Painters Local 272

National Labor Relations Board - Board Decisions

Jun 23, 1970

183 N.L.R.B. 933 (N.L.R.B. 1970)

PAINTERS
Painters Local 272 , Brotherhood of Painters,
Decorators and Paperhangers of America,
AFL-CIO and Charles R. Curtiss, an Individual.
Case 20-CP-322
June 23, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On April 1, 1970, Trial Examiner Louis S. Pen-
field issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner' s Deci-
sion . Thereafter, the Respondent filed exceptions to
the Trial Examiner 's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Ordev of the Trial Examiner and hereby
orders that the Respondent , Painters Local 272,
Brotherhood of Painters , Decorators and Paper-
hangers of America , AFL-CIO, Seaside, Cali-
fornia, its officers , agents, and representatives, shall
take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOUIS S. PENFIELD, Trial Examiner: This
proceeding was heard before me in Monterey,
' The complaint issued on September 15, 1969, and is based on a charge
filed on July 17, 1969 Copies of the complaint and the charge were duly
served on Respondent
' Following the close of the hearing counsel for the General Counsel filed
LOCAL 272 933
California , on January 7, 1970, upon a complaint of
the National Labor Relations Board , herein called
the Board , and answer of Painters Local 272,
Brotherhood of Painters , Decorators and Paper-
hangers of America , AFL-CIO, herein called
Respondent.' The issues litigated were whether
Respondent violated Section 8(b)(7)(A) of the
National Labor Relations Act, as amended , herein
called the Act .2 Upon the entire record , including
consideration of briefs _filed by the General Counsel
and Respondent , and upon my observation of the
witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Charles R. Curtiss is an individual proprietor with
an office located in Seaside, California, where at all
times material he has been engaged in business as a
painting contractor in the building and construction
industry on the Monterey Peninsula. During the
past year, Curtiss, in the course and conduct of
such business, rendered services valued in excess of
$50,000 to nonretail construction firms in the State
of California each of which, in the course and con-
duct of its construction business, annually receives
directly from, or ships directly to, points outside the
State of California goods, materials, supplies, or
products valued in excess of $50,000. On the basis
of the foregoing, I find that at all times material,
Charles R. Curtiss was engaged in a business which
affects commerce within the meaning of the Act
and that assertion of jurisdiction over such business
is appropriate.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
Respondent disputes the claim that Peninsula
Craftsmen and Workers Association, herein called
Peninsula, an organization with which the Charging
Party had contractual relations under circum-
stances to be related below, is a labor organization
within the meaning of the statute. Evidence ad-
duced at the hearing disclosed that Peninsula has
been in existence since 1958 pursuant to articles of
association signed by a number of individuals who
associated themselves for the purpose of "forming a
labor union" whose object was to obtain "better
wages, hours, and working conditions" for its mem-
bers. The articles of association further provide that
membership shall be open to persons "employed in
any craft ... who have paid the initiation fee and
who pay the dues set forth in the by-laws ... ex-
cepting employees engaged in management and su-
a motion to correct the transcript in certain particulars Counsel for
Respondent signified his accord I have examined the corrections sought
and deem them appropriate Accordingly, the motion is hereby granted
and the changes requested are to be made
183 NLRB No. 89
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pervisory capacity." Subsequent to its formation,
bylaws were adopted providing, among other
things, that Peninsula "shall be the sole bargaining
agency for all members in regard to their employ-
ment" and that it was authorized to enter into con-
tracts with employers on behalf of its members.
Evidence adduced at the hearing further disclosed
that since its formation Peninsula has functioned
for the objectives described, and that it has existing
collective-bargaining contracts with various in-
dividuals functioning as contractors in the building
and construction trades industry on the Monterey
Peninsula . The term "labor organization" is defined
in Section 2(5) of the Act to mean "any organiza-
tion of any kind, or any agency or employee
representation committee or plan, in which em-
ployees participate and which exists for the pur-
pose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of
work." Upon the basis of the foregoing as well as
other evidence adduced in the record concerning
the functioning of Peninsula, it is clear that Penin-
sula is a labor organization within the meaning of
Section 2(5) of the Act, and I so find.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent
picketed Curtiss at a construction site, at which he
was working, for the unlawful object of obtaining
recognition at a time when Respondent was not the
currently certified collective-bargaining representa-
tive, but when Curtiss was lawfully recognizing
Peninsula as the statutory representative of its em-
ployees. It is further alleged that such picketing oc-
curred at a time when a question concerning
representation could not appropriately be raised
under Section 9(c) of the Act and the conduct was
thus violative of Section 8(b)(7)(A). Respondent
denies that Peninsula is a labor organization within
the meaning of the Act, and further contends that
in any event its picketing was not for the unlawful
object of obtaining recognition, but was purely in-
formational, and designed to inform the public and
others that Curtiss did not conduct his business so
as to meet the area standards with respect to wages,
hours, and working conditions.
