Paul E. Iacono Structural Engineer, Inc.

National Labor Relations Board - Board Decisions

Jul 7, 1980

250 N.L.R.B. 416 (N.L.R.B. 1980)

tI)t CISI()NS O)F NAII()NAl L ABOR RI LATI()NS BO()AR)
Carpenters Iocal Union No. 1622, United Brother-
hood of Carpenters & Joiners of America,
AFL-CIO and Paul E. Iacono Structural Engi-
neer, Inc. Case 32-CI'-68
July 7, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MIMHBIRS
JENKINS AND) TRU SI)AI.T
On March 14, 1980, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel and the Charging Party filed briefs in sup-
port of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Carpenters
Local Union No. 1622, United Brotherhood of
Carpenters & Joiners of America, AFL-CIO,
Hayward, California, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order.
DECISION
SIAII MI N oI lHil CASIt
Jt RROI I) H. SHAPIRO, Administrative Law Judge: The
hearing in this proceeding, held on January 7, 1980, is
based on an unfair labor practice charge filed on August
13, 1979, by Paul E. lacono Structural Engineer, Inc.,
herein called the Employer, which was amended on
August 16, 1979. On August 21, 1979, a complaint issued
on behalf of the General Counsel of the National Labor
Relations Board, herein called the Board, by the Region-
al Director for Region 32, alleging that Carpenters Local
Union No. 1622, United Brotherhood of Carpenters &
Joiners of America, AFL-CIO, herein called Respond-
ent, has engaged in unfair labor practices within the
meaning of Section 8(b)(7)(C) of the National Labor Re-
lations Act, as amended. The Respondent filed an answer
denying the commission of the alleged unfair labor prac-
tices.
Upon the entire record, from mv observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs, I make the following:
FINI)IN(,S OI FA( I
1. I Tt AII l(il,) IUNFAIR I IABOR PRA( IICTS
A. 7The Evidence
1. The setting
The Employer is a general contractor in the building
and construction industry. Respondent is not certified by
the Board to represent any of the Employer's employees.
In June 1979, the Employer performed construction
work for ain automobile dealership, located in Livermore,
California, herein called the project. It employed ap-
proximately two to three employees on the project who
did carpentry work. They were jointly employed by the
Employer and R. J. Wallard Employer as project super-
intendent.
2. Business Representative Roy Fouche visits the
project
During the middle of June 1979. the project was vis-
ited by Roy Fouche a business representative for Re-
spondent. Fouche introduced himself to Project Superin-
tendent Wallard who advised Fouche that he worked for
the Employer and was in charge of the project. When
Fouche asked if the Employer was "union," Wallard re-
plied, "no." Fouche stated that a majority of the contrac-
tors who did business in the area were union contractors
and that Respondent, which was strong in that area, had
a good program and a good collective-bargaining con-
tract. Wallard asked what the carpenters were currently
earning under the Respondent's collective-bargaining
contract. Fouche gave him this information and indicat-
ed that he would be happy to furnish Wallard a copy of
the Respondent's contract.
The description of this conversation is based on Wal-
lard's testimony. Fouche testified that he visited the proj-
ect on June 26 or 27, at which time he told Wallard that
if Wallard got tired of working for the Employer that
Fouche would get him a job with Respondent. Wallard
rejected this offer, stating that he was happy working for
the Employer, and that he was earning more money than
Respondent was paying. I have rejected Fouche's ver-
sion because Wallard impressed me as a more credible
witness than Fouche. Also, it seems highly improbable
that Wallard would not identify himself as the project
superintendent and that knowing this Fouche would
have solicited him to join Respondent
I RcpoilldC llt in it il, sr i ltcr lniit, thalt it I
s
i albhor orgailll/lli lll U l(hlin
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p01IotIs oI the Act for til Itelarct to lw,_rl Iull'fit_1oll hertill
250 NLRB No. 56
41I
CARPENTERS I ()CAI. UNION N() 1622
3. Respondent pickets the Employer and disclaims
an illegal object
On June 27. 1979, Respondent decided to picket the
Employer at the project and wrote the Employer as fol-
lows:
This letter is to protest the undercutting of union
wages and benefits by your firm. It is our informa-
tion that the wages and benefits that are paid to per-
sons employed by you are substantially lower than
the union scale prevailing for such work in this
area. Such sub-standard wages and benefits adverse-
ly affect other employees working in this industry,
since they tend to depress the wages and benefits
that have been negotiated and limit the employment
opportunities of employees we represent.
