Intl. Union of Operating Engineers, Local 4

National Labor Relations Board - Board Decisions

Oct 8, 1971

193 N.L.R.B. 632 (N.L.R.B. 1971)

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers , Local 4,
AFL-CIO; International Association of Bridge,
Structural and Ornamental Iron Workers , Local 37,
AFL-CIO; United Brotherhood of Carpenters and
Joiners of America , Local 1305 , AFL-CIO; Labor-
ers' International Union of North America, Local
610, AFL-CIO; and International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Help-
ers of America, Local 526 and Seaward Construc-
tion Company , Inc. Cases 1-CP-172, 1-CP-173,
1-CP-174, 1-CP-178, 1-CP-180, and 1-CP-181
October 8, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 10, 1971, Trial Examiner David E. Davis
issued his Decision in the above-entitled proceeding,
finding that the Respondents had not engaged in
certain unfair labor practices and recommending that
the complaint herein be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel, the Charging Party,
and the Respondent Engineers each filed exceptions
to the Decision, together with supporting briefs, and a
joint brief was filed by the Respondent Engineers,
Carpenters, and Laborers.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as herein modified.
We find merit in the General Counsel's and
Charging Party's exceptions to the Trial Examiner's
failure to find an independent violation of Section
8(b)(7)(C) with regard to the Respondent Operating
Engineers. The record supports the Trial Examiner's
finding that Respondent Operating Engineers picket-
ed for a recognitional object on November 24, 25, 26,
29, and December 1, 1969, and again on January 2, 3,
8, and 12, 1970. Admittedly, the Respondent Operat-
ing Engineers is not currently certified as the
representative of the employees in the unit of
I M Monaz Portugese Sausage Factory, 160 NLRB 1465, 1469
2 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
employees sought , and a petition under Section 9(c) of
the Act was not filed within a reasonable period of
time from the commencement of such picketing.
Considering all the circumstances of this case,
including the constancy of Respondent Operating
Engineers ' recognitional demand as shown by the
intermittent picketing which extended over a period
of almost 8 weeks , as well as the fact that no petition
was filed within 30 days of the commencement of the
picketing , we find that the picketing herein was
violative of Section 8(b)(7)(C).1
THE REMEDY
Having found that Respondent , International Un-
ion of Operating Engineers , Local 4, AFL-CIO, has
engaged in certain unfair labor practices , we shall
order it to cease and desist therefrom and take certain
affirmative action that we find necessary to effectuate
the policies of the Act, as set forth below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, International Union of Operating
Engineers, Local 4, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from picketing, or causing to
be picketed, the premises of the Employer, Seaward
Construction Company, Inc., with an object of
forcing or requiring said employer to recognize or
bargain with the Union as the representative of its
employees or to force or require the employees of said
Employer to accept or select the Union as their
collective-bargaining representative, said Union not
being currently certified as the representative of such
employees, and a petition under Section 9(c) of the
Act not having been filed within a reasonable period
of time from the commencement of such picketing.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business offices copies of the attached
notice marked "Appendix." 2 Copies of said notice to
be furnished by the Regional Director for Region 1,
after being signed by Respondent's authorized repre-
sentative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in such conspicuous
places. Reasonable steps shall be taken by Respon-
dent to insure that the said notices are not altered,
defaced, or covered by any other material.
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
193 NLRB No. 87
INTL. UNION OF OPERATING ENGINEERS, LOCAL 4
(b) Forthwith mail to the Regional Director for
Region 1, signed copies of said notices for posting by
Seaward Construction Company, Inc., if it so chooses,
in places where notices to its employees are normally
posted.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of
the Act not specifically found herein.
CHAIRMAN MILLER dissenting in part:
Although I agree with the majority in other respects,
I would reverse the Trial Examiner's failure to find
that the five Respondent Unions were engaged in a
joint venture in picketing the Seaward project. In my
opinion, the record establishes a degree of coopera-
tion between the Unions showing a concerted effort to
pressure Seaward into abandoning its "open shop"
policy.