Charles R. Curtiss has been in business as a
painting contractor on the Monterey Peninsula for
approximately 5 years. Curtiss undertakes private
contracts on residential homes as well as commer-
cial contracts. The latter are usually done by sub-
contract with general contractors engaged in the
construction of new homes or buildings. Curtiss
usually keeps two regular employees throughout
the year, and hires such additional painters as the
number of jobs at any given time requires.
Charles Jewart is the business representative for
Respondent in the Monterey Peninsula area. Jewart
has functioned in that capacity since 1966, and his
principal duties relate to the enforcement of a
master collective-bargaining agreement which for
many years has covered employees of members of a
painting contractors' association as well as em-
ployees of individual contractors who have become
signatories to such master agreement . Jewart
testified that in the performance of his duties he
patrolled jobs to see that the contractors and paint-
ers abided by the "terms of our agreement." He
stated that in some measure he acted as "a glorified
policeman ." In addition to his enforcement duties
Jewart also stated that he regularly stopped at
jobsites to ascertain who was doing the painting,
and to discover if nonunion painting contractors
were working there . He represented it to be a major
concern of his to determine if a job was being done
under "union conditions" so that union painters
might be kept employed . Jewart also testified that
he received frequent complaints from union con-
tractors when nonunion contractors got jobs. The
union contractors complained that they were una-
ble to compete because the nonunion wages were
lower than those they were required to pay, and the
nonunion painters were subjected to fewer restric-
tions in the use of tools of the trade such as spray
guns and rollers. Frequently the presence of non-
union contractors on jobs was brought to Jewart's
attention by union contractors with the query of
"what [was he] going to do about it?" According to
Jewart he would investigate such complaints and if
he deemed it appropriate possibly take steps to
"inform the public as to the working conditions."
For a short period in 1966 and 1967, Curtiss had
been bound by the terms of Respondent's master
contract for the area, and had obtained his painters
through the local Union. When that contract had
expired, however, Curtiss did not become a party to
the next one, but remained nonunion for a time. In
April 1968, Curtiss once again became a party to a
master agreement which was to expire on June 30,
1968. Curtiss himself does not explain the precise
circumstances which led to his signing such agree-
ment, but Jewart testified that a general contractor
for whom Curtiss was working under subcontract
insisted that he do so in order to continue on the
job. While Jewart seeks to minimize the extent of
union pressure on Curtiss at this time, he does
represent that Curtiss signed the master contract so
"he could do his jobs without a union hassle." In
any event the master contract was signed by Curtiss
on April 18, 1968, with Respondent at that time
making a concession to Curtiss as to spray and
roller painting for the jobs to which Curtiss was al-
ready committed. The concessions were contrary to
the requirements of the master agreement and did
not apply to other jobs he might obtain.
Upon the expiration of the master agreement on
June 30, 1968, Respondent negotiated a new
master agreement covering Monterey Peninsula
contractors. Jewart testified that he made efforts to
have Curtiss become a party to it. Curtiss, however,
did not sign the new master agreement, but on Sep-
tember 23, 1968, he signed a collective-bargaining
PAINTERS LOCAL 272 935
agreement with Peninsula . This agreement con-
tained detailed provisions concerning the wages,
hours , and working conditions of the painters that
Curtiss was to use in his business . By its terms the
Peninsula agreement was to be effective until June
30, 1969. On April 12, 1969, Curtiss signed a new
agreement with Peninsula which was to supercede
the 1968-69 agreement and to expire on July 1,
1970. After Curtiss signed the agreement with
Peninsula , Respondent made no further specific
requests that Curtiss accord it recognition until the
events which transpired the spring and summer of
1969 which are to be related below. The General
Counsel contends this conduct to establish a new
demand for recognition . Respondent denies it.
