Local 429, Int'l Brotherhood of Electrical, Etc.

National Labor Relations Board - Board Decisions

Sep 7, 1962

138 N.L.R.B. 460 (N.L.R.B. 1962)

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
graphic production employees,5 we shall include him in the unit found
appropriate herein.
Accordingly, we find that the following-,employees at the Employer's
Grand Rapids, Michigan, printing plant constitute an appropriate
unit for the purposes of collective bargaining within the meaning of
Section 9 (c) of the Act :
All journeymen lithographic pressmen and letterpressmen, assist-
ant pressmen, and apprentices, and all employees performing work in
connection with offset platemaking including camera operation, dark-
room work, stripping, layout, opaquing, and platemaking; but exclud-
ing composing room employees, bindery room employees, shipping and
receiving employees, office clerical employees, janitors, guards, and
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
6 See-Printfng Indwatry of Delaware, supra.
Local Union 429, International Brotherhood of Electrical Work-
ers, AFL-CIO ( Sam M. Melson d/b/a Sam Melson , General
Contractor ) and Wilson Sims. Case No. 26-CP-2 (formerly
Case No. 10-CP-7). September 7, 1962
DECISION AND ORDER
On July 12, 1960, Trial Examiner John P. von Rohr issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and briefs in support
thereof.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following exceptions, addi-
tions, and modifications.
The pertinent facts, as set forth more fully in the Intermediate
Report, are as follows: Sam Melson, the Employer herein, is a general
contractor engaged in the construction of a school near Nashville,
Tennessee. On March 16, 1960, without any prior communication with
Melson or his employees, the Respondent, Local 429, which is not the
138 NLRB No. 57.
LOCAL 429, INT'L BROTHERHOOD OF ELECTRICAL, ETC . 461
certified representative of Melson's employees, began to picket Melson
at the school site. This picketing continued for more than 30 days
without a representation petition under Section 9 (c) of the Act having
been filed. The legend on the picket signs stated, "Mellon Construc-
tion Co. does not employ members of or have a contract with Local
Union 429, I.B.E.W." 1. Various employees of subcontractors of Mel-
son ceased work at the site because of the picket line. Employees of
employers other than Melson refused to make deliveries to Melson
also because of the presence of the picket. Apart from the foregoing,
at no time did Local 429 ask Melson to recognize it or to bargain with
it, and Local 429 at no time attempted to organize Melson's employees.
Relying mainly on that portion of the picket sign stating that
"Melson Construction Company does not employ members or have
a contract with Local 429, I.B.E.W.," the Trial Examiner concluded
that the object of the picketing was to force and require Melson to
bargain with Local 429 for the purpose of negotiating a contract; and,
as the picketing took place for more than 30 days, "at a time when
Local 429 did not represent a majority of Melson's employees," with-
out a petition being filed, the Trial Examiner found that the picketing
violated Section 8(b) (7) (C). The Trial Examiner further found
that, assuming that the picketing was "informational," 2 it nevertheless
violated Section 8(b) (7) (C), as it had the effect described in the
second proviso to Section 8(b) (7) (C).1
1. We find, in agreement with the Trial Examiner, that Local 429's
picketing was for an object of forcing or requiring Melson to recognize
and bargain with Local 429. We further find that the picketing was
for an object of organizing Melson's employees. Local 429 contends
that its picketing was neither for a recognitional nor an organizational
1 There is no contention that this sign was untruthful.
2 By "informational " picketing we understand the Trial Examiner to mean picketing of
the type described in the second proviso to Section 8(b) (7) (C ) which has a recognitional
or organizational object.
B This effect is hereinafter referred to as the proviso effect . Section 8(b) (7) provides:
It shall be an unfair labor practice for a labor organization or its agents . . . 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 representative , unless such labor organization is cur-
rently certified as the representative of such employees : . . . ( C) where such picket-
ing has been conducted without a petition under section 9(c) being filed within a
reasonable period of time not to exceed thirty days from the commencement of such
picketing : Provided, That when such a petition has been filed the Board shall forth-
with, without regard to the provisions of section 9(c) (1) or the absence of a showing
of a substantial interest on the part of the labor organization , direct an election in
such unit as the Board finds to be appropriate and shall certify the results thereof:
Provided further, That nothing in this subparagraph ( C) shall be construed to pro-
hibit any picketing or other publicity for the purpose of truthfully advising the
public ( including consumers ) 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 individual 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.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
object but for the sole purpose of protecting the prevailing union wage
scale and working conditions, and therefore such picketing was out-
side the proscriptive scope of Section 8(a) (7). We find no merit in
this contention. As noted, Local 429 picketed with a sign stating that
Melson did not employ Local 429 members and did not have a contract
with Local 429. We have held that a statement on a picket sign that
an employer does not employ members of a labor organization clearly
imports an object of organization, and that a statement on a picket
sign that an employer does not have a contract with a labor organiza-
tion clearly implies a recognitional and bargaining object 4 We ac-
cordingly find that the picketing by Local 429 was for proscribed ob-
jects of recognition and organization.
