him and had turned down his applica-
tion in the past.
Brumley denies Nelson's version of the conversation. He
said Nelson appeared on the sidewalk, read the sign, and
said he disagreed with its assertions. Brumley recalls Nelson
cussing the Union. cussing Hensley,. and saying that the
sign did not state the truth. In addition, he denies there was
any discussion about the apprenticeship program and
pointed out that such a conversation would be unlikely be-
cause the deadline to apply for that program had passed in
late April or early May. It was therefo)re too late for Nelson
to have made an application, and Brumley says he would
not have suggested Nelson do so in that circumstance. He
also claims Nelson returned to the building and engaged in
catcalling, taunting him and Morelock about the hot
weather and their need for water. lie believes Nelson also
threw a firecracker at them that da).
The second conversation involved two more of Southern
Sun's employees. expediter .eamon den and journeyman
electrician Dwayne Huff. Eden testified that when he asked
what the purpose of the sign was, the "blonde man" (Brum-
ley) said Southern Sun's employees asked for too little pay
He also says Brumley complained the ('llr contractors
were getting all the work.
They then had a discussion about whether the C(It or
IBE:W fringe benefit programs were better. Eden offered to
compare health insurance policies, and there was some dis-
cussion about Respondent's retirement plan.
Both Eden and Huff say Huff arrived during the middle
of the conversation. Eden says Iuff said nothing while he
134
HI.E(IRI('AI. WORKERS. LOCAL 453
was present. Huff recalls that as he walked up, Brumlex
asked him how much he made. but he did not reply. Brum-
ley observed that IBEWjournexmen made $11.10 per hour
and went on to say that Respondent did not "want us on
the job because our wages benefits and working conditions
were substandard to that of the IBEW."
In addition. Huff reports Eden asked Brumley about la)-
offs under IBEW auspices and Brumley replied he had nev-
er been laid off though he had worked under such contracts
for 10 :ears if work got slack. Respondent would send a
man out of state to keep him working. Huff also recalls
Brumnle saying that the IBEW pension plan was set up in
such a fashion so that at retirement an individual had
$200,000 to draw upon. ie recalls there was then a discus-
sion about comparing fringe benefit plans. and the conser-
sation ended when Eden told Brumle and Morelock to
remain on the sidewalk or he would call the police. Brum-
ley said that sounded like a threat to him, ,hereupon iden
turned to Huff and asked him if it sounded like a threat.
Hluff says he replied it did not. Eden and Huff' then left.
Brumley recalls Eden and lull' both came to the picket
line together. He testified that when the) first approached
him and Morelock, Eden, in a hostile manner, asked them
what the matter was, "Can't you talk?" When they replied
they could, Eden asked what benefits the sign was referring
to and Brumley replied. "Benefits in general." Brumley says
they then had a discussion about vacation benefits and how
the annuity (retirement) plan worked. He denies ever men-
tioning the sum $200,000 and said he had no conversation
with Huff at all. Hie does remember Eden saying that it'
Eden caught them near the building he would call the po-
lice and have them thrown in jail.
D. Respondent's Investigation ofthe fn Eploer's iages anad
Fringe Benefil
According to Business Manager Jim Hensley. he learned
in late 1977 that the electrical work at the SMSU Mini-
Mall had been awarded to Southern Sun. At that time.
however, demolition of' a preexisting building was under-
way, and it is reasonable to assume tlensley knew the elec-
trical work would not begin for several months, because of
both construction sequences and because of winter weather.
It is clear that Respondent had engaged in various kinds
of picketing against Southern Sun for several ears. even
preceding its May 1976 certification. One instance of pick-
eting has been before the Board previously in Local 45.?
International Brotherhood of Electrical W orkers. 4 FL ('10
(Southern Sun Electric Corp.), 237 NLRB 829 (1978). deal-
ing with an allegation that in March 1976. Respondent en-
gaged in certain secondary picketing. At that time Respon-
dent used picket sign language which appeared to comport
with the proviso of Section 8(b)(7)(C) of the Act. The Sec-
tion 8(b)(4)(B) complaint was dismissed by the Board. In
addition, after obtaining its certification, it appears that Re-
spondent picketed Southern Sun at various projects in an
effort to obtain a collective-bargaining agreement.'