By this letter, Carpenters Local Union 1622 is
not requesting, nor shall it request, that you employ
or refuse to employ any individuals or group of in-
dividuals, nor do we request that you assign work
to employees in any past labor organization or any
particular trade, craft or class. We do not seek to
organize your employees nor do we suggest or re-
quest that you bargain with this union as a repre-
sentative of your employees.
Our sole purpose is to seek to eliminate the threat
to union wages and benefits that has arisen as a
result of the practices of your firm. If you change
your wages and benefits so they substantially meet
the prevailing area standards, please advise us im-
mediately. In the absence of such changes we
intend to inform the public that your employees re-
ceive sub-standard wages and benefits. We shall do
so by lawful forms of publications in locations
where you are engaged in your normal business.
The parties stipulated that Respondent commenced
picketing the Employer at the project "on or about July
3, 1979,"2 and continued to picket for over 30 days with-
out filing a petition under Section 9(c) of the Act, and
picketed using the following sign:
PAUl IACONO STRUCTURAL ENGINI.ER
FAII.S TO PAY
RATES AND FRINGE BENEFITS
ESTABI ISHED BY CARPENTERS
IN THIS AREA
NO DISPUTE WITH ANY OTHER EMPI.OYEIR
4. Business Representative Connors allegedly
attempts to persuade the Employer to sign a
collective-bargaining agreement
Project Superintendent Wallard testified that a person,
who identified himself as a business representative em-
ployed by Respondent, named Gerald Connors spoke to
I Project Superintendent Wallard testified that the picketing com-
menced June 29. 1979, whereas the lestimony of Respondent's husincss
representative. Connors. indicates that. as Ihe parries slipulated aind the
complaint allege'. the picketing did not slart until Jul, .1, 1979 I have
rejected Wallard's iesiimionl because of his demeanor. and because hi'
daily log did not mentlon the picketing until Jul> 3. 1979, for the first
time
him on four separate occasions, three times at the project
and once over the phone. and each time in effect either
asked whether the Employer would like to look at a
copy of Respondent's collective-bargaining contract or
would consider signing or sign such a contract. Wallard
dates these conversations as taking place in 1979 on ap-
proximately June 22, on July 17; and twice on July 3.
once over the telephone.
During cross-examination when asked to describe Con-
nors, it was clear from Wallard's description that he had
never met Connors. And when Connors, who was seated
in the hearing room, was pointed out to him. Wallard ad-
mitted that Connors was not the person who supposedly
spoke to him at the project.
In connection with the July 3 telephone calls, Con-
nors. who testified he had never met Wallard, specifical-
ly denied speaking to him on July 3 over the telephone. I
was favorably impressed by Connors' demeanor. In addi-
tion, I note that during the hearing, and after listening to
Connors' voice, Wallard did not identify Connors as thie
person who spoke to him on July 3 over the phone. It is
for these reasons that I find that Wallard did not speak
to Connors on July 3 over the telephone.
The Charging Party's contention that "Wallard's testi-
mony indicates that the individual who presented himself
as Gerald Connors and presented Connors' business card
may in fact have been union organizer John Wederman,"
has no support in the record, Quite the contrary, when
Wallard during his cross-examination was introduced to
Wederman by counsel, Wallard testified in effect that
Wederman was not the person who visited the project
and spoke with him on the dates in question.
Likewise, I reject General Counsel's contention that,
even though Connors did not visit with Wallard at the
project, the disputed statements herein, including the
phone call, must be attributed to Respondent because the
record establishes that the unidentified person who vis-
ited with Wallard and spoke to him over the phone was
an agent of Respondent. Setting aside the question of
agency, based on my observation of Wallard's demeanor
I have grave doubts about the reliability and trustworthi-
ness of his testimony concerning the remarks he attri-
butes to the person he identified as Connors. In addition.
