Plumbers Local 129

National Labor Relations Board - Board Decisions

Aug 29, 1979

244 N.L.R.B. 693 (N.L.R.B. 1979)

PLUMBERS I.OCAL 129
Plumbers and Steamfitters, Local 129, AFL-CIO and
Gross Plumbing and Heating Co., Inc. Cases 3-CC-
1033 and 3-CP 283
August 29, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.F
On May 7, 1979, Administrative Law Judge Julius
Cohn issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief in
support of the Administrative Law Judge's 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, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
We agree with the Administrative Law Judge that
Respondent's picketing of the Acme Supermarket
jobsite was violative of Sections 8(b)(7)(A) and
8(b)(4)(i), (ii)(B) and (C) because the evidence here
shows that an object of this picketing was to force or
require Gross Plumbing to recognize Respondent as
the representative of its employees. In rejecting Re-
spondent's defense that it sought only to engage in so-
called ai a standards picketing, we adhere to the
standard established in Calumet Contractors .Associ-
ation2 and Keith Riggs Phmhing3 by which such a
defense may be judged. In Keith Riggs, we stated [137
NLRB at 1126]:
Hence, if a union pickets and says to an em-
ployer, "We only want you to pay the prevailing
wage scale, but don't want to bargain with you
or organize your employees," and there is no in-
dependent evidence to controvert this statement
of objective, the Board cannot find that the pick-
eting has organization, recognition, or bargain-
ing objectives.
I Respondent has excepted to certain credibility findings made bh the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard DO' Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 International Hod Carriers, Buildings and Common aborers' Union of
America, Local No 41, AFL CIO (Calumet Contractors 4ssociarion). 133
NLRB 512 (119611).
I Local Union No. 741, United Association of Journemen and .Apprentices ol
the Plumbing and Pipe Firing Industry of the United States and Can/da,
AFL-CIO (Keith Riggs Plumbing and Heating Contralctor). 137 NLRB 1125
(1962).
Using this standard, it is manifest that independent
evidence has been presented by the General Counsel
which establishes that during the period immediately
preceding the picketing Respondent had sought to
represent Gross' employees and that this objective
had not been repudiated prior to the picketing. While
we fully agree with the Administrative Law Judge's
analysis of the evidence in this regard, we find it nec-
essary, due to the opinion of our dissenting colleague,
to delineate those facts which most blatantly reveal
that Respondent entertained a purpose to achieve
recognition at the time it picketed the Acme jobsite.
About the time that Gross began work at this site.
Eugene McCarthy, president of the Niagara Building
and Construction Trades Council, separately engaged
John Gross of Gross Plumbing and Respondent's
business manager, Brown, in a series of conversations
in which McCarthy explored the possibility of the
signing of a contract between Respondent and Gross.
During at least one of these conversations. Brown tes-
tified he told McCarthy. in reference to the latter's
attempt to have the other two sign a contract, that
"that is an avenue you can pursue." Additionally.
during the course of McCarthy's efforts, both Brown
and John Gross were made aware of each other's ten-
tative willingness to enter into some form of labor
agreement. For reasons not stated in the record. no
such agreement was executed. However, at no time
thereafter did Brown attempt to disclaim this express
effort, via McCarthy. to gain recognition from Gross,
and on July 18. 1978. Respondent commenced picket-
ing at the jobsite.
Our dissenting colleague contends principally that
we may not rely on the above evidence because Mc-
Carthy has not been shown to be an agent of Brown
or to have been authorized to act for Respondent. We
note, however, that the Administrative Law Judge.
although finding McCarthy to have been authorized
to act for Respondent. concluded:
Regardless of whether McCarthy was Respon-
dent's agent, this credited evidence sheds light on
the objective of Respondent and shows that it
was, indeed, desirous of obtaining a contract.
Having expressed such a recognitional objective
which was made known to Gross Plumbing, it
thereby was incumbent on Respondent expressly to
disclaim its recognitional interest 4 or to risk that any
alleged "area standards" picketing of this employer
will be found to be in furtherance of this recogni-
tional objective. As Respondent has not done so, we
agree with the Administrative Law Judge that Re-
spondent's picketing was for a prohibited objective.
(Cf. Building ind C(on tructlio Triade (l'ouncil of Philadelphla and ic nio,
AFL CIO .llemos e ( oniruion (Co ). 222 NRB 12
7
6 ( 1976)
244 NLRB No. 100
693
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Plumbers and Steamfitters,
Local 129. AFL CIO, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
MEMBER MURPHY, dissenting:
Contrary to my colleagues and the Admiuistrative
Law Judge, I would find that Respondent has not
been shown by a preponderance of the record evi-
dence to have violated Sections 8(b)(4)(i), (ii)(B) and
(C) and 8(b)(7)(A) of the Act by its picketing of the
Charging Party. Accordingly, I would dismiss the
complaint against Respondent in its entirety.
The pertinent facts, as found by the Administrative
Law Judge, are briefly as follows:
At the time of Respondent's picketing in July and
August 1978, the Charging Party, hereinafter referred
to as Gross,5 was the plumbing subcontractor on a
supermarket construction project site.
Gross and Respondent had in the past been parties
to a collective-bargaining agreement covering Gross'
plumbing employees. However, the parties eventually
terminated their contractual relationship and, in Au-
gust 1975, Respondent notified Gross by letter that
Respondent "is no longer interested in signing you to
a collective bargaining agreement. We do, however,
fully expect that you will maintain area standards
and will pay the prevailing wage rate."6
Meanwhile, in November 1976, Oil, Chemical and
Atomic Workers Union, AFL-CIO (OCAW), was
certified as the exclusive representative of a unit of all
of Gross' "pipefitters, millwrights, laborers, and
plumbers" at Gross' Niagara Falls facility. Subse-
quently, Gross and OCAW executed a collective bar-
gaining agreement to be effective from April 4, 1977,
through April 1, 1979, covering "all production and
maintenance employees employed by [Gross] at all of
its locations," recognizing OCAW as the exclusive
representative of those employees.
Thereafter, in either August 1977 or February
5 The Charging Party's president is John Gross. He is hereinafter referred
to as Mr. Gross to distinguish him from the Charging Party itself. Gross
Plumbing and Heating Co., Inc., which is hereafter referred to simply as
Gross.
* However, Respondent's expectations in this latter regard apparently
went unfulfilled. On two occasions subsequent to its August 1975 letter to
Gross, Respondent filed complaints alleging Gross' violation of the area
wage rate maintenance provisions of the Davis-Bacon Act. On the most
recent of these two occasions, in January or February 1977. Respondent also
picketed Gross at a jobsite where Gross was performing plumbing work.
