Houston Building and Construction Trades Council

National Labor Relations Board - Board Decisions

Mar 16, 1962

136 N.L.R.B. 321 (N.L.R.B. 1962)

HOUSTON BUILDING & CONSTRUCTION TRADES COUNCIL 321
On October 31, 1960, the Board filed in the United States Court of
Appeals for the Third Circuit a petition for enforcement of its De-
cision and Order. On April 4, 1961, the court remanded this case to
the Board "for further consideration and determination of the proper
party respondent." 3 On April 17, 1961, the Supreme Court of the
United States handed down its decision in Local 357, Teamsters 4
which rejected the Board's determination in the Mountain Pacific
case that an exclusive hiring arrangement was discriminatory unless
it contained certain safeguards. In the News Syndicate case,' the
Court also rejected the Board's conclusion that an agreement which
gives foremen hiring authority was necessarily unlawful where the
foremen were members of the union and the union's constitution pro-
vides that foremen hire only members of the union.
In light of these decisions, the Board 6 has reexamined its con-
clusions in the above-entitled consolidated proceeding and concludes
that the record does not preponderantly establish either that the
parties operated an unlawful hiring arrangement, or that the refusal
of employment to Joseph Hender was violative of the Act.' Accord-
ingly, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
3In view of our dismissal of the complaint herein , we need not pass on this issue
4Local 357 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America ( Los Angeles -Seattle Motor Express ) v N L R B , 356 U.S 667.
6 N L R B . v News Syndicate Company, Inc and New York Mailers' Union No 6, Inter-
national Typographical Union, AFL-CIO, 365 U S 695
"Pursuant to the provision of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Members Leedom, Fanning, and Brown]
7 Subsequent to the hearing herein , while the case was on remand fiom the Circuit Court
of Appeals for the Third Circuit, Local Union 542, International Union of Operating
Engineers , alleged that Render was discriminated against because he opposed the adminis-
tration of the Local Union by a trusteeship which was established by the International
Union and was in existence during the alleged unfair labor practices No evidence dealing
with the-trusteeship or Hender's position with respect thereto was presented at the hearing
Having considered the foregoing assertion in the nature of a motion to adduce additional
evidence regarding Hender ' s employment , we are constrained to deny such motion as it
does not deal with newly discovered evidence or evidence that was not available at the
time of the hearing Sheet Metal Workers International Association , Local Union No 99
( Dohrmann Hotel Supply Company ), 120 NLRB 1366, 1367.
Houston Building and Construction Trades Council 1 and Claude
Everett Construction Company. Case No. 23-CP-2. March 16,
1962
DECISION AND ORDER
On July 28,1961, Trial Examiner William F. Scharnikow issued his
Intermediate Report in the above-entitled proceeding, finding that the
1 The name of the Respondent appears as amended at the hearing
136 NLRB No. 28.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in certain unfair labor practices, and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and, as it finds merit in some of the Respondent's exceptions,
adopts the findings, conclusions, and recommendations of the Trial
Examiner only to the extent consistent herewith.
The facts as found by the Trial Examiner are not in dispute. The
Respondent, a council of local unions in the building and construction
industry in the Houston, Texas, area, inquired on March 8, 1961, about
the wage rates of Claude Everett Construction Company, a general
construction contractor in that area. The Respondent's representative
was told by Wilson, the Company's construction superintendent, that
it operated an "open shop," and that its wage rates were lower than
those negotiated in the area by the local unions which were members
of the Respondent. On March 10, 1961, the Respondent wrote to the
Company protesting its "substandard" wages and threatening to picket
its construction site on March 13, unless "prevailing" rates were paid.
When this letter had not been answered by March 16, the Respondent
began picketing the Company's jobsite with a sign which read as
follows:
Houston Building and Construction Trades Council, AFL-CIO
protests substandard wages and conditions being paid on this job
by Claude Everett Company. Houston Building and Construc-
tion Trades Council does not intend by this picket line to induce
or encourage the employees of any other employer to engage in
a strike or a concerted refusal to work.