2. We also find, in agreement with the Trial Examiner, that Local
429's picketing violated Section 8(b) (7) (C). However, we do so
for the following reasons : As we have already noted, the Trial Ex-
aminer reasoned, in part, that, since Local 429's picketing was for a
recognitional object, it was unlawful without regard to its effect. The
Trial Examiner apparently construed the second proviso to Section
8(b) (7) (C) as offering no protection to picketing which has an ob-
ject of recognition or organization. We believe the Trial Examiner
misconstrued the scope of the second proviso. Since Section 8 (b) (7),
by its terms, applies only to organizational and recognitional picket-
ing,' under the view of the Trial Examiner, there would be no type
of picketing within the ambit of Section 8 (b) (7) for which the protec-
tion of the proviso would be available. Thus, the Trial Examiner's
construction of Section 8 (b) (7) would, in effect, nullify the protec-
tion which the proviso was intended to afford to the type of picketing
described therein. We reject the Trial Examiner's construction.
The Board has held that Section 8(b) (7), including subparagraph
(C) of Section 8(b) (7), prohibits picketing for a recognitional or
organizational object, and that the second proviso to Section
8(b) (7) (C) carves out an exception from that prohibition and per-
mits picketing which, although having an object of recognition or or-
ganization, meets the two conditions stated in the proviso, namely, (1)
that "the purpose" of the picketing is to truthfully advise the public
that an employer does not employ members of or have a contract with
a labor organization, and (2) that the picketing does not have the
proviso effect.'
'Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders, etc
(Leonard Smitley, et at. d/b /a Crown Cafeteria ), 135 NLRB 1183 (Members Rodgers and
Leedom dissenting, on other grounds ) ; see, also, Local , 130, Brotherhood of Painters,
Decorators and Paperhangers of America , AFL-CIO (Joiner Inc.), 135 NLRB 876.
5 See International Hod Carriers ' Building and Common Laborers ' Union of America,
Local 8 40, AFL-CIO (Charles A. Blinne, d /b/a C. A . Blinne Construction Company),
135 NLRB 1153.
Crown Cafeteria, 130 NLRB 570 , 575, dissenting opinion adopted in Crown Cafeteria,
135 NLRB 1183.
LOCAL 429, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 463
Applying these principles to the instant case, we find initially that
Local 429's picketing, although for a recognitional and organizational
object, was for "the purpose" of advising the public that Melson did
not employ members of Local 429 and did not have a contract with
Local 429, and, therefore, that such picketing fell within the ambit
of the second proviso. We rely particularly on the fact that Local
429 picketed Melson with signs substantially embodying the language
of the second proviso and that Local 429 took no other action indicat-
ing that the purpose of its picketing was not to inform the public that
Melson did not employ members of or have a contract with Local 429.'
As Local 429's picketing was within the ambit of the second proviso
to 8 (b) (7) (C), the sole remaining. question is whether such picketing
was accompanied by the proviso effect. In this connection, we note
that Local 429's picketing at the construction site continued for ap-
proximately 6 weeks (March 16 to April 29), and that as a result of
the picketing, employees of Englert Engineering Co. and Pittsburgh
Plate Glass Co., subcontractors doing structural steel work and glazier
work, respectively, each refused for periods of 3 weeks to cross the
picket line at the site and perform their services.'