The facts show that all five Unions are members of
the Fall River Building Trades Council. On several
occasions, representatives of several of the Unions
visited the jobsite together, to advance their recogni-
tional claims. On these occasions, statements were
made to Seaward indicating the Unions' objections to
Seaward's declared, overall nonunion policy. Indeed,
the record shows that Pineault of the Carpenters told
Seaward that not only his Union but other Locals
were unhappy and that Seaward "probably should
have met with the Fall River Building Trades
Council." In addition to the foregoing, the manner in
which the picketing was conducted also shows that
the grievance centered upon Seaward's overall non-
union policy, rather than the latter's failure to recognize
any single union with jurisdiction over a particular
craft. Thus the picketing was conducted successively,
with each Union commencing when its predecessor
ceased. The signs were the same, with each Union
merely changing the name thereon as it commenced
picketing. When picketing by a particular Union
ceased, the signs were stored at the Laborers' hall,
thereafter to be picked up by the next Union.
From the above facts, the Trial Examiner concluded
that the successive picketing was the result of an
"understanding" to which each of the Unions was a
party. Despite this "proven cooperation," as the Trial
Examiner termed it, he nonetheless concluded there
was insufficient evidence of a joint venture by the
Unions to hold each responsible for the others'
picketing. I cannot agree. Were we to countenance
such "relay" picketing, we would permit unions with a
common purpose effectively to evade the strictures of
Section 8(b)(7)(C). In this case, for example, five craft
Unions Respondent, all of whom were protesting
633
Seaward's nonunion status, would together be permit-
ted almost 5 months of picketing, which far exceeds
the statutory limit of 30 days. I would find that
Section 8(b)(7)(C) has been violated in this case.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket Seaward Construction
Company, Inc., for an object of forcing or
requiring said Employer to recognize or bargain
with our Union as the representative of its
employees, or to force or require the employees of
said Employer to accept or select our Union as
their collective-bargaining representative, as the
Union is not certified as the representative of such
employees and no petition was filed under Section
9(c) of the Act within a reasonable period of time
from the commencement of such picketing.
INTERNATIONAL UNION
OF OPERATING
ENGINEERS , LOCAL 4,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Seventh Floor, Bulfinch Building, 15 New
Chardon Street, Boston, Massachusetts 02114, Tele-
phone 617-223-3300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner: These consolidated
cases were heard in Fall River, Massachusetts, on May 20,
21, and July 8, 1970, pursuant to a consolidated complaint
issued on February 12, 1970.1 The complaint alleged, in
substance, that Respondent Unions violated Section
The charges were filed in behalf of Seaward Construction Company,
Inc , herein called Seaward, against each of the Respondent Unions as
follows I-CP-172 and 1-CP-173 against International Union of
Operating Engineers, Local 4, AFL-CIO, herein called Engineers , filed on
December 1, 1969, and served on December I and 2, 1969, 1-CP-174
against International Association of Bridge , Structural and Ornamental
(Continued)
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b)(7)(C) of the Act in that they jointly and in concert
engaged in so-called relay picketing for more than 30 days
at certain Seaward construction sites in Somerset , Massa-
chusetts, in order to force or require Seaward to recognize
and bargain with Respondent Unions jointly or severally,
and to hire members of Respondent Unions to displace
Seaward's nonunion employees at a time when none of the
Unions was certified as a collective-bargaining agent of any
of Seaward's employees and no petition for representation
was pending.
Respondent Unions, while admitting certain allegations
of the consolidated complaint, denied the commission of
any unfair labor practices and raised certain affirmative
defenses as discussed hereafter.
All parties appeared at the hearing and were given full
opportunity to be heard, to examine and cross -examine
witnesses , to introduce relevant evidence, and to argue
upon the facts and law. Briefs filed by certain of the parties
and the General Counsel have been carefully considered.
Upon the entire record and upon the demeanor of the
witnesses , I make the following:
FINDINGS AND CONCLUSIONS
1. SEAWARD' S BUSINESS
Seaward is a New Hampshire corporation with its
principal office and place of business in Portsmouth, New
Hampshire. In the course and conduct of its business as a
building contractor, it annually purchases and receives at
its New Hampshire location goods and materials valued in
excess of $50,000 from points located outside the State of
New Hampshire. It is admitted, and I find, that Seaward is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it would effectuate the purposes
of the Act to assert jurisdiction herein.