The latter observation is based on the Regional Directolr's letter of De-
cember 28. 1977. dismissing Respondent's charge in Case 17 (A 830
It is fair, therefore. to observe that the dispute between
Respondent and Southern Sun is relatively long-standing
and ongoing. Undoubtedly. it has become more intense hb
Southern Sun's having avoided a contractual relationship
and is further exacerbated b the successful ('II' raid in
nmid-1978.
Hensley testified that he is generalls a,\are that ('I : con-
tracts contain wage levels and fringe benefits lower than
those negotiated by his union. Certainly. the Southern Suitn-
(C11U contract supports his testimony. he Cli[ apparcntl'
has other contracts in the Springfield area. including one
with an electrical contractor known as B & J Electric. Al-
though neither Hensley nor Brumle had direct knowledge
of the terms of that contract. the\ testified it was conmm)on
knowledge in the industr that Cl UI contracts contaiin
wages and fringes which are inferior to those negotiated hb
Respondent. Indeed. it appears that the wages negotiated
bh Respondent for journe_ men wiremen at this particular
time were in excess of $1 1.1(, not counting contributions
fi)r health and elfware (45 cents per hour) and retirement
(50 cents per hour). The health insurance plans are not be-
fore me. anrd I therefore cannot compare them to determine
whether the IBF\W or the CIL' health plan is superior. It
appears that the C('ll contract contains no retirement plan.
Imnmediately prior to commencing picketing. Hlensle
sent his assistant. Brumlle, to the SMSU Mini-Mall project
to ascertain whether Southern Sun was in fact on hat job.
That occurred, according to Brumley. on July 6?. Brumle
says Hensley had not told him Southern Sun w as the con-
tractor and his purpose was to determine who had the
SMSU Mini-Mall electrical contract. According to Brum-
ley. he met an individual who turned out to be Inman and
asked him who the owner of' the building was. W'hen I nman
replied he was. Brumley asked who had the electrical con-
tract. Before Inman could answer, according to Brumiley.
he was interrupted bh a telephone call and ne'er answered
that question.
Inman testified Brumley asked him if he would tell him
who owned the building and he also wanted to know what
Southern Sun was doing on the job and whether Inman was
satisfied with their work. Inman testified he replied he kwas
satisfied with Southern Sun's work; he was then interrupted
b! the telephone call and did not reply further.
I\. AI YSIS ANI) ()N('l l SIO)NS
The General Counsel contends that the Jul, 1978 picket-
ing at the two Southern Sun projects had a recognitional
purpose despite the fact that that picketing was preceded bh
letters proclaiming an "area standards" purpose anid de-
spite the fact that the picket signs utilized "area standards'
language. In urging that conclusion, the General ounsel
notes that Respondent has made both past and reasonably
current recognitional claims. These include winning the
1976 election, participating in the 1978 election. and filing
Section 8(a)(5) refusal-to-hargain charges in late 1977. In
addition. the General Counsel points to the fact that the
picketing began on July 10. only 13 or 14 days after receipt
of the Board's order denying Respondent's request for re-
view of the Regional Director's certification to the ('IU.
Sltnle' Inninan estified ii iccurred either on Juli 0 oir 7
1135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indeed, it appears that Respondent was ready to picket as
early as July 5. having prepared the picket sign on or about
that date.?
Respondent contends that the picketing was solely to
protest Southern Sun's failure to meet the area standards
insofar as wages and fringe benefits were concerned. B It
points to its July 6 and 12 letters as proof of that purpose.
Moreover, it argues that even if it had a recognitional intent
when it participated in the 1978 election, it changed its pur-
pose to area standards and that there is no evidence to the
contrary, particularly since the Employer was in fact not
meeting those standards.
