International Assn. of Bridge, Iron Workers, Local 10

National Labor Relations Board - Board Decisions

Nov 27, 1974

215 N.L.R.B. 153 (N.L.R.B. 1974)

INTERNATIONAL ASSN. OF BRIDGE, IRON WORKERS, LOCAL 10 153
International Association of Bridge , Structural and
Ornamental Iron Workers , Local 10, AFL-CIO and
Grover C . Byrd , its Agent and Vincent Metal
Works . Cases 17-CC-535 and 17-CD-170
November 27, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On May 20, 1974, Administrative Law Judge Arnold
Ordman issued the attached Decision in this proceed-
ing. Thereafter, the Charging Party filed exceptions
and a supporting brief, and the Respondent filed an
answering 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 the briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, only to
the extent consistent herein.
The facts, more fully described in the Administrative
Law Judge's Decision, reveal that Respondent (here-
inafter referred to as Iron Workers) has a collective-
'bargaining relationship with Luther L. Essary Con-
struction Company (hereinafter referred to as Essary),
a general contractor in the construction industry. The
contractual arrangement between Essary and Local 10
includes a clause known as article XIII which requires
that Essary "shall subcontract work covered hereunder
. . . only to a person, firm, partnership or corporation
that is party to an executed current agreement with
Iron Workers Local No. 10." During the last 4 years,
Essary has averaged about 20 projects per year and has
followed the practice of requesting the referral of iron-
workers from Local 10 whenever ironwork was re-
quired at its various construction sites. Local 10 has
always complied with these requests, supplying work-
ers two or three times at each project. In September
1973,2 Essary was engaged in the construction of a
library building for Central Bible College in Spring-
field, Missouri. Early in the month, Local 10's field
representative, Grover C. Byrd, came to the jobsite and
approached Essary's construction superintendent, Ge-
rald Thomlinson. According to Thomlinson,3 Byrd
inquired as to when Essary would be ready to erect the
building. Thomlinson replied that he understood Byrd
wanted to know when Local 10 workers would be
needed and informed Byrd that Essary had subcon-
tracted the structural ironwork to Vincent Metal
Works (hereinafter referred to as Vincent), a company
which does not have a contractual or collective-bar-
gaining relationship with Local 10.4 Thomlinson fur-
ther testified that when he told Byrd that he had no
authority over who would be used on the job, Byrd
cited article XIII of the Iron Workers agreement with
Essary. Byrd then told Thomlinson that he would like
Essary to ask Vincent to use ironworkers to erect the
steel structure at the construction site. Thomlinson re-
peated that he had no control over this and that Essary
had already subcontracted the work to Vincent. Byrd
then stated that Essary would be in violation of its
contract with Local 10 and that Local 10 would no
longer feel obligated to furnish any more help. Later in
the conversation, Byrd and Thomlinson noted that an
ironworker had already been working on the job, and
Byrd reiterated that he would not have to furnish any
help for this particular job.
Following his conversation with Thomlinson, Byrd
investigated the wage rates of Vincent employees and
verified that they were substantially less than those
paid members of Local 10. He then sent a letter to
Vincent dated September 5, 1973, which informed Vin-
cent of the disparity between wages and benefits paid
its employees compared with those that prevail in the
area. The letter further informed Vincent of Local 10's
intention to publicize this situation by peaceful picket-
ing, and it expressly disclaimed any intention to de-
mand that Vincent employees join Local 10 or that
Vincent sign a contract with Local 10. Vincent received
the letter on September 7, and the picketing began at
or about 8:30 a.m. on September 11. At all times, the
picketing was peaceful and performed by a single picket
who carried a sign which stated, in relevant part, "Vin-
cent Metal Works breaking established working condi-
tions of Iron Workers Local 10. . . ." The picketing
continued until the sheet metal workers employed by
Vincent completed the structural ironwork on Septem-
ber 18. Although Essary had no ironworkers on the
project during the picketing, it subsequently requested
workers, and Local 10 supplied them. On the first day
of the picketing, two employees of a company engaged
by Vincent to hoist steel stopped work. However, they
I The Charging Party has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibil-
ity unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wa/I Products, Inc., 91
NLRB 544 (1950), enfd 188 F.2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 Unless otherwise specified , all dates referred to herein are in 1973
3 Although the Administrative Law Judge characterized this witness'
recollection as "imprecise," he credited his testimony with respect to the
conversation with Byrd
4 Vincent's employees are represented exclusively by Sheet Metal Work-
ers Local Union No 146, and they receive wages and benefits which are less
than those received by members of Local 10. Both the Iron Workers and the
Sheet Metal Workers perform the kind of work involved in the present
controversy
215 NLRB No. 6
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
returned to work the following day and remained on
the project without further incident.
The Administrative Law Judge found nothing in
Byrd's remarks to Thomlinson that constituted a
threat, coercion, or restraint as proscribed by Section
8(b)(4)(ii) of the Act or had the illicit objects defined
in subsections (B) and (D) of that section. The Ad-
ministrative Law Judge also found that the sole object
of the picketing was to protect Local 10's area stand-
ards from erosion, and that the picketing therefore did
not violate Section 8(b)(4)(B) or (D) of the Act either.