Ii. THE LABOR ORGANIZATIONS INVOLVED
It is admitted, and I find, that each of the Respondent
Unions is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Preliminary Findings
About October 15, 1969,2 Seaward commenced the
construction of two pumping stations in Somerset,
Massachusetts. On October 10, prior to the commencement
of actual work, Ernest Pineault, business representative of
Carpenters, visited the construction site and had a
conversation with Robert Grenier, Seaward's field supenn-
tendent . Pineault inquired where Seaward was going to get
his help, and Grenier said he was going to hire "open shop."
Pineault also inquired why Seaward was no longer paying
Iron Workers, Local 37, AFL-CIO, herein called Ironworkers, filed
December 10, 1969, and served on December 12, 1969, I-CP-178 against
United Brotherhood of Carpenters and Joiners of America, Local 1305,
AFL-CIO, herein called Carpenters, filed January 19, 1970, and served
January 20, 1970, I-CP- 180 against Laborers' International Union of
North America, Local 610, AFL-CIO, herein called Laborers, filed
January 21 , 1970, and served on January 23, 1970, and I-CP-181 against
International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
anything into the Carpenters health and welfare fund, and
Grenier replied because they were hiring "open shop and
we weren't hiring through the union." Pineault asked to
have a meeting with Seaward' s president , Dan Seaward,
and Grenier said that Pineault would have to talk through
him and Jerry London, Seaward's manager for this
particular project. Pineault , before departing, told Grenier
that 75 percent of Somerset was union and he would see the
town officials to get his men on. On October 14, Pineault,
accompanied by Manuel Mederios, again went to the
Seaward jobsite and met with Grenier with London in
attendance. Grenier informed the union representatives
that he would hire "open shop." When leaving, Mederios
said that he intended to get his share of the work legally. On
October 15, when actual work on the project began,
employees who had been hired were designated by various
classifications but were expected to fill in at whatever job
they were qualified and needed at any particular time.
According to Grenier, no employee received less money
when working in a lower paid classification than that for
which he was hired.
B. The Picketing
On November 19, Teamsters picketed Seaward's jobsite
with signs reading, "Teamsters Local #526 Asks Seaward
Constr. Co., Inc. Please Maintain the Best Union Area
Standards." On November 24, 25, 26, 29, and December 1,
Engineers picketed with signs reading, "Local #4 I.U.O.E.
asks Seaward Constr. Co. Inc. Maintain The Best Union
Area Standards." Seaward's attorney sent Respondent
Engineers a telegram dated November 25, stating that the
picketing was illegal and that a lawsuit and charges would
be filed unless the pickets were removed.3 Walter J. Ryan,
business manager of Engineers, replied on November 25
that the picketing was to inform the public that Seaward
was not meeting area standards.4 However, after learning
that charges were filed on December 1, the Engineers
ceased picketing. Teamsters resumed picketing on Decem-
ber 2 and continued picketing on December 3 and 4. Joseph
Costa, business agent of Teamsters Local 526, testified that
the picketing conducted by the Teamsters was solely on
behalf of the Teamsters, and that after the Teamsters
pickets were removed on December 4, the Teamsters had
nothing to do with any picketing at the jobsite by other
unions or with any strike that thereafter may have been
conducted against Seaward. As this testimony stands
uncontradicted on the record, and Costa's demeanor
favorably impressed the undersigned, I credit the above
testimony. I find, as Costa testified, that Teamster picketing
ceased as a result of a communication received from
Seaward's attorney which threatened a lawsuit.5 On the
other hand, Costa's testimony that there was no arrange-
ment with Carpenters and Laborers in regard to picketing is
not credited for the reasons discussed below.
Helpers of America, Local 526, herein called Teamsters, filed on February
5, 1970, and served on February 6, 1970.
2 All dates hereafter refer to the year 1969 unless otherwise specified
CP Exh 2
CP Exh 3
5 GC Exh 4 General Counsel in his brief agrees Teamsters ceased
picketing as a result of this telegram.