In view of the foregoing evidence, it is clear that the Respondent's
picketing delayed the completion of various jobs at the construction
site and thereby disrupted and interfered with the contractor's busi-
ness operations. Accordingly, we find that the picketing did have a
sufficient impact to constitute an effect within the meaning of Section
8(b) (7) (C).' Therefore, we conclude that the picketing violated
Section 8(b) (7) (C).'°
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Local Union 429,
International Brotherhood of Electrical Workers, AFL-CIO, its of-
ficers, agents, representatives, successors , and assigns, shall:
7 Crown Cafeteria, 130 NLRB 570 , 577, dissenting opinion adopted in Crown Cafeteria,
135 NLRB 1183.
9In addition, employees ( motor crane drivers and operators ) of McCord Transfer Co.
likewise refused to cross the picket line to perform certain crane services requested by
Melson , and truckdrivers of T. L. Herbert & Sons , a company 'from whom Melson pur-
chases brick , sand, and concrete accessories needed for construction project, refused to
make deliveries at the site , thereby forcing Herbert to use its sales personnel to make
the deliveries . Finally, there were two refusals by employees of other employers to make
deliveries.
9 Retail Clerks Union Local 334 and Retail Clerks Union Local 770, both affiliated with
Retail Clerks International Association, AFL-CIO ( Barker Bros. Corp . and Gold's, Inc.),
138 NLRB 478, a companion case issued today
1s In making this finding , we, of course , also rely on the fact that the picketing was
engaged in by an uncertified union and continued for more than 30 days without a petition
under Section 9(c) being filed . We reject the suggestion implicit In the Intermediate
Report that picketing by a majority union Is not proscribed by Section 8(b) (7). Chefs,
Cooks, Pastry Cooks and Assistants , Local 89, etc. ( Stork Restaurant , Inc ), 130 NLRB
5'43, 547, 135 NLRB 1173, footnote 2.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from picketing, or causing to be picketed, or
threatening to picket or cause to be picketed, Sam M. Melson
d/b/a Sam Melson, General Contractor, under conditions prohibited
by Section 8(b) (7) of the Act, where an object thereof is forcing or
requiring such employer to recognize or bargain with it as the bargain-
ing representative of his employees, or forcing or requiring the
employees of the aforesaid employer to accept or select the Respond-
ent as their collective-bargaining representative.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the Respondent's business offices,
meeting' halls, and all places where notices to its members are custom-
arily posted, copies of the notice attached hereto marked "Appen-
dix." 11 Copies of said notice, to be furnished by the Regional Direc-
tor for the Twenty-sixth Region, shall, after being duly signed by
official representatives of the Respondent, be posted by the Respond-
ent immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for the Twenty-sixth Region
signed copies of the aforementioned notice for posting by Sam M.
Melson d/b/a Sam Melson, General Contractor, the employer willing,
in places where notices to employees are customarily posted. Copies
of said notice, to be furnished by the Regional Director for the
Twenty-sixth Region, shall, after being signed by the Respondent, as
indicated, be forthwith returned to the Regional Director for disposi-
tion by him.
(c) Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBERS RODGERS and LEEDOM, concurring :
We agree with the majority that Local 429's picketing of Melson
violated Section 8(b) (7) (C).
Like the majority, we find'that Local 429's picketing, although for
a recognitional and organization object, was, in view of the specific
factual situation herein, for "the purpose" of advising the public
that Melson did not employ members of Local 429 and did not have
a contract with Local 429.12 Therefore, such picketing fell within
the ambit of the second proviso.
"In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
12
While in Croadn Cafeteria, 130 NLRB 570, 575, 135 NLRB 1183 , we would have found
that the picketing by the respondent union with signs stating that the employer was
nonunion was not within the protection of the second proviso, in our view that case is
LOCAL 429, INT'L BROTHERHOOD OF ELECTRICAL, ETC . 465
Also, like the majority, we find the picketing unlawful because it
was accompanied by the proviso effect. However, unlike the majority,
in finding that the picketing had the proviso effect, we deem it un-
necessary to make findings relating to the sufficiency of the impact
of the work stoppages and disruptions of deliveries on the operations
of Melson. In our view, as stated fully in our dissent in Retail Clerks
Union Local 324 and Retail Clerks Union Local 770, both affiliated
with Retail Clerks International Association, AFL-CIO (Barker
Bros. Corp. and Gold's, Inc.)," "any" work stoppage or disruption of
deliveries is sufficient to constitute "an effect" within the meaning of
the second proviso to Section 8 (b) (7) (C).
distinguishable from the instant case, because there, unlike here, aside from the picketing,
the respondent union made demands for recognition upon the employer , thus making it
clear that the picketing was not for "the purpose" stated in the second proviso.