Although we agree with the Administrative Law Judge
that neither the remarks to Thomlinson nor the picket-
ing violated Section 8(b)(4)(B),5 we find that both the
remarks and the picketing were in violation of Section
8(b)(4)(D) of the Act.
Unlike the Administrative Law Judge, we believe
that Byrd's remarks to Thomlinson were in the nature
of a threat proscribed by Section 8(b)(4)(ii) of the
Act.' It is undisputed that Byrd approached Thomlin-
son to inquire when ironworkers would be needed at
the jobsite. Upon learning that the work was to be
performed by employees who were not members of
Local 10, Byrd asked Thomlinson to have Essary pre-
vail upon the employer, Vincent, to assign the work to
ironworkers instead. When Thomlinson protested that
he had no control over the assignment of the work,
Byrd threatened to discontinue referral of ironworkers
to Essary at that project site . These facts clearly estab-
lish that Respondent' s agent, Byrd, threatened Essary
it would discontinue the practice of referring workers
to Essary unless Essary influenced Vincent to assign
the work in dispute to members of Local 10 rather than
to sheet metal workers. Such conduct violates Section
8(b)(4)(ii)(D) of the Act. The fact that Local 10 did not
thereafter engage in the conduct which it threatened
does not negate the coercive and unlawful effect of the
threat itself.'
Having thus found that an object of Byrd's threat to
Thomlinson was to force a reassignment of work to the
Respondent, we believe it would be unrealistic to con-
5 While we are finding herein that Respondent threatened Essary to
induce Essary to influence or pressure Vincent to assign the disputed work
to Respondent's members rather than to the sheet metal workers, and that
it picketed to force Vincent's reassignment of the work, in violation of Sec
8(b)(4)(D) of the Act, we do not believe that the facts warrant a finding that
any of Respondent's conduct was designed to force or require Essary to
"cease doing business" with Vincent within the meaning of Sec 8 (b)(4)(B)
of the Act Cf NL.R B. v Local 825, International Union of Operating
Engineers, AFL-CIO [ Burns & Roe, Inc ], 400 U S 297 (1971)
6 Columbus Building and Construction Trades Council, AFL-CIO (The
Kroger Co), 149 NLRB 1224 (1964)
r The record reflects that the Regional Director for Region 17 had made
an administrative determination that, while there existed an agreed-upon
method for the voluntary adjustment of the dispute , the effectuation of that
method had broken down and, thus, the conduct of a 10(k) hearing was not
a prerequisite here See Operating Engineers Local Union No 3, Interna-
tional Union of Operating Engineers, AFL-CIO (Hansen's Incorporated),
192 NLRB 139, 142-143 (1971)
clude that the picketing, ostensibly directed only to-
ward the preservation of area standards, did not have
a similar object. During his conversation with Thom-
linson, Byrd said nothing about the erosion of area
standards. He was then simply seeking the work which
had been given to the sheet metal workers, and he made
an unlawful threat to achieve that purpose. The picket-
ing followed on the heels of that threat. If it is assumed
that the information Respondent obtained before the
picketing began regarding Vincent's lower wage rates
in fact played a part in Respondent's decision to picket,
we cannot believe that the Respondent's desire for the
work, conveyed to Essary even before it investigated
wage rates, did not also prompt it to picket for the
purpose of forcing Vincent's reassignment of the work
to its members. We find that such an unlawful object
was present and that Respondent violated Section
8(b)(4)(i) and (ii)(D) of the Act by its picketing at the
construction site in this case.
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(b)(4)(i) and
(ii)(D) of the Act, we shall order that it cease and desist
therefrom and take certain affirmative actions designed
to effectuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board hereby orders that the Respondent , Interna-
tional Association of Bridge, Structural and Ornamen-
tal Iron Workers, Local 10, AFL-CIO, Springfield,
Missouri, its officers, agents , and representatives, shall:
1. Cease and desist from:
(a) Engaging in or inducing or encouraging any in-
dividual employed by Luther L. Essary Construction
Company, Vincent Metal Works , or by any other per-
son engaged in interstate commerce, or in an industry
affecting such commerce , to engage in a strike or
refusal in the course of such individual 's employment
to use, manufacture , process , transport , or otherwise
handle or work on any goods , articles , materials, or
commodities , or to perform any services , where an ob-
ject thereof is to force or require Vincent Metal Works
to assign the work of erecting structual steel to em-
ployees who are represented by Local 10, rather than
to employees who are represented by Sheet Metal
Workers Local Union No. 146.
(b) Threatening , coercing, or restraining Luther L.
Essary Construction Company , Vincent Metal Works,
or any other person engaged in interstate commerce, or
in an industry affecting such commerce , for such an
objective.