The first picketing incident which affected Cur-
tiss took place on April 10, 1969, and is not alleged
in the complaint to be unlawful . Since it serves as a
background to the later allegedly unlawful picket-
ing, however , it becomes appropriate to relate the
circumstances under which it occurred . On April
10, Curtiss was engaged in work at the Pacific
Telephone and Telegraph Company building in
Monterey . Upon starting work that day Curtiss
noted the presence of Business Representative
Jewart and a picket in front of the jobsite. The
picket carried a sign reading "Charles R. Curtiss,
painting contractor , does not observe the wages,
hours , and other terms and conditions of employ-
ment for painters in this area . No dispute with any
other employer . Painters Local 272, AFL-CIO."
Upon seeing the sign Curtiss approached Jewart
and asked , "What is the big idea?" Jewart replied
that he hoped there would be no hard feelings. Cur-
tiss acknowledges that Jewart did not ask him to
sign a contract at this time , and states that the
picket left the job when Curtiss' employees de-
parted . Jewart agrees that Curtiss greeted him and
that he responded as the witness states . In addition,
however , Jewart states that some 15 or 20 minutes
after these initial remarks he again saw Curtiss at
the jobsite and that at this time Curtiss told him
"that he hadn 't at the present time put his job sign
on the Bonifacio Plaza , but that it would be there
and that he was going to do that job, and shove it
right down [Jewart 's] throat ." Jewart replied by
saying " Be my guest."
The first incident of alleged unlawful picketing
occurred on June 26 , 1969. This picketing was
preceded by a meeting between Curtiss and Jewart
on June 23 at the Bonifacio Plaza jobsite . On that
day Curtiss was present at the jobsite with a sub-
contractor named Redwine Carroll. They were en-
gaged in doing some preparatory work for the
painting to be done later . According to Curtiss,
when Jewart approached him at the jobsite Curtiss
questioned him as to the reason for his presence.
When Jewart replied that it was "just a friendly
visit," Curtiss answered that he knew "[Jewart]
better than that" and that Jewart wouldn 't be there
unless he " intended to discuss some union mat-
ters ." Curtiss testified that at this point Jewart re-
marked that Curtiss "couldn 't do this kind of work
and that he would stop him." When Curtiss
inquired why this should be so , Jewart -replied
"because you don't belong to the Union ." Curtiss
then reminded Jewart that he had contractual rela-
tions with Peninsula . Jewart responded by stating,
"we don 't recognize the Craftsmen 's Union, we
consider you to be non -union ." Curtiss states
Jewart then represented that he had sanction from
the Monterey Building and Construction Trades
Council to picket the job, and then remarked,
"Chuck, we wouldn 't have to fight like this or go
around like this if you would just sign the agree-
ment with us." Following this a discussion ensued
between Curtiss and Jewart as to the advantages
which might flow from a contractor 's doing busi-
ness with Respondent . Curtiss told Jewart that he
thought Respondent 's working agreement was "un-
fair and dishonest since it put too many limitations
on the manner in which a contractor could do a
particular job." Curtiss stated further that if he
signed "[Jewart's] agreement [ his] painters would
quit."
Jewart 's version of his meeting with Curtiss on
June 23 differs in a number of respects . Jewart
states that on the afternoon of June 23 when driv-
ing past Bonifacio Plaza he noticed the presence of
Curtiss' truck . He stopped and went to the jobsite
to speak to Curtiss. According to Jewart , Curtiss
immediately asked "where was my picket sign?"
Jewart responded by saying " remember you said
picket I didn 't." Jewart does not deny , however,
that he intended to picket Curtiss' job, or that he
made this intention clear to Curtiss during the
course of the conversation . Curtiss told him that it
would be illegal for him to picket , to which Jewart
replied that he would not undertake picketing un-
less it were legal and sanctioned by the Monterey
Building and Construction Trades Council.
Curtiss expressed disbelief that Jewart could
get such sanction , questioning Jewart's asser-
tion that he already had it . Jewart acknowledges
that while he was there the master agreement, and
particularly the restrictions it imposed on use of
tools of the trade , was discussed . He stated that
Curtiss told him "that he certainly would not have
anything to do with an organization that would
bring back the dark ages ." Jewart testified that
Curtiss elaborated on this by saying " it would be
like not being able to use the roller ; it was like tak-
ing a scale from a carpenter, and he would have
nothing to do with an organization that did those
things ." According to Jewart this discussion was
precipitated not by any demand for recognition but
because Jewart noted Curtiss was preparing to
spray smooth walls at the Bonifacio Plaza jobsite
and had represented to Jewart that he had permis-
sion from Peninsula to do so. Jewart acknowledges
that he made it perfectly clear to Curtiss that under
Respondent 's contract such a concession could not
be granted. Jewart specifically denied, however,
telling Curtiss that signing the master agreement
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would resolve any controversy that existed between
Curtiss and Respondent. Jewart volunteered that in
fact he sought no agreement because he felt that
Curtiss had not complied with the terms of the
agreement which had expired in June 1968 and that
he had no desire for Curtiss to become a party to
the new one .3 Jewart, while denying that he asked
Curtiss to sign the contract, does not assert that he
suggested to Curtiss at this, or any other time, any
other means whereby Curtiss might resolve the con-
troversy in a manner satisfactory to Respondent.