19787 (but in any event prior to the time that Gross
entered into its plumbing subcontract on the Acme
construction project in late March/early April 1978),
a meeting was convened by a New York State com-
missioner of labor to discuss and, it was hoped, re-
solve any potential labor disputes that might arise in
the Buffalo-Niagara Falls area, in light of anticipated
governmental encouragement of construction in that
area. Gross' president, Mr. Gross, OCAW Represent-
ative Schiro, Respondent's president, Amendola, and
Respondent's business manager, Brown, were in at-
tendance at this meeting. In the course of discussion,
Brown stated that good men were available.8 OCAW
Representative Schiro reminded Brown that OCAW
was certified as the representative of Gross' plumbing
employees, and had a collective-bargaining agree-
ment with Gross covering those employees. However,
Schiro did tell Brown that he would not object to
Gross also employing Respondent's members, pro-
vided that all of the OCAW people were working.
Brown told Schiro that Respondent had been unsuc-
cessful for 25 years in getting a contract with Gross
and then OCAW had come along and organized
Gross' employees.
In April 1978, having become aware of the upcom-
ing supermarket construction project. Brown ar-
ranged a meeting with the project owner, with a view
towards obtaining the project's plumbing work for
Respondent. However, unknown to Brown at the
time, the plumbing subcontract had already been let
to Gross. Upon being informed by the general con-
tractor at the meeting that Gross had obtained the
project plumbing subcontract, Brown exclaimed,
"What am I doing here, I am leaving, I know what I
have to do, I've got to leave." As Brown was prepar-
ing to leave the meeting, the project owner asked him
what his intentions were. Brown replied that he
would do what he had to do. When the project owner
pressed him as to his intentions by asking him
whether he would picket, Brown replied that that
"could be an avenue."
During a prejob conference in late May 1978, the
Building and Construction Trades Council president,
McCarthy, asked Mr. Gross whether Gross would
sign a contract with Respondent for the outside con-
' There was conflicting testimony as to the correct date, which the Admin-
istrative Law Judge found ultimately unneccessary to resolve.
'This is according to Brown's testimony. which differs somewhat from
Mr. Gross's testimony that Brown offered to supply Gross with good men if
Mr. Gross would sign a contract with Respondent. Although the Adminis-
trative Law Judge expressly discredited Mr. Gross' testimony that Brown
solicited a contract, he nevertheless did not expressly resolve the difference in
testimony between Mr. Gross and Brown as to whether Brown actually
offered to supply Gross with good men. or merely stated that good men were
available. In any event. in the "Analysis" portion of his Decision, as dis-
cussed more fully infra, the Administrative Law Judge appears ultimately to
have relied on Brown's testimony that he stated that good men were avail-
able. and not on Mr. Gross' testimony that Brown offered to supply Gross
with good men.
694
PIt MBFRS .(X'AI. 129
struction work on the Acme project. Mr. Gross re-
plied that he would, provided that such a contract
with Respondent would not infringe upon or interfere
with Gross' contract with OCAW. McCarthy in turn
advised Brown of Mr. Gross' position. Brown told
McCarthy that, if a contract were presented by Gross.
then Brown would "take Gross' people into the
Union in the area of outside construction. not infring-
ing upon OCAW.""
In any event, no agreement between Respondent
and Gross was ever reached.
On July 18. 1978, Respondent commenced what it
contends was area standards picketing and handbill-
ing"' at the supermarket construction site."'' The em-
ployees of all the other contractors except Gross re-
fused to cross the picket line, and the project was shut
down for 3 weeks until the picketing was ultimately
enjoined by the district court, pursuant to Section
10(1) of the Act.
Based on the above facts, my colleagues have
found that Respondent's picketing was for a pro-
scribed recognitional or bargaining object. In reach-
ing this finding, they rely on the same four factors
which the Administrative Law Judge relied on in
reaching his ultimate findings and conclusions, and
which my colleagues have in turn adopted. I disagree
with my colleagues. I find, as discussed below, that
these factors in themselves constitute woefully inad-
equate evidence on which to base a conclusion that
Respondent violated the Act as alleged. Further, to
the extent that those factors constitute any evidence
of a proscribed recognitional or bargaining object on
'The Administrative Law Judge based his findings as to the foregoing
discussion on McCarthy's credited testimony. However, later in his testi-
mony about this same conversation with Brown, McCarthy testified that on
learning of Mr. Gross' willingness to sign a contract with Respondent:
Mr. Brown said nothing in specific, In other words, to proceed or not to
proceed, Evidently, the thing was left open that it might not be a bad
avenue to pursue: if the two parties could be brought together that way.
The Administrative Law Judge gives the impression that these two por-
tions of McCarthy's testimony relate to two separate conversations between
McCarthy and Brown. However, the record shows that McCarthy was refer-
nng to the same conversation in both instances Brown's own testimony
about this conversation is more in accord with McCarthy's latter version.
According to Brown, when McCarthy asked him what he would do if Mc-
Carthy could secure a contract with Gross for Respondent. Brown told Mc-
Carthy. "That is an avenue you can pursue."
10 At the time of the events herein, the wage rate provided for plumbers in
the Gross-OCAW collective-bargaining agreement was $6.52 per hour, while
the wage rate provided for plumbers in Respondent's collective-bargaining
agreement with the local contractor's association was $12.65 per hour.
"i The wording on the picket signs is out in the Administrative Law
Judge's Decision. The wording on the handbills essentially repeats the same
message, with the following additional language:
There is no attempt or intent to induce or encourage an) employees of
any employer to enage in a refusal to work, transport or otherwise
handle or work on any goods. materials, etc. No one is requested to
cease doing business with an) person. There is no intent to have any
particular work assigned to anyone. nor is there any intent to seek rec-
ognition or start bargaining. We believe that the people residing In this
area should be familiar with what is going on and that is the sole pur-
pose of the patrolling.
Plumbers and Steamfitters, Local 129
the part of Respondent. they are seriously under-
mined by additional record evidence of which the
Administrative I.aw Judge has tailed to take account.
The first factor relied on by my colleagues and the
Administrative L.aw Judge in finding unlawful ac-
tivity on the part of Respondent is Brown's statement
made in Mr. Gross' presence in either August 1977 or
February 1978 that good men were available. My col-
leagues find that, in the context of the meeting at
which this statement of availability of good men was
made. such a statement (which the Administrative
Law Judge somehow characterizes as an "offer" to
Mr. Gross) is an indication of the alleged recogni-
tional intent of Respondent's picketing in July 1978.
I am particularly unpersuaded that the single sim-
ple statement of availability of good men made by
Respondent should be found to be even partial proof
of an unlawful recognitional objective in picketing
which occurred, for all we know from the record. a/-
most 12 months afier the statement itself was uttered.
Any connection between an innocuous statement of
availability of good men made in August 1977 (or. for
that matter, in February 1978 as General Counsel
contends) is simply too tenuous to lend any support
to the conclusion of unlawful picketing in July 1978
which my colleagues reach here.