2. Take the following affirmative actions which, we
find , will effectuate the policies of the Act:
INTERNATIONAL ASSN OF BRIDGE , IRON WORKERS , LOCAL 10 155
(a) Post at its principal office and usual meeting
place copies of the attached notice marked
"Appendix."' Copies of said notice, on forms prov-
ided by the Regional Director for Region 17, after
being signed by Local 10's duly authorized representa-
tive, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by Local 10 to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Forthwith mail copies of notice to Regional Di-
rector for Region 17, after such notice has been signed
as provided above, for posting by Luther L. Essary
Construction Company and Vincent Metal Works, if
they so agree, in places where they customarily post
notices to their employees.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Decision
what steps the Respondent has taken to comply there-
with.
MEMBER JENKINS, dissenting in part:
I agree with my colleagues in dismissing the
8(b)(4)(B) allegation. For the reasons set forth in the
decision of the Administrative Law Judge, I would
dismiss, as he did, the 8(b)(4)(D) allegation.
8 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
TO ALL EMPLOYEES OF LUTHER L. ESSARY
CONSTRUCTION COMPANY, AND VINCENT
METAL WORKS
TO ALL MEMBERS OF INTERNATIONAL ASSO-
CIATION OF BRIDGE , STRUCTURAL AND
ORNAMENTAL IRON WORKERS , LOCAL 10,
AFL-CIO
We hereby notify our members that:
WE WILL NOT engage in or induce or encourage
any individual employed by Luther L. Essary
Construction Company, or Vincent Metal Works,
or by any other person engaged in interstate com-
merce, or in any industry affecting such com-
merce, to engage in a strike or refusal in the course
of such individual's employment to use, manufac-
ture, process, transport, or otherwise handle or
work on any goods, articles, materials, commodi-
ties, or to perform any services, where an object
thereof is forcing or requiring Vincent Metal
Works to assign the work of erecting structural
steel to employees who are represented by us
rather than to employees who are represented by
Sheet Metal Workers Local Union No. 146.
WE WILL NOT threaten, coerce, or restrain Luther
L. Essary Construction Company, Vincent Metal
Works, or any other person for such an object.
INTERNATIONAL ASSOCIATION OF
BRIDGE STRUCTURAL AND
ORNAMENTAL IRON WOKERS, LOCAL
10, AFL-CIO
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Administrative Law Judge: On Septem-
ber 13, 1973, Vincent Metal Works filed unfair labor practice
charges against the labor organization named in the caption,
herein called Respondent, and against Grover C. Byrd, as
agent of Respondent. Pursuant to these charges the General
Counsel of the National Labor Relations Board issued a com-
plaint, dated November 30, 1973, alleging that Respondent
and its agent, Byrd, had violated Section 8(b)(4)(i) and ( ii)(B)
and Secion 8(b)(4)(i) and (u)(D) of the National Labor Rela-
tions Act, as amended, by engaging in a proscribed secondary
boycott and by seeking to compel an assignment of certain
work to Respondent's own members rather than to other
employees. Respondent, while admitting its status as a labor
organization within the meaning of the Act and further ad-
mitting that Byrd was its officer and/or agent, entered its
denial as to virtually all other material allegations of the
complaint.
Hearing was conducted in this matter in Springfield, Mis-
souri, on February 28, 1974. At the conclusion of the hearing
counsel for Respondent presented oral argument, and Gen-
eral Counsel submitted a written brief on March 28, 1974.
Upon the entire record, upon my observation of the wit-
nesses, and after due consideration of the argument and brief,
I make the following:
FINDINGS AND CONCLUSIONS
I JURISDICTION
Vincent Metal Works, a sole proprietorship, has an office
in Springfield, Missouri, and is engaged in the business of
performing metal contracting services in the construction
industry.-1,uther L. Essary Construction Company, herein
called Essary, is a Missouri corporation with an office in
Springfield, Missouri, and is a general contractor in the con-
struction industry. On the basis of allegations in the com-
plaint that Essary made interstate purchases in excess of
$50,000 and that both Essary and Vincent Metal Works were
employers engaged in commerce within the meaning of the
Act, all parties at the hearing stipulated, for purposes of the
instant proceeding that both enterprises are respectively en-
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in interstate commerce within the meaning of the Act
and that the National Labor Relations Board has jurisdiction
herein. I so find.
I find further, as alleged and admitted in the pleadings, that
Respondent is a labor organization within the meaning of the
Act, and that Grover'C. Byrd, its business representative, is
an officer and/or agent of Respondent.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
All the events relevant here occurred during the month of
September 1973 at a construction site in Springfield, Mis-
souri, where Essary as general contractor was constructing a
library building for Central Bible College. Essary subcon-
tracted the job of erecting the basic metal structure for the
building to Vincent Metal Works. The complaint alleges that
` all times material herein Respondent had a labor dispute
with Vincent Metal Works arising out of the latter's assign-
ment of the metal work at the construction site to employees
who are not members of the Respondent. The complaint
further alleges that at no time material herein did Respondent
have any labor dispute with Essary. The gravamen of the
alleged unfair labor practices is that Respondent by picketing
at the construction site and by related conduct sought unlaw-
fully to enmesh neutral employers in its dispute with Vincent
Metal Works, and sought also to compel Vincent Metal
Works to assign its work to members of Respondent rather
than to its own employees. Respondent's position is that it did
not engage in proscribed conduct and that its sole object was
to protect the area standards relating to wages and working
conditions of employees in the industry from erosion. It is
uncontroverted, and all parties admit, that the employees of
Vincent Metal Works received substantially less pay than
employees doing the same work who are represented by Re-
spondent.