On June 26, 1968, a picket appeared at the
Bonifacio Plaza jobsite. The picket sign had the
identical legend which had appeared in the April
picketing at the telephone building. With the ap-
pearance of the picket, and the likelihood that em-
ployees of other subcontractors would leave the
job, the general contractor asked Curtiss to take
steps to have the picket removed. Curtiss im-
mediately telephoned Mark Puscaric, business
agent of the Peninsula, and apprised him of the
picketing. Curtiss also notified the attorney who
represented Peninsula that there was picketing. Ap-
parently employees of the other crafts did not leave
the jobsite on June 26, but on the following day
when the picket once again appeared workers from
other crafts refused to cross the picket line. Curtiss
that day inquired of a representative of Monterey
Building and Construction Trades Council, and
learned that the picketing had been sanctioned by
the Council inasmuch as it did not recognize Penin-
sula as a legitimate labor organization. Curtiss then
telephoned Jewart, and, according to Curtiss,
Jewart told him that "all [he had] to do is to come
down and sign this agreement and we can end all
this." Further picketing with a similar sign occurred
once again in late July and on another date in Au-
gust. Jewart acknowledges the telephone con-
versation with Curtiss on the second day of the
picketing. Jewart denies that he represented that
signing the agreement would bring about removal
of the picket. Jewart states that Curtiss advised him
that there would be no painters working that day,
and that it would be unlawful for Respondent to
picket when he had no workers on the job. Jewart
checked this with his attorney and thereafter im-
mediately removed the picket.
Between July 4 and 10, 1969, Jewart met Frank
Hawkins, a permanent employee of Curtiss, at
another jobsite at which Curtiss was working. Haw-
kins and Jewart engaged in a conversation regard-
ing Jewart's Union and its benefits. Jewart
represented that if Hawkins would join immediately
he could place him on a good job and the initiation
fee would be $10. Jewart represented, however,
that if he waited for a later date when "[Curtiss]
J Jewart cites the failure of Curtiss' employees to become members of
Respondent as required by the contract as Curtiss ' breach of his obligation
This would appear to be an afterthought since it did not prevent Jewart
from soliciting Curtiss to sign the new master agreement prior to the time
Curtiss recognized Peninsula
had to join the AFL-CIO union himself" then the
initiation fee would be "$200 or $250."
Discussion of the Issues and Conclusions
Section 8(b)(7) of the Act purports to prohibit
picketing generally "where an object thereof is
forcing or requiring an employer to recognize or
bargain . . ." with a labor organization. Section
8(b)(7)(A) addresses itself specifically to prohibit-
ing picketing in a situation where an employer is al-
ready recognizing a labor organization, and a
question concerning representation cannot be
raised at the time of the picketing. I have already
rejected Respondent's claim that Peninsula is not a
labor organization within the broad definition
found in the Act. The status of Peninsula as a
dominated or assisted organization within the
meaning of Section 8(a)(2) of the Act is not an
issue in this proceeding, nor is it shown to have
been an issue theretofore. Respondent does not
claim, and it does not appear, that a question con-
cerning representation could have been raised at
the time the picketing was initiated. As noted
above, Respondent concedes that the picketing ac-
tually took place. Thus we find present all the ele-
ments needed to establish a violation of Section
8(b)(7)(A) provided it can be found that Respon-
dent's picketing was for the unlawful object of forc-
ing or requiring Curtiss to accord Respondent
recognition as the statutory representative of his
employees. As noted above, Respondent denies
that such was its object, claiming that the picketing
was initiated solely for informational purposes so
that the public might be informed that Respondent
did not carry on its business in conformity with the
area standards established by Respondent through
its master agreement. The lawful or unlawful nature
of the object thus becomes the sole remaining issue
to be considered.