Such picketing continued for more than 30 days without the filing of
a petition under Section 9 (c) of the Act. The Respondent has never
been certified as the representative of the Company's employees. The
parties stipulated at the hearing that the picketing interfered with
deliveries and services by inducing individuals employed by suppliers,
service companies, and common carriers not to make pickups or
deliveries or to perform services for the Company.
The Trial Examiner found that the Respondent picketed the Com-
pany to require it to conform its wage rates to those paid by employers
having union contracts. Relying on the original Board decision in
the Calumet Contractors case,' he concluded that such picketing vio-
2International Hod Carrier8 , Building and Common Laborers ' Union of America, Local
No.. 1, AFL-CIO ( Calumet Contractors A88ocaation), 130 NLRB 78.
HOUSTON BUILDING & CONSTRUCTION TRADES COUNCIL 323
lated Section 8(b) (7) (C) of the Act. Subsequent to the issuance of
his Intermediate Report, however, the Board, having reconsidered the
Calumet Contractors case,' found the picketing there involved not
unlawful, and stated that :
... Respondent's admitted objective to require the Associa-
tion ... to conform standards of employment to those prevail-
ing in the area, is not tantamount to, nor does it have an objective
of, recognition or bargaining. A union may legitimately be con-
cerned that a particular employer is undermining area standards
of employment by maintaining lower standards. It may be will-
ing to forgo recognition and bargaining provided subnormal
working conditions are eliminated from area considerations.
While the Calumet Contractors case arose under Section 8(b) (4) (C)
of the Act, which prohibits only recognitional picketing, whereas the
instant case arose under Section 8(b) (7) (C), which proscribes both
recognitional and organizational picketing, the language of both sub-
sections is similar, and the rationale in that case is equally applicable
herein. The Respondent in the present case did not, in its conversa-
tion with the Company, its letter to the Company, or its picket sign,
claim to represent the Company's employees, request recognition by
the Company, or solicit employees of the Company to become members
of any of the locals which are members of the Respondent. Moreover,
the undisputed testimony of Executive Secretary Graham reveals that
the Respondent Union has on numerous occasions in the past made
similar protests against substandard wages paid by other employers
without ever requesting recognition as the bargaining representative
of their employees. Thus, it is clear, from the entire record, that the
objective of the Respondent's picketing was to induce the Company
to raise its wage rates to the union scale prevailing in the area. We
cannot, as do our dissenting colleagues, equate this attempt to main-
tain area wage standards with conduct "forcing or requiring an
employer to recognize or bargain with a labor organization as the rep-
resentative of his employees, or forcing or requiring the employees .. .
to accept or select such labor organization as their collective bargain-
ing representative," the conduct proscribed by Section 8(b) (7).4
Nor do we agree with our dissenting colleagues that the fact that
the picketing interfered with deliveries and services in itself con-
stitutes a violation of Section 8 (b) (7) (C). To determine the effect of
Section 8(b) (7) (C), we must look at the section in its entirety, in
accord with the long-established principle of statutory construction
'Internatsonal Hod Carriers , Building and Common Laborers ' Union of America, Local
No. 41, AFL-CIO (Calumet Contractors Association ), 133 NLRB 512 ( Members Rodgers
and Leedom dissenting).
' See Cox, The Landrum-Griffin Amendments to the National Labor Relations Act, 44
Minn. L R. 257, 266-267 ( December 1959).
641795-63-vol. 136-22
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a legislative enactment is to be read in its entirety, not in bits and
pieces.' It is clear that this section, read as a whole, declares picket-
ing by an uncertified union unlawful if it has a recognitional or organi-
zational objective and if a petition has not been filed within a reason-
able time, and that the interruption-of-deliveries clause does not enter
into the picture unless the picketing can first be shown to have such a
prohibited objective. As we stated in the Blinne case : 8
... structurally, as well as grammatically, subparagraphs (A),
(B), and (C) are subordinate to and controlled by the opening
phrases of Section 8(b) (7). In other words, the thrust of all
the Section 8 (b) (7) provisions is only upon picketing for an
object of recognition or organization, and not upon picketing for
other objects. Similarly, both structurally and grammatically,
the two provisos in subparagraph (C) appertain only to the situ-
ation defined in the principal clause of that subparagraph.