The bulk of the evidence, much of which is documentary,
is undisputed. Essary has for some years had a collective-
bargaining relationship with Respondent. Respondent refers
ironworkers to Essary as needed. Among the provisions in
the contractual arrangement between Essary and Respondent
is a clause precluding Essary from sub-contracting construc-
tion site work covered by the contract to anyone other than
"a person, firm, partnership or corporation that is party to an
executed current contract with the [Respondent]."' Vincent
Metal Works does not have a contractual arrangement or
collective-bargaining relationship with Respondent. Vincent
Metal Works employees are represented exclusively by Sheet
Metal Workers Local Union No. 146. Both the sheet metal
workers here and the ironworkers represented by Respondent
do the kind of work involved in the present controversy
Early in September Grover C. Byrd, aware that Essary had
a building to erect on the construction site, came to the site
and talked to Gerald Thomlinson, superintendent for Essary,
who was on the premises. Minor discrepancies in the tes-
timony of Byrd and Thomlinson aside, it appears that Byrd
asked Thomlinson when he would need ironworkers to do the
metal work, that Thomlinson told Byrd the metal work had
' No contention is made that this clause is unlawful
been subcontracted to Vincent Metal Works, and that Essary
had no control in the matter. Byrd observed that such sub-
contracting was violative of the subcontracting clause in the
bargaining agreement. Thomlinson responded that Byrd
would have to take that matter up with Luther Essary di-
rectly.
According to Thomlinson, a witness for General Counsel,
Byrd then requested that Essary ask Vincent to use ironwork-
ers to do the work. Thomlinson reiterated that he had no
control. There is conflict in the testimony as to what if any-
thing, Byrd said at this point about further referral of em-
ployees by Respondent to Essary. Thomlinson, whose mem-
ory in this regard was less than precise, testified that Byrd
told him Respondent would no longer feel obligated, in view
of Essary's breach of the subcontracting clause, to furnish
"any help for this job." Further questioning by General
Counsel in an effort to elicit testimony from Thomlinson that
Byrd made more sweeping or truculent statements failed.'
In any event, it is clear, as General Counsel concedes, that
"notwithstanding Byrd's above-related statements to Thom-
linson the Respondent Union did not fail or refuse to refer
men in response to Essary's later requests." (Bnef, p. 2).
Instead, a week or so following the conversation between
Byrd and Thomlinson, Byrd on September 11, 1973, at about
8:30 a.m. placed a picket at the entrance to the construction
site. The picket carried a sign bearing the following legend:
Vincent Metal Works breaking established working con-
ditions of Iron Workers Local 10, AFL-CIO, 1000 East
10th Street, Kansas City, Missouri, VI 2-8917 or 866-
3132.
The picketing did not come wholly as a surprise. Following
his conversation with Thomlinson, Byrd had instituted inqui-
ries and verified that the wage rates of the Vincent Metal
Works employees were substantially less than those paid
ironworkers, a fact known also to Vincent Metal Works.
Accordingly, Byrd wrote to Vincent Metal Works, under
date of September 5, as follows:
Our organization has investigated the wages and benefits
received by your employees. We find your wages and
benefits are inferior to those that prevail in this area. Our
organization has worked hard for years to get a fair and
dust prevailing wage for our members and local citizens
of this area. We believe when the prevailing wage in the
2 In furtherance of this effort, General Counsel introduced an affidavit
given by Thomlinson to a Board agent on September 20, 1973, some 5
months before the hearing In that affidavit, Thomlinson said, in relevant
part
Byrd did not threaten to picket the job if Ironworkers were not used
to erect the building, but he did say he couldn't work with us (Essary)
anymore, if we permitted Sheet Metal Workers to erect the steel build-
ing Byrd did explain that he meant the CBC job only Grover Byrd
further explained to me that his reason for saying the above was that
he thought that we (Essary) would be violating our contract if we didn't
use ironworkers to erect the green metal
On all the evidence I conclude that the tenor of Byrd's remarks to Thomlin-
son, assuming they were made as Thomlinson testified, does not rise to the
status of conduct proscribed by Section 8(b)(4) of the Act
INTERNATIONAL ASSN. OF BRIDGE , IRON WORKERS , LOCAL 10 157
area is reduced the local employees, merchants and
professional men are all hurt. The entire community
suffers. We believe it is our obligation, along with the
other local citizens and residents of this area to maintain
the standard of living presently prevailing in this area.
Accordingly, this organization intends to inform the
public and citizens of this area by means of peaceful
picketing and other forms of publication that you are
breaking down the prevailing wage rates and working
conditions in this area.