la 138 NLRB 478, a companion case issued today.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL UNION 429, INTERNATIONAL BROTH-
ERHOOD OF ELECTRICAL WORKERS, AFL-CIO, AND TO ALL EMPLOYEES
OF SAM M. MELSON d/b/a SAM MELSON, GENERAL CONTRACTOR
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT, under conditions prohibited by Section 8(b) (7)
of the Act, picket or cause to be picketed, or threaten to picket
or cause to be picketed, Sam M. Melson d/b/a Sam Melson, Gen-
eral Contractor, where an object thereof is to force or require the
aforesaid Sam Melson to recognize or bargain with us as the
representative of his employees, or to force or require the em-
ployees of the aforesaid Sam Melson to accept or select us as their
collective-bargaining representative.
LOCAL UNION 429, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board's Regional
Office, 714 Falls Building, 22 North Front Street, Memphis, Tennessee,
Telephone Number, Jackson 7-5451, if they have any question con-
cerning this notice or compliance with its provisions.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed , the General Counsel of the National Labor Relations
Board , for the Regional Director of the Tenth Region ( Atlanta, Georgia ), issued
a complaint against Local Union 429, International Brotherhood of Electrical
Workers, AFL-CIO, herein called the Respondent or the Union , alleging that the
Respondent had engaged in certain unfair labor practices within the meaning of
Section 8(b) (7) (C) of the National Labor Relations Act, as amended. The
Respondent duly filed an answer in which it denied the commission of any unfair
labor practices.
Pursuant to notice , a hearing was held at Nashville, Tennessee , on May 10, 1960,
before Trial Examiner John P . von Rohr. All parties were represented by counsel
and were afforded full opportunity to adduce evidence, to examine and cross -examine
witnesses , to present oral argument , and to file briefs. The parties waived oral
argument . Subsequent to the close of the hearing the Respondent and the General
Counsel filed briefs, both of which have been carefully considered. Upon the entire
record and from my observation of the witnesses, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY INVOLVED
Sam M . Melson is an individual proprietor doing business as Sam Melson,
General Contractor, and is hereinafter referred to as Melson or the Employer. The
Employer has his principal office and place of business in Shelbyville, Tennessee,
where it is engaged in the building and construction industry as a general contractor.
The employer annually purchases supplies valued in excess of $50,000 from suppliers
located outside the State of Tennessee.
I find that Melson is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 429, International Brotherhood of Electrical Workers, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
Sam Melson is a general contractor who is engaged in various building and
construction projects in the general area of middle Tennessee , including the metro-
politan area of Nashville, Tennessee. His headquarters are located in Shelbyville,
Tennessee, and approximately four or five employees are permanently located at
that site. In addition he maintains a work force of approximately 75 employees
on his various field projects, these employees including electrical workers, car-
penters, brickmasons, plumbers, heating men, and laborers. None of the employees
are organized and Melson does not recognize any labor organization as the collective-
bargaining representative for any of his employees.
The dispute here involves the construction of a Davidson County school located
in Donelson, Tennessee, off McGavock Pike. (Donelson is a part of the greater
metropolitan area of Nashville.)
The principal facts of the case were submitted to the Trial Examiner at the hear-
ing in the form of a written stipulation executed by the General Counsel, the
Charging Party, the Respondent Union, and the Employer. Those facts, as stipu-
lated, are hereby adopted by the Trial Examiner. To dispel any possible misinter-
pretation of the facts as stipulated to by the parties, the pertinent portion of the
stipulation is set forth verbatim as follows:
1. Respondent began picketing Melson at its McGavock Pike school con-
struction site at about 9 a.m. (CST) on March 16, 1960, and did not file a peti-
tion under Section 9(c) of the Act within 30 days from the commencement of
such picketing, and has not at any time thereafter filed such a petition with
reference to any employees of Melson.
2. Such picketing continued after its commencement until April 29, 1960,
when picketing was discontinued pursuant to a Stipulation and Order Con-
tinuing Case on Docket entered into by Respondent and counsel for the General
Counsel of the National Labor Relations Board in lieu of a Section 10(1) in-
junction proceeding before the United States District Court for the Middle
District of Tennessee, Nashville Division, Civil Action No. 2880, providing in
LOCAL 429, INT'L BROTHERHOOD OF ELECTRICAL, ETC . 467
substance the cessation of such picketing pending a determination on the merits
of the case herein by the National Labor Relations Board.