I note that one of the conversations was not included in
the affidavit Wallard furnished the Board; Wallard's tes-
timony about the business card which supposedly result-
ed in his identifying the unidentified person as Connors
was not consistent; despite instructions from counsel to
keep notes of any significant conversations with agents
of Respondent, Wallard failed to include in his daily log
the damning statements which were supposedly made to
him on July 3 by the person who identified himself as
Connors; nor is there any evidence that he recorded in
his daily log the remarks attributed to Connors on or
about July 17. It is for all of these reasons. particularly
his unimpressive demeanor, that I have rejected Wal-
lard's testimony in its entirely concerning his conversa-
tions with the person he identified as Wallard.
417
DIECISIONS ()F NATIO)NAL LABOR RELATI()ONS BOARD
5. Business Representative Connors' July 2, 1979,
visit to the project
On July 2, 1979, Respondent's business representative,
Connors, visited the project and spoke to one of the Em-
ployer's carpenters. After introducing himself and giving
the carpenter his business card, Connors asked, "if he
was in the Union." When the carpenter answered in the
negative Connors asked, "if he considered joining the
Union." Connors told the carpenter he could probably
get him "a little bit more than what he was making on
the job," and explained the benefits contained in Re-
spondent's contract and gave him a card which summa-
rized the wages and fringe benefits contained in that con-
tract. Connors suggested that if the carpenter was inter-
ested, he should visit Respondent's office or phone Con-
nors.
6. Respondent's knowledge of the wages and
benefits paid by the Employer
At the time Respondent commenced its picketing
herein, the Employer was paying its carpenters substan-
tially less than the rate of pay provided for in Respond-
ent's collective-bargaining contract for that area. The
evidence pertaining to Respondent's knowledge of the
Employer's substandard wages is as follows.
Respondent's business representative, Fouche, testified
that in late 1978 or early 1979, he visited a jobsite in
Pleasanton, California, which is in the same area as the
project, where the Employer employed several carpen-
ters. According to Fouche's undisputed testimony, the
carpenters and the Employer's job superintendent, in
reply to Fouche's inquiry, advised him that the Employ-
er paid its carpenters $10 an hour, which Fouche testi-
fied was less than the rate of pay provided for at that
time in Respondent's collective-bargaining contract for
that area. Fouche also testified that he kept this informa-
tion to himself; he did not tell any other official of Re-
spondent that the Employer was paying substandard
wages. His testimony, in this regard, was contradicted by
the testimony of Business Representative Connors who
first testified that Fouche communicated this information
to him, and then testified that he "could have been" told
this by Fouche or Business Respresentative Williams.
The foregoing is the sole evidence of Respondent's
knowledge of the Employer's substandard wages, and
the record establishes that other than Fouche's single in-
quiry several months prior to the picketing herein, Re-
spondent conducted no investigation to determine
whether the Employer paid substandard wages or bene-
fits.
B. Divcussion and Conclusion
Section 8(b)(7)(C) of the Act, which is involved
herein, prohibits picketing by an uncertified union where
an object thereof is either recognition, bargaining, or or-
ganization, if such picketing has been conducted for
more than 30 days without the filing of a representation
petition. Respondent. who has never been certified as a
representative of any of the Employer's employees, pick-
eted the Employer fior more than 30 days without filing
a representation petition. Respondent contends that the
sole object of its picketing was to inform the public that
the Employer was not paying carpenters in accordance
with the standard established by Respondent in the area.
and thus its conduct constituted permissible informational
picketing.
The law is settled that if a union pickets using a sign
which on its face is aimed at forcing an employer, which
in fact pays substandard wages, to conform to area stand-
ards, that the picketing is lawful unless there is independ-
ent evidence to controvert the Union's overt representa-
tions of its objective. Local Union Vo. 741, United .4ssoci-
ation of Journeymen. etc. (Keith Riggs Plumbing And
Heating Contractor), 137 NLRB 1125, 1126 (1962). Here
the Respondent's picket signs and disclaimer letter law-
fully urged compliance with area standards, and, in fact,
the Employer's wages did not conform to area standards.