Our only intention throughout the course of this dispute
is to inform the public and citizens of this area that your
employees receive inferior wages and benefits. We wish
to inform you this organization does not intend to inter-
fere with any of your employees' rights guaranteed by
the National Labor Relations Act to either become or
refrain from [sic] any union activities. We are not de-
manding your employees to become union members, nor
are we demanding you recognize us or sign a contract
with our union. We expressly disclaim any such de-
mands. As stated, our only intention is to inform the
public and citizens of this area that your employees re-
ceive wages and benefits that are inferior to those estab-
lished in this area.
Vincent Metal Work admittedly received this letter on or
about September 7. It did not answer the letter or make
contact with Respondent. As noted, the single picket bearing
the sign already described appeared on September 11 at the
Grant Street entrance to the construction site which was the
main entrance then being used by all who worked on the site.
It is undisputed that the picketing, on that day and thereafter,
was at all times performed by single picket and was at all
times peaceful.
On the day the picketing began, September 11, Vincent
Metal Works employees were working on the construction
site. They continued to work on that day and for the duration
of the picketing. Essary was also operating on the site on
September 11 but had no ironworkers on the job at that time.
Subsequently, Essary did call upon Respondent for ironwork-
ers and they were supplied. Whether this occurred while the
picketing was going on or after the picketing had ceased is not
clear on the record
Another enterprise engaged in operations on the construc-
tion site on September 11 was John Drennon & Sons, to
which Vincent Metal Works has assigned the job of hoisting
the steel Vincent Metal Works was going to erect. John Dren-
non & Sons had two employees on the site at that time, David
Drennon and Gary Montgomery, who were operating a crane
to hoist the steel. Both had reported to work that morning.
Upon the appearance of the picket, they stopped work As
David Drennon testified, "we were trying to figure out what
was going on with that picket there, we didn't know whether
we should go ahead and work, or honor the picket line or
what. We were in a tizzy right then, to tell you the truth."
The Drennon work stoppage lasted only 1 day. The following
day, September 12, John Drennon & Sons resumed opera-
tions at the site and continued until its work was
completed.'
James A. Vincent, operator and manager of Vincent Metal
Works, was also on the site on the morning of September 11.
Disturbed by the appearance of the picket and the Drennon
work stoppage Vincent called and went to see his attorney
Don Jones. On advice of counsel, Vincent personally hand-
painted two sign . One sign read, "Main entrance. Vincent
Metal Work employees use rear entrance"; the other read,
"Vincent Metal Works employees use this entrance." At I
p.m. Vincent posted the first sign at the Grant Street entrance
through which theretofore all employees had entered and
where the picket was patrolling. The second sign was posted
at the rear entrance on Norton Road.` At or about the same
time Attorney Jones appeared at the construction site and
together with Vincent gave the picket a copy of a paper called
"Notice to All Construction Personnel" which had been pre-
pared by Attorney Jones. Copies were also given by Vincent
to all the employees. The text of the notice was to the effect
that all construction personnel on the site would "immedi-
ately and henceforth" enter and leave the construction site
only through the gate or entrance specifically designed for
them. Vincent Metal Works employees were instructed to use
the rear entrance, and all other employees the Grant Street
or main entrance. The notice further stated a demand that all
unions having a dispute with Vincent Metal Works or having
a right to picket Vincent Metal Works refrain from picketing
the main entrance since such picketing would improperly
coerce and restrain employees of other enterprises not to
perform their services, and that picketing against Vincent
Metal Works be conducted at the latter's separate entrance.
The notice closed with a statement that Ironworkers Local
10, Respondent herein, was being given copies of the notice
both at its office address and through its picket carrier.
Vincent testified that upon distribution of the notice, the
Vincent Metal Works employees immediately left the site
through the front entrance and reentered through the rear
entrance. He acknowledged that apart from giving a copy of
the notice to the picket, lie made no effort, contrary to the
recital in the notice, to contact the Respondent and did not
give a copy of the notice to Byrd He acknowledged also that
when the picket was given a copy of the notice, the picket left
for a brief interval but then returned and resumed picketing
at the main entrance
Grover Byrd confirmed that the picket was not at his post
for a brief period during the early afternoon of September 11.
Byrd testified that he came to the construction site at about
2:30 p.m. on that day and found no picket on the premises.
However, the individual who had been picketing saw Byrd
arrive, came over to Byrd's car, told Byrd he had a letter and
gave it to Byrd. Byrd, without reading the "letter," which was
in fact the notice previously described, ordered the picket
back to the place he had previously been picketing.'
3 The substance of a conversation between David Drennon and Grover
C Byrd, which I am satisfied occurred on the afternoon of September 11,
will be discussed later in this Decision
On the following day, September 12, the handpainted signs were re-
placed by professionally painted signs to the same effect
5 Vincent testified that Byrd arrived on the scene at or about 1 30 p in
Considering all the intervening events including the posting of the hand-
painted signs , the arrival of Jones, the distribution of the notices to the
employees and to the picket, and the temporary absence of the picket
thereafter, to all of which Vincent testified and which he stated occurred
beginning at or about 1 p in , I am satisfied and find that Vincent's estimate
(Continued)
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Byrd, he did not read the "letter" handed
him by the picket until his return to Respondent's office.