It is a statutory right of employees to organize
and bargain through unions of their own choosing
Once a majority selects a bargaining representative,
a duty arises for both the employer and the
designated representative to bargain in good faith.
Section 9 of the Act embodies machinery designed
to determine if such bargaining duty exists by
providing a means to define bargaining units and to
determine a majority choice by an election process.
Section 8(b)(4)(C) and Section 8(b)(7) of the Act
were designed to encourage labor organizations to
use the statutory machinery in pursuit of their or-
ganizational and recognitional ends by proscribing
the use of secondary boycotts and picketing to at-
tain such objectives. It was the initial view of the
Board that the terms "recognize or bargain" in
both sections meant that picketing to change "pre-
vailing rates of pay and conditions of employment"
constituted an attempt to bargain and thus was for a
PAINTERS LOCAL 272 937
proscribed object.4 The Board, however, later
reconsidered this decision and reversed the initial
holding in the same case, finding that, where a
union limited its picketing object to inducing the
unorganized employer to conform to area stan-
dards, it was not necessarily pursuing an unlawful
organizational or recognitional end .5 Later the
Board found the reasoning with regard to Section
8(b)(4)(C) to be equally applicable to picketing
for an organizational or recognitional object under
Section 8(b)(7).6 The underlying rationale behind
this so-called area standards doctrine is expressed
by the Board in the following:'
A labor union normally seeks to organize the
unorganized and to negotiate collective-bar-
gaining contracts with employers; but it also
has a legitimate interest apart from organiza-
tion or recognition that employers meet
prevailing pay scales and employee benefits, or
otherwise employers paying less than prevail-
ing wage scale would ultimately undermine the
area standards.
The Board, however, has not given this doctrine
unlimited application, but has indicated that, in any
case where a union asserts it as a defense to picket-
ing, it will carefully scrutinize the announced objec-
tive to determine if in fact it may not be a pretext
designed to obtain recognition and agreement." it
thus becomes necessary in the instant case to con-
sider the background against which the controversy
arose, the setting in which the picketing took place,
and the assertions of purported object, in order to
determine the lawful or unlawful character of such
object within the meaning of the Board's area stan-
dards doctrine.
In the instant case it is undisputed that Respon-
dent's master contract not only carries a higher
wage package, but also that it imposes greater
restrictions on the use of tools of the trade than is
to be found in the wage package and restrictive
clauses in the Peninsula contract. It may be noted
that these restrictive clauses have the effect of rais-
ing costs, because to the extent they are enforced
additional man-hours are required to perform any
job.
If we fully credit the testimony of Curtiss to the
effect that Jewart, on two separate occasions, told
him that continued picketing would cease if Curtiss
signed the master contract, the recognitional object
becomes obvious, and its unlawful nature is
established. Jewart, however, denies that he made
such assertions to Curtiss or anyone else at any
time. Neither witness appeared to be evasive or to
be consciously distorting what each claimed had
occurred. On the one hand, however, we must note
that Curtiss had an obvious and direct interest in
establishing the unlawful nature of the object, while
on the other hand, we find Jewart with an equally
clear and obvious interest in establishing precisely
the reverse. I doubt that Curtiss was fabricating in
his testimony, but it is perhaps to be expected that
his view of the events surrounding the picketing
may have been colored by a conviction that Jewart,
whatever words he may have used, was in reality
insisting that signing the master agreement was the
only solution for the problem. This conviction
could readily be translated into a belief that Jewart
became as specific in the words he used as Curtiss
now claims. With the current litigation pointing up
the limitations in object to which a union is
restricted if the picketing is to be found lawful, it
became equally easy for Jewart, in retrospect, to
conclude that he could not possibly have made the
assertions which Curtiss attributes to him. Under
the circumstances neither the specific assertion of
Curtiss nor the flat denial of Jewart stand out as the
most reliable gauge to determine the real picketing
object. A more reliable source may be found in the
background and setting of the entire controversy
and a consideration of the undisputed aspects of
the testimony of Curtiss and Jewart, with an evalua-
tion of a whole made in the light of the rationale of
the Board's area standards doctrine.9
Jewart testified forthrightly about the nature of
his job. Aside from his policing duties regarding
parties to the master contract, Jewart made it clear
that he regularly visited jobsites to check on the
presence of nonunion contractors. As we have
seen , Jewart received frequent complaints from
union contractors that nonunion contractors were
able to underbid them. Jewart is somewhat vague as
to his response to such complaints. He indicates no
more than that he felt it to be his "duty to inform
the public as to the working conditions."