Before dealing with what I deem to be the salient facts of
the case, I shall first examine the testimony of witnesses
who engaged in picket line conversations. First, I reject the
testimony of employee Gene Nelson to the effect that
Brumley told him that the purpose of Respondent's picket-
ing was to help Southern Sun's employees with their wages
and conditions. I do not believe Nelson is a credible wit-
ness. He had an axe to grind over his apparent failure in
1977 to be accepted in Respondent's apprenticeship pro-
gram.9 Moreover, he was confused about the date of picket-
ing and the confrontation with Brumley appears to have
been contrived. Accordingly, his testimony is not credited.
The confrontation between Eden, Huff, and Brumley ap-
pears also to have been contrived. Although during that
conversation they engaged in a discussion of the accuracy
of the picket sign, neither Eden nor Huff testified to any
remark by Brumley which would constitute an admission as
to Respondent's alleged unlawful purpose. The discussion,
however, began with a hostile cast when Eden demanded to
The delay in commencing to picket appears to have been due to Hens-
ley's desire to send Inman the July 6 "purpose" letter and to give him 48
hours to reply.
I One of Respondent's defenses, raised in its answer, was that no question
concerning representation could have been raised by the CIU's December
1977 petition because there were outstanding unfair labor practices which
had not been remedied. I barred evidence on that point, ruling it immaterial
in a Sec. 8(b)(7)(A) case where the CIU recognition and contract followed a
Board certification of representative to the CIU.
In retrospect it appears that I made a correct ruling for an incorrect rea-
son. The proper reason was, and now is, that Respondent's defense had been
previously raised before the Board in its application for Review of the Re-
gional Director's Supplemental Decision in Case 17-RC 8418. Under Sec.
102.67(f) of the Board's Rules such matters are barred from being raised in
a subsequent complaint case.
It is true that in some circumstances my original ruling would have been
correct, e.g., if the recognition had occurred outside the reach of Sec. 10(b.
See International Hod Carriers Building & Common Laborers' Union of A mer.
ica, Road & Heavy Construction, Local 1298, AFL-CIO, (Roman Stone Con.
struction Company and Kindred Concrete Products, Inc.), 153 NLRB 659, fn.
3 (1965). However, I doubt that Roman Stone applies in a situation where the
transactions complained of occurred within the Sec. 10(b) period.
In any event Respondent's offer of proof on the point was non-specific,
raising nothing that had not been previously reviewed by the Board: nor did
it make a claim of newly discovered evidence. Accordingly, I believe my
error to have been harmless in the circumstances. Certainly my ruling, if
adopted by the Board, will provide Respondent an avenue for court review
of the propriety of the election. Cf., N.L.R.B. v. Lawrence Typographical
Union No. 570, aff/w International Typographical Union AFL-CIO (Kansas
Color Press) 376 F.2d 643 (10th Cir. 1967) and N.L.R.B. v. Local 182, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Woodward Motors), 314 F.2d 53 (2d Cir. 1963).
9 In fact, his hostility is misplaced; it appears he failed to complete the
application, and his application was rejected as incomplete, not because
Hensley was trying to abuse him in some fashion.
know if the pickets could talk and ended with an unneces-
sary threat to call the police. In between was an obvious
effort to pry an admission from Brumley as to what Re-
spondent's purpose was. Brumley, however, remained cir-
cumspect and made no such admissions.
Consequently, I find the evidence dealing with the picket
line conversations to be of no assistance in determining the
actual purpose of the picket line.'0
The same can be said for Brumley's investigation of July
6 when he went to the jobsite to find out if Southern Sun
was the electrical contractor. Although Inman says he told
Brumley that Southern Sun was the electrical contractor,
and Brumley says Inman did not, Brumley readily admits
the Union learned from some source that Southern Sun was
on that project. The fact that Southern Sun was present and
that Respondent knew it affords no basis for determining
what the purpose of the picketing was.