3. Respondent caused such picketing and employed its picketing agent to
carry a placard on which was printed the following:
Melson Construction Co. does not employ members of or have a Contract
with Local Union 429 I B.E.W. (W. D. Robinson) LU 456.
4. Melson subcontracts the structural steel work at its construction site to
Englert Engineering Company. Englert Engineering Company employed five
or six ironworkers and two (2) operating engineers on March 16, 1960, at
the construction site to perform work pursuant to the terms of its subcontract.
5. On March 16, 1960, at about 11:00 a.m. (CST), the employees of Eng-
lert, described above, left the construction site without completing assigned
work. These employees admittedly stopped work because of the presence of
the picketing agent. The employees of Englert thereafter returned to work
at the construction site on April 7, 1960.
6. Melson subcontracts the glass and glazier work at the construction site
to Pittsburgh Plate Glass Co. Pursuant to the terms of this subcontract, Pitts-
burgh Plate Glass Co. employed three (3) glaziers to perform work at the
construction site on April 19, 1960. The picketing agent was not at the site
in the morning of April 19, 1960, but returned to his post at the entrance to
the site at about 2 p.m. (CST). At about 2:30 p.m. (CST), the glaziers left
the construction site without completing assigned work for the stated reason
that they could not work behind the picket line. The glaziers employed by
Pittsburgh Plate Glass Co. thereafter returned to work on May 5, 1960.
7. Melson used the services of a motor crane driver and a motor crane oper-
ator, employees of the McCord Transfer Co., at the construction site. McCord
also furnished a motor crane upon request by Melson. On or about March 30,
1960, Melson requested crane service from Mr. Ramsey, general superintendent
of McCord Transfer Co. pursuant to custom and practice. Ramsey informed
Melson that the employees of McCord would not cross the picket line to
perform services. Motor crane service and motor crane drivers and operators
were not therefore furnished to Melson. Melson has not since received crane
service from McCord though additional requests for such service have not been
made.
8. Melson purchases brick, sand, and concrete accessories from T. L. Herbert
& Sons for use in the construction project at the construction site. On or about
March 19, 1960, and March 22, 1960, Melson requested delivery of certain
building supplies from such Company. On each of the above-described oc-
casions, the driver, employed by T. L. Herbert & Sons was duly dispatched but
upon arrival at the construction site refused to make the delivery behind the
picket line. However, sales employees of T. L. Herbert & Sons subsequently
made the requested deliveries in a company owned station wagon.
9. Melson receives supplies and equipment at its construction site from
various trucking concerns, among which are: Hoover Motor Express Company,
Inc., Super Service Motor Freight Co., Inc., and Dixie-Ohio Express, inc.
10. On or about March 18, and March 30, 1960, a driver employed by
Dixie-Ohio Express, Inc., though assigned and dispatched to deliver goods to
Melson, refused to cross the picket line to deliver such goods.
11. On or about March 30, 1960, a driver employed by Hoover Motor Ex-
press Co., Inc., though assigned and dispatched to deliver goods to Melson,
refused to cross the picket line to deliver such goods.
In addition to the foregoing, C. M. Lampley, business manager of the Respondent,
testified that Respondent did not seek to represent the employees of Melson and
that the Respondent was not "asking" any of his employees to join the Respondent
Union. Further, it is undisputed, and I find, that at no time did any representative
of the Respondent request Melson to recognize the Respondent or bargain with it
as the representative of Melson's employees.
B. Contentions and conclusions
The principal question to be determined here is whether an object of Respondent's
picketing the employer's Donelson school site was for an object proscribed by Section
8(b) (7), for the facts described above reveal ,that other conditions existed under
which such picketing would be proscribed by the statute, i.e., (1) Respondent was
not currently certified as the representative of Melson's employees and (2) such
picketing was conducted without a petition being filed within 30 days from the com-
mencement of such picketing.
662353-63-vol. 138-31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turning now to the proscribed objective, Section 8(b)(7) prohibits picketing
under the foregoing circumstances i "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 representative. .
The crux of the Respondent's defense is that the picketing in this case was for neither
recognitional nor organizational objectives, but that the purpose and object of such
picketing was "merely to advise the public of the presence of non-union conditions
in the community." 2 The General Counsel, on the other hand, urges that "an illegal
object within the meaning of Section 8(b)(7) existed."