I am equally unpersuaded as to the validity of the
Administrative Law Judge's characterization of
Brown's statement of availability of good men as not
only an "offer" but, moreover. an offer which could
have applied only to Mr. Gross. It is true that Gross
was the only employer present at the meeting in
which this statement was made. However, I note par-
ticularly, as discussed above, that the Administrative
Law Judge has implicitly rejected Mr. Gross' testi-
mony that Brown off'red to supply him with good
men, which assertion by Mr. Gross was directly
linked to his expressly discredited testimony that
Brown solicited a contract with Respondent. Rather,
I note that the Administrative Law Judge has instead
accepted Brown's testimony that he merely stated at
some point in the discussion that good men were
available. Thus, the Administrative Law Judge's ob-
vious unwillingness to rely on Mr. Gross' testimony
that Brown offered to supply Gross with good men
fatally undermines the Administrative Law Judge's
subsequent finding that Brown's statement of avail-
ability of good men indeed constituted just such an
offer as the Administrative Law Judge was unwilling
to accept from Mr. Gross' own testimony. The incon-
sistency in these findings of the Administrative Law
Judge, however, has apparently escaped my col-
leagues.
Further, the context of the meeting at which
Brown's statement was made does not impart any sig-
nificance to Brown's statement concerning the avail-
695
I)6I( ISIONS ()1: NATIONAL. L.ABOR RELATIONS BOARD
ability of good men. The meeting was neither initi-
ated nor arranged by Respondent, but rather by a
New York state commissioner of labor who, as found
by the Administrative l.aw Judge, "invited John
Gross ... and Frederick Brown .. to lunch at a hotel
... because [the Commissioner] was anxious that la-
bor disputes not occur in the area as both the Federal
and state governments were going to engage in con-
struction in the vicinity, and he had been aware of the
difficulties between Gross and Respondent." Thus, it
logically cannot be argued that Respondent's meeting
with Gross was motivated by the former's desire to
seek recognition or even that Respondent wanted of
its own volition to meet with Gross to discuss any
differences or matters of mutual concern. So much for
the supposedly telling "context" of the meeting, and
so much, therefore, for any reasonable gleaning there-
from of any illegal motives on the part of Respon-
dent.
In sum, I find this first of the four factors relied on
by the Administrative Law Judge and my colleagues
to be almost totally lacking in probative value, and
thus scant support at best for the ultimate conclusion
my colleagues reach.
The second factor replied on by my colleagues in
finding that Respondent picketed Gross with an un-
lawful recognitional objective stems from the collo-
quy between Brown and OCAW Representative
Schiro, at the aforementioned August 1977 or Febru-
ary 1978 commissioner's luncheon meeting. Thus,
Brown stated to Schiro that Respondent had been
unsuccessful for 25 years in trying to get a contract
with Gruss, and Schiro indicated that he would be
willing to permit Gross to use Respondent's people on
outside construction as long as OCAW people were
not displaced as a result. My colleagues and the Ad-
ministrative Law Judge believe that these remarks
provide further support for their finding a recogni-
tional object in Respondent's picketing in July 1978. 1
disagree.
The occurrence of this conversation as much as I I
months prior to the picketing in question, as well as
the "context" of the meeting in which this conversa-
tion took place, has already been discussed above. I
need not belabor their probative frailties.
As to the statement of Brown to Schiro that Re-
spondent had been unsuccessful for 25 years in trying
to get a contract with Gross, the uncontroverted rec-
ord evidence is that in fact Respondent and Gross
had been parties to a collective-bargaining agreement
as recently as 1975, and that Respondent had ex-
pressly notified Gross in writing of the Respondent's
lack of interest in entering into any future collective-
bargaining agreements with Gross. The fact of that
past bargaining relationship raises questions about
the meaning of Brown's statement and suggests that
Brown may have meant that Respondent simply had
had no success in dealing with Gross over the years
either with or without a contract. This interpretation
gains credence when considered in light of Respon-
dent's disclaiming interest in representing Gross' em-
ployees in its letter terminating the bargaining rela-
tionship. Indeed, the disclaimer itself seems to me
sufficient to wholly neutralize if not eradicate Brown's
statement as an indicia of recognitional intent on the
part of Respondent.
In addition to that, however, while crediting
Schiro's testimony that Brown made the "25 years ...
unsuccessful" comment, the Administrative Law
Judge nevertheless failed to note in his Decision the
very next sentence of Schiro's credited testimony.
That is, immediately after stating that Brown made
the "25 years ... unsuccessful" comment, and while
still in response to the same question that elicited that
assertion, Schiro then stated, "He [Brown] said that
he was disinterested in organization. " Thus, whatever
residue of probative evidence of recognitional intent
is left over after examining Brown's "25 years . . .
unsuccessful" comment in the light of the actual exis-
tence and demise of the parties relatively recent col-
lective-bargaining history, it is totally evaporated in
the glare of Schiro's further testimony that Brown
clearly stated that he was disinterested in organizing.
As to Schiro's statement to Brown that Schiro
would be willing to permit Gross to use Respondent's
people on outside construction as long as OCAW
people were not displaced, little need be said. Suffice
it to say that I am frankly mystified as to how my
colleagues can find that Respondent manifested a rec-
ognitional intent against Gross, on the basis of an un-
solicited statement made to Respondent by OCA W!
In sum, I find this second of the four factors to be
no more and perhaps less probative of an unlawful
recognitional intent than the first factor, discussed
above.
The third factor relied on by my colleagues and the
Administrative Law Judge as indicia of Respondent's
alleged recognitional object is even more elusive to
grasp, as the Administrative Law Judge, as noted be-
low, himself recognized.
As discussed above, Brown, unaware that the
plumbing subcontract on the supermarket construc-
tion project had already been awarded to Gross, ar-
ranged a meeting with the project owner. As he was
leaving the meeting, somewhat disgruntled and
shaken by the information just given him that Gross
had been awarded the plumbing subcontract, Brown
was asked by the project owner what he would do, to
which Brown replied that he would do whatever he
had to do. When pressed by the projected owner as to
whether he would picket, Brown replied that that
could be an avenue.
696
PLUMBERS LOCAL. 129
The Administrative Law Judge found that "these
responses of Brown in and of themselves may be too
ambiguous to establish a recognitional object" I
wholeheartedly agree. However, the Administrative
Law Judge has admonished that these responses of
Brown "must be considered as part of the whole pat-
tern of conduct and assertions by Respondent." Fair
enough. I have done so and nevertheless still find
them too ambiguous to establish a recognitional ob-
ject, since Brown's earlier conduct and assertions
were, as illustrated above, devoid of any significant
evidentiary value concerning the legality of Respon-
dent's subsequent picketing. Moreover, it seems not
to have crossed the minds of my colleagues that
Brown's statement concerning the possibility that Re-
spondent would picket is subject to being interpreted
as a threat solely to publicize the fact that plumbers
under the subcontract with Gross would be receiving,
as a result of the OCAW-Gross collective-bargaining
agreement, an hourly wage which is almost 50 per-
cent lower than that provided for plumbers in Re-
spondent's contract with the local contractors associ-
ation. This would be an area standards object, rather
than the recognitional object which my colleagues
and the Administrative Law Judge have read into
Brown's statements. Sic transit factor three.