It is true that neither Brumley nor Hensley made an in-
dependent investigation of the wages being paid by South-
ern Sun under its recently signed CIU contract-indeed, it
is not clear that Respondent even knew that the CIU con-
tract had been signed until Brumley spoke with the South-
ern Sun employees on July 10-but I have no doubt that it
was common knowledge that the CIU normally signed col-
lective-bargaining agreements calling for wages signifi-
cantly less than those called for in IBEW contracts. In that
circumstance, Respondent's failure to ascertain the exact
wages and fringe benefit costs does not create an inference
that Respondent had an organizational or recognitional ob-
ject. See Steamfitters Local Union No. 614 United Associ-
ation of Journeymen and Apprentices of Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO
(Trumbo Welding and Fabricating Company), 199 NLRB
1026 (1972); cf. Sales Delivery Drivers, and Warehousemen
and Helpers Local 296 of Santa Clara and Santa Benito
Counties California, et al. (Alpha Beta Acme Markets, Inc.),
205 NLRB 462, 469 (1973) and Automotive Employees
Laundry Drivers & Helpers, Local 88, International Brother-
hood of Teamsters, Warehousemen & Helpers of America Lo-
cal 88 (West Coast Cycle Supply Co.), 208 NLRB 679, 680
(1974).
Moreover, a labor union's right to engage in a protest of
an employer's failure to pay wages and provide fringe bene-
fits prevailing in the area is a legitimate concern and it may
properly picket to protest such shortcomings. On the other
hand, it has also been held that area standards protests may
not be used as a pretext to mask an otherwise unlawful
purpose. As the Board said in Local Union No. 741, United
Association of Journeymen and Apprentices of Plumbing and
Pipe Fitting Industry of the United States and Canada, AFL-
CIO (Keith Riggs Plumbing and Heating Contractor), 137
NLRB 1125, 1125-1126 (1962):
A labor union normally seeks to organize the unorga-
nized and to negotiate collective-bargaining contracts
with employers; but it also has a legitimate interest
apart from organization or recognition that employers
meet prevailing pay scales and employee benefits, for
wD Frankly, I believe such conversations should generally be discounted
because persons who are willing to act as agents provocateurs are probably
also willing to fabricate the results to please their principals. It appears that
Eden and Huff did not fabricate, but it is probable that Nelson did.
1136
ELECTRICAL WORKERS. LOCAL 453
otherwise employers paying less than the prevailing
wage scale would ultimately undermine the area stan-
dards. Indeed the importance of maintaining area stan-
dards as a matter of public as well as union interests
was long ago endorsed by Congress by its enactment of'
the Davis-Bacon Act (40 U.S. Code, Sec. 276a, e seq. )
relating to public contracts. It has application, of'
course, whether or not employees of public contractors
are organized or have a collective-bargaining contract.
Hence, if a union pickets and says to an employer.
"We only want you to pay the prevailing wage scale.
but don't want to bargain with you or organize your
employees." and there is no independent evidence to
controvert this statement of objective, the Board can-
not find that the picketing has organization, recogni-
tion, or bargaining objectives. As the Board stated in
the reconsidered Calumet Contractors case:
Respondent's admitted objective to require the Associ-
ation ... to conform standards of employment to those
prevailing in the area, is not tantamount to, nor does it
have an objective of, recognition or bargaining. A
union may legitimately be concerned that a particular
employer is undermining area standards. It may be
willing to forego recognition and bargaining provided
subnormal working conditions are eliminated from
area considerations.
The question of objectives in every case is one of' fact
and not of assumptions or presumptions.
' McLeod v. Chefs. Cooks, Pastr' Cooks and Assistants, Loc-al 89, et al
(Stork Restaurant), 280 F.2d 760 (C.A. 2).
2 International Hod Carriers, Building and Common Laborers' LUnion of
America, Local No. 41, AFL-CIO (Calumer Contractors Association, er
al.). 133 NLRB 512 (Members Rodgers and Leedom dissenting) Hous-
ton Building and Construction Trades Council Claude Everet Coniruc'
tion Company), 136 NLRB 321 (Members Rodgers and Leedom dissent-
ing).
In analyzing all of the surrounding circumstances, I am
not unmindful that Hensley testified he had no current in-
terest in representing Southern Sun's employees. He even
went so far as to say that most of the people who had voted
for representation in 1976 had left Southern Sun's employ. I
am also aware of the language of his July 6 and 12 letters in
which he disclaimed any organizational or recognitional
object. However, both of these statements are self-serving
and must be evaluated in light of other evidence.