Our dissenting colleagues interpret the second proviso of subpara-
graph (C) as though it creates a completely independent unfair labor
practice, without reference to the fact that it is a subsidiary clause in a
section which initially prohibits picketing with a recognitional or
organizational objective. Such a reading would remove the proviso
from its statutory setting, an interpretive result we feel constrained to
avoid.'
Accordingly, on the basis of the facts in the present case and of
"the thrust of all the Section 8(b) (7) provisions," we find that the
Respondent's picketing did not have a recognitional or organizational
objective, and, therefore, that it did not violate the Act even though the
picketing interfered with deliveries and services. Accordingly, we
shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM, dissenting :
We agree with the Trial Examiner's conclusion that the Respond-
ent's picketing in this case was for "the proscribed object of `forcing
or requiring an employer to recognize or bargain with a labor or-
ganization as the representative of his employees, [and] forcing or
requiring the employees of an employer to accept or select such labor
5 2 Sutherland, Statutory Construction (3d ed ), sec 4703
e International Hod Carriers , Building and Common Laborer4 ' Union of America, Local
840, AFL-CIO (C. A. Blinne Construction Company), 135 NLRB 1153 (Members Rodgers
and Leedom dissenting)
7 Chefs , Cooks, Pastry Cooks and Assistants, Local 89, etc ( Stork Restaurant, Inc),
135 NLRB 1173 (Members Rodgers and Leedom, dissenting) ; see also Local Joint
Executive Board of Hotel and Restaurant Employees and Bartenders International Union,
etc (Crown Cafeteria), 135 NLRB 1183, adopting the dissenting opinion in the same
case, 130 NLRB 570.
HOUSTON BUILDING & CONSTRUCTION TRADES COUNCIL 325
organization as their collective bargaining representative,"' and that
this picketing was therefore violative of Section 8(b) (7) (C).
Our colleagues of the majority deem controlling here the second
decision in the Calumet Contractors case,8 which reversed the original
decision. We have, however, adhered to the original Calumet de-
cision 9 and we are still persuaded as to the correctness of the con-
clusions therein. We again take exception, therefore, to our
colleagues' holding that picketing an employer in order to compel it
to change wages and conditions of employment of its employees does
not have as an objective recognition or organization. Their hold-
ing does not withstand scrutiny in the light of industrial realities.
As to whether there was a recognitional objective in the present case,
it is undenied that the Respondent Union was demanding a change in
the Company's wage rates to conform to standards in the area. The
alternative open to the Company was either to suffer a picket line or
to comply with the Respondent Union's demand. Our colleagues,
however, choose to view the problem unrealistically. For, they fail
to take into consideration either the extent to which the standards
of the Respondent Union are applicable to the Company's operations,
the complications attendant upon changing a wage pattern, or the
many factors that determine the pattern. Otherwise, they would
readily concede that any effort on the part of the Company to adjust
the Respondent's wage demand to its circumstances would have neces-
sitated negotiations; that such negotiations would constitute bargain-
ing with the Respondent Union as though it were the representative
of the Company's employees; and that such recognition and bargain-
ing would manifestly be the result of the Respondent forcing or re-
quiring the Company by a picket line, to ". . . recognize or bargain
with a labor organization as the representative of [its] employees
." in violation of Section 8 (b) (7).
Nor can we lose sight of the organizational objective implicit in
Respondent's picketing. We note further that the picket sign, after
protesting the Company's "substandard wages and conditions," ex-
pressly disclaimed any intent of the Respondent that "the employees
of any other employer" should engage in a work stoppage. The sign
was silent as to the Respondent's intent with regard to the Company's
employees. By dint of this omission, Respondent's real purpose is
emphasized. For the Union was thereby calling upon the Company's
employees to join with it in getting the Company to change its exist-
ing wage rates-clearly organizational and recognitional objectives.
s International Hod Carriers, Building and Common Laborers' Union o f America, Local
No. 41, AFL-CIO (Calumet Contractors Association ), 133 NLRB 512 ( Members Rodgers
and Leedom dissenting).