Presumably this information was in some instances
expressed by picketing. Clearly, however, the
' International Hod Carriers , Building and Common Laborers ' Union of
America, Local No 41, AFL-CIO ( Calumet Contractors Association), 130
NLRB 78
5 133 NLRB 512
6 Houston Building and Construction Trades Council ( Claude Everett Con-
struction Company), 136 NLRB 321
' Local Union No 741, United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO ( Keith Riggs, Plumbing and Heating Contractor ), 137 NLRB
1125
8 Operative Plasterers ' and Cement Masons ' International Association,
Local Union No 44, AFL-CIO ( Penny Construction Company, Inc ), 144
NLRB 1298, Chefs, Cooks, Pastry Cooks and Assistants Union of Neu York,
Local 89, AFL-CIO (Cafe Renaissance , Inc ), 154 NLRB 192, Local 3, In-
ternational Brotherhood of Electrical Workers, AFL-CIO (Jack Picoult), 144
NLRB 5, Local 107 , International Hod Carriers , Building and Common
Laborers ' Union of America , AFL-CIO ( Texarkana Construction Company),
138 NLRB 102 , The Building & Construction Trades Council of Philadelphia
and Vicinity , AFL-CIO ( Fisher Construction Company ), 149 NLRB 1629,
Retail Clerks International Association , Local Union No 899, AFL-CIO
(State-Mart , Inc, d/b/a Giant Food ), 166 NLRB 818
' Respondent points out that Redwine Carroll , a subcontractor doing
work for Curtiss , was also present at the jobsite on June 23 , 1969, and was
not called by the General Counsel to corroborate Curtiss While it is true
that Carroll was present at the outset of the visit , and to a limited extent
participated in the conversation with Jewart , it also appears that the parties
moved about the jobsite somewhat, and that Carroll was not with Curtiss
and Jewart at all times Neither Curtiss nor Jewart assert that Carroll was
present at the time when Jewart is supposed to have pressed Curtiss to sign
the master contract Thus with respect to this issue it is not possible to draw
any inferences from the failure of either party to call Carroll
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
problem could be solved most effectively when by
one means or another the nonunion contractor
could be induced to sign the master contract. Not
only would this meet the complaint as to un-
derbidding, but it would further the ultimate aim
that all unions have to organize completely the en-
tire industry in which they operate. While the very
existence of the area standards doctrine implies
that lawful picketing may take place for reasons
other than an ultimate recognitional end, we must
never overlook the continuing existence of such ul-
timate object, and we must demand that a union
seeking to establish an exception thereto must
make it abundantly clear that for the time being it
has forsworn the ultimate object for a more limited
immediate one. The question then becomes
whether or not Respondent in the instant case
made it sufficiently clear that its immediate object
was truly limited. I am of the opinion that it has
failed to do so.
Jewart and Curtiss had been acquainted for some
years during most of which Curtiss had been a
nonunion contractor.10 Their acquaintance does not
appear to have been a social one, however, and it is
fair to assume that their various meetings over the
years had been in some manner related to Curtiss'
union status. As above noted on two occasions Cur-
tiss had been persuaded to become a party signato-
ry to the master agreement. The last occasion had
occurred within a year of the picketing . At neither
time had Curtiss remained under the contract um-
brella for any extended period . Jewart, however,
continued actively to seek Curtiss ' signature to the
1968-69 current master agreement after the earlier
one expired in June 1968 and only abandoned his
direct efforts in this regard after Curtiss had signed
the contract with Peninsula. Jewart himself testified
that Curtiss signed the 1968 agreement because
"he wanted to get where he could do his jobs
without a union hassle ." Thus it would appear that
the relationship between Jewart and Curtiss had al-
ways had its principal focus on Curtiss ' sporadic
nonunion status, and that in the past Jewart had
had at least temporary success in persuading Cur-
tiss to abandon such status and sign the contract.
Neither Jewart nor Curtiss testified , however, that
at any time prior to June 23 had Jewart ever sug-
gested any means short of recognition and signing
the master contract as a method for solving the
continuing controversy.