The fourth and final factor relied on by my col-
leagues and the Administrative Law Judge in finding
an unlawful recognitional object in Respondent's
picketing is Brown's comment to Building and Con-
struction Trades Council President McCarthy, on
being informed by the latter that Gross would sign a
contract with Respondent, that if such a contract
were to be offered he would take Gross' plumbers
into Respondent in the area of outside construction,
and that McCarthy should continue to "pursue that
line." The Administrative Law Judge found that
these comments by Brown showed Brown's acquies-
cence in McCarthy's efforts to bring Gross and Re-
spondent together, and further found that McCarthy
was thus authorized to act for Respondent towards
that objective. The Administrative Law Judge went
on to conclude that this evidence "sheds light on the
objective of Respondent and shows that it was, in-
deed, desirous of obtaining a contract." Again I dis-
agree.
While the Administrative Law Judge generally
credited McCarthy's testimony about his efforts to
bring Gross and Respondent together, and about his
various conversations with Mr. Gross and Brown in
pursuit of this goal, the Administrative Law Judge
failed to note McCarthy's further testimony that he
expressly advised Brown that "I in no way would be
bound by [Brown's] actions or by him telling me to
proceed or not to proceed. I proceeded anyway." (Em-
phasis supplied). Certainly there could be no more
compelling evidence of McCarthy's independent sta-
tus in his separate conversations with Mr. Gross and
Brown than this statement of McCarthy (the alleged
agent) to Brown (his alleged principal). Here is the
alleged agent telling the alleged principal, unequivo-
cally, that he will not be bound by the alleged princi-
pal's instructions, one way or another. This is hardly
the basis on which an agent-principal relationship can
be premised, much less be found. Indeed, the Admin-
istrative Law Judge. understandably. ultimately de-
clines to find the agency relationship which the Gen-
eral Counsel contends existed between McCarthy and
Respondent.
Notwithstanding his rejection of an agency finding.
the Administrative Law Judge and my colleagues
somehow find that McCarthy was "authorized" to act
for Respondent. Besides the inherent inconsistency in
the two findings, there is no direct evidence of any
such "authorization." True. Brown did not specifi-
cally ask McCarthy to stop his personal attempts to
get Gross to agree to a contract with Respondent.
And why should he have, in view of McCarthy's crys-
tal clear statement to Brown that no matter what
Brown asked him to do---"to proceed or not to pro-
ceed"--McCarthy would (and did) proceed "any-
way," on his own? What good would it have done,
therefore, for Brown to ask? Clearly, a request by
Brown to McCarthy to forgo such efforts would have
been ignored and therefore futile to make. 2 In these
circumstances, I perceive no firm basis for finding
that Brown "authorized" McCarthy to do anything
on his behalf
In any event, assuming that Brown had no objec-
tion to McCarthy's pursuing "that line," I still do not
see how it establishes a proscribed object for the pick-
eting which occurred about 2 months later. While
Brown may not have been adverse to McCarthy's
plan to explore a basis for a contractual accommoda-
tion between Gross and Respondent, an inference is
not warranted therefrom that Brown thereby sought
recognition for Respondent. At best his "acquies-
cence" in McCarthy's plan represented a practical ap-
proach: If McCarthy's efforts bore fruit, fine; if they
did not, so be it. In other words, Brown was not ac-
tively seeking recognition from Gross through Mc-
Carthy but he would not reject recognition out of
hand if it were presented to him as a consequence of
McCarthy's independent efforts; similarly, if Mc-
Carthy's efforts were to no avail. Brown would let
11 Respondent's ambivalence towards McCarthy's efforts to induce Gross
to sign a contract with Respondent is evidenced b5 McCarthy himself when.
in his generall) credited testimony about his conversations with Brown and
Mr. Gross in this regard, he states, as seen in fn. 9. supra. that when he told
Brown that Mr. Gross indicated that he would sign a contract:
Mr. Brown said nothing In specific In other words, to proceed or not
proceed. Evident/v. the thing was left open that it might not he a had
avenue to pursue; if the two parties could be brought together that wa\.
[Emphasis supplied.]
697
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
things between Respondent and Gross stand as they
were before McCarthy proceeded on his venture.
Thus, I see no causal connection between Brown's
failure to protest McCarthy's planned conduct and
the area standards picketing which Respondent sub-
sequently engaged in against Gross.
Consequently, contrary to my colleagues and the
Administrative Law Judge, I would not find that Mc-
Carthy was in any meaningful way "authorized" to
act on behalf of Respondent in attempting to secure a
contract with Gross, and I do not, therefore, believe
that McCarthy's unilateral efforts in that regard con-
stitute evidence of Respondent's object in thereafter
picketing Gross at the construction project site.
Accordingly, for all the reasons set forth above, I
reiterate that I would find that Respondent has not
been proven by a preponderance of the evidence to
have violated the Act as alleged. Therefore, I would
dismiss the complaint against the Union in its en-
tirety.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket, or cause to be picketed,
or threaten to picket or cause to be picketed,
Gross Plumbing and Heating Co., Inc., at the
Acme building site or at any other facility, at a
time when we are not currently certified as the
representative of Gross' plumbing employees,
where an objective is to force or require Gross to
recognize or bargain with us as the representa-
tive of Gross' plumbing employees, or to force or
require the plumbing employees of Gross to ac-
cept or select us as their collective-bargaining
representative, even though Gross has lawfully
recognized in accordance with the National La-
bor Relations Act another labor organization,
Oil, Chemical, and Atomic Workers Union, and
a question concerning representation may not
appropriately be raised under the Act.
WE WILL NOT engage in, or induce or encour-
age any individual employed by Gross and any
other persons engaged in commerce or in an in-
dustry affecting commerce to engage in, a strike
or a refusal in the course of his employment to
use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, ma-
terials, or commodities, or to perform any ser-
vices; or threaten, coerce, or restrain Gross and
any other person engaged in commerce or in an
industry affecting commerce: where in either
case an object thereof is to force or require the
Company to recognize and bargain with us as
the representative of the Company's plumbing
employees even though another labor organiza-
tion. Oil, Chemical, and Atomic Workers Union,
has been certified as the representative of such
employees under the Act.
WE WILL NOT engage in, or induce or encour-
age any individual employed by Gross and any
other person engaged in commerce or in a indus-
try affecting commerce to engage in, a strike or a
refusal in the course of his employment to use,
manufacture, process. transport, or otherwise
handle or work on any goods. articles, materials,
or commodities, or to perform any services; or
threaten, coerce, or restrain the Murdock Inter-
national and any other person engaged in com-
merce or in an industry affecting commerce;
where in either case an object thereof is to force
or require Murdock and any other persons to
cease doing business with Gross; or to force or
require Gross to recognize or bargain with us as
representative of his employees until we have
been certified as the representative of such em-
ployees.
PLUMBERS AND STEAMFITTERS, LOCAL 129,
AFL-CIO
DECISION
SIAIEFMiNI OF Till; CASE
JuLuus Co[IN, Administrative Law Judge: This case was
heard in Buflalo, New York. on September 5 and 6, 1978.