Immediately after reading it, Byrd called Respondent's attor-
ney who told Byrd to station the picket at the rear gate. Byrd
concluded that since the working day was about over, it was
too late to do anything. On the next morning, however, Sep-
tember 12, Byrd stationed the picket at the rear entrance used
exclusively by Vincent Metal Works employees. There the
picket remained through September 18 when the structural
ironwork was completed. No further incidents occurred dur-
ing the period from September 12 to 18 and no allegation of
unfair labor practice is predicated on conduct during this
period. There is some conflict in the evidence concerning
precisely when the picketing at the main entrance ceased on
September 11. Vincent testified that it ceased about 4:30 p.m.
but conceded that he really couldn't "pinpoint the time."
Byrd testified that the picketing ceased about 3:45 p.m. when
the picket called him to tell him he was through picketing for
the day.'
B. The Conversation Between Byrd and David Drennon
told him not to go to work, Drennon replied that the only
thing anyone said to him was, "It's up to your discretion,"
that Byrd "didn't really say yes or no. He said, 'you better
not."'
Only brief reference was made to Grover C. Byrd's exten-
sive testimony as to his encounter with Drennon. According
to Byrd the encounter took place shortly after he arrived at
the construction site at 2:30 on the afternoon of September
11 and discovered that his picket was not patrolling. Byrd
testified that Drennon came to Byrd's car, opened the door
and asked Byrd "What's the deal?" Byrd, who had seen
Attorney Jones in the area, told Drennon that he (Byrd) did
not want to talk because Jones was coming over to the car and
Byrd had nothing to say. Drennon, according to Byrd, said
"Okay" and left. In the meantime Attorney Jones reached the
car. Byrd refused to talk to him also and drove off. Byrd's
testimony as to this incident was unshaken on cross examina-
tion by General Counsel.
For reasons stated more fully hereunder, I believe that
Grover C. Byrd's account of his interchange with Drennon
on September 11 more accurately reflects what actually oc-
curred.
General Counsel places special emphasis on a conversation
between Grover Byrd and David Drennon which, as noted,
I believe to have occurred on the afternoon of September 11,
the first day of the picketing.
Drennon's testimony concerning this conversation was not
altogether clear. On direct examination by General Counsel,
Drennon stated that in the early part of September while
working at the construction site he had conversation with
Byrd in the latter's car on Grant Street in front of the site.
According to Drennon, he asked Byrd what was going on
because he (Drennon) wanted to go ahead and do his work
and Byrd replied, "You better not because the Sheet Metal
was doing our workers' work" Drennon testified further that
he then asked Byrd if Byrd was "bullshitting" or whether it
was really legal and that Byrd replied, "You dam right it's
legal." The conversation then ended, according to Drennon,
because another individual started walking up to the car and
Byrd did not want to talk to the other individual.
On cross-examination Drennon stated that he could not
recall what day this conversation with Byrd took place al-
though the context to which he testified would indicate that
the day was September 11. Drennon stated that he went over
to talk to Byrd because "being kind of friends . . . I just went
over to talk to him, shoot the bull." Drennon denied that
Byrd stated at the outset that he did not want to talk to
Drennon or that Byrd made any mention of wages or working
conditions. Drennon stated that he was aware at this time
that an ironworker was picketing but that he (Drennon) did
not read the sign although he had "talked to the guy who was
carrying it." Drennon repeated on cross-examination that
Byrd said "the Sheet Metal people was doing his work" and
that the picketing was legal. The whole conversation accord-
ing to Drennon consumed "a very short minute or two." In
response to final questioning, however as to whether anyone
of time is not likely to be accurate and that Byrd ; s arrival was closer to 2 30
p in. as Byrd testified
6 I deem it unnecessary to speculate as to which of the two estimates is
more nearly correct I am satisfied that the picketing on September 11 did
cease sometime between 3 45 p in . and 4 30 p in
C. Analysis and Concluding Findings
Picketing to preserve area standards is lawful and permissi-
ble. United Brotherhood of Carpenters and Joiners ofAmerica,
Local 480, AFL-CIO (National Mill Designs, Inc.,) 209
NLRB 921 (1974). On the other hand, such picketing "may
be unlawful if there is additionally an unlawful objective as
revealed by contemporaneous statements of union agents or
other pertinent evidence." Local No. 441, International
Brotherhood of Electrical Workers, AFL-CIO (Rollins Com-
munications, Inc.), 208 NLRB 942 (1974).