9 International Hod Carriers , Building and Common Laborers ' Union of America, Local
No. 41, AFL-CIO ( Calumet Contractors Association ), 130 NLRB 78.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor can the Respondent Union take refuge in the proviso to Sec-
tion 8(b) (7) (C) to protect its recognitional or organizational picket-
ing. In this regard, it is obvious that the picketing did not conform
to the language of the proviso and the Respondent Union makes no
claim to the contrary.
Moreover, we would find that the Respondent, in effect, admitted a
violation of Section 8(b) (7) (C) when it stipulated that its picketing
interrupted the Company's deliveries and services. In our separate
opinion upon reconsideration of the Stork Restaurant 10 case, we
pointed out why it is consistent with the statute to hold that so-called
informational picketing violates the Act when it interrupts deliveries
or services. Accordingly, even assuming that we have here informa-
tional picketing within the intendment of the proviso, there was a
violation of Section 8(b) (7) (C) because of the admitted interruption
in the Company's deliveries and services.
10 Chefs, Cooks, Pastry Cooks and Assistants, Local 89, etc . ( Stork Restaurant , Inc.),
135 NLRB 1173 ( Members Rodgers and Leedom dissenting).
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint alleges, but the answer of the Respondent denies, that the Respond-
ent labor organization 1 committed unfair labor practices affecting commerce within
the meaning of Section 8(b) (7) (C) and Section 2(6) and (7) of the National Labor
Relations Act, as amended, 29 U.S.C., section 151 et seq., by picketing Claude Everett
Construction Company (herein called Claude Everett) at a jobsite, with an object
to force or require Claude Everett to recognize or bargain with Respondent as
collective-bargaining representative of employees of Claude Everett, or to force or
require these employees to accept Respondent as their collective-bargaining repre-
sentative, although the Respondent was not then certified as the representative of the
employees and did not, within a reasonable time, file a petition under Section 9(c)
of the Act
Pursuant to notice, a hearing was held in Houston, Texas, on June 28, 1961, before
me, the Trial Examiner duly designated by the Chief Trial Examiner. The General
Counsel, the Respondent, and Claude Everett appeared by counsel and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues. In addition to the testimony of the witnesses
who appeared before me, conusel stipulated the admission in the present record of the
transcript of the evidence taken in a related proceeding for a temporary injunction
against the Respondent in the United States District Court for the Southern District
of Texas, Houston Division, on June 2, 1961.2 At the conclusion of the hearing in
the present proceeding, counsel submitted brief oral argument on the issues. Since
the hearing, I have received briefs from the General Counsel and from counsel for
the Respondent and Claude Everett.
Upon the entire record in the case and from my observation of the witnesses who
appeared before me , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF CLAUDE EVERETT CONSTRUCTION COMPANY
Claude Everett Construction Company, a Texas corporation, is engaged in business
as a construction contractor at its principal office and place of business in Houston,
Texas. During the representative year preceding the hearing, it purchased and re-
I At the hearing, the complaint was amended, without objection, to designate the Respond-
ent in the style shown in the title to this proceeding.
2 Clifford W Potter, Regional Director v. Houston Building and Construction Trades
Council, AFL-CIO, Civil Action No 13662.
HOUSTON BUILDING & CONSTRUCTION TRADES COUNCIL 327
ceived products of a value of more than $50,000 directly from points outside the
State of Texas. I find, as the parties stipulated , that the Claude Everett Construction
Company is engaged in commerce within the meaning of the Act.
H. THE RESPONDENT LABOR ORGANIZATION
The Respondent, Houston Building and Construction Trades Council, is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
The present case poses the question of whether the Respondent committed unfair
labor practices within the meaning of Section 8(b)(7)(C) of the Act by picketing
Claude Everett since March 16, 1961, at a jobsite at 6229 Navigation Street in Hous-
ton, where Claude Everett and other contractors were and have since been engaged
in the construction of several buildings for the National Supply Company, herein
called National.