Upon charges filed by Gross Plumbing and Heating Co.,
Inc., herein called Gross. on July 20 and served on July 21,
1978, the Regional Director for Region 3 issued an order
consolidating cases and the complaint in this proceeding on
August 7, 1978. The complaint alleges that Plumbers and
Steamfitters. Local 129, AFL-CIO. herein called Respon-
dent, violated Sections 8(b)(7)(A) and 8(b)(4)(i) and (ii)(B)
and (C) of the Act by picketing at a jobsite upon which
Murdock International, Inc., herein called Murdock. was
engaged in the construction of an Acme Supermarket, with
an object of forcing or requiring Gross to recognize or bar-
gain with Respondent as the representative of its plumbing
employees even though Respondent is not currently certi-
fied as bargaining representative of the employees, and an-
other labor organization has been certified as the represent-
ative of the employees and a question concerning the
representation of the employees may not appropriately be
raised under Section 9(c) of the Act. It is alleged as a fur-
ther object that Respondent sought to force and require
Murdock and other persons to cease doing business with
Gross. Respondent has denied that it has violated the Act
as alleged.
698
PLUMBERS LOCAL 129
All parties were given full opportunity to participate, to
introduce relevant evidence. to examine and cross-examine
witnesses, to argue orally and to file briefs. The General
Counsel and Respondent have submitted briefs which have
been carefully considered.
Upon the entire record in the case' and from my observa-
tion of the witnesses and their demeanor. I make the follow-
ing:
FINDINGS OF FACT
1. JURISDIClION
Gross. a New York corporation with a principal office
and place of business in Niagara Falls. New York, is en-
gaged in the business of providing and performing plumb-
ing and related services. In the year preceding the issuance
of the complaint, Gross, in the course of its business opera-
tions, purchased and caused to be delivered to its Niagara
Falls facility and jobsites in the State of New York goods
and materials valued in excess of $50.000, which goods and
materials were shipped from States other than the State of
New York. The complaint alleges, the answer admits, and I
find that Gross is an employer engaged in commerce within
the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent. and Oil. Chemical and Atomic Workers
Union. herein called OCAW. are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE AI. EGFI) UNFAIR LABOR PRACTI(CES
A. Background
Gross is engaged in the business of performing plumbing.
heating, and mechanical contracting services. It employs
about 100 employees, the bulk of whom are represented by
various building trades unions and Teamsters. About 20 to
25 of its employees who are primarily employed in plumb-
ing work are represented by OCAW.
About 5 years prior to the hearing Gross had a collective-
bargaining agreement with Respondent applicable to its
plumbing employees. As a result of some difficulties, not
here relevant, Respondent and Gross terminated this rela-
tionship. Indeed in 1975. Respondent, by its attorney, wrote
that it was no longer interested in signing Gross to a collec-
tive-bargaining agreement. Respondent did state however
that it expected Gross would maintain area standards in
paying the prevailing wage rates.
Thereafter. Gross' plumbing employees being unorga-
nized, OCAW filed a representation petition and pursuant
to a Stipulation for Certification Upon Consent Election, an
I Both the General Counsel and Respondent respectively moved for cor-
rection of the official report of proceedings. Principally the parties request
that the word "inevitable" be changed to "an avenue" at three places in the
transcript with respect to answers given by Respondent's witness to the ques-
tion as to whether he would picket. Respondent's motion is confined to these
and the other corrections requested by the General Counsel are minor typo-
graphical mistakes. As there is no opposition the Motions are hereb)
granted and the record is corrected as set forth therein
election was conducted which resulted in certification of
OCAW on November 15. 1976. as representative of "all
pipefitters, millwrights. laborers. and plumbers employed
by the employer at its 2104 Niagara Street. Niagara Falls.
New York facility." Subsequently, Gross and OCAWN ex-
ecuted a collective-bargaining agreement efiective from
April 4. 1977, until April 1,. 1979. which provided for repre-
sentation of Gross' plumbing employees involved herein.
As of the time of the events which transpired herein, the
wage rate provided in that contract for plumbers was $6.52.
At the same time the contract rate for journeymen plunib-
ers represented by Respondent was $12.65.
Subsequent to the disclaimer of interest by Respondent
in 1975 of representation of Gross' employees. there contin-
ued to be disputes between Respondent and Gross. On at
least two occasions Respondent had filed complaints alleg-
ing violations of Davis-Bacon provisions for maintenance
of area wage rates. The last such incident occurred in Janu-
ary or February 1977 and included picketing at a jobsite
where Gross was performing plumbing work. owcser.
these matters had been settled prior to the eventsi involved
in the instant case.
Eugene McCarthy. president of the Niagara Building
and Construction Trades Council, and himself' a business
manager of the Operating Engineers. testified that he was
aware of the history of difficulties and differences between
Gross and Respondent for a number of years. lie said that
there was concern among the trades as to OCAW seeking to
represent employees performing construction work which
had not been done by it historically. This problem att one
point reached national levels when consultation was had
with the National Building Construction Trades Council to
ascertain whether OCAW's activity constituted a raid on
the historical work of the building trades. At the interna-
tional level assurance was given that no raiding was in-
tended but that this matter should be resolved at the local
level. However in view of the certification of OCAW and
the existing collective-bargaining agreement. it was deter-
mined that nothing could be done at that time, this being in
early 1977.
B. The Facts
A New York State Commissioner of Labor. Louis Cam-
bria, invited John Gross. president of Gross, and Frederick
Brown, business manager of Respondent, to lunch at a ho-
tel in Niagara Falls in either August 1977 or February
1978.2 Cambria called the meeting because he was anxious
that labor disputes do not occur in the area as both the
Federal and State governments were going to encourage
construction in the vicinity, and he had been aware of the
2 The General Counsel's witnesses, John Gross and tlenrD Schiro, interna-
tional representative of OCAW who was also invited to alend. inslsl that he
meeting occurred in February 197S. Respondent's itnesses. Bro lln and
George Amendola. president of Respondent who accompanied Bro n. testl-
fied that the meeting occurred In August 1977. Minutes ot an August meet-
ing indicate that Brown apprised the executive board of Respondent that a
meeting with Cambria had been set up for August 22 The actual dale r
timing of the meeting is not material, as both sides agree that this meeting
took place and indeed is substantial agreement to what occurred It is also
clear that even if the meeting did occur n Fehruar5 197., this was before
an) contract had been gisen to (;ross for oirk on the co nslrucllon fI the
Acme site
699
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
difficulties between Gross and Respondent. John Gross tes-
tified that Brown had offered to supply him with good men
if he signed a contract with Respondent. Both Brown and
Amendola denied that either of them offered a contract to
Gross. On the point of the contract. I credit Brown and
Amendola rather than John Gross. Based upon my obser-
vation of the demeanor of Brown, I find it implausible that
at the outset of such a meeting, Brown would make such an
offer. Schiro, who was present, did not refer to it in his
testimony. Moreover, John Gross testified that "Brown
started the meeting out as to the reason why we were gath-
ered. And he offered people to work with me." As it is clear
that the meeting was called at the behest of Cambria, I do
not find it likely in such circumstances that Brown would
have initiated the discussion at the meeting. However,
Brown did admit that in the course of the discussion he
stated that good men were available.