Thus, the question is whether the General Counsel has
sustained his burden of proof of showing an impermissi-
ble objective through other extrinsic evidence. I am satis-
fied that for the reasons set forth hereinafter that the
General Counsel has met his burden and that Respond-
ent's picketing was not a lawful area standards picketing,
but rather was at all times for a proscribed recognitional
and organizational objective.
When Business Representative Fouche, shortly before
Respondent's disclaimer and picketing, spoke to Project
Superintendent Wallard he did not speak in terms of the
Employer's failure to comply with the prevailing area
wages and benefits, rather the import of his remarks was
that the Employer, like the other contractors doing busi-
ness in the area, should become a "union" contractor and
offered to furnish Wallard a copy of Respondent's col-
lective-bargaining contract so Wallard could see it was a
good contract. I believe Fouche's conversation with
Wallard indicates a recognitional and bargaining objec-
tive.
On July 2, 1979, several days after Respondent's dis-
claimer and contemporaneous with its picketing, Business
Respresentative Connors, who participated in the deci-
sion to picket the Employer, visited the project and at-
tempted to persuade one of the Employer's carpenters to
join Respondent in order to improve his wages and
fringe benefits. I believe that this indicates an organiza-
tional and recognitional objective.
It is undisputed that prior to the picketing Respondent
did not investigate to determine whether in fact the Em-
ployer's labor costs were substandard. And the only evi-
dence that Respondent knew the Employer's labor costs
were substandard is the testimony of Business Repre-
sentative Fouche that several months prior to the start of
the picketing, while visiting the Employer's Pleasanton
job, he learned that the Employer was not paying its car-
penters the wages provided for in Respondent's collec-
tive-bargaining contract. Fouche, who played no part in
the decision to picket the Employer, also testified that he
kept this information to himself; he did not pass it along
to any other official of Respondent. If Fouche's testimo-
ny in this respect, which is an admission against interest,
is trustworthy, Respondent's officials who made the deci-
sion to picket the Employer had no knowledge that the
Employer was paying substandard wages or benefits. In
418
CARPI'NTI:RS I.()OCAI UNION N(o 1622
any event, even if Fouche suffered a lapse in memory
and, as Business Representaive Connors testified. told
Connors about the Employer's substandard wages on the
Pleasanton job, this by itself can not be characterized as
"a bona fide attempt by Respondent to determine that, in
fact, the Employer's labor costs were substandard, which
is the duty of a union that seeks to engage in lawful area
standards picketing." Automotive Employees. Laundry
Drivers and Helpers. Local No. 88. International Brother-
hood of Teamsters, Chauffi'urs, Warehousemen & Helpers
of America (West Coast Cycle Supply Co.), 208 NLRB
679, 680 (1974), and cases cited therein at fin 9. Thus,
Connors testified it was "a year or so" before the start of
the picketing herein that Fouche informed him of the
Employer's substandard wages. Despite this substantial
lapse of time, Respondent made no attempt to determine
whether the same situation still existed before engaging
in the picketing herein. In short, even if Fouche's admis-
sion against interest is ignored, the record when viewed
in a light most favorable to Respondent establishes that
Respondent failed to conduct an investigation and an
evaluation of comparative wage standards even though
the only information in its possession in this regard was
stale. Inasmuch as the circumstances herein do not
excuse the lack of such an investigation it indicates that
Respondent's area standards picketing was a pretext. a:'
This conduct together with Connors' organizational ac-
tivity, occurring contemporaneous with the picketing
and after the disclaimer letter, compels the inference that
the maintenace of area standards was merely a device to
evade the provisions of the Act, and was not the true
object of the picketing.