As noted heretofore, it is undisputed that the Respondent Union at no time re-
quested the employer to recognize the Respondent or bargain with the Respondent as
the representative of his employees. As has been also seen, business manager C. M.
Lampley in effect disclaimed any intention or purpose of the Respondent to organize
Melson's employees.
Let us now examine the reasons given or asserted by the Respondent for the picket-
ing. First, explicitly indicative of the Respondent's objective in the instant case is the
very legend appearing on the picket placards. This legend, it will be recalled, reads:
"Melson Construction Co. does not employ members of or have a Contract with
Local Union 429 I.B.E.W. (W. D. Robinson) LU 456.113 Secondly, there is testi-
mony on the subject, such testimony being elicited only from business manager
Lampley. Lampley's testimony concerning the object of the picketing is in con-
formity with the language appearing on the signs. Thus, when testifying concerning
a conversation he had with one Joseph M. Halliburton, Sr., a foreman of another
employer, Lampley testified, "I told Mr. Halliburton that Local 429 was picketing
the construction site because they [Melson] did not employ members of the I.B.E.W."
At another point Lampley testified, "We put the picket sign up for exactly what the
words said on the picket." Thirdly, we turn to the reasons asserted by Respondent's
counsel as to the object or the purpose for the picketing. While not disagreeing
with what has thus far been said, counsel for the Respondent asserted in his open-
ing statement and in his brief that the picketing took place for an added and
what I construe to be a somewhat different reason, viz, to advertise to the public
that Melson, as a nonunion contractor, "pays a low wage that ultimately affects the
living standards, the working conditions, the rates of pay, of members of Local 429."
Further, to advertise "that the bringing in of nonunion substandard working condi-
tions in this area affect the living standards of members of Local 429."
I cannot subscribe to the latter assertion. Whatever information was imparted
to the public necessarily was limited to the exact message imprinted on the picket
sign.4 That inscription made no reference whatsoever to the fact that Melson
allegedly paid low wages or that there existed nonunion substandard working condi-
tions which affected the living standards of Local 429 members. Furthermore, and
upon consideration of all the evidence, I am constrained to find that the latter asser-
tion by the Respondent as to the object of the picketing can be regarded only as an
afterthought. Thus, in his opening statement on behalf of the Respondent, counsel
stated that "Melson pays its electrician, or people purporting to perform electrical
work, a wage somewhere from $1.00 to $1.50 an hour; those contractors that have a
contract with Local 429 pay $3.42 per hour, plus-for journeymen electricians-
10 per cent for health and welfare benefits." The unrefuted testimony of Sam M.
Melson, however, reveals that the electrician then on the Donelson job was paid at
the rate of $3 per hour and that other electricians in Melson's employ receive $3.65
to $4 per hour.5 As ,the Respondent was thus unaware of the actual wages being
'Exclusive, also, of the second proviso to Section 8(b) (7) (C), to which reference is
made hereinafter.
2 To the extent that the Respondent' s argument attacks the constitutionality of Sec-
tion 8(b) (7) (C), reference is made to Bluefield Produce & Provision Company, 117 NLRB
1660, 1663, in which the Board reasserted its policy of assuming the constitutionality of
the statutory provisions pending contrary adjudication by the courts
The parties stipulated that the language "(W. D. Robinson) LU 456" refers only to
the local printers union who prepared the placard.
' The evidence is unrefuted that other than the picketing, no other media was utilized
to advertise the dispute to the public
At the time of the hearing the Doneison school job was not completed, in fact «a,
20 to 30 days behind schedule There is nothing to indicate that other of the employer's
electricians will not yet be needed to perform electrical work at this site.
Some of the laborers, who also carried electrical conduit, were paid upward of $1.40
per hour
LOCAL 429, INT'L BROTHERHOOD OF ELECTRICAL, ETC . 469
paid to Melson's electricians, obviously it cannot argue that Melson caused sub-
standard working conditions in the area which purportedly affected the living
standards of Local 429 members and that the purpose of the picketing was to ad-
vertise this fact to the public.6
What, then, was the real objective which the Respondent sought to achieve from
the picketing in question. At the hearing Lampley was pertinently queried as to
what action, if any, Melson could have taken to cause him (Lampley), as an agent
of the Respondent Union and the one admittedly responsible for the picketing, to
remove the picket. Lampley's only reply was "I don't know." Under all the cir-
cumstances, I discredit Lampley's evasive answer to this effect. Lampley conceded
that as an official of Local 429 it was he who authorized the picketing at the jobsite.