The Respondent, as a council of building and construction unions, is composed of
all the AFL-CIO building and construction trade locals in the Houston area. It
coordinates the efforts of these locals for the various crafts, gathers information con-
cerning the construction jobs in the area, advises the locals of the amount of con-
struction in progress through regular contacts and through the publication of a
weekly job bulletin, and holds prejob conferences with contractors in which it dis-
cusses the manpower available and the scheduling of work on the jobs. But it does
not concern itself with trade jurisdiction, organization, nor the negotiation of con-
tracts, which are left to the locals themselves. The Respondent has never been certi-
fied as the bargaining representative of any of Claude Everett's employees, nor has it
ever had a contract with Claude Everett, nor has it filed a petition under Section 9(c)
of the Act for certification as representative of any of Claude Everett's employees.
On or about March 8, 1961, Executive Secretary M. A. Graham and business agents
of the electricians', pipefitters', and painters' locals who are members of the Respond-
ent, visited the National job and spoke with Carl Wilson, Claude Everett's construc-
tion superintendent. Graham asked Wilson what Claude Everett's "policy" was and
what wage rates were being paid. Superintendent Wilson said Claude Everett was
operating an open shop and told Graham what the wage rates were. Graham said,
"Well, I guess your policy is clear," and without further conversation with Wilson,
Graham and the union representatives left the job. While there, however, Graham
asked a carpenter and a laborer what they were being paid, and was given figures
which were less than the wage scale provided in contracts negotiated by the Re-
spondent's member locals for their work.
On March 10, 1961, Graham, as the Respondent's executive secretary, wrote the
following letter to Claude Everett:
Please be advised that we have evidence that you are paying your workmen
substandard wages on your job, located at 6229 Navigation, Houston, Texas.
We here and now protest your payment of substandard wages and want to
make it perfectly clear that this is our sole and only dispute with you. Upon
being furnished satisfactory evidence that you are paying your workmen the
prevailing, established and negotiated wage in this area, you will satisfy our
protest.
Unless such proof is forthcoming on or before 8:00 A.M., Monday March 13,
1961, we will have no other alternative except to establish a picket line pro-
testing substandard wages on your job, located at 6229 Navigation, Houston,
Harris County, Texas.
Claude Everett made no reply to this letter and, on and since March 16, 1961,
the Respondent has picketed The National job with a picket sign bearing the follow-
ing legend:
Houston Building & Construction Trades Council AFL-CIO protests sub-
standard wages and conditions being paid on this job by Claude Everett Com-
pany. Houston Building & Construction Trades Council does not intend by
this picket line to induce or encourage the employees of any other employer
to engage in a strike or a concerted refusal to work.
There have been no other contracts between representatives of the Respondent
and Claude Everett. But R. J. Miller, business representative for the Ironworkers
Local 84, which is a member of the Respondent, visited the project both before and
after the picketing began. On the first occasion, Miller asked Superintendent Wilson
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether the job was "a union job or an open shop." Wilson said it was an open
shop. Miller nevertheless asked whether ironworkers would be hired and Wilson
said he thought they would. Miller then left the job without further conversation
with Wilson and without speaking to any of the workmen. On his second visit
while the picket was there, Miller requested, and was given, permission by Super-
intendent Wilson "to walk over the job." He spent 10 or 15 minutes on the job to
see whether any of the ironworkers were members of his union, but spoke only
with Superintendent Bill Bunsel of Armco, another contractor on the job. Accord-
ing to Miller his conversation with Bunsen concerned another job on which Armco
was working and not the National job. Miller further testified that he had been
unaware of Executive Secretary Graham's previous visit and conversation with
Superintendent Wilson.
The Respondent's picketing was still continuing at the time of the hearing. It
appears from a stipulation entered into by counsel, and I find, that, notwithstanding
the Respondent's disavowal of such a purpose in its picket sign, the picketing has
in fact induced individuals employed by suppliers, service companies, common
carriers, and other persons not to make pickups or deliveries or perform services at
the National project.