Based upon the foregoing, I believe that the total pic-
ture, therefore, is that of a union which, as recently as
approximately 2 weeks before the disclaimer and picket-
ing, sought recognition and bargaining and thereafter
sought to achieve the same end under the guise of area
standards picketing.4 Thus, Respondent commenced
picketing ostensibly to protest the Employer's standard
labor costs even though it had not attempted to deter-
mine whether in fact the Employer's labor costs were
substandard. Also subsequent to its disclaimer, and con-
temporaneous with its picketing, Respondent attempted
to organize the Employer's carpenters. In such circum-
stances Respondent's disavowal of any intent to repre-
sent the Employer's carpenters or obtain a contract, must
be disregarded in face of the inference present herein
that recognition and organization were in fact an objec-
tive of Respondent's picketing.5 Accordingly, I find that
' See Automotive Employeei Laundry Driverv Il.oal 88 (Wt t (;tait
Cyvcl Supply), iupra at 679-h680, where the Board citing Sali' DievireO
Drivers. Warehoueimen and Helpers Local 296 it] Santa Clara aild Sun
Benilo Countili. Cahifornia. i atl (,41pha Beta .4cni1 .Iarkett, /l ). 2)05
NLRB 462 (19731, indicated that it would regard picketing ostensibl for
an area standards objective as pretexlual where there was not "an insvemi-
gation and an evaluation of comparative standards carried out 1sith as
great a degree of thoroughness as the circumstances will pernit "
All too frequently purported area standards have been emploed toi
mask a preexisting recognitional and organizational hbjectie. See Illr-
national Brotherhod of El/citrtal HTtrker. Local 265 eR P & 3 IElchr'it,
236 NL RB 1333 (197i5, and cases cited at fit h
' Even if recogniltion atid organizalil, n were not 1 he only, ohijccs of
Respondent', picketing. the siltlalltln is still present stllc C stuch 1lneed l !,
Respondent violated Section 8(b)(7)(C) of the Act as a
result of its picketing of the Employer."
Upon the foregoing findings of fact, conclusions of
law., and the entire record. and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER7
The Respondent, Carpenters Local Union No. 1622,
United Brotherhood of Carpenters & Joiners of America.
AFL-CIO, Hayward, California, its officers, agents, and
representatives, shall:
1. Cease and desist from picketing, or causing to be
picketed, Paul E. lacono Structural Engineer. Inc.,
where an object thereof is forcing or requiring such em-
ployer to recognize or bargain with Respondent as the
collective-bargaining representative of its employees, or
of forcing or requiring employees of such employer to
accept or select Respondent as their collective-bargain-
ing representative, at a time when Respondent is not cer-
tified as such representative and where such picketing
has been conducted without a petition under Section 9(c)
being filed within a reasonable period of time not to
exceed 30 days from the commencement of such picket-
ing.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a)Post at its business office copies of the attached
notice marked "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region 32,
after being duly signed by an authorized representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Furnish the Regional Director for Region 32
signed copies of said notice for posting by Paul E
lacono Structural Engineer. Inc.. if willing, in places
where notices to employees are customarily posted.
(c) Notify the Regional Director for Region 32. in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
he an object of a unions' conduct in order to render Sec 8(b(7) applica-
hle See Iniernational Brotherhood of El-ectrical RWorkers Local 265 (R P &
M Elecric), 23h, NLRB 1 33 (1978), and cases cited al fn 7
6 I have considered Internalional Bnrotherhood if Elect-rwal Workler.
Local 453, .1-I.-CIO (Southern Sun flectric Corpioratiot, 242 NLRB No
160O (1979), cited bs Respondent, and am of the opinion it is signific anlls
distinguishable from the inrtant stuatimon
7 In the event no exceptions are filed as pros.ided by Sec 102.46 of the
Rules and Regulations of the National L alor Relations Board. the find-
ings. conclusions. and recommended Order herein shall. as provided in
Sec. 10248 4of the Rules and Regulations, he adopted by the Board and
become its findings. cinclusioins, and Order, and all objections thereto
shall be deemed waived for all purposes
I In the event that this Order is enforced by a Judgment of a United
States Court {of Appcals. the words in the notlice reading "Posted hb
Order of the Nalional l .abor Relations Board" shall read "PIo,ted Pursu-
.nt to a Judgment tif the Ulnited Statles Courl ,f Appealst Enfoircilng an
Order of the National l.ahor Retallons IBoard"
419