Respondent 's principal dispute with nonunion
contractors concerned their working on commer-
cial jobs as distinguished from individual home
repaint jobs . The record does not show the nature
of Curtiss ' jobs immediately following his signing
10 Although for the purposes of this proceeding Peninsula is found to be a
labor organization within the meaning of the Act, and Curtiss' collective-
bargaining contract with Peninsula to be a valid one, it is clear that Respon-
dent viewed all contractors not having a bargaining relationship with it as
nonunion , and that it tailored its approach to them in a similar fashion
whether or not they had a bargaining relationship with an independent or-
ganization
the contract with Peninsula in 1968 . Curtiss was
working on a commercial job at the telephone
building, however, when picketed for the first time
in 1969 . Although this picketing is not charged to
be unlawful , the picket sign used carried the same
legend later used for the alleged unlawful picketing
in June . Although signing the master agreement
was not affirmatively requested , no other means of
resolving the dispute was suggested , and the picket-
ing at that time was apparently abandoned before it
became a serious issue . The incident serves as a
prelude to the alleged unlawful picketing , however,
for it was during the course of it that Curtiss told
Jewart about the forthcoming commercial job at
Bonifacio Plaza , and in effect challenged Jewart to
stop him from carrying it through.
Jewart and Curtiss are not in substantial disagree-
ment as to most of the conversations which trans-
pired between them on June 23 and thereafter.
Jewart admittedly went to the jobsite on that date
to determine if the time was ripe for picketing Cur-
tiss. Jewart concedes that he and Curtiss discussed
the master contract and compared its terms with
those of the Peninsula contract , particularly with
reference to restrictions on such tools as spray guns
and rollers . Jewart acknowledges that Curtiss ex-
pressed an emphatic distaste for the restrictions
found in the master contract , and advanced them as
a reason for finding the contract unacceptable.
Despite the greater detail of Curtiss ' testimony, and
minor contradictions which exist between him and
Jewart , their only difference of real significance
centers on Curtiss ' assertion that on two occasions
Jewart told him in so many words that he could ob-
viate the picketing by signing the agreement, and
Jewart's denial thereof. As set forth above, I do not
deem the testimony of either to be wholly reliable
in this regard . Significantly , however, neither claims
that any discussion ensued between them at any
time relating to any means whatsoever whereby the
controversy could be resolved and the picketing
forestalled by some method other than recognizing
Respondent and signing the master contract. I give
scant credence to Jewart 's claim that he was not
even seeking a contract at the time because Curtiss
had not fully complied with the terms of the 1968
agreement . I attach even less weight to Jewart's
vaguely enunciated suggestion that he had no
authority to sign Curtiss to an agreement. It was
Jewart's business to bring all painting contractors
possible under the master agreement , and to see
that its terms were enforced . Jewart had unsuccess-
fully sought to get Curtiss to sign the current agree-
ment following the expiration of the 1968 contract
presumably with full knowledge of any alleged
violations thereof . Possibly Jewart lacked authority
to grant Curtiss any special concessions in the use
of tools , but I have little doubt that had Curtiss of
his own volition signified a willingness to sign the
master agreement when Jewart came to the
Bonifacio Plaza jobsite, or at any time thereafter,
Jewart would have been more than ready to accom-
PAINTERS LOCAL 272
modate him and would later have undertaken to
have seen that Curtiss abided by the contract terms.
Thus we find the alleged unlawful picketing tak-
ing place against a background of continuing efforts
by Respondent to make Curtiss a union contractor,
with any so-called "union hassle" arising therefrom
having twice before been resolved by the recogni-
tional route. Assuming there were no further direct
demands for recognition following Jewart's initial
attempts prior to September 1968, it is also true
that Jewart took no action and made no statements
which would affirmatively signify that the recogni-
tional approach had thereafter been abandoned in
favor of a more limited immediate object. Nor
were there any suggestions as to how any object
whatsoever might be achieved by means short of
recognition. The picket sign legend itself, while not
foreclosing an area standards object, speaks of
Curtiss' failing to accord his employees "the terms
and conditions of employment" accorded other
painters in the area. This scarcely rejects the pos-
sibility that such end could also be achieved by the
contract route. Other than Jewart's self-serving
claim, which I do not credit, that he was not seeking
a contract, Jewart in no other way signified that the
equivocal language used on the picket sign was
limited to pressing Curtiss to raise his standards to
meet those which Respondent had negotiated for
the area.