Graham, the Respondent's executive secretary, testified that the course of action
taken by the Respondent with respect to Claude Everett was typical of its conduct
with respect to other contractors whose wage rates were below those negotiated by
the craft union members of the Respondent. According to Graham, in all cases
including the present case, the Respondent has made no attempt to contact the
employees and has made no oral or written request of the employer for recognition
as the employees' bargaining representative but has made the same type of demand
as was made by it in its March 10, 1961, letter to Claude Everett. With respect to
a number of such specific situations involving other employers in the past, Graham
testified that the Respondent picketed these employers unless and until it was
assured that the employers were paying or would pay the "prevailing, established
and negotiated wage in this area." In substance, according to Graham, the Re-
spondent's purpose in the present case as in other cases, was not to secure recognition
from Claude Everett or to organize Claude Everett's employees, but merely "to have
the Claude Everett Company bring their wage rate up to the standard wage rate of
the negotiated crafts" so that with the resulting "fair competition" between Claude
Everett and the union contractors, the "highly skilled crafts in our various local
unions . . . would receive more work."
B. Conclusions
The complaint alleges that the Respondent's picketing of Claude Everett was,
and is, an unfair labor practice within the meaning of the following provisions of
Section 8(b) (7) (C) of the Act:
8. (b) It shall be an unfair labor practice for a labor organization or its
agents-
(7) to picket or cause to be picketed, or threaten to picket or cause to be
picketed, any employer where an object thereof is forcing or requiring an
employer to recognize or bargain with a labor organization as the representative
of his employees, or forcing or requiring the employees of an employer to
accept or select such labor organization as their collective bargaining repre-
sentative, unless such labor organization is currently certified as the repre-
sentative of such employees:
* * * * * * *
(C) where such picketing has been conducted without a petition under sec-
tion 9(c) being filed within a reasonable period of time not to exceed thirty
days from the commencement of such picketing- Provided . That nothing
in this subparagraph (C) shall be construed to prohibit any picketing or other
publicity for the purpose of truthfully advising the public (including con-
sumers) that an employer does not employ members of, or have a contract with,
a labor organization, unless an effect of such picketing is to induce any indi-
vidual employed by any other person in the course of his employment, not to
pick up, deliver or transport any goods or not to perform any services
The only issue in the present case is whether the Respondent picketed Claude
Everett with an object or objects proscribed by this statutory language. As I have
found, the Respondent was not the certified representative of Claude Everett's em-
ployees and it did not file a representation petition under Section 9(c) of the Act
HOUSTON BUILDING & CONSTRUCTION TRADES COUNCIL 329
within 30 days after it began its picketing. Furthermore, assuming that the picketing
was at least partly organizational or recognitional in purpose, the Respondent can-
not claim the benefit of the proviso in Section 8(b)(7)(C) permitting informational
picketing. For the picketing did not advise the public that Claude Everett did not
employ members of, nor have a contract with, the Respondent and, in any event, it
induced employees of other employers not to make pickups or deliveries and not to
perform other services at the Claude Everett jobsite. Therefore, decision of the
present case depends entirely on whether the Respondent engaged in its picketing
with "an object of forcing or requiring" Claude Everett "to recognize or bargain
with" the Respondent "as the representative of [its] employees, or forcing or re-
quiring the employees . to accept or select" the Respondent "as their collective
bargaining representative."
In ascertaining the Respondent's picketing objectives, of course, we must appraise
the Respondent's conduct, the normal, foreseeable effects of the picketing, and
Executive Secretary Graham's testimony as to what the Respondent was attempting
to accomplish by its picketing. Certainly, one of the normal foreseeable results of
the picketing pressure was to induce an offer by Claude Everett to recognize the
Respondent or its locals and to enter into a contract with them, thereby compelling
Claude Everett's employees to accept the Respondent and the locals as their bar-
gaining representative. And this possibility must have occurred to the Respondent.