More important than any of the above-described jockey-
ing, are the following factors:
(I) Respondent had in 1976 defeated the CIU in a repre-
sentation election and had obtained a certification as the
representative of Southern Sun's employees.
(2) It was subsequently unable to obtain a collective-bar-
gaining agreement from Southern Sun and unsuccessfully
filed unfair labor practice charges alleging, inter ahla, that
Southern Sun was refusing to bargain with it.
(3) Despite merit in those charges, its certification was
not extended and it never obtained the satisfaction it
thought it should have by means of the Board's unilateral
settlement.
(4) When the CIU filed its 1977 petition, Respondent
again filed unfair labor practice charges alleging, inter alia.
8(a)(2) and (5) conduct.
(5) When those charges were dismissed. Respondent
sought and obtained a place on the ballot seeking to retain
its certification.
(6) When the CIU won the election, Respondent filed
objections which prolonged the finality of the proceedings
until June 27, 1978. Within 2 weeks after the proceeding
ended the instant picketing began.
All of these facts, it seems to me. compel the conclusion
that Respondent had a strong interest in representing
Southern Sun's employees beginning in 1976 and continu-
ing until at least July 6 when the first disclaimer was made.
That. of course, was only 4 days prior to the commence-
ment of picketing. Indeed, it appears that on July 5 the sign
had already been prepared. In this circumstance. it would
be naive to conclude that Respondent no longer had a rec-
ognitional objective purpose in picketing the Employer. In
fact, it defies logic to conclude otherwise. Respondent's
"purpose" letters and its use of area standards language
here must he deemed simply a pretext. and I so find.'
Since it appears that Respondent's picketing was in fact
for a recognitional or organizational purpose. and since that
picketing was in the face of a recently signed collective-
bargaining contract. which had been la:I fully signed follow-
ing a Board certification. I conclude that Respondent has
violated Section 8(b)(7)(A) of the Act in its July 1978 pick-
eting of two of Southern Sun lectric Corporation's con-
struction projects.
. Ii RIN.Itl)Y
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(b)(7)(A) of the Act. I shall recommend that it be required
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, and upon the entire
record in this case. I make the fo;llowing:
Co()( t Sl()NS OF LAW
1. Southern Sun Electric Corporation is an employer en-
gaged in commerce and in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
" Even if the true purpose of the picketing was simple harassmente g.. a
reprisal against the employees for having chosen the CIlU or an act of angry
frustration it must be deemed recognitional. for the entire dispute from
1976 on had a recognitional and/or a contract aim. Such a purpose did not
vanish within a week after Respondent lost its request for review
If there is anS doubt about Respondent's purpose after the above observa-
tion. it is dispelled by the language of Respondent's picket sign. One of its
purposes was to protest against "working conditions . substandard to that
received b Members of [Respondent]" Respondent's officials did not at-
tempt to explain what they meant by such a phrase, but the Board has held
such language, in the absence of a credible explanation, to show a recognl-
tional object. San Francisco Local Joint Executive Board of Culina H Work
-
ers, Bartenders. Hotel. Vlotel and Club Service Workers, AFL CIO (McDon-
ald's Sstem of Cal,'ornia. Inc.), 203 NLRB 719 (1973) and San Francisco
Lcaal Joint Erecutie Board of Culinars 4orkers. Bartenders. Hotel. Motel
and Club Service Workers. 4 FL CIO Waiters and Dairy Lunchmen's 'nion.
Local No 30; etc (Foodmaker, In dha Jack ln.The-Botil 203 NLRB 744
(1973) Cf. Trunmiho Welding ind Fahricating Compam, supra.
1137
DE)CISIONS OF NATIONAl. LABOR RELATIONS BOARD
2. Respondent and the ('ongress of Independent Unions
are labor organizations within the meaning of Section 2(5)
of the Act.
3. By its picketing of Southern Sun Electric Corporation
at various jobsites in July 1978 with an organizational and
recognitional object at a time when that employer had law-
fully recognized the Congress of Independent Unions and a
question concerning representation could not he raised un-
der Section 9(c) of the Act, Respondent violated Section
8(b)(7)(A) of the Act.
[Recommended Order omitted from publication.]
1138