The foregoing principles state the respective positions of
the parties. Respondent maintains that all its efforts here
were devoted to preventing the erosion of the wage standards
it had established in the area for the particular work being
done, that it lawfully picketed for that purpose and for that
purpose only, and that it engaged in no other proscribed
conduct. General Counsel, on the other hand, while not dis-
puting the legality of area standards picketing, argues that
Respondent was nonetheless guilty of unfair labor practices
because Respondent's conduct had "the concurrent objects of
forcing or requiring Essary and John Drennon & Sons to
cease doing business with Vincent Metal and/or forcing or
requiring Vincent Metal to assign the performance of the
controverted erection work duties to members of the Re-
spondent Union." In support of this position General Coun-
sel asserts, first, that Respondent's picketing was not solely
confined to the area reserved for the use of the primary
employer, Vincent Metal Works. On this point General
Counsel cites Moore Dry Dock Company, 92 NLRB 547
(1950). Second, General Counsel relies for further evidence
of illicit objectives on two conversations in'which Grover C.
Byrd, Respondent's agent, engaged-one conversation with
Essary's superintendent, Gerald Thomlinson; the other with
David Drennon who was on the payroll of John Drennon &
Sons.
The issue here, as in National Mill Designs, Inc., supra, is
one of fact.
INTERNATIONAL ASSN. OF BRIDGE , IRON WORKERS , LOCAL 10 159
First , as to the picketing . It is not necessary to recapitulate
all the evidence to demonstrate that on its face the situation
here would appear to fall in the classic pattern of area stand-
ards picketing . The short of the matter is that Respondent
after making appropriate inquiry verified the fact, also known
to Vincent Metal Works, that the latter's employees were
being paid $2 to $3 less per hour than employees represented
by Respondent received for doing like work . Respondent so
informed Vincent Metal Works by letter which the latter
received on or about September 7. The letter declared Re-
spondent 's intention to publicize "by means of peaceful pick-
eting and other forms of publication " the erosion of the wage
standards Respondent has established . The letter further ex-
pressly disclaimed any intention to interfere with statutory
rights of employees and any demand that Vincent Metal
Works become members of Respondent or that Vincent
Metal Works recognize or enter into a contract with Re-
spondent.
On the morning of September 11 Respondent , as indicated
in its letter to which Vincent Metal Works made no reply,
stationed a picket at the Grant Street entrance to the con-
struction site , the entrance used in common by employees of
Vincent metal works and by employees of other contractors
working on the site. The picket bore a sign stating that Vin-
cent Metal Works was breaking established conditions of
Ironworkers Local 10.
It is undisputed that the picketing was preacful and no
claim is made that the picketing at its inception violated any
precept enunciated in Moore Dry Dock True, two employees
of John Drennon & Sons, who had started to work that
morning , stopped working when they saw the picket
However, as the Board has frequently held, the fact that
picketing to protest substandard conditions may have an im-
pact on deliveries or working operations does not in and of
itself supply evidence of a prohibited objective. See National
Mill Designs, Inc., supra.
Vincent Metal Works employees continued to work on the
morning of September 11. However , in an effort to confine
the impact of the picketing, Vincent Metal Works, after con-
sultation with counsel , established a separate gate at the rear
of the site for its own employees , and designated the Grant
Street entrance for the use of all other employees and contrac-
tors working on the site . Appropriate signs so indicating were
posted at the respective entrances and copies of a notice were
given to all employees stating the action taken . The notice
also stated a demand that any further picketing directed
against Vincent Metal Workers be restricted to the rear en-
trance designated for the use of its employees . Vincent Metal
Works took the foregoing actions including service of a copy
of the notice upon the picket-no copy was furnished Re-
spondent although the face of the notice indicated that this
was being done-in the early afternoon of September 11 just
a few hours before quitting time . On the following morning
September 12, Respondent moved its picket to the rear en-
trance as requested . Operations on the construction site con-
tinued thereafter without interruption. On September 18, the
metal work which gave rise to the dispute was completed and
Respondent withdrew its picket.
On this state of the record the only ground on which
General Counsel posits the claim that the picketing, itself
disclosed that it was for an illegal objective or for illegal
objectives rests on its assertion that the picket was not
removed from the Grant Street entrance forthwith on the
afternoon of September 11 when the separate gates were es-
tablished. The evidence in that regard can be succinctly
stated. The picket received the notice already described
shortly after 1 p in. He immediately stopped picketing. Some-
time between 1:30 and 2 . 30 p.m.-for reasons already in-
dicated , I believe the later estimate to be more
accurate-Grover C. Byrd arrived at the site and directed the
picket to resume his picketing The picket was resumed for
a period of about 2 hours when the workday ended. The
following morning , as noted , the picket was moved to the rear
entrance where Vincent Metal Works employees entered and
left the site.
Relevant here is the question as to why Byrd did not relo-
cate the picket forthwith upon his arrival at the site on the
afternoon of September 11. Byrd explained that he had not
seen the signs newly posted at the entrance and that he did
not read the notice given him by the picket until he (Byrd)
reached his office later that afternoon . By that time the work-
day was about over and Byrd decided to take no action.