When a union embarks on picketing for an osten-
sible area standards object it should be charged
with responsibility to disentangling its purpose from
the more obvious and ultimate object of obtaining
recognition. If it is to be permitted to preserve the
standards it has already negotiated, it should be
required to forswear organization or recognition as
the immediate object of such picketing in some af-
firmative manner . A union 's area standards interest
is the economic one of preventing the unorganized
employer from undermining standards which it has
achieved from the organized employer. The Board
has taken the position that a union may not seek
from the unorganized employer intangible benefits
that ordinarily flow from the bargaining relation-
ship. Thus the Board has held that a union may not
picket to obtain benefits equivalent to those found
in a union contract such as grievance procedures,
pension and welfare plans, a vacation plan, and the
like." Its efforts must be limited to demanding
comparable or equivalent costs in order to cbviate
the nonunion employer 's competitive advantage,
and it may not undertake to prescribe the precise
manner in which the cost items are to be conferred
on the employees without engaging in pro tanto bar-
gaining . Just as a union cannot be permitted to
prescribe the type and manner in which the benefits
should be conferred, neither should it be permitted
to speak in equivocal terms as to its object. It is
reasonable , especially where, as here, there is a
" Retail Clerks International Association , Local Union No 899, AFL-CIO
(State-Mart, Inc , d/b/a Giant Food ), 166 NLRB 818
939
long history of recognitional attempts on Respon-
dent's part, that a union should be required to
make it clear in unmistakable terms that its im-
mediate object is a limited one, and it also must
suggest , if asked, methods whereby the employer
may fulfill such object by means short of recogni-
tion and spina an agreement
In the instant case Respondent not only has failed
to make its immediate purpose clear, but it un-
dertook its picketing against a background and in a
context which is properly construed as tantamount
to a request for recognition. Under the circum-
stances the picketing which ensued was in pursuit
of an unlawful recognitional object, and thereby
Respondent engaged in conduct violative of Section
8(b)(7)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the Em-
ployer's operations described in section I, above,
have a close, intimate, and substantial relationship
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 Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom, and take certain affirm-
ative action designed to effectuate the policies of
the Act.
CONCLUSIONS OF LAW
1. Charles R. Curtiss , an individual proprietor, is
an employer engaged in commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
2. Respondent , Painters Local 272, Brotherhood
of Painters , Decorators and Paperhangers of Amer-
ica, AFL-CIO, and Peninsula Craftsmen and
Workers Association are each labor organizations
within the meaning of Section 2 ( 5) of the Act.
3. Respondent by picketing a jobsite of Charles
R. Curtiss at Bonifacio Plaza in Monterey with an
object of forcing or requiring Curtiss to recognize
or bargain with it as the representative of Curtiss'
employees at a time when Curtiss had lawfully
recognized Peninsula Craftsmen and Workers As-
sociation , and a question concerning representation
could not appropriately be raised under Section
9(c) of the Act , has engaged in unfair labor prac-
tices within the meaning of Section 8(b)(7)(A) of
the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in this
proceeding, I recommend that Respondent, Paint-
ers Local 272, Brotherhood of Painters, Decora-
tors and Paperhangers of America, AFL-CIO, its
officers , agents , and representatives, shall:
1. Cease and desist from picketing Charles R.
Curtiss at any jobsite where an object thereof is to
force or require Curtiss to recognize or bargain
with Respondent as the bargaining agent of em-
ployees of Curtiss in circumstances violative of Sec-
tion 8(b)(7)(A) of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Post at the business office and meeting hall
of Respondent copies of the attached notice
marked "Appendix."12 Copies of said notice, on
forms provided by the Regional Director for Region
20, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to members are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Furnish the Regional Director for Region 20
signed copies of said notice for posting by Curtiss,
if willing , in places where notices to employees are
customarily posted. Copies of said notice on forms
provided by the Regional Director, shall, after
being signed by Respondent, be forthwith returned
to the Regional Director for distribution by him.
(c) Notify the Regional Director for Region 20,
in writing, within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.' 1
12 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of 4ppeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
13 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify the Regional Director for
Region 20 , in writing within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket Charles R. Curtiss at
any jobsite at which he is working where an
object thereof is to force or require Curtiss to
bargain with Painters Local 272, Brotherhood
of Painters , Decorators and Paperhangers of
America , AFL-CIO, as the bargaining
representative of its employees in circum-
stances violative of Section 8(b)(7)(A) of the
National Labor Relations Act.
PAINTERS LOCAL 272,
BROTHERHOOD OF
PAINTERS , DECORATORS
AND PAPERHANGERS OF
AMERICA , AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 450 Golden Gate Avenue, 13050
Federal Building, Box 36047, San Francisco,
California 94102, Telephone 556-0335.