On the other hand, the Respondent did not request Claude Everett to recognize or
execute a contract with it or any of its member locals as the representative of the
employees. Nor did it take steps, against the backdrop of its picketing, to solicit
membership applications or bargaining authorizations from the employees. All the
Respondent did was to demand that Claude Everett pay its employees the prevailing
union wage rates and then, in support of this demand, to picket Claude Everett's job-
site. Moreover, in dealing similarly with other nonunion employers and in accord-
ance with its usual practice, the Respondent has not only abstained from requesting
recognition and a contract, but has either withheld or withdrawn its picket when
the employer acceded to the demand that it pay the union rates. All of this, together
with the consistent substance of the Respondent's March 10 letter to Claude Everett
and of the legent on its picket sign, tends to support Graham's testimony that the
object of the Respondent's picketing, in the case of Claude Everett as in the cases of
other nonunion employers in the past, was not to force Claude Everett to recognize
or enter into a contract with the Respondent or its locals nor to compel the em-
ployees to accept the Respondent or its locals as their representative, but was merely
to force Claude Everett to pay the union wage rates and thus to benefit the members
of the Respondent's locals who worked for union contractors, by eliminating Claude
Everett's competitive advantage in paying the lower wage rates
But it is not essential to a finding of violation of Section 8(b) (7) of the Act that
it appear that a picketing union has been attempting to force an immediate or ulti-
mate explicitly recognized or contractually formalized bargaining relationship with
the employer as the representative of his employees. It is enough if it appear (as
it does in the present case) that the Union has been attempting by its picketing to
force the employer to establish and observe terms and conditions of employment
which are normally the subject matter of collective bargaining. This is in essence
the argument made by the General Counsel and counsel for Claude Everett, and it
is clearly supported by the Board's decision in Calumet Contractors and other cases
which counsel cite in their briefs.3
The Calumet case arose under Section 8(b) (4) (C) of the Act which makes it an
unfair labor practice for a labor organization to induce or encourage a work stop-
page by employees or to threaten or coerce an employer "where in either case an
object thereof is . forcing or requiring any employer to recognize or bargain
with a particular labor organization as the representative of his employees if another
labor organization has been certified as the representative of such employees under
the provisions of section 9." [Emphasis supplied.] The Board thus had before it
the identical language with respect to the object proscribed, which appears in Section
8(b)(7). Although there was another union currently certified as bargaining
representative of Calumet employees, the Hod Carriers picketed a building site
at which Calumet's employees were working with picket signs protesting that "The
prevailing rate of pay & conditions are not being met." When charged with a
violation of Section 8(b)(4) of the Act, the Hod Carriers contended that the object
of its picketing was not to obtain recognition or to bargain with the employer but
9 International Hod Carriers, Building and Common Laborers' Union of America. Local
No 41, AFL-CIO (Calumet Contractors Association), 130 NLRB 78, and cases therein
cited at footnote 4.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely to protest the employer's failure to meet prevailing rates of pay and conditions.
In the following passage from its decision, the Board rejected this defense, held that
the object of the union's picketing was the object proscribed by Section 8(b)(4)(C),
and concluded that the Hod Carriers had committed unfair labor practices within
the meaning of that section of the Act:
In connection with the question of Respondent's object in so picketing, the
Respondent asserts that since its picketing was solely for the purpose of in-
forming the public that DeJong and the Association were not meeting prevailing
rates of pay and conditions; and that it did not want, nor did it ever request,
recognition or bargaining from either DeJong or the Association, it did not
have an objective proscribed by Section 8(b)(4)(C) of the Act. In support
of this assertion, Respondent contends that the proscribed object-recognition
or bargaining-of Section 8(b) (4) (C) has reference to an appropriate bargain-
ing unit; that the certified unit herein is inappropriate, a position consistently
taken by Respondent; and that Respondent has no interest in representing
employees in such a unit. We cannot accept this contention.