Byrd 's testimony in this regard was unshaken and uncon-
tradicted . However , even assuming , arguendo, that Byrd was
aware, or should have been aware , shortly after his arrival at
the site that afternoon that separate gates had been estab-
lished , his failure to make immediate arrangements to trans-
fer the location of the picketing does not warrant a finding
of illicit objectives. The fact of the matter is that with the
exception of the few hours on the afternoon of September 11,
the picketing throughout the entire period from September 11
through September 18 was scrupulously peaceful and correct,
that it was conducted with an equally scrupulous regard for
the Moore Dry Dock criteria, and that it was publicly and
expressly directed against the erosion of wage standards. Ex-
cept for the fact that John Drennon and his coworker volun-
tarily elected to respect the picket line and withhold their
services on the very first day of the picketing, there appears
to have been no other interruption of operations at the site
and Respondent at no time withheld its furnishing of em-
ployees to Essary with whom it had a contractual relation-
ship . Against this total background it strains credulity to
draw an inference that underlying Respondent 's totally legiti-
mate effort to preserve area standards were "concurrent ob-
jectives" of forcing or requiring Essary or John Drennon &
Sons to cease doing business with Vincent Metal Works or to
force or require the latter to assign its metal work to Respon-
dent 's members. Respondent 's letter of. September 5 unam-
biguously disclaimed such objectives and the whole pattern
of the picketing was consistent with that disclaimer.
To apply the Moore Dry Dock criteria here because for a
few hours out of an entire week of picketing there was a
technical breach of the standards there enunciated would
exalt form above substance Certainly, it does not establish
that the area standards picketing had concurrent illicit objec-
tives. I find a failure of proof in this regard
Remaining for consideration , therefore, are the conversa-
tions which Grover C. Byrd had with Thomlinson and Dren-
non respectively. As already noted Byrd asked Thomlinson
when he would need ironworkers. Informed that the metal
construction work had been subcontracted to Vincent Metal
Works whose workers were represented by a different union,
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Byrd complained that this was violative of the collective-
bargaining agreement. Crediting Thomhnson's imprecise
recollection herein, it appears that Byrd may also have said
that Respondent would not in these circumstances feel obli-
gated to furnish Essary with any "help for this job." In point
of fact, as General Counsel concedes, Respondent "did not
fail or refuse to refer men in response to Essary's later re-
quest."
Considered alone or in context, nothing in Byrd's remarks
addressed to Thomlinson, superintendent for Essary, esta-
blishes either the threat, coercion, or restraint proscribed in
Section 8(b)(4)(ii) of the Act or the illicit objects defined in
subsections (B) and (D) of that section, both of which must
be established to justify the unfair labor practices here
alleged.'
The conversation between Byrd and Drennon likewise fails
to support General Counsel's case. On the basis of the evi-
dence, already summarized, as to that conversation, I credit
Byrd's account to this brief colloquy which in essence was
that Byrd approached him on the afternoon of September I 1
and asked what the "deal" was, and that Byrd replied he did
not want to talk and that Drennon should leave. Byrd ex-
plained that he took this action because he saw Attorney
Jones approaching and that he wanted no confrontation with
Jones.
Drennon confirmed that he went over to Byrd's car and
initiated the conversation, stated that he and Byrd were "kind
of friends," and that he (Drennon) went over to "shoot the
bull." He could not recall at first how long the conversation
was and later testified that it took a "very short minute or
two." Drennon agreed that Byrd terminated the conversation
because a man in a "business suit" was approaching Byrd's
car. Drennon gave differing versions of what Byrd said to
him. Thus, Drennon stated first that Byrd told him he "better
not [work] because the Sheet Metal was doing our workers'
work"; later, that the only thing Byrd said to him was "It's
up to your discretion" and then, that Byrd "really didn't say
yes or no. He said `You better not."'
e General Counsel did elicit from Byrd that Respondent would have liked
to have had the metal work here involved However, the obvious fact that
Respondent would have liked this work does not establish in any sense that
Respondent engaged in unlawful conduct to obtain it
Further doubt is cast on Drennon's credibility by his ac-
knowledgement that he knew the picket carrying the sign was
an ironworker because he had talked to the man carrying the
sign but that he had not read the sign . It is also clear from
the record that Drennon had voluntarily stopped working
upon the appearance of the picket hours before his conversa-
tion with Byrd and that on the following day when the picket
was moved Drennon went back to work.
On all the evidence, therefore, and on the basis of my
observation of Drennon as a witness , I find his testimony
unworthy of credence. Even assuming, however, that cre-
dence would be given to his shifting and inconsistent accounts
of a very brief conversation, it would still fall short of estab-
lishing a violation of the Act. Drennon sought out Byrd not
the converse, and the entire course of the picketing argues
against the notion that Byrd would have seized on Drennon's
appearance to bring illegal pressures to bear.
I find and conclude that General Counsel has not sustained
the burden of establishing that Respondent or its agent, Byrd,
engaged in conduct proscribed by Section 8(b)(4)(B) and/or
(D) of the Act. I find, on the contrary, that Respondent was
at all times relevant here engaged in permissible and lawful
activities to protect its area standards from erosion.
CONCLUSIONS OF LAW
The evidence does not establish that Respondent or its
agent , Grover C. Byrd, engaged in the unfair labor practices
alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I recommend the following:
ORDER'
The complaint is dismissed in its entirety.
8 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 , be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes