Local 741, United Assn. of Journeymen, Etc.

National Labor Relations Board - Board Decisions

Jun 29, 1962

137 N.L.R.B. 1125 (N.L.R.B. 1962)

LOCAL 741, UNITED ASSN. OF JOURNEYMEN, ETC. 1125
Local Union No. 741, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada , AFL-CIO [Keith Riggs Plumb-
ing and Heating Contractor ] and Independent Contractors
Association
Local Union No. 596, Brotherhood of Painters , Decorators, and
Paperhangers of America , AFL-CIO; Local Union No. 857,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Independent Contractors Association .. Cases
Nos. 28-CP-4 (formerly 21-CP-7) and l8-CC-77 (formerly 91-
CC-353). June 29, 1962
DECISION AND ORDER
On June 13, 1960, Trial Examiner William E. Spencer issued his
Intermediate Report in this proceeding, as amended by an addendum
thereto, finding that Carpenters had engaged and were engaging in
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, Carpenters and the
General Counsel filed exceptions to the Intermediate Report and
supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entiro record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications.
1. We agree with the Trial Examiner's finding that Respondent did
not violate Section 8 (b) (7) (C) of the Act.
Section 8(b) (7) (C) makes unlawful picketing which continues for
more than 30 days without the filing of a representation petition where
an object of such picketing is to require an employer to "recognize
or bargain" with a labor organization or to require the employees "to
select such labor organization as their collective bargaining repre-
sentative." Not all picketing which continues for more than 30 days
without the filing of a petition runs afoul of this section of the Act.
Accordingly, in every case where the General Counsel alleges that a
respondent labor organization has engaged in unlawful 8(b) (7) (C)
picketing it is his burden to prove not only the fact of the picketing,
but also that it had an objective proscribed by the statute, i.e., it was
for organization, recognition, or bargaining. Not every demand by
a union implies one of these objectives.
A labor union normally seeks to organize the unorganized and to
negotiate collective-bargaining contracts with employers; but it also
137 NLRB No. 121.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.assigned extra runs , introduced Monty to Frank Valletta , the Company 's secretary,
as the extra driver who "has been covering the runs." For a few months Covey called
Monty at home as needed ; but he then told Monty to be on deck to cover the run
rather than wait to be called.
Whether, using the various terms employed by Monty, he was the "extra driver,"
the "regular extra driver ," or the "only extra driver" on the Albany-Boston run, the
fact is that he had been designated to be and was assigned to the first available extra
run. There is no direct testimony of a statement allegedly made by Frank Valletta
to the effect that Monty was to be the one and only extra man on that run and that
he wanted no other extra drivers driving his trucks . But as we shall see, Nicholas
Valletta, the Company's vice president and Frank's brother, apparently had knowl-
edge of such a statement , or believed that Frank had made it , and expressed his
determination to back it up.
Two other extra drivers, Russell and Whinnery , worked for Valletta in Albany,
pulling extra trips "in back of" Monty; i.e., Monty took the first available extra truck
and one of the other two took the second when more than one extra man was needed.
This continued until the fall of 1960, when Whinnery and Russell started to go out
on runs ahead of Monty. Whereas the latter had previously gone on 1 to 5 trips per
week ( he totaled approximately 80 trips in 1960 ), he averaged less than 1 per week
in December and little more in November , Whinnery and Russell getting the runs
ahead of him . Monty .finally stopped going to the terminal in January 1961.
These facts stand out, whatever few other runs there were or calls by the Union
for Monty to take a run elsewhere . Nor is the situation altered by the fact that
Russell or other drivers had occasionally pulled trips for Valletta before Monty came
,on the scene . Whatever the earlier history, Monty had been assigned priority over
other extra drivers by this Employer, and the issue is whether the Union unlawfully
caused the Employer to discriminate against him by withholding assignments. (We
have noted that the case was tried without reference to a share -the-work plan. Nor
is there evidence of a lawful employer-union agreement which might support any
such plan or other preferential hiring criteria .) While as counsel for the Union
'brought out , it was Covey not Frank or Nicholas Valletta who told Russell that he
was in back of Monty on assignments , Covey was at that point repeating the Vallettas'
instructions ; and it was also counsel for the Union who brought out that it was
Covey's duty to make assignments for the Company ; so that Covey's recognition of
Monty's priority was the Vallettas'.
I credit Monty 's testimony . He did not claim to be a regular driver , and with
one unspecified exception received no union benefits which are not generally given
to extra drivers. Except for such minor variance as whether another extra driver
,said or merely may have said that he had elsewhere received holiday and vacation
'pay, Monty stood up under rigorous cross-examination . Whatever involvements
' were injected concerning union benefits and Monty 's very occasional employment
elsewhere ( apparently at Covey's suggestion or request ), Monty was the "regular
extra driver" for the Company and was available as such until the Union caused
a change.
About the end of 1960 Nicholas Valletta told Covey to give Monty assignments
ahead of Russell and Whinnery , and gave Covey 2 weeks to straighten out Monty's
complaints in this respect , telling Covey that he had to back up what his brother
Frank had said . When Monty continued thereafter to complain , Valletta warned
Covey that he would eliminate a run out of Albany. The Company 's attitude with
respect to Monty was thus again made clear so that if, as a result of further discus-
sions with union representatives , the Company did not continue to insist on Monty's
preference in employment , the Union's unlawful causation was quite as clear. (It
stands uncontradicted that at the union office its business agent, Smith , Covey, and
Whinnery in turn attempted to persuade Nicholas Valletta that Monty was a trouble-
maker and no good.)
Valletta's warning to Covey prompted Smith to call , and Valletta now told Smith
that Frank Valletta had promised the extra work to Monty. Nicholas then ap-
parently wrote a note to Covey and spoke to him on the telephone . Valletta was
an honest witness, but he was easily led and his recollection was uncertain. Just
what he told Covey can be reconstructed only with difficulty as he gave several
versions . He first told us that he had directed Covey to give Monty extra work, then
immediately restated it as having told Covey to give Monty the extra work. It was
obvious that the distinction escaped Valletta as he testified. He later testified that
all of the extra work could not be given to Monty; accepting counsel 's characteriza-
tion, he testified that he told Covey to give him "some" extra work. Valletta finally
'had it that he told Covey to give Monty some of the extra work "to keep him going";
'but Monty "was looking to become a regular man."
LOCAL 741, UNITED ASSN. OF JOURNEYMEN, ETC. 1127
Riggs at the premises where Riggs was engaged as plumbing subcon-
tractor with signs reading:
Keith Riggs Plb. unfair to Plumbers Local 741
Sub-standard wages & Working Conditions
On the occasions of the picketing Respondent also distributed to
Riggs' employees and other persons approaching the picket line
copies of the letter referred to above which had been sent to Riggs.
About February 1, 1960, at a meeting of managerial and union repre-
sentatives where the picketing was discussed, the business agent of
Respondent said that Respondent's sole interest was that Riggs pay
the prevailing wage scale for plumbers in the area.
If words have any meaning, then the foregoing evidence indicates
that Respondent was not seeking to negotiate with Riggs. Moreover,
it did not have to negotiate to achieve its objective-establishment of
standard wage and working conditions. These had already been set
in contracts with unionized employers. All that Respondent had to
do was to furnish information as to these standards to Riggs. This it
did in its letters.
Our dissenting colleagues point to no evidence which would indi-
cate that Respondent was insincere in its statements that it was not
seeking to negotiate with Riggs. They merely assert, as they have
elsewhere,3 that picketing to compel a change in wages and working
conditions "necessarily" is for the purpose of recognition and bargain-
ing. This is stated as virtually a proposition of law. There is no
judicial or legislative support for any such proposition. If Congress
had intended to ban all picketing after 30 days, which is substantially
what the dissenting view would accomplish, it could have achieved
that objective in straightforward and simple language. We hold,
therefore, as did the Trial Examiner, that the picketing on the evi-
dence in this case did not have for an object recognition or bargaining.
The dissenting members would also find that an object of the picket-
ing was organizational, relying on the testimony of employee Farr
that at two meetings in his home 2 weeks prior to the picketing, repre-
sentatives of Respondent solicited him to join Respondent, and on
evidence that some present and former Riggs' employees made appli-
cation to join Respondent after the start of the picketing.
Preliminarily, it should be noted that Farr's testimony as to solicita-
tion was denied by Respondent's witnesses. There is therefore an im-
portant issue of credibility which was not resolved by the Trial Ex-
aminer because the evidence had been submitted to him on stipulation
and he had not had the opportunity of observing the witnesses.
Accordingly, on this state of the record, a finding is not justified
Houston Building and Construction Trades Council (Claude Everett Construction
Company), supra.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent's representatives did in fact solicit Farr to join the
Union.
Moreover, the testimony is clear, as Farr himself admitted, that
Respondent's representatives sought out Farr in order to obtain wage
data from him : the representatives unsuccessfully offered him $20 for
his paycheck stub. This testimony tends to corroborate the Respond-
ent's claim that its true objective was conformity to wage standards.
Even assuming, arguendo, that on the occasion of these visits to
Farr the union representatives did mention the advantages of join-
ing the Union, such incidents several weeks before the picketing
started involving a single Riggs' employee are not sufficient to negative
Respondent's repeated statements to the Employer and his employees
that the picketing of the Riggs' jobsite was designed only to protect
the wages and other standards.
As against the prior, isolated, and controverted incidents cited in
the dissenting opinion, we find more persuasive the fact that the inter-
views with Farr are the only true evidence brought forward by the
General Counsel to prove an organizational objective, although the
dispute with Riggs extended over several months and Riggs had in its
employ 35 plumbers.
Nor does the fact that several Riggs' employees joined Respondent
after the picketing began prove an organizational objective in the
picketing. Neither the picket signs nor the propaganda material is-
sued at the picket line urged employees of Riggs to sign up with Re-
spondent. There is not the slightest evidence that Respondent solicited
these employees to join. Not every result of an action can be denomi-
nated an intended result, even where a person might anticipate some
such action.4 So far as the evidence shows, Respondent would have
withdrawn its pickets if Riggs had met its demand for the payment of
union wages and benefits to employees even if not a single Riggs' em-
ploye had indicated interest in joining the Union. The fact that some
Riggs' employees for reasons of their own decided to join the Union
.after the picketing began is an attendant circumstance, perhaps a by-
product; it does not prove such joining an object of the picketing in
the statutory sense.
On the basis of all the evidence, we are not satisfied that an object
,of Respondent's picketing was organization, recognition, or bargain-
ing. Accordingly, we find that the General Counsel has not proved
that Respondent violated Section 8 (b) (7) (C) of the Act.
2. For the reasons stated by the Trial Examiner, we agree with his
'findings that Respondent Carpenters violated Section 8(b) (4) (B)
4 Cf. Local 357, International Brotherhood of Teamsters , etc. (Los Angeles -Seattle Motor
ahxpress ) v. N.L R.B , 365 U.S 667
LOCAL 741, UNITED ASSN. OF JOURNEYMEN, ETC. 1129
with respect to the Kennedy incident, but did not violate that section
of the Act with respect to the happenings at Cheney's operation. We
also agree with the Trial Examiner that the violation of Section 8 (b)
,(4) (B) by Respondent Painters is too isolated to warrant the issuance
of an order.
3. Respondent Carpenters has excepted to the breadth of the Trial
Examiner's recommended order which requires the Carpenters to cease
and desist from encouraging employees of Kennedy, "or any other em-
ployer," to strike where an object thereof is to cause Rincon, "or any
other employer," to cease doing business with Riggs. Respondent
Carpenters would delete the quoted phrase "or any other employer"
from the order. We believe that the Trial Examiner's order is proper
and necessary to effectuate the policy of the Act. The walkout at Ken-
nedy's did not reflect a dispute with that employer, but was a result
of a generalized union policy of not working where a picket line is
established at a project. We believe that it may reasonably be antici-
pated that the Carpenters may engage in a similar conduct against
other neutral employers in like situations. We find therefore that the
order as drafted is an appropriate exercise of the Board's remedial
powers .5
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 Carpenters, its
officers, agents, representatives, successors, and assigns, shall :
1. Cease and desist from inducing or encouraging any individual
employed by Kennedy, or any other employer, to strike, where an ob-
ject thereof is to cause Rincon, or any other employer, to cease doing
business with Riggs.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
5 International Brotherhood of Electrical Workers, Local 501, et at. ( Samuel Langer) v.
N.L R B., 341 U S. 694; N L.P.B . v. Local 810 , Steel, Metals , Alloys, etc . ( Fein Can Corp.,
et at ), 299 F. 2d 636 (CA. 2)
Member Fanning perceives no warrant for the breadth of the remedial order fashioned
in this case The order enjoins the Carpenters from inducing or encouraging employees
of Kennedy , "or any other employer ," to strike , where an object is to cause Rincon, "or
any other employer," to cease doing business with Riggs . The facts in this case do not
suggest any "generalized scheme" or "proclivity" on the part of the Carpenters to cause
"any other" neutral employer to refrain from doing business with Riggs. Only carpenters
employed by Kennedy were induced to walk off the job, and even this cessation of work
lasted for but a limited period of time . Accordingly, Member Fanning would limit the
scope of the order in this case by deleting the phrase "any other employer." See his dis-
senting opinion in United Association of Journeymen and Apprentices of the Plumbing-
and Pipefitting Industry of the United States and Canada, Local No 469 , et at. ( W. D. Don
Thomas Construction Company ), 130 NLRB 1289, 1291, enfd . as mod 300 F 2d 649•
(CA 9).
1130 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
(a) Post at its business offices in the affected area, copies of the
notice attached to the Intermediate Report marked "Appendix." s
Copies of said notice, to be furnished by the Regional Director for the
Twenty-eighth Region, shall, after being duly signed by the Respond-
ent, be posted by the Respondent immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by said Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Twenty-eighth Region,
in writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
MEMBERS RODGERS and LEEDOM, dissenting in part :
The majority's dismissal of the complaint against the Respondent
Plumbers is based on their holding that this Respondent's picketing
was not for an object proscribed by Section 8(b) (7) (C) of the Act.
We disagree.
It is undisputed that Respondent Plumbers picketed the construc-
tion site where plumbing contractor Riggs' employees were at work
with signs reading : "Riggs unfair to Plumbers, substandard wages and
working conditions." Without more, Respondent's picketing with
these signs clearly establishes, in our view, that an object and purpose
thereof was to force Riggs to recognize and bargain with the Re-
spondent as the representative of Riggs' employees. As was stated
in the dissenting opinion which we issued in Houston Building and
Construction Trades Council (Claude Everett Construction Com-
pany), 136 NLRB 321, and as was recognized by the Board in the
original Calumet Contractors case, 130 NLRB 78, the picketing of an
employer to compel a change in wages and working conditions of its
employees necessarily is picketing for the purpose and object of recog-
nition and bargaining. Our colleagues' position on so-called area
standards picketing does not, as we stated in the former case, "with-
stand scrutiny in the light of industrial realities." Thus, our col-
leagues fail to take into consideration the extent to which Respondent
Plumbers' standards are applicable to this company's operations, the
complications attendant upon changing a wage pattern, or the many
factors that determine the pattern. It is no answer for our colleagues
O The notice is amended to substitute "A Decision and Order" for "The Recommenda-
tions of a Trial Examiner ," and to add at the end:
"Employees may communicate directly with the Board ' s Regional Office, 1015 Tijeras
'Street , NW., Albuquerque , New Mexico, Telephone Number , 243-3536, if they have any
questions concerning this notice or compliance with its provisions "
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."
LOCAL 741, UNITED ASSN. OF JOURNEYMEN, ETC. 1131
to say that the Union "did not have to negotiate to achieve its objec-
tive-establishment of standard wage and working conditions." We
think it obvious that any effort on the company's part to adjust
the wages and working conditions of its employees would necessarily
call for recognizing and negotiating with the Plumbers Union. Other-
wise, one must adopt the view, implicit in our colleagues' position, that
area standards and working conditions are not negotiable and must be
accepted on a take-it-or-leave-it basis where the union chooses to
picket for them. This we are unwilling to accept.
Over and above the fact that Respondent Plumbers so-called area
standards, picketing, in and of itself, evidences a recognition and bar-
gaining object and purpose, there is other evidence here that estab-
lishes the proscribed object and purpose. The record shows that in
January 1960, shortly before the picketing began, the Plumbers busi-
ness agent, Vaughn, visited the home of one Farr, who was an em-
ployee of Riggs. Vaughn discussed with Farr the advantages of
joining Respondent Union. Two days later, the Plumbers business
manager, Cantrell, in the company of another union member, visited
Farr at Farr's home. He, too, discussed with Farr the advantage of
membership in the Plumbers Union. Cantrell offered to take Farr into
the Union as an apprentice. The Plumbers picketing began on Jan-
uary 25. Thereafter, present or former Riggs' employees made ap-
plication to join the Plumbers Union. In our view, the two ap-
proaches made by the Plumbers representatives to Farr to interest
him in the Union, as well as the success achieved by the Plumbers in
enrolling certain of Riggs' employees in its ranks after the picketing
began, amply demonstrate the proscribed organizational object and
purpose of this Respondent picketing.
For the foregoing reasons, we would find that Respondent Plumbers,
by its recognition and organizational picketing, violated Section
8(b) (7) (C) of the Act.
We also disagree with our colleagues' holding that Respondent
Carpenters did not unlawfully induce and encourage Cheney's em-
ployees to strike in violation of Section 8(b) (4) (B). The evidence
on this issue establishes that : On February 11, Cheney's two carpenter-
hangers observed the Plumbers picket line and decided to telephone
Carpenters business agent, Orr. Employee Howdeshell spoke to Orr,
told him of the picket line, and asked whether he and the other hanger
could work as they needed the money. Orr's reply was that the em-
ployees would have to make up their minds for themselves. Howde-
shell asked this question two or three times; Orr made the same reply
each time. Failing to obtain Orr's approval to work behind the picket
line, the two hangers left the job. The issue here is whether Orr's
conduct amounts to inducement and encouragement of these employees
to walk off the job. We think it clear that it did. It is undisputed
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the two hangers were fearful of being fined by the Carpenters if
they worked behind the picket line, and it was this fear that prompted
the call to Orr. They were obviously seeking permission from Orr
to continue working; and Orr so understood the purpose of the call.
Orr's equivocal response each time Howdeshell asked about working
was certainly calculated to leave the impression that union discipline
would result if the hangers remained on the job. Orr thus unlaw-
fully induced and encouraged the two Cheney hangers, and we would
find that Respondent Carpenters thereby violated Section 8 (b) (4) (B)
as alleged.
Finally, we do not agree with the majority's holding that although
Respondent Painters violated Section 8(b) (4) (B), no remedial order
is warranted in this respect. The violation committed by this Re-
spondent was the action of a Painters business agent calling the at-
tention of tapers employed by Cheney to the picketing, cojoined with
his statement, "Well, I can't tell you to go home, but we usually don't
work behind picket lines." In view of the fact that the business
agent's statement was not limited to the instant picketing, and as a
work stoppage-albeit of short duration-did result, we believe that a
cease-and-desist order is appropriate.
ADDENDUM
Prior to reading notices of the Board 's decision in Stan-Jay Auto Parts and Ac-
cessories Corporation , 127 NLRB 958 which have just now come to my attention,
I had not thought that the second proviso to Section 8(b)(7)(C) raised an issue in
this case with respect to Respondent Plumbers' alleged violation of that section of
the Act . The matter was not argued before me and I had not supposed that a pro-
viso would be construed as defining an unfair labor practice independently of the
proscription it qualified , but be that as it may, in my opinion the second proviso
here in question does not fit the facts of this case , for the object of Respondent
Plumbers' picketing was not to advise the public that the picketed employer did not
"employ members of, or have a contract with" Respondent Plumbers, but that the
picketed employer was operating under substandard wages and working conditions.
Obviously , these are not identical objects for the employer could have met the
union standards without employing members of , or having a contract with, Re-
spondent Plumbers. I see no reason , therefore , in the light of the Board's decision,
to change or modify my recommended dismissal of the complaint with respect to
Respondent Plumbers.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner William E. Spencer at Tucson,
Arizona, on April 11, 1960.
The issues litigated were whether Local Union No. 741, United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, herein called the Union or the Respondent Plumbers,
violated Section 8(b)(7)(C) of the National Labor Relations Act, as amended (61
Stat. 136), herein called the Act , by its picketing of a plumbing subcontractor in
Tucson, Arizona , on January 25, 1960, and various dates thereafter; and whether
Local Union No. 596, Brotherhood of Painters , Decorators , and Paperhangers of
America, AFL-CIO, herein called the Union or Respondent Painters , and Local
Union No 857 , United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, herein called the Union or Respondent Carpenters , respectively violated Sec-
tion 8(b) (4) (B ) of the Act, by prohibited acts of inducement in connection with
the Respondent Plumbers' picketing.
LOCAL 741, UNITED ASSN. OF JOURNEYMEN, ETC. 1133
At the hearing it was stipulated that a transcript of proceedings in a United States
District Court involving the alleged violations by the aforementioned Respondents,
be incorporated in the record of this proceeding, and this was done with the ac-
companying caveat by the Trial Examiner that he would not attempt to resolve
issues of credibility, if any, raised in the proceeding before the district judge and
involving witnesses not appearing before the Trial Examiner. A further stipulation
of fact supplementing the above-mentioned record was entered by counsel at the
hearing herein. Oral argument was waived and the General Counsel and the Re-
spondents, respectively, filed briefs with the Trial Examiner on or before May 16,
1960.
Upon the aforesaid stipulated record and transcript, and upon consideration of
the briefs of the parties, the Trial Examiner makes the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS
During the calendar year 1959, Keith Riggs Plumbing and Heating Contractor,
herein called Riggs, a plumbing contractor with a place of business at Mesa, Arizona,
in the conduct of its operations purchased and received materials and supplies
valued in excess of $50,000 from Arizona suppliers who, in turn, received said ma-
terials and supplies directly from points outside Arizona.
Rincon Builders & Developers, Inc., herein called Rincon, a general contractor on
a residential construction project at or near Tucson, Arizona, subcontracted con-
struction work on the project to various subcontractors, among them Riggs, for
certain plumbing work; Kennedy Construction Company, herein called Kennedy, for
carpentry work; Cheney Drywall Company, herein calledd Cheney, for drywall work;
and Russett Heating & Cooling, Inc., herein called Russett, for installation of heat-
ing and cooling systems. Rincon, Kennedy, Cheney, and Russett, respectively, have
places of business in Arizona; each annually receives materials and supplies orig-
inating outside Arizona valued in excess of $50,000.
Riggs, Rincon, Kennedy, Cheney, and Russett each is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondents Plumbers, Painters, and Carpenters are, each of them, labor or-
ganizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts with respect to alleged violations of Section 8(b)(7)(C)
The Respondent Plumbers has a bargaining agreement with employers engaged
in residential construction who 'employ if not a majority at least a very substantial
number of employees engaged in the plumbing industry in the Arizona counties in
which lies the Respondent's jurisdiction. This agreement establishes, inter alia,
certain minimum wage scales for journeymen plumbers doing residential construc-
tion work.
In November 1959, Riggs commenced work as a plumbing subcontractor on a
residential construction job known as the Flair Homes project, near Tucson, Arizona,
within Respondent's jurisdiction The general contractor on the job was Rincon.
Riggs, who employed about 35 plumbers, was unorganized.
On occasions beginning in January 1960, the Respondent picketed Riggs at the
premises where Riggs was engaged as a subcontractor to Rincon. Respondent's
picket sign read:
Keith Riggs Plb.
unfair
to
Plumbers
Local 741
Sub-standard wages
Working Conditions
Respondent restricted its picketing to such times as Riggs' employees were on the
job and though, according to Respondent's brief a charge of secondary boycott was
filed against it, there is no contention made here of a violation of the secondary
boycott provisions of the Act by Respondent Plumbers. The allegation is that by
its picketing of Riggs the Respondent violated Section 8(b) (7) (C) of the Act, which
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provides that it is an unfair labor practice for a labor organization to picket any
employer where an object of the picketing 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 organiza-
tion is currently certified as the representative of such employees (c) where such
picketing 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."
Admittedly the Respondent is not currently certified as representative of Riggs'
employees and admittedly the picketing was conducted without a petition under
Section 9(c) being filed within a reasonable period of time. The issue is thus
narrowed to a finding on whether the picketing had as an object forcing or requiring
Riggs to recognize and bargain with the Respondent, or forcing or requiring Riggs'
employees to accept or select the Respondent as their bargaining representative. As
the General Counsel states in his brief, it is enough if it is shown that the picketing
had a proscribed object as one of its objects. The General Counsel contends that
he has proved a proscribed object. The Respondent's defense is that its picketing
was for informational purposes in connection with substandard wages and working
conditions maintained by Riggs on the Rincon job, and that its sole object was to
require Riggs to pay the Plumbers' wage scale prevailing under its contracts with
employers in the area. The Respondent makes no contention that the proviso to
Section 8 (b) (7) (C) operates in its favor.
Incidents preceding, leading to, and occurring in connection with the picketing,
insofar as they affect the issue with respect to Respondent Plumbers, follow.
In the late summer of 1959, the Respondent ascertained through a former member
then employed by Riggs at a construction job at Mesa and Sierra Vista, Arizona, and
by a personal interview through one of its agents with Riggs' employees on the job,
the wages being paid by Riggs to certain classifications of employees, or employees
who were performing work equivalent to that performed by journeymen or appren-
tices under union contracts.
By letter dated October 1, 1959, the Respondent advised Riggs that wages and
conditions of employment maintained by Riggs were "substantially" below those
established in that area for similar type of work performed by other companies en-
gaged in the same type of operation; informed Riggs of wages and working condi-
tions prevailing under union contracts, and coupled this with the suggestion that if
Riggs desired more specific information in the matter it would be furnished him on
request; and further advised Riggs:
As a matter of simple economics it is clear that we cannot maintain our
present standards or improve them as long as there are employees in our indus-
try who are receiving substantially less than that prevailing in the industry.
Therefore, unless you are willing to meet the standards prevailing in the area
in the treatment of your employees, we have no choice but to publicize the
fact that such employees are working for wages which are less than, and under
conditions which are inferior to those prevailing in the industry, and that such
situation jeopardizes the maintenance of our standards.
We desire to make it perfectly clear that in writing to you we are not sug-
gesting in any way that you coerce or interfere with your employees in their
right to join a Union or not to join a Union. That choice, either way, is theirs
alone. Nor are we requesting you to negotiate with us. We are merely ad-
vising you of the situation. If we do not hear from you within five days after
receipt of this letter, we shall assume that you have decided not to meet these
standards.
On December 2, 1959, not having had a reply to its October 1 letter, the Respond-
ent sent a second, identical letter to Riggs. It had some 50 to 100 mimeographed
copies made of the letter. Again Riggs did not reply. Riggs had meanwhile become
engaged on the Rincon or Flair Homes job as a plumbing subcontractor.
On or about January 11, 1960, Respondent's business agent, William J Vaughn,
and 2 days later Respondent's business manager, W. Joe Cantrell, visited the home
of one of Riggs' employees on the Rincon job, one James Gordon Farr, and at-
tempted to obtain from the latter his paycheck stub. Farr was offered some $20 for
the stub but refused to relinquish it. Cantrell testified, however, that he learned
from Farr that his pay was $2.50 or $2.65 an hour; Riggs himself testified that it
was $2.65 an hour. Farr's testimony tends to deny that he gave either of these
agents of the Respondent his wage scale, and there is further conflict in the testimony
of Farr and the two union officers as to whether the latter solicited him to join the
LOCAL 741, UNITED ASSN. OF JOURNEYMEN, ETC. 1135
Union. Admittedly, there was some discussion of the advantages of the Union's
apprenticeship system. According to Farr, Vaughn told him that if he could get
Farr's payroll check "they could make Mr. Riggs pay more money to his employees."
Farr further testified that Vaughn told him if he came into the Union he would be
offered journeyman status, whereas Cantrell offered him apprenticeship status. Con-
cerning his response to these offers, Farr testified, "I was satisfied with Keith Riggs,
if I wouldn't have been I would have gone to the union or someplace else." On
Vaughn's interrogation concerning his paycheck stub, Farr testified on cross-
examination:
Q. Now, Mr. Vaughn asked you about your payroll stub, did he not?
A. Yes.
Q. That was the first topic of the conversation, is that right?
A. Yes, sir, that was what he came for.
On or about January 25, 1960, and on several occasions thereafter when Riggs'
employees were engaged on the job, Respondent Plumbers picketed Riggs, and there-
after distributed to Riggs' employees and other persons approaching the picket line
mimeographed copies of the letter sent to Riggs dated December 2. The text of the
picket sign and of the December 2 letter have been given above. As a result of the
picketing a number of employees employed by subcontractors on the Rincon project
left their jobs, and other employees refused to cross the picket line for delivery of
materials to contractors or subcontractors on the job. The picketing ceased some-
time in March pending the outcome of injunction proceedings brought by the Gen-
eral Counsel against the Respondent. This, of course, nowise affects the issue.
On or about February 1, in a conversation between managerial and union repre-
sentatives interested in the Rincon job, when the legality of Respondent's picketing
of Riggs was discussed, Cantrell, business agent of Respondent Plumbers, stated with
respect to the picketing, that the only thing the Respondent was interested in was
that Riggs pay the prevailing wage scale for plumbers in the area. This statement
of objectives was not qualified in any way.
Since the picketing began about January 25, some seven present or former em-
ployees of Riggs have made application to join the Union, and of these some were
employed by Riggs at the time the application was made.
The foregoing are all the incidents directly relating to the picketing of Riggs relied
upon by the General Counsel to show an unlawful object, but he also relies upon a
parallel course of action taken by the Respondent with respect to another plumbing
contractor, J. F. Giddings, whose operations were also in Tucson.
In June 1959, Cantrell talked to Giddings at the latter's place of business and
told him that his wage scale was below union standards and, in effect, demanded that
he pay the prevailing wage. It was Cantrell's undisputed testimony that he told
Giddings in this conversation that the unionization of his employees was not the
Union's concern in the matter; that all the Union was interested in was a "fair wage
scale." Giddings asked to be allowed to complete, without interference by the Union,
present construction commitments and apparently Cantrell agreed to this. On
September 2, the Respondent sent Giddings a letter with text identical to the Riggs
letters. On September 7, Giddings replied, reminding the Union that it had agreed
to allow him to complete outstanding commitments without interference. Sometime
thereafter, the Union picketing Giddings for 1 day. The text of its picket sign was
the same as that used in the picketing of Riggs, and distribution was made of the
September 2 letter. Weeks after the 1-day picketing, at the instigation of a third
party, Cantrell met with Giddings. In response to Giddings' questions, Cantrell
explained to him the wage scale, benefits, working conditions, etc., prevailing under
union contracts. At a time subsequent to this conversation, without intervening
picketing or any overt action by the Respondent disclosed by this record, Giddings
signed the industrywide agreement under which he recognized Respondent Plumbers
as the sole bargaining representative of his employees and committed himself to
requisition his employees from the Union's hiring hall. The agreement is stamped
December 30, 1959, but the exact date of its execution is not thereby or in any other
manner established.
B. Conclusions with respect to alleged 8(b) (7) (C) violations
There are several theories or doctrines which might be applied to the facts of this
case. There is the per se theory based on the assumption that all picketing of an
unorganized employer by a labor organization which would accept him as a signa-
tory to a bargaining agreement, has as an object recognition and bargaining rights.
It is somewhat akin to the present Board's early per se doctrine of inducement as
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applied to ambulatory picketing , a doctrine which has never, to my knowledge, been
approved in the courts and which may, or may not , have been abandoned by the
Board.'
There is also the doctrine , relied on in part by the General Counsel , that if picket-
ing seeks to obtain results normally resolved through the process of collective bar-
gaining, ipso facto it has as an object recognition and collective bargaining?
If either of these doctrines is to control there is no need to look further here for
there can be no doubt that the Respondent Union would have welcomed recognition
and a contract with Riggs , and that the substandard wages and working conditions the
Union sought to publicize with its picketing were matters germane to collective bar-
gaining and , were the Respondent the bargaining representative of Riggs' employees,
would constitute subject matter for negotiations between Riggs and the Respondent.
At the same time it must be observed that the application of such docrines would
mean , in practical terms, that it would be impossible for a labor organization lawfully
to publicize substandard wages and working conditions through picketing , except
perhaps, to the limited extent granted in the proviso to Section 8(b) (7) (C).3
There is still another theory or doctrine advanced by Archibald Cox, long eminent
in the field of industrial relations , that while there may be a "presumption ," based
on experience , that recognition is an objective of any picketing of an unorganized
shop, the presumption can be dissipated by proof "that the labor conditions of which
the union complains present such an immediate and substantial threat to existing
union standards in other shops , through the force of competition , as to support a
finding that the union has a genuine interest in compelling the improvement of the
labor conditions or eliminating the competition even though it does not become the
collective bargaining agent." 4
None of the aforementioned theories purports to distinguish between immediate
and ultimate objectives , engages in hair -splitting distinctions between the meaning of
"object" and "purpose," or depends on legislative history for its validity. All of
them , to a greater or lesser degree , would substitute experience 5 for evidence, as in
Cox's assumption of a presumption.
I incline to the view that the only presumption we can properly invoke is that the
picketing was for a lawful purpose, a presumption which is consonant , I believe, with
the soundest and most honored tenets of American jurisprudence , and that the Gen-
1 See Teamsters, Chauffeurs , Warehousemen and Helpers Union, Local 386, et at
(California Association of Employers ), 120 NLRB 1161 , footnote 6, in which the Board
finds it "unnecessary " to consider evidence on the nature of the picketing which the Trial
Examiner found material to the issue of inducement Cf. Truck Operators League of
Oregon, 122 NLRB 25, 28 , in which the Board while declaring that its per se doctrine
applies , considers precisely the same kind of evidence the Trial Examinee had found mate-
rial to the issue of inducement in the California Association case and on the basis of such
consideration concludes there was no inducement !
2 Cases cited by the General Counsel on the point: Petrie 's, an Operating Division of
Red Robin Stores , Inc, 108 NLRB 1318 ; Francis Plating Co., 109 NLRB 35; Haskell C.
Carter, et at, d/b /a Carter Manufacturing Company, 120 NLRB 1609 , Witwer Grocer
Company ( Cedar Rapids Warehouse and 10 A. Foods Division ), 111 NLRB 936 ; Brother-
hood of Painters , Decorators, and Paper Hangers of Ames sea , Local No. 365, AFL-CIO
(Southern Florida Hotel and Motel Association ( Seville Hotel , Carillon Hotel) ), 126
NLRB 683 ; District Lodge No 24, International Association of Machinists , AFL-CIO
(Industrial Chrome Plating Co ), 121 NLRB 1298 , 1300; Auto Trades Council of Seattle,
at at ( West Seattle Dodge, Inc.), 125 NLRB 729, H A Rider & Sons , 120 NLRB 1577.
3 The proviso reads as follows : "Provided further, That nothing in this subparagraph
(C) shall be construed to prohibit any picketing or other publicity for the purpose of
truthfully advising the public ( including consumers ) that an employer does not employ
members of, or have a contract with , a labor organization, unless an effect of such picket-
ing is to induce any individual employed by any other person in the course of his employ-
ment, not to pick up , deliver or transport any goods or not to perform any services "
4 Law and the National Labor Policy , Monograph Series, Institute of Industrial Rela-
tions , University of California , Los Angeles, California
6I e , "expertise ," that quality of know-all in a given field which magically invests the
administrative judge from the moment he takes the oath , regardless of prior experience ,
a quality that is unpredictable , fickle, and diverse , for what is firmly established by ex-
pertise today may he dismissed tomorrow as having no firmer foundation than conjecture
or mere suspicion ; itself of the nature of an irrebuttable presumption it begets irrebuttable
presumptions , a term which lost much of its lustre in the declining days of the New Deal
and has since yielded ground to more commonplace expressions such as "specialized knowl-
edge" or just plain "experience," substitutions which appear to satisfy those remon-
strants of excess bureaucratization under an earlier regime
LOCAL 741, UNITED ASSN. OF JOURNEYMEN, ETC . 1137
eral Counsel must therefore prove the unlawful object by evidence extrinsic to the
mere occurrence of the picketing. To the extent that we would rely on experience,
we should take cognizance of the fact that it is a primary objective of any labor orga-
nization to obtain and maintain for the employees it represents a high standard of
wages and working conditions, and that when it has achieved such standards through
collective bargaining in substantial segments of a competitive industry its position
in maintaining those standards is constantly and fundamentally threatened if unorga-
nized shops in the same competitive industry operate and continue to operate under
wages and working conditions substantially below those standards. The logic of this
proposition would be cognizable to anyone, in or out of the industrial field, and there-
fore does not depend on any particular form of experience or expertise. It follows
that there are at least two courses open to a labor organization which finds itself in
this situation, and proposes to do something about it. It may seek to organize the
unorganized, and picket for that purpose, or it may seek, through the publicizing
device of picketing, to force the unorganized shops to meet the standards it has
achieved through organization, and thus to eliminate them as competitive factors.
There is no more reason, based on experience, to presume, because of the naked fact
of the picketing itself, an unlawful object than there is to presume a lawful one, and
therefore the assumption that one acts in a lawful manner until the contrary is proved
must prevail. Accordingly, we look at the evidence, extrinsic to the picketing itself,
to see if the General Counsel has discharged his burden of proof.
In its initial contact with Riggs, in late August or September, the Respondent
learned through interviews with Riggs' employees that the wage scale paid Riggs'
employees was substantially below that paid employees performing the same or
equivalent work under union contracts in the area.6 There is not one scintilla of
evidence that the Respondent, in gathering this information, was undertaking to
organize Riggs' employees other than the fact that the union agent engaged in gather-
ing this data was charged with organizational duties. The fact remains that he did
not undertake to organize Riggs' employees, and that the gathering of wage data
without an immediate organizational objective was not inconsistent with his status
as a union agent.
On the basis of wage data thus obtained from Riggs' employees, the Respondent
dispatched its October 1 letter to Riggs. There is no evidence, extrinsic to the letter
itself, that the Union was employing this letter as a means of forcing or requiring
Riggs to recognize and bargain with it, or of forcing or requiring Riggs' employees
to accept or designate the Respondent as their bargaining representative. Having re-
ceived no reply to its October 1 letter, the Respondent sent a second identical letter
to Riggs on December 2. Again, there is no evidence extrinsic to the letter itself,
of recognitional objectives.
Before the picketing began on or about January 25, 1960 , union agents on two
occasions visited the home of a single Riggs' employee, Farr, and attempted to ob-
tain wage data from him. The General Counsel construes these visits as establish-
ing an organizational objective. He bases this contention on Farr's testimony that the
Union's agents solicited his membership and that the Union's apprenticeship program
was discussed. Farr's testimony that his membership was solicited was denied, as was
his testimony that his wages were not inquired into on the second visit, and I shall
not undertake to determine the issue of credibility on a stipulated record where I had
no opportunity to observe the witnesses. I note, however, that Farr's own testimony,
if accepted, indicates that the Union's offer of membership contemplated the sever-
ance of his employment with Riggs. Thus, he testified with respect to his response to
the Union's offers, "I was satisfied with Keith Riggs, if I wouldn't have been I would
have gone to the union or someplace else." It further appears from all the testimony
that the union agents' primary and basic objective in seeking out Farr was to obtain
wage data and that this was well understood by Farr is demonstrated by his testi-
mony on cross-examination, "that was what he r Vaughn] came for." Farr's further
testimony that Vaughn told him that by obtaining Fan's payroll check stub the
Union "could make Mr. Riggs pay more money to his employees," again demon-
strates the true objective of these visits.
9 This was established to the Respondent's satisfaction and to mine The record was
somewhat confused by a comparison of journeymen and apprentice employees, and the
comparative wages paid in each classification. The fact is that if an employee classified
as an apprentice by the Respondent was performing work for Riggs which normally would
be assigned to a journeyman plumber but received only apprentice wages, this would
constitute just as much a threat to the Union's wage standards as if he were actually
a journeyman according to union standards.
649856-63-vol. 137-78
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On consideration of this entire line of testimony, I think it would palpably be
straining to reach what one considered a socially desirable objective, to infer from
these two interviews with a single Riggs' employee, that the Respondent, in its picket-
ing which followed these interviews by some 2 weeks, had a recognitional objective.
The only reasonable inference which I believe can be drawn from the interviews is
that the Respondent was following up on the survey it had made earlier of Riggs'
wage scale, in order to ascertain, firsthand, if substandard wages were being paid by
Riggs on the Rmcon project. This might be construed as an excess of caution, for
having obtained all the wage data it sought in its August or September investigation
of the Riggs' scale, and having received no reply to either its October 1 or its Decem-
ber 2 letter, the Respondent would naturally and reasonably assume that Riggs had
not raised his scale to that prevailing under union contracts, but I doubt that an
excess of caution, should it be viewed as that, compels our censure; rather, I think the
severely restrictive construction and application this Board has made of the boycott
provisions of the Act-all in good faith, of course-invite what otherwise might be
regarded as an excess of caution.?
We come now to an examination of the two Riggs letters and the picket sign. To
the extent that he considers that the letters and the sign support his theory of an un-
lawful object, the General Counsel would have them regarded as acceptable evi-
dence; to the extent that they do not support his theory he would have them regarded
as self-serving and therefore of no probative value. There is nothing in the identical
letters which is inconsistent with the Respondent's position that it sought not recogni-
tion and bargaining but a correction of substandard wage and working conditions;
there is a good deal in them which is inconsistent with the General Counsel's theory
of an unlawful object. The letters informed Riggs of wages and working conditions
prevailing under union contracts and offered to furnish more specific information on
request. It may be argued that implicitly this was a bid for recognition. But if the
Union was honest in demanding that Riggs meet the wage standards set under union
contracts, and this was its purpose in writing the letters, how could it expect com-
pliance with its demands unless it informed Riggs of the specific nature of the
standards that were required of him? The omission of this information would be far
more damaging to the Union's position than its inclusion. And while the General
Counsel would discard as self-serving the Respondent's explicit disavowal of recog
nition aims, were such disavowals omitted would he not be quick to seize on the
omission as proof of an unlawful objective? What, we might ask, is a labor organiza-
tion, which wishes to publicize substandard conditions existing in competing shops, to
do to clarify its position and to remove the suspicion of an unlawful objective, if
everything it says to negative an unlawful objective is to be shrugged as self-serving.
Assuming, however, that the Union's disclaimers of unlawful objectives have some
value in ascertaining the true object of its picketing, such disclaimers, the General
Counsel argues, are inconsistent with Respondent's actual conduct of its picketing.
In what way inconsistent?
The General Counsel appears to attach significance to the fact that the Respond-
ent had the Riggs letters mimeographed and distributed among Riggs' employees and
others who approached the picket line. But unless the text of the letters bore evi-
dence of an unlawful objective, their distribution was obviously harmless, no matter
in what quantity and to whom they were distributed. The Respondent was not
estopped from rallying the support of Riggs' employees as well as the general public
for its campaign to require Riggs to pay the union scale of wages. I think it is clear
that if the Respondent's picketing objective was exactly what it says it was, the dis-
tribution of the letters was a natural and reasonable extension of that objective, and,
furthermore, if, as argued in Respondent's brief, a charge of secondary boycott was
pending against Respondent at the time of the distribution, the said distribution was
obviously required to dispell any possible uncertainty as to the primary nature of its
picketing.
Finally, we have the General Counsel's reliance on the Giddings incident and the
fact that several persons, some of them employees or former employees of Riggs,
joined the Union on various dates subsequent to the commencement of the picketing.
With respect to the latter, if the Union's publicizing of Riggs' substandard wages and
working conditions was the least bit effective it would follow as a natural consequence
that Riggs' employees, or some of them, might be persuaded thereby to affiliate with
the Union. This would not, in my opinion, be proof that an object of the Union's
picketing was to "force or require" such affiliation. No more is the Union's letter to
Giddings and 1-day picketing of Giddings proof that its object was to force or require
Giddings to sign a union contract, though as a consequence of the letter and the
T I e., the per se theory of ambulatory picketing, the Curtis doctrine, etc.
LOCAL 741, UNITED ASSN. OF JOURNEYMEN, ETC. 1139
picketing which followed Giddings may have been persuaded to do just that. The
fact is that this record is barren of any evidence that the Union, in its letter to and
picketing of Giddings, made any representations whatever to Giddings that it desired
and sought recognition and a contract; such evidence as there is is to the contrary.
Cantrell's testimony that he told Giddings that the Union's sole interest in Giddings'
operations was that he raise his wage scale to the standards prevailing in union con-
tracts, was undisputed and, taking into account the full spectrum of industrial reali-
ties, not intrinsically unbelievable. The contract actually followed a meeting, in-
stituted by a third party in Giddings' behalf, weeks after the 1-day picketing had
ceased, and it was pursuant to Giddings' interrogation that Cantrell revealed the
specific conditions prevailing under a union contract. Apparently, the General Coun-,
sel would equate results with object and because a certain result followed a certain
course of action and was a consequence of it, would have it declared the object of the
said action. In other words, if in avoiding collision with a speeding car I yield too
much roadway and go over a cliff, my object was suicide. I think even an accom-
plished Freudian would be aghast at such a declaration of principle. As to the
"foreseeable results" theory, it was no more foreseeable that recognition would fol-
low as a result of the picketing than that Riggs, under the pressure of adverse pub-
licity and threat of economic loss, would raise his wage scale to the required standard.
No doubt the argument can be made that only by recognizing the Union and
executing a contract with it could Riggs have satisfied the Union's demand. That, as
indicated above, is something that is susceptible to proof and we have no proof of it.
Had Riggs complied with the Union's demands and raised his wage scale to the level
where it was comparable to the scale paid under union contracts, and the picketing
still continued, that would constitute evidence from which inferences of an unlawful
object might well be drawn. I think we cannot draw the inferences without evidence
to support them.8
On the evidence I must find, and do, that the General Counsel has not discharged
his burden of proof and, accordingly, shall recommend dismissal of the complaint
with respect to Respondent Plumbers.9
C. Allegations of 8(b) (4) (B) violations with respect to Respondent Painters
The complaint with respect to Respondent Painters involves a work stoppage by
three employees of Cheney of an hour's duration, or a fraction of an hour more or
less. This stoppage occurred on February 1, 1960, a day when Respondent Plumb-
ers was picketing Riggs. Cheney, a subcontractor on the Rincon project, employed
hangers and tapers. The tapers were represented by Respondent Painters, the hangers
by Respondent Carpenters. Gordon Cheney, one of the three tapers involved in the
work stoppage, was a brother to Bruce Cheney, the subcontractor.
While the tapers were at work, at or about 11:30 a.m., some unidentified person
told them there was a picket on the job. On receiving this information, the tapers,
who had just finished one operation and were about to begin another, decided to
take their lunch "and see what developed." While they were eating, a business agent
of Respondent Painters came by and asked them if they had seen the picket sign or
were aware of the picketing. He then said, "Well, I can't tell you to go home but
we don't usually work behind picket lines." With this he left them.
The three tapers then decided to go to a nearby cafe and make a telephone call
to Cheney in order to "find out what we were to do." Gordon Cheney made the
call. There followed a meeting between Bruce Cheney and the three tapers during
which Bruce Cheney told them, in effect, that they could make up their own minds
whether or not to return to their jobs. They made up their minds and returned to
the job. On cross-examination, Gordon Cheney testified :
9 While I have been unable to agree with the General Counsel's position, I appreciate
and respect the forceful and cogent way in which his arguments were presented An issue
of whether, assuming the informational character of Plumbers' picketing, a violation was
nevertheless established under the proviso to Section 8(b) (7) (C), was not raised nor
argued before me.
9 For scholarly and exhaustive analysis of those portions of the Act here applicable, and
their legislative history, reference is made to the Intermediate Reports of my esteemed
associates, Trial Examiners George A. Downing, Thomas F. Maher, James It. Hemingway,
Arthur Leff, and A. Norman Somers, as cited and summarized in Saturn & Sedran, Inc ,
Case No. 10-CP-2 ; IR-99 [136 NLRB No. 44] For divergent viewpoints, expertly devel-
oped, see Trial Examiners Ralph Winkler's report on Charlton Press, Inc, Case No
1-CP-3, IR-56 [130 NLRB 7271, and John F. Funke's report on C. A. Blinne Construction
Company, 'Case No 17-CP-2, IR-91 [130 NLRB 587]
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As nearly as I can recollect, and I can 't tell you which one said it, someone
said that we should call Bruce because he is the employer and should consult
him before we go on working, perhaps against his orders. And that is why we
left, in consideration for the employer.
That is the case with respect to Respondent Painters. On the basis of the single
isolated statement of its business agent, we are asked to find the violation. There
may be some to question why the power of the Federal Government should be in-
voked in a matter that is patently inconsequential, but such questions, if asked, are
not properly addressed to me. The business agent's statement, under all precedents,
must be construed as encouragement and inducement of Cheney employees to en-
gage in a work stoppage, in order to cause Cheney to put pressure on Rincon to
cease doing business with Riggs. Inasmuch as the picketing of Riggs was not for
recognitional objectives, the inducement by Respondent Painters' agent did not have
as an object the application of pressure on Rincon to cause Riggs to recognize Re-
spondent Plumbers. The fact that the inducement had no consequences is, under
the decisions, immaterial.
On these facts and conclusions a violation of Section 8(b)(4)(B) is found, but
the violation with respect to Respondent Painters resting on an isolated incident
which gave rise to no prejudice to anybody, the Board's formula of the isolated inci-
dent applied to many cases involving employers is found applicable here, and, ac-
cordingly, no recommendations with respect to remedy will be made.'°
D. Alleged violations of Section 8(b) (4) (B) by Respondent Carpenters
The case against Carpenters involves work stoppages during periods of Plumbers
picketing of Riggs, by carpenter employees of subcontractors Kennedy and Cheney,
respectively. These employees were represented by Carpenters.
On January 25, the first day of the picketing, there were some 11 carpenters em-
ployed by Kennedy on the Rincon project. They left the job after working about an
hour and a half. The only explanation they gave for leaving was that they were
sick. We may assume that it was knowledge or observation of Plumbers picketing
of Riggs that made them sick. Rincon's general superintendent, Kenneth B. Drenske,
testified that before the men left the job he saw the Union's business agent, John
Orr, come onto the job and talk to them. Admittedly he was some 300 yards away
when he observed this and therefore, even if his testimony is credited, he could not
have heard anything that was said by Orr while the latter was on the job. Orr
forcefully denied that he was present on the jobsite on this occasion. Even on the
cold record-which is all I have to go on-Drenske's testimony on the point was
not very convincing. After the walkout occurred, Kennedy repeatedly tried to
reach Orr by telephone but failed. On the following day there was no picketing and
Kennedy's carpenters had sufficiently recovered from their illness to be able to
work and did so.
The mere presence of Orr on the Kennedy job, assuming he was there, and his
failure throughout the day to respond to Kennedy's telephone calls, cannot, I think,
constitute evidence of encouragement and inducement. Assuming Orr talked to
the men, he may have been discussing any one of many phases of union business,
or .the weather, or politics, and he may have failed to return Kennedy's telephone
calls because he did not wish to discuss the work stoppage with Kennedy. I do not
know of any requirement that he should. We would have here at most, suspicion,
perhaps, conjecture, maybe. But inasmuch as I can give no weight to Drenske's
testimony we do not have even that slight basis on which to ground an inference of
union inducement.
On February 1, the second day of the picketing, six carpenters and the carpenter
foreman then working for Kennedy, again walked off the job. This occurred about
2 hours after the picketing started. They gave the Kennedy superintendent the same
explanation as previously, that they "were not feeling well." The carpenter foreman
was Gene Tracy, a witness for the General Counsel, albeit a reluctant one; the job
steward was Norbert Strassberger, who did not testify. Among his various duties,
the job steward keeps a list of the names of his crew and their standing with the
Union and reports all violations of working rules to the business agent; union mem-
bers are not permitted to work on the job unless their duly appointed steward is
present on the job. In short a union steward is a sort of bellwether of the flock,
and if he signals "go" and goes, good union members on the job do likewise.
Strassberger did in fact leave the Kennedy job on February 1, though he gave as his
reason that he was not feeling well . The defense is that all the other carpenters on
10 There is no evidence that this single incident of inducement is so enmeshed with un-
fair labor practices of other unions that it loses its isolated character.
LOCAL 741, UNITED ASSN. OF JOURNEYMEN, ETC. 1141
the job had already begun their work stoppage before they knew, or could have
known, that Strassberger was leaving and therefore at the time Strassberger quit
he had no duties as a steward for there were no men left on the job to constitute
his stewardship.
It was about 1:15 that Strassberger asked Foreman Tracy if he could leave the
job to make a telephone call. Permission granted, Strassberger called the Union's
attorney to inquire if Carpenter members were justified in working behind the
Plumbers picket line. Regardless of what the attorney told him, he reported back
to Tracy that it was not settled whether the picketing was legal and he may have
told Tracy that the carpenter employees were subject to fine if they worked behind the
picket line. Tracy's testimony, considered on the whole, was Eby no means clear on
the point, or any other, for that matter. Later the same day, he told Kennedy, ac-
cording to Kennedy, that the Carpenters would be fined if they worked behind a
picket line. This, admittedly, was long after the walkout occurred. Precisely what
Strassberger said to Tracy on this occasion is not important, for he concluded by
telling Tracy that he was not "feeling well" and was going home. This would be
understood by any experienced trade unionist as a signal to walk off the job. The
question, then, is essentially one of sequence: did Strassberger make his call and
report on it to Tracy before or after the other Kennedy employees had left the
jobsite?
There are certain factors which militate to the advantage of the defense. Ken-
nedy's employees had previously, on January 25, walked off the job because they
were not feeling well because of the picketing, and there is no evidence that the
job steward was in any way involved in that work stoppage. From this it may be
inferred that the employees had their own ideas of what was expected of them with
respect to the observance of picketing, and that it did not take a signal by the Union
or any of its agents, to set off the walkout. Such an inference would be consonant
with the testimony of the General Counsel's witness, Tracy, who when asked why
he left the Kennedy job, replied, "Because we don't work behind the picket line,
according to our Rules and Regulations it's not right for us to work behind a picket
line." I also accept Tracy's testimony that the employees in question had already
stopped work at the time Strassberger made his telephone call to the Union's at-
torney. I shall not undertake to determine the precise time at which the work
stoppage occurred and when Strassberger made his call, for the testimony on the
point is much too imprecise to permit such a finding. What is reasonably clear from
Tracy's testimony, is that Tracy was on the job and Strassberger was on the job at
the time the latter made his call for he requested permission of Tracy to leave his
job in order to make the call. It may well be, as Tracy testified, that at this time
the carpenters had already quit work and were packing up their tools preparatory
to leaving the job, but it appears that they had not actually left the job premises when
Strassberger reported back to Tracy after having made his telephone call.
Let us suppose, then, that having made his call Strassberger reported back to
Tracy that he was remaining on the job: can there by any doubt that such an an-
nouncement by the job steward would have been an important factor in encouraging
and inducing the carpenter employees to return to their work? It must follow that
Strassberger's action in leaving the job immediately following the telephone call,
was, by virtue of his position as job steward, encouragement and inducement of
Kennedy employees to complete the walkout, which was already in progress at the
time he made the call. The fact that lacking Strassberger's signal, as on the
occasion of the January 25 picketing, they might have, and probably would have,
completed their walkout on February 1, cannot serve to diminish or qualify the
"inducing" element in Strassberger's action.
On the evidence I find that on February 1, 1960, the Respondent Carpenters,
through its agent, Strassberger, encouraged and induced Kennedy employees to
strike with an object of causing Rincon to cease doing business with Riggs, thereby
violating Section 8(b)(4)(B) of the Act. I further find that it was not an object
of the inducement to cause Riggs to recognize Plumbers, that not being an object
of Plumbers' picketing.
It appears that Strassberger was a busy man on February 1. He also told one
of Cheney's carpenter employees, on the Cheney job, that he was sick and going
home and while the employee so addressed, Burke Howdeshell, testified that the
expression, "I am sick, I am going home," meant to him that there was something
wrong on the job, he did not succumb to the contagion of Strassberger's sickness
but continued to work. It is not established that Strassberger was a union steward
on the Cheney job, or had any union authority with respect to the Cheney job, and
it appears from Howdeshell's testimony that while he may have known Strassberger
on sight he did not know his name. There is no evidence that he knew he was
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a steward on the Kennedy, or any other job. I find no evidence of union induce-
ment in the incident.
On February 11, this same Howdeshell called Business Agent Orr, told him there
was a Plumbers picket on the job, and told him: "We need the money, can we work
or do we have to take off the day?" Orr replied, "I can't tell you what to do. You
have to make up your mind for yourself." According to Howdeshell, he put the
question to Orr two or three times in different ways and each time received the
same answer. Although he had observed the picket sign he did not identify the
picketing to Orr other than to state that it was a Plumbers picket. Following the
conversation with Orr, Howdeshell and one other employee left the Cheney job
for the rest of the day. As to why he worked on February 1 when there was picket-
ing, but walked off the job on February 11, Howdeshell testified:
I tried to get a hold of my employer, Bruce Cheney. I don't remember
whether it was before I called John Orr or afterwards, and I couldn't contact
him. We thought we had better take the rest of the day off because we had
heard you could get fined working behind a picket line, so we didn't know.
Admittedly, nothing was said about a fine in the conversation with Orr, nor had
Howdeshell ever been fined or disciplined by the Union although he had worked
on February 1 when there was picketing. It appears that on February 1, he, like
Cheney's painters, returned to work after a stoppage around noon, on the assurance
of Bruce Cheney that they were free to continue working if they desired to do so.
It is a reasonable inference that had he been able to establish contact with his
employer on February 111, no walkout would have occurred.
It is the General Counsel's position that Orr should have informed Howdeshell
that Carpenters had no dispute with Cheney and that therefore there was no require-
ment that Cheney employees cease work because of Plumbers picketing. It is a
reasonable inference that had Orr given Howdeshell such assurances the Cheney
work stoppage on February 11 would not have occurred. On the other hand, Howde-
shell had seen the picket sign when he called Orr and he knew, without being told,
that it involved a dispute between the Plumbers and Riggs. He had not been fined
or disciplined for working behind the Plumbers picket line on February 1, but
assuming he was apprehensive in the matter, he still did not raise the question of
fines with On and it is hard to see how the latter would know, intuitively, that this
was troubling him. Under the Carpenters contract a member had the right, indi-
vidually, to respect the picket line of a union without cause for discharge, and it
was not required of Orr, I think, to instruct Howdeshell on whether or not to assert
this right on February 11. It was something for Howdeshell to determine for
himself and that is what Orr told him. Had On used this contract provision to in-
duce or encourage Howdeshell and other Cheney employees to leave their jobs, the
violation would have been clear, but On took an entirely neutral position in the
matter. Under all the circumstances, I think it would be unduly restrictive to
require more of him. Accordingly I base no findings of Section 8 (b) (4) (B) viola-
tions on the Howdeshell-Orr incident."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the employers 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 com-
merce and the free flow of commerce.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Rincon, Riggs, Kennedy, and Cheney are, each of them, engaged in commerce
within the meaning of the Act.
2. Respondents Plumbers, Painters, and Carpenters are, each of them, labor
organizations within the meaning of Section 2(5) of the Act.
3. By inducing and encouraging employees of Kennedy to strike, with an object
of causing Rincon through Kennedy to cease doing business with Riggs, the Respond-
ents Painters and Carpenters, respectively, have engaged in unfair labor practices
within the meaning of Section 8(b) (4) (B) of the Act.
111 am aware of authority requiring affirmative statements of union agents, under cer-
tain circumstances, in cases of secondary boycotts. The factual situations, however, are
seldom precisely the same and the absence or addition of a single fact may alter the re-
quirement. The cases cited by the General Counsel are, In my opinion, distinguishable.
WHITING MILK COMPANY 1143
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Respondent Plumbers did not violate Section 8 (b) (7) (C) of the Act by pick-
eting Riggs with an object of obtaining recognition or a contract , or with an object
or forcing or requiring Riggs' employees to designate Plumbers their bargaining
representative.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL UNION No. 857 , UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA , AFL-CIO
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT induce or encourage the employees of Kennedy Construction
Company, or any other employer, not to use , manufacture , process, transport, or
otherwise handle or work on any goods , articles, materials , or commodities,
or to perform any services , where an object thereof is to force or require
Kennedy, or any other employer , to cease doing business with Keith Riggs
Plumbing and Heating Contractor.
LOCAL UNION No. 857 , UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced, or covered by any other material.
Whiting Milk Company and District 38, Lodge 264, International
Association of Machinists, AFL-CIO, Petitioner
Whiting Milk Company and District 38, Lodge 1898, International
Association of Machinists, AFL-CIO, Petitioner
Whiting Milk Company and Milk Wagon Drivers and Creamery
Workers Union , Local 380, associated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , Petitioner. Cases Nos. 1-RC-6625, 1-RC-
6626, 1-RC-6676, and 1-RC-6677. June 29, 1963
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9(c) of the National Labor
Relations Act, a consolidated hearing was held before M. F. Walsh,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
137 NLRB No. 122.