At some point Cambria and John Gross left the room so
that the union people could discuss the problem. Schiro had
been angered at what he thought was an attempt by Brown
to raid his union. He pointed out to Brown that he was the
certified union and had a contract with Gross. However,
Schiro said that he would not object to Gross employing
Brown's people provided all of OCAW people were work-
ing. Schiro testified that Brown told him that his union had
been trying to get a contract with Gross for 25 years and
had been unsuccessful and then OCAW came along and
organized Gross' employees.
In April 1978, Brown became aware of the contemplated
construction of the Acme Supermarket under a contract
between Durisio Enterprises, the owners, and Murdock, the
builder. Murdock's agent, Arthur Santoro was engaging
contractors to perform the work, all of whom were union.
Brown arranged through a friend to set up a meeting in late
April 1978 at the Kitchen Restaurant in Niagara Falls. At
the meeting were Brown, Durisio (also Duggan), and San-
toro. Brown introduced himself and said he was interested
in talking about the plumbing and heating work for the
Acme Supermarket. Duggan advised him that Santoro was
going to be letting the contracts. Brown gave them some
information concerning the background of his membership,
their training, and apprenticeship program. At that Santoro
left and returned with an attache case which he opened and
said he had a contract with Gross, According to Brown,
when he saw this he said "What am I doing here, I am
leaving, I know what I have to do, I've got to leave." When
he got up to leave, Duggan asked him what his intentions
were and Brown said that he would do what he had to do.
At that Duggan asked whether he would picket and Brown
said that could be an avenue. Santoro demanded a hearing
at the Building Trades Council and Brown replied that as
he is secretary he could set it up, which he did. This is based
on Brown's account of what occurred at the meeting.
Santoro testified that Brown, when advised that a con-
tract had been given to Gross, said that Gross was non-
union and should not have been signed; and that he had
friends who were more qualified and more efficient and
were union contractors. Santoro attempted to explain that
before he made any committment with Gross, he had ascer-
tained that Gross' employees were union members. Santoro
also testified that when Brown was asked what he would
do, Brown did not say what he would do but that his atti-
tude was to the effect that he would do something. On
cross-examination Santoro embellished this by saying that
Brown stated that he would do what he had to do. If neces-
sary, put up a picket line, or whatever. As to the picketing.
Santoro's testimony on direct examination was that Brown
when asked if he would picket, replied that that could be an
avenue. This is in agreement with Brown's testimony and I
credit it.
The council meeting set up by Brown took place on May
2. McCarthy presided. About 10 other business agents.
Brown. and his attorney were also present. Meetings of this
sort with a contractor present are sometimes held for the
purpose of having a prejob conference in which the build-
ing trades unions' representatives have an opportunity to
talk to the contractor and iron out their problems. Santoro
testified that during the meeting Brown said the reason it
had been called was that Gross was working as a nonunion
contractor and Brown wanted him off the job. Brown also
said, according to Santoro., that Gross had no business
being on the site and that the union people should stick
together or he would pull his people out of the council.
Santoro testified that after other discussions Brown stated
he would do what he had to do, pull a picket line or what-
ever. to disqualify Gross from doing any business at Acme.
All of these remarks, attributed to Brown by Santoro, were
denied by Brown who stated that he spoke very little at the
meeting. Other business managers who attended the meet-
ing testified that Brown said nothing or that they could not
recall anything that he did say.
As to the meeting on May 2 1 credit the version given by
McCarthy, who chaired the meeting, and was called to tes-
tify by the General Counsel. McCarthy stated that Santoro
had been interested in sitting around with the council to
discuss business and problems and this was a prejob con-
versation as to the construction of the supermarket. McCar-
thy testified that he did not recall Brown saying anything
directly to Santoro or to the effect that he would picket or
that he would withdraw his local from the Council.
The construction work began at the Acme jobsite in
April and Gross commenced plumbing work toward the
latter part of May employing his own employees who were
members of OCAW. McCarthy testified that sometime in
May he communicated with John Gross and asked whether
he would sign contracts with the Sprinkler Fitters Union
and the Asbestos Workers Union. John Gross agreed to this
and appointments were made, meetings were held, and two
contracts were signed. McCarthy testified that in the past
he would ask John Gross if he would sign a contract with
Respondent and Gross replied that he would, as did Brown
if Gross offered to sign. During a prejob conference about
the end of May, McCarthy again asked Gross whether he
would sign a contract with Respondent for the outside con-
struction work, which would not infringe upon OCAW.
Gross said he would and McCarthy passed that informa-
tion to Brown who replied that if a contract was presented
by Gross, he would take Gross' people into the Union in
the area of outside construction, not infringing upon
OCAW.
On one of the occasions that McCarthy was arranging for
John Gross to meet one of the trade unions, he told Brown
that Gross indicated that he would sign a contract, and
Brown stated "that might not be a bad avenue to pursue."
700
PLUMBERS LOCAL 129
When asked the meaning of this testimony, McCarthy an-
swered as follows:
Q. (By Mrs. Quinn) What do you mean when you
say. "to pursue that type of thing"?
A. -lo pursue that type of a resolution of the prob-
lem.
Q. Mr. Brown asked you to do that: is that correct?
A. To continue on with my efforts, like I was doing:
to pursue that line. That's the message he gave me.
McCarthy further testified that during his conversations
with Brown on this subject, Brown never indicated he
would not sign a contract with Gross.
No meeting or agreement materialized and McCarthy
was then notified in mid-July that Respondent was going to
put area standards pickets at the jobsite.
On July 18 Respondent began picketing at the jobsite
with three pickets bearing signs which read as follows:
Notice to the Public, the work being performed by the
contractor, John J. Gross Plumbing and Heating Co..
Inc., is not being done by qualified building trades
craftsmen. The prevailing rate of pay and conditions
are not being met. This notice is addressed only to the
general public and not to the employees or employers
on the job.
Plumbers & Steamfitters Local 129
The employees of all other contractors on the jobsite re-
fused to cross the picket line and the job was shut down for
3 weeks until the picketing was enjoined. except for work
being done by Gross.