It is inconceivable, in the opinion of the Trial Examiner, that he was not also fully
aware of the objective which such action was designed to achieve.
The fact of the matter is that in the instant case the legend on the picket sign
is the best evidence pointing toward Respondent's real objective in picketing the
Donelson school project. According to that legend, Respondent protested the fact
that Melson did not employ members of or have a contract with the Respondent.
How, then, could Melson cause Respondent to cease picketing? The obvious answer,
and I find it to be the answer, would be the negotiating of a collective-bargaining
agreement with the Respondent Union. Any other conclusion, in the opinion of the
Trial Examiner, would be utterly unrealistic and would ignore the facts of labor
relations life as they exist in the building and construction industry. Accordingly, I
find that it was an objective of the Respondent to force and require Melson to bargain
with it for the purpose of negotiating a contract. Inasmuch as the picketing was con-
ducted at a time when Respondent did not represent a majority of Melson's em-
ployees, and no election having been sought within the time alloted, I find that
Respondent by such action violated Section 8(b)(7)(C) of the Act.
In any event, and as heretofore described, the picketing in the instant case effec-
tively induced employees of employers other than Melson not to cross the picket
line during the course of their employment. Accordingly, and assuming arguendo
that the Respondent engaged in informational picketing, I nevertheless find such
picketing unlawful under the second proviso of Section 8(b) (7) (C) because of its
effect on employees and suppliers.?
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with the
operations of the employer as set forth 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 of commerce.
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
that I find necessary 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. Sam M. Melson d/b/a Sam Melson , General Contractor , 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. By picketing Melson from March 16 to and including April 29, 1960, with an
object of forcing and requiring Melson to recognize and bargain collectively with
6 Dr. Vivian W. Henderson, a professional economist and chairman of the department
of economics at Fisk University, was called as a witness by the Respondent to testify, in
substance, "that the use of non-union labor in urban labor markets generally has a de-
pressionary effect on the general living standards and wage levels of the working people."
Without discussing or deciding whether Dr. Henderson qualified as an expert witness to
render an opinion on this particular subject, suffice It to say that Respondent was not
informed of this opinion by Dr. Henderson prior to taking the action here under con-
sideration. Respondent therefore cannot now claim that such action was in any way
predicated upon such information.
7 Local 239, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Stan-Jay Auto Parts and Accessories Corporation), 127 NLRB 958.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent , notwithstanding that the Respondent was not then certified as the rep-
resentative of Melson's employees , without a petition being filed under Section 9(c)
of the Act, Respondent engaged in unfair labor practices within the meaning of
Section 8 (b) (7) (C) of the Act.
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.]
San Diego County Waiters and Bartenders Union Local 500 in
alliance with Hotel Service Employees Union Local 402, sub-
sidiary to the Hotel and Restaurant Employees Bartenders
International Union affiliated with the AFL-CIO [Norhunt,
Inc., d/b/a Joe Hunt's Restaurant ] and Joe Hunt. Case No.
21-CP-51. September 7, 1962
DECISION AND ORDER
On October 16, 1961, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondents and the General
Counsel filed exceptions to the Intermediate Report and the Respond-
ents a brief in support of their exceptions.
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 en-
tire record in this case, including the Intermediate Report, the ex-
ceptions, and brief, and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner with the following modifi-
cations and additions.
We agree with the Trial Examiner's finding that an object of Re-
spondents' picketing was to compel the Employer to recognize and
bargain with the Respondents. However, even though picketing is
conducted for a proscribed object, a violation of Section 8(b) (7) (C)
is not established if the picketing is, as in the instant case, for purpose
of truthfully advising the public, including consumers, that the Em-
' The Trial Examiner , in his conclusions of law, failed to find that the Employer is en-
gaged in commerce within the meaning of Section 2(6) and ( 7) of the Act we so find.
Additionally , the Trial Examiner also found, as a conclusion of law , that an object of the
picketing was to "induce" the Employer to recognize Respondents as the collective-
bargaining representative of its employees and to "induce " the Employer to enter into a
collective -bargaining contract with them. We shall amend this conclusion of law by strik-
ing the word " induce" and substituting the words "force or require."
138 NLRB No. 55.