INTL. UNION OF OPERATING ENGINEERS, LOCAL 4
On December 4, Pineault, Manuel Mederios, business
representative of Laborers, Martin Byrne, business repre-
sentative of Iron Workers, and a fourth unidentified
individual rode together to the Seaward jobsite in an
Ironworker automobiles According to Grenier's credited
testimony, Byrne asked if any of Grenier's employees were
union , and Grenier replied that he did not know. Byrne
then asked if any of Seaward'sjobs were union and Greiner
again said he did not know. Byrne then got into the
automobile with the fourth unidentified individual and said
that he was going to get tough from now on. Mederios and
Pineault remained , and Mederios asked if Grenier was
hiring any laborers. Grenier said "yes," and Mederios said
he would send some over.? Grenier testified that Seaward's
employees on the jobsite at Somerset were former
employees from Seaward's jobs at New Hampshire and
New Bedford, as well as applicants at thejobsite and those
sent by the State employment service.
On Monday, December 8, Iron Workers commenced
picketing. Byrne testified that he called the "Laborers
Hall"8 and personally picked out picket signs previously
used by Teamsters. Byrne changed the signs, however, by
placing "Iron Workers Local #37" over the Teamsters
name and adding at the bottom of the sign the words "This
is not a strike ." Iron Workers picketed on December 8, 10,
and 12. It rained on December 9 and 11, and as a
consequence there was no work at the project site. On
December 12, Byrne received a telegram from Seaward's
attorney stating that the picketing was in violation of the
law and Byrne removed the pickets. Byrne testified that he
spoke to one unidentified ironworker on thejobsite prior to
the picketing, and that this led him to believe Seaward was
not paying prevailing wage rates. However, when Byrne
received the telegram which threatened that charges would
be preferred, he changed his mind and withdrew the
pickets.
Byrne returned the picket signs to the labor temple where,
on December 15, Respondent Carpenters appropriated
them. Pineault placed the words "Carpenters Local 1305"
over "Teamsters Local 526" and removed the words, "This
is not a strike" from the lower part of the sign . Pineault
testified that he visited Seaward's jobsite on December 15
and noticed that there were no pickets. Pineault also
testified that prior to picketing he had learned from several
members of the Carpenters Union that Seaward was paying
the Carpenters wage rate to only one of the men doing
carpenter work. Although he received the information
concerning the wage rates being paid by Seaward to
carpenters 2 weeks to a month prior to December 15, he did
not picket until December 15 because, "There was no
picket line there [on December 151 so I felt that I should
pick the ball up and I put a couple of men there." Asked if
he discussed his picketing with officials of other unions,
Pineault said that he did it on his own and there was no
consultation with the Iron Workers. Pineault conceded that
in a telephone conversation with London the day after
6 Pmeault testified that he often rode to the Seaward jobsite in company
with other union representatives
7 Asked whether Mederios did send any men, Grenier testified "He
could have , they did not identify themselves."
8 Apparently the labor temple where several labor organizations have
their offices.
635
Carpenters commenced picketing, he told London that not
only his union, but other locals, were unhappy and that
London "probably should have met with the Fall River
Building Trades Council."9 Pineault also said that he had
men out of work and wanted Seaward to use them on the
project. On December 19, after receiving the now standard
communication from Seaward's attorney threatening to file
charges and a lawsuit, Pineault withdrew the pickets and
returned the picket signs to the labor hall.
On Monday, December 22, Respondent Laborers began
picketing. The same signs were used with the name
"Laborers' Union Local 510" substituted. Picketing by
Respondent Laborers continued on December 23, 24, and
29. On December 29, this picketing ceased upon the receipt
of a threat to file charges forwarded by Seaward's attorney.
Thereafter, Respondent Operating Engineers picketed with
the original signs on January 2, 3, 8, and 12, 1970. Since
January 12, 1970, there has been no picketing.
C. Analysis and Conclusions
Contrary to the contentions of Respondents, I find that
the picketing by each of Respondent Unions had a
recognitional objective. I also find that the union officials
discussed the Seaward situation among themselves and
decided that no two Unions should picket at any one time.
Any other conclusion from the evidence would lead to the
absurd premise that each Union, without communicating
with one another, independently observed the jobsite and
decided to picket at that particular time because no other
union was picketing, and that the resulting picketing by one
Union after another was a happenstance. I am not prepared
to be so unrealistic; rather, I believe, that the pattern of
successive picketing occurred as a result of an understand-
ing to which each of Respondent Unions was a party. It is
admitted that the various union officials traveled together
to the jobsite on numerous occasions, used the same picket
signs and avoided picketing on the same days. It is fair to
infer that when they rode together to the jobsite, they
discussed their problems with Seaward including picketing.