C. Discussion and Analvsis
Section 8(b)(7)(A) of the Act prohibits picketing by an
uncertified union with an object of forcing or requiring an
employer to recognize or bargain with the labor organiza-
tion as the representative of his employees, or forcing or
requiring the employees of an employer to accept or select
the union as their representative, where the employe: has
lawfully recognized another labor organization and a ques-
tion concerning representation may not appropriately be
raised under Section 9(c) of the Act. Section 8(b)(4)(i) and
(ii)(C) of the Act prohibits strikes by a union, or a union's
inducement or encouragement of employees to strike or to
refuse to perform services, or restraint or coercion of an
employer by a union, where an object of such conduct is to
require an employer to recognize or bargain with one union
as the representative of his employees although another
union has been certified by the Board as the representative
of such employees. See, generally, Dallas Building and Con-
struction Trades Council, 164 NLRB 938 (1967), enfd. 396
F.2d 677 (D.C. Cir. 1968): and Sheet Metal Workers Inter-
national Association A FL- CIO IBurt Mfg. Co.] v. N. L..R. B.,
293 F.2d 141, 146 (D.C. Cir. 1961).
However, when a union pickets an employer for the sole
purpose of compelling compliance with prevailing area
wage and benefit standards, the Board regards this so-called
"area standards" picketing as nonrecognitional and outside
the above proscriptions of the Act. See, e.g.. Local Union
No. 171. Lnited Association ofJournevmnen and p.Iprenlicct
f1 the Plumbing and Pipe Fitting Industryn of the United
States afnd Canada, 4FL-ClO (Keith Rigg. Plumbing amid
Heating Contractor), 137 NLRB 1125 (1962). A union may
attempt to ensure that an employer "is required to pay em-
ployee costs equivalent to those paid by the organized em-
ployer." Retail Clerks International ,4ssociation, Local
Union No. 899, e al. (State-Mart, Inc.. d/h/a Giant Food).
166 NLRB 818. 822 824 (1967), enfd. 404 F.2d 855 (9th
Cir. 1968). This principle. however, does not allow a union
to force, under the guise of "area standards" maintenance,
its collective-bargaining agreement, part and parcel, upon
employees it does not represent. See, e.g.. Centralia Buil/in,i
& Construction Trades Council (Pacfic Sign & Steel Building
Co.. Inc.), 155 NLRB 803. 806 (1965). enfd. 363 F.2d 699.
701 (D.C. Cir. 1966). Moreover. the proscriptions of Sec.
8(b)(7)(A) and (b)(4)(i) and (ii) (C) apply as long as one of
the union's objects is illegal; it is immaterial that the union
may also have other legitimate objects. (See cases cited su-
pra. )
In the instant case. Respondent admits that commencing
about July 18 it picketed Gross at the Acme Supermarket
building site; that it has not been certified b3 the Board as
bargaining representative for any of Gross' employees: that
OCAW was designated as representative of certain of
Gross' employees including plumbers by virtue of a Board's
certification dated November 15. 1976: that Gross and
OCAW are parties to a collective-bargaining agreement
which was effective from April 4. 1977. until April 1. 1979:
that at no time material herein did Respondent have a labor
dispute with Murdock or with any other person other than
Gross: and that at no time material to this proceeding could
a question concerning representation of Gross' plumbers he
appropriately raised under Section 9(c) of the Act. Respon-
dent also admits that Frederick Brown, its business man-
ager, was at all times material acting on its behalf and its
agent within the meaning of Section 2(13) of the Act.
The General Counsel contends that Respondent's picket-
ing was for a proscribed recognitional or bargaining object.
I find merit to this contention. The General Counsel's case
is based on several incidents and meetings. First there was
the meeting called by New York State Labor Department
official Cambria in February 1978. as alleged by the Gen-
eral Counsel, or August 1977 as urged by Respondent.
There is agreement generally as to what occurred at that
meeting and. as detailed above, it appears that Brown had
indicated he was in a position to furnish good men. The
General Counsel correctly urges that since Gross was the
only employer present at this meeting, such an offer could
apply only to Gross. Moreover. the meeting called b Cam-
bria, to promote stability, was obviously intended to zero in
on the continuing Gross-Respondent dispute, since the,
were the only parties invited. I find in the context of the
occasion that Brown's statement of availability of good men
is an indication of recognitional intent.
Schiro also testified that when he talked privately with
Brown at the Cambria meeting, Brown stated he had been
unsuccessful trying to get a contract with Gross for 25
years. Schiro also indicated to Brown his willingness to per-
mit Gross to use Respondent's men on outside construction
if OCAW people are not displaced. Brown's testimon on
this is vague and he merely denies asking for a contract. I
701
I0IISIONS OF NA'IIONAL LABOR REI.ATIONS BOARD)
credit Schiro. therefore, and find this to be additional indi-
cia of' recognitional object.
The next incident was the meeting in April 1978 set up
by Brown himself who used the good offices of a friend to
enable him to meet l)uggan. the owner of the Acme Super-
market to be constructed. At that meeting was also Santoro.
the agent of' Murdock who was involved in letting contracts
to the various trades for the actual construction. There is no
question that Brown was unaware at the time he went to
that meeting that Gross had been awarded the contract for
the plumbing work. Consequently, when he was advised by
Santoro that the plumbing contract had indeed been given
to Gross, he was surprised and somewhat annoyed. How-
ever, when Brown got up to leave, he was asked what he
would do, and Brown replied he would do whatever he had
to do. Duggan pressed him by asking "Would you picket"
to which Brown responded "that could be an avenue."
While these responses of Brown in and of themselves may
be too ambiguous to establish a recognitional object,' they
must be considered as part of the whole pattern of conduct
and assertions by Respondent.
The next incident occurred at a meeting of the Building
Trades Council on May 2 to which Santoro requested an
invitation. The General Counsel relies on the uncorrobo-
rated testimony of' Santoro to the effect that Brown stated
at that meeting, attended by McCarthy and perhaps 10
other business managers, that Gross was a nonunion con-
tractor which he (Brown) wanted off the job. Santoro also
testified that Brown said he would put up a picket line to
disqualify Gross from doing business at Acme. According
to Santoro, Brown also threatened to withdraw from the
council.
A number of business agents testified that none of these
statements attributed to Brown were made. McCarthy, who
I have credited, said that he did not recall Brown saying
anything directly to Santoro or any statement to the effect
that he, Brown, would picket, nor was there any statement
by Brown that he would withdraw his local from the coun-
cil. I therefore, do not rely on Santoro's account of what
transpired at the May 2 meeting, in my finding that Re-
spondent was seeking recognition or an agreement from
Gross.
Finally, it is alleged that McCarthy is an agent of Re-
spondent by virtue of his activities as council head and his
contacts with Gross. Although the record reveals that Mc-
Carthy was instrumental in connection with the contracts
obtained with Gross by the Sprinkler Fitters and Asbestos
Workers, it does not appear that he did more than commu-
nicate with those parties and arrange meetings. I would not
find McCarthy an agent of the unions who are members of
the council on the basis of those activities. However, the
credited testimony of McCarthy reveals different circum-
stances in the Gross-Respondent situation. On one occasion
when McCarthy informed Brown that Gross would sign a
contract, Brown replied if a contract was presented he
would take Gross' people with the Union for outside con-
struction. But more important, when McCarthy again re-
ported that Gross would sign, Brown told him to continue
on with his efforts, and "to pursue that line." This, at the
I See Local No. 695, Laborers International Union of North America, AFL
(O10, (Maulz & Orer, Inc.), 209 NLRB 410 (1974).
least, shows acquiescence by Brown to McCarthy's activi-
ties in trying to bring the parties together. For this purpose,
I find that McCarthy was authorized to act for Respondent.