While, clearly, no express demand for recognition or bargaining was made, it
is equally clear that one of the objects of Respondent's picketing was to force
DeJong and the Association to meet the "prevailing rate of pay and conditions"
for the area. It is well established that a union's picketing for prevailing rates
of pay and conditions of employment constitutes an attempt to obtain conditions
and concessions normally resulting from collective bargaining, and constitutes
an attempt by the union to force itself on employees as their bargaining agent .4
Respondent's disclaimer of interest in the bargaining unit, indeed its affirmative
statement that it would never bargain in such a unit, is, therefore, in the cir-
cumstances here present, an inadequate defense; for despite Respondent's dis-
claimer, the picketing necessarily had as its ultimate end the substitution of
Respondent for ... the certified bargaining agent. It is immaterial, more-
over, that Respondent may have had other objects since recognition or bargain-
ing need not be the sole object of the picketing to be violative of Section
8(b) (4) (C). It is sufficient if an object of the picketing be one proscribed
by Section 8(b) (4) of the Act.
This reasoning controls the decision of the present case. Although, as I have
noted, it was not the Respondent's object in its picketing to force a conventional
bargaining relationship upon Claude Everett, it did attempt to compel Claude Everett
to adopt and observe general terms and conditions of employment which are the
normal subject of bargaining. As the Board ruled in the almost identical factual
situation in the Calumet case, the Respondent thereby in effect demanded that Claude
Everett recognize and bargain with it and its object was, in the language used by
Congress both in Section 8(b) (7) and Section 8(b) (4) (C), the proscribed object of
"forcing or requiring an employer to recognize or bargain with a labor organization
as the representative of his employees, [and] forcing or requiring the employees
of an employer to accept or select such labor organization as their collective bar-
gaining representative." I conclude therefore that, by picketing Claude Everett to
force Claude Everett to pay the prevailing union wage rates, the Respondent com-
mitted an unfair labor practice within the meaning of Section 8(b) (7) (C).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Houston Building and Construction Trades Council, set forth in
section III, above, occurring in connection with the operations of Claude Everett
4 The following footnote is set forth at this point in the Board's decision
Auto Trades Council of Seattle, et at, and West Seattle Dodge, Inc, 125 NLRB 729
Industrial Chrome Plating Co , supra, p 1300; Francis Plating Co , 109 NLRB 35 ;
Petrie's, an Operating Division of Red Robin Stores, Inc. 108 NLRB 1318. The in-
stant case Is distinguishable from Radio Broadcast Technicians, etc. (WKRG-TV,
Inc ), 123 NLRB 507, an 8(b) (1) (A) case, upon which the Trial Examiner relies, and
Respondent cites There, unlike here, the union was not seeking to impose rates of
pay and conditions of employment upon the employer or its employees after a repre-
sentation election was concluded in which another labor union was certified. There
'the union's effort was directed toward preserving relations with other employers whose
employees it represented Moreover, it advertised this objective to the public and
directly to advertisers.
McDERMOTT FABRICATORS, DIV. J. RAY McDERMOTT & CO. 331
Construction Company, described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Claude Everett Construction Company, a Texas corporation , is an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent committed unfair labor practices within the meaning of Sec-
tion 8 (b) (7) (C) of the Act by picketing Claude Everett Construction Company
since March 16, 1961, with an object of forcing or requiring Claude Everett Con-
struction Company to recognize or bargain with the Respondent as the representa-
tive of its employees, and forcing or requiring the employees of Claude Everett
Construction Company to accept or select it as their collective-bargaining representa-
tive, although the Respondent was not then certified as the representative of Claude
Everett Construction Company's employees and did not file a petition under Section
9(c) of the Act within 30 days from the commencement of its picketing.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
McDermott Fabricators , a Division of J. Ray McDermott & Co.,
Inc. and International Brotherhood of Boilermakers, Iron
Ship Builders , Blacksmiths , Forgers and Helpers, AFL-CIO,
Charging Party. Cases Nos. 15-CA-1442 and 15-CA-1530.
March 16, 1963
DECISION AND ORDER
On March 31, 1960, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in his Intermediate Report. The Trial
Examiner also found that Respondent had not engaged in certain
unfair labor practices alleged in the complaints. Thereafter, the Re-
spondent and the Generail Counsel filed exceptions to the Intermediate
Report with supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Panning].
136 NLRB No. 20.