The flimsy evidence upon which the Unions relied to justify
their conclusion that Seaward was not paying prevailing
wage rates reveals the stated objectives carried by the
legends on the picket signs and the purposes announced by
the union officials as subterfuges designed to disguise the
real objectives of the picketing.
It follows as a matter of course that the decision by
Seaward to operate on a nonunion basis was a matter of
genuine concern to all Respondents. The question,
therefore, arises whether the proven cooperation between
the Respondent Unions establishes a joint course of action
to accomplish a common purpose. 10
The General Counsel argues in his brief that the evidence,
when considered in its entirety, shows that the picketing by
the various unions from November 19 to January 12, 1970,
demonstrates that they were acting in concert. Pursuing this
9 It was stipulated that the Fall River Building Trades Council consists
of 15 locals, including Respondent Teamsters ; that no unfair labor practice
charges were pending against the Council, and that the Council is not a
respondent in the instant case
10 Cf. Seattle District Council of Carpenters , et al (Cisco Construction
Company), 114 NLRB 27
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argument , the General Counsel asserts that if this
conclusion is not reached , it would be possible for a union
to picket for 29 days, after which another union with a
similar recognitional objective could commence picketing
without violating the law ; and because of the fragmented
representation pattern in the construction industry , picket-
ing in this manner could continue for many months without
violation.
The Charging Party in its brief takes a position similar to
the General Counsel , and urges the issuance of an order
applicable not only to the named Respondent Unions, but
also to the Fall River Building Trades Council and to each
of its members. In advancing this request , the Charging
Party relies on Pineault 's statement to London that the
Council was concerned with the situation.
The joint brief submitted in behalf of the Engineers,
Carpenters , and Laborers cites Suffolk County District
Council of Carpenters, Island Coal and Lumber Corp., i i as
standing for the proposition that where two unions picket
simultaneously at a jobsite , each union is responsible for
the conduct of the other unless it specifically disavows the
conduct in question . The argument, based on this premise,
is then made that it is therefore a prudent course for several
unions having a dispute with an employer to avoid
picketing together , but to picket at different times. The
Respondents charge that the term "relay" picketing applied
to the successive picketing by each of the Respondent
Unions is a phrase newly coined by the General Counsel.
To further refute the contention that the Unions were
acting in concert , Respondents ' joint brief relies on Building
and Construction Trades Council of Tampa 12 The joint brief
also argues that Respondents do not execute joint
agreements, that each of the Unions had a dispute with
Seaward ; and that there is nothing to suggest that any
Respondent would have continued its picketing had a
satisfactory agreement been reached with it alone. That
there was no joint venture is further shown by the absence
of the joint use of pickets 13 and by the Board 's holding in
Local 1140, Hod Carriers, 14 where the Trial Examiner, in an
opinion adopted by the Board , said , " In my opinion, the
fact that two separate labor organizations , which have
found their respective standards being jeopardized by the
same employer which had just previously been following
their higher standards, direct their activities toward like
objectives , namely, the protection of those standards
through signed contracts does not constitute a joint
venture , at least not in the sense that the representatives of
one organization become the agents of the other."
In my view , the facts in this case , including the
permissible inferences , do not warrant a conclusion that
Respondent Unions engaged in anoint venture which made
the agent of one union the agent of the other unions or that
the unions engaged in concerted activity to achieve a
common purpose
I have found above that each of the Respondent Unions
did picket with an object of obtaining recognition and an
agreement covering those employees of Seaward who fell
11 387 F 2d 170, enforcing 159 NLRB 895
12 132 NLRB 1564, 1584
13 Suffolk District Council of Carpenters, supra , may be distinguished on
this ground
14 134 NLRB 722, 732, 733
within their respective jurisdictions. The General Counsel's
reliance on the evidence hitherto discussed to establish a
theory of j oint venture is misplaced as it falls far short of
the necessary proof . While the evidence before me shows
that there was an understanding between the Unions for the
successive picketing of the Seaward projects , the coordina-
tion thereafter between the Unions was minimal consisting
of travel to the project by union officials in one automobile.