Regardless of whether McCarthy was Respondent's
agent, this credited evidence sheds light on the objective of
Respondent and shows that it was, indeed, desirous of ob-
taining a contract. Considering all of the credited and ad-
mitted evidence as a whole, the expressions of Brown that
he would do what he had to do, and that picketing was an
avenue, take on additional significance. In sum, I find that
Respondent picketed Gross at the Acme building site with
an object of' forcing or requiring Gross to recognize and
bargain with Respondent as the representative of Gross'
plumbing employees, even though Respondent is not cur-
rently certified as the representative of such employees,
Gross has lawfully recognized OCAW. and a question con-
cerning representation may not appropriately be raised un-
der Section 9(c) of the Act. Respondent has therefore vio-
lated Section 8(b)(7)(A) of' the Act. In addition, I find that
Respondent has also violated Section 8(b)(4)(i) and (ii)(C)
of the Act. by picketing the site for an object of forcing or
requiring Gross to recognize or bargain as the representa-
tive of Gross' plumbing employees even though OCAW has
been certified as the representative of the employees under
Section 9 of the Act.
It is also contended that Respondent violated Section
8(a)(4)(i) and (ii)(B) by its conduct described above. Having
found that Brown's statements, in total context. reveal a
proscribed recognitional object, his responses to Santoro
and Duggan that he would do what he had to do, and
picketing was an avenue, constitute a threat to picket if'
Gross was at the jobsite. Of course such a threat was imple-
mented by the picketing which began on July 18. Although
Respondent strongly contends that its picketing had the
lawful objective of protesting Gross' failure to comply with
area standards. I have found, despite the use of picket signs
which would comport to area standards picketing, that its
true objective was recognitional. In such circumstances, I
further find that an objective of Respondent was to seek
Gross' removal from the jobsite which would have the ef-
fect of causing Murdock and other neutral employers to
cease doing business with Gross. In addition, the picketing
induced employees of other contractors, all of whom were
union members to engage in a strike or a refusal to perform
services. I conclude, therefore, that Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the Act.
IV. TIHE EFFECT OF TILE UNFAIR l.ABOR PRA('I(ES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Gross
described in section 1, 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. IIE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
702
PI t'MBIRS .(CAl. 129
to ceas a dcsit tlerelrom and io take cerltain aillirliatl e
iction dclricd to clecluate the policies of tile Act.
( it N( I It S 01 I .XA
I. iross Plulmbing and leating ('o., Inc.. is an employer
engaged in commerce within the meaning of' Section 2(6)
and (71 of the Act.
2. Respondent Plulibers and Steamfitters, Local 129.
Af:l. ('1. is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent is not currently certified as the bargaining
representative of (;ross' emplo:yees.
4. ()il. (Chemlical and Atomic Workers Union, (O('AW)
is a labor organization within the meaning of Section 2(5)
and 8(h)(7)(A) of the Act.
5. At all times material. OCAW has been certified bh the
Board as the exclusive representative of certain employees
of Gross for collective-bargaining purposes. and a question
concerning the representation of such employees may not
appropriately be raised under Section 9(c) of the Act.
6. Respondent. by its picketing of Gross at the Acme
building site, as fLind above, violated Section 8(b)(7)(A).
8(b)(4)(i), (ii)(B) and (C) of the Act.
7. The unfair labor practices found ahove affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record and pursuant to Section
1O(c) of the Act. I hereby issue the following recommended:
ORDER'
The Respondent. Plumbers and Steamfitters Local 129,
AFL-CIO, Niagara Falls, New York, its officers. agents.
and assigns. shall:
I. Cease and desist from:
(a) Picketing, or causing to be picketed, or threatening to
picket or causing to he picketed. Gross Plumbing and Heat-
ing Co.. Inc., at the Acme building site, or at any other
facility, at a time when Respondent is not currently certified
as the representative of Gross' plumbing employees. where
an object thereof is to force or require Gross to recognize or
bargain with Respondent as the representative of Gross'
plumbing employees, or to force or require the plumbing
employees of Gross to accept or select Respondent as their
collective-bargaining representative, even though Gross has
lawfully recognized in accordance with the Act another la-
bor organization, OCAW. and a question concerning repre-
' In the event no exceptions are filed as provided by Sec. 102.46 of he
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall. as provided in Sec 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions. and Order. and all objections thereto shall he deemed
waived for all purposes
sentatliotn natt not appropriatell he raised under Section
9(c o Ithe Actl;
lb) JLngaging in inducing, or encouraging an> individual
etmlplo\ed b Gross and an! other person engaging in conm-
merce or in anll industr\ affecting commlerce to engage in., a
strike or a refusal in the course otf his employment to use.
manutfacture, process, transport. or otherwise handle or
work n an goods. articles, materials. or commodities or to
perflorni an) services, or threatening, coercing, or restratil-
ing Gross and any other person engaged in commerce or in
an idustr5 affecting commerce. swhere in either case an
object thereof is to force or require (;ross to recognize and
bargain with Respondent as the representative of its plumb-
ing employees even though another labor organization.
OCAW, has been certified as the representative of such em-
plo ees under the provisions of Section 9 of the Act.
(c) Engaging in, or inducing. or encouraging any individ-
ual emplo ed by Gross Plumbhing and Ileating Co.. Inc.. or
by an, other person engaged in commerce or in ans indus-
try affecting commerce, to engage in a strike or refusal in
the course of his employment. to use, manufacture. process,
transport or otherwise handle or work on any goods. arti-
cles, materials or commodities, or to refuse to perform ans
other services where an object thereof is to force or require
Murdock or any other person, to cease using, handling. or
otherwise dealing in the products or services of an) other
producer. processor, or manufacturinlg, or to cease doing
business with Gross.
(d) Threatening, coercing. or restraining Murdock or aln
other employer or person engaged in commerce or in an
industry affecting commerce, where an object thereof is to
force or require said employers or persons to cease doing
business with Gross.
2. Take the foliowing affirmative action to effectuate the
policies of the Act:
(a) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix."' Copies of the no-
tice to be furnished b the Regional Director for Region 3
shall be duly signed and posted by Respondent immediately
upon receipt thereof and maintained in conspicuous places
including all places where notices to members are custom-
arily posted flr a period of 60 consecutive days. Reasonable
steps shall be taken to insure that the notices are not al-
tered. defaced, or covered by any other material:
(b) Mail or deliver to said Regional Director signed cop-
ies of said notice for posting b Gross Plumbing and Heat-
ing Co.. Inc.. if said employer is willing to do so:
(c) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps have been
taken by Respondent to comply herewith.
I In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National L.abor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of ppeals Enforcing an Order of the National
Labor Relations Board"
703