Although the same picket signs were used , each union
carefully identified itself on the picket sign.
The Ninth Circuit Court in Colson and Stevens 15 said:
"The test of joint action in this respect is not whether
common objectives are sought , but whether the picketing
itself wasjoint, and the result of a joint campaign."
Pineault's statement that all Fall River Labor Council
members were concerned merely articulates a well-estab-
lished fact of the construction industry to the effect that all
building trades unions are sensitive to nonunion contrac-
tors. It is too far fetched to conclude from this chance
remark that Pineault was speaking for or that he had
authority to speak for any other member of the Council or
the Council itself.
Trial Examiner Herbert Silberman , in his decision in
Westra Construction Inc., 16 envisioned a situation where, as
here , unions would enter into an arrangement for
successive picketing and stated:
However , even if true , such cooperation between the
two unions to achieve their similar but separate
objectives do not constitute them joint adventurers or
agents of each other.
As I am in complete agreement, my findings that the
Unions did enter into an arrangement for successive
picketing does not thereby constitute the Unions as joint
adventurers or agents of one another . Illustrative of the
separate purposes of the picketing are the occurrences of
December 4 when Byrne drove three other business
representatives to the construction site and conferred with
Grenier . Byrne departed in his automobile after having
some words with Grenier saying that he was going to get
tough from now on . Medenos and Pineault on the other
hand remained and continued to talk to Gremer seeking
employment of their members. In my opinion, this incident
demonstrates the fact that the Unions were each acting in
their separate interests rather than for the combined
interests of all.
Respondent Unions, particularly the Engineers and
Ironworkers, have pleaded as an additional affirmative
defense prior recognition by Seaward , arguing that the
factor would make the picketing in the instant case
permissible under the Act because it would not be picketing
for initial recognition . To support this contention, Respon-
dents place principal reliance on Sullivan Electric
Company,17 where the Board held that Section 8(b)(7)(C)
was not to be literally applied so as to reach picketing by a
recognized union to secure compliance with an existing
contract, since the Section was "intended to proscribe
picketing having as its target forcing or requiring an
15 Construction, Production & Maintenance Laborers Union Local 383,
(Colson and Stevens), 137 NLRB 1650, affd 323 F 2d 422 (C.A 9)
16 175 NLRB No 147
17 Building and Construction Trades Council of Santa Barbara County,
AFL-CIO, et at (Sullivan Electric Company), 146 NLRB 1086.
INTL. UNION OF OPERATING ENGINEERS, LOCAL 4 637
employer' s initial acceptance of the Union as the bargain-
ing representative of his employees." The evidence shows
that the Ironworkers' prior agreement with Seaward and
the Engineers ' pnor agreement with Seaward expired
approximately 16 months before the picketing began at
Somerset . Whether or not under these circumstances
Respondents have a valid defense on this ground seems
dubious since the holding in Sullivan Electric Company
would seem to indicate that a current agreement would be
the minimum requirement.
With regard to the affirmative defense pleaded by some
of the Respondent Unions with regard to hiring local
residents in violation of Massachusetts' law, the evidence
on that question was sketchy and unpersuasive. According-
ly, I find insufficient evidence in support of this defense.
For the reasons stated above, the picketing in issue here
has not violated Section 8(b)(7)(C), and I shall, therefore,
recommend dismissal of the complaint.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. Seaward Construction Company, Inc., is and has
been at all material times herein an employer within the
meaning of Section 2 (2) of the Act and engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Union of Operating Engineers, Local 4,
AFL-CIO; International Association of Bridge, Structural
and Ornamental Iron Workers, Local 37, AFL-CIO;
United Brotherhood of Carpenters and Joiners of Amenca,
Local 1305, AFL-CIO; Laborers' International Union of
North America, Local 610, AFL-CIO and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 526, respectively are, and
have been at all times matenal herein, labor organizations
within the meaning of Section 2(5) of the Act.
3. By picketing the construction project of Seaward
Construction Company, Inc., as found above, the Respon-
dent Unions have not violated Section 8(b)(7)(C) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law , and the entire record in this proceeding,
I recommend that the National Labor Relations Board
enter an order dismissing the consolidated complaint.