Plumbers Local Union No. 68

National Labor Relations Board - Board Decisions

Sep 8, 1975

220 N.L.R.B. 157 (N.L.R.B. 1975)

PLUMBERS LOCAL UNION NO. 68 157
Plumbers Local Union No. 68 , United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Cana-
da, AFL-CIO and Bexar Plumbing Company, Inc.
Case 23-CC-565
September 8, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND PENELLO
On June 13, 1975, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party each filed exceptions and a sup-
porting 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 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.'
ORDER
1974, by Bexar Plumbing Company, Inc. (herein Bexar),
through its attorney James V. Carroll, III, against Plumb-
ers Local Union No. 68, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL-CIO (herein
Respondent or the Union). Based on these charges the Re-
gional Director for Region 23 of the National Labor Rela-
tions Board (herein the Board) on February 4, 1975, issued
a complaint alleging that Respondent had engaged in un-
fair labor practices proscribed by Section 8(b)(4)(i)(ii)(B) of
the National Labor Relations Act, as amended (herein the
Act). To this complaint Respondent filed an answer plead-
ing insufficient knowledge to allow it to admit or deny
allegations regarding filing of the charge or jurisdiction. At
the hearing Respondent asserted the charge was inade-
quate to support the proceedings. The formal papers make
it clear, however, that the charge was filed on behalf of
Bexar by its attorney and that the client rather than the
attorney is the real party in interest and charging party in
this case. With respect to the jurisdictional allegations, Re-
spondent in effect amended its answer at the hearing by
stipulating to the jurisdictional facts alleged in the com-
plaint. Respondent's answer further admits picketing Bexar
but denies it was for an unlawful object. The answer also
denies that Respondent's agent threatened to run Bexar
out of business. The issues were tried at Houston, Texas,
on March 18 and 19, 1975.
Upon the entire record, my observation of the witnesses,
and consideration of the arguments and briefs of counsel, I
make the following:
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 orders
that the complaint herein be, and it hereby is, dis-
missed in its entirety.
' The Charging Party has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd. 188 F . 2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 The Charging Party has requested oral argument This request is hereby
denied as the record , the exceptions , and the briefs adequately present the
issues and the positions of the parties.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: This
is a secondary boycott case. Two questions are presented:
(a) whether the Union unlawfully threatened to run an em-
ployer out of business, and (b) whether picketing of that
employer was for an unlawful object. As set out more fully
hereinafter, I find for Respondent on both counts.
The litigation stems from charges filed September 30,
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED
This case primarily involves construction of the Dayton
Senior High School in Dayton, Texas, about 40 miles
northeast of Houston and some 20 to 25 miles north of
Baytown. The general contractor for the school construc-
tion is J.M. Hollis Construction Company, Inc. (herein
Hollis), a Texas corporation engaged at Houston, Texas, in
the building and construction industry. During the 12
months preceding the issuance of the complaint Hollis pur-
chased from suppliers outside Texas materials and supplies
valued in excess of $50,000 which were shipped directly
from outside Texas to Hollis' operations within Texas. Bex-
ar is also a Texas corporation with its principle place of
business in Houston. It is engaged in the building and con-
struction industry as a plumbing contractor and holds a
subcontract from Hollis for the performance of the plumb-
ing work on the Dayton School job. During the 12 months
preceding the issuance of the complaint Bexar also pur-
chased goods and materials valued in excess of $50,000
which were shipped from outside Texas to Bexar's opera-
tions within Texas.
I find that Hollis and Bexar are persons each within the
meaning of Section 2(1) of the Act and an employer en-
gaged in commerce or in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
220 NLRB No. 39
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Respondent is an organization which admits to member-
ship employees performing plumbing work in and around
Houston, Texas. It represents employees in the plumbing
industry with respect to wages, hours, and other terms and
conditions of employment and negotiates collective-bar-
gaining agreements with employers. It is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On October 1, 1970, Bexar and other plumbing contrac-
tors in the Houston area entered into a 2-year collective
bargaining agreement with the Union. Although this agree-
ment terminated for the other employers at the end of 2
years, it apparently continued in effect for an additional
year through September 30, 1973, between the Union and
Bexar because of the operation of an automatic renewal
clause in the agreement. The other plumbing contractors
negotiated a new 2-year agreement with Respondent for
the 2-year period from October 1, 1972, through September
30, 1974. This agreement provided for higher wage rates
than the previous agreement . Bexar, however, continued to
operate under terms of the older agreement with the lower
wage scale through September 30, 1973.
Beginning on January 30, 1973, while Bexar was still
working under the 1970 agreement, Respondent picketed
three construction projects (the C.E. King High School ad-
dition, the Aldine High School, and the Spring Branch Col-
iseum), at which Bexar was the plumbing subcontractor.
Respondent 's business representative Kenneth Yarbrough
admitted that the picketing of these three projects was with
signs identical to that involved in the present matter (which
protests that Bexar is unfair by paying substandard wages)
and that the picketing lasted for 2 to 3 days. Work on all
projects was interrupted by the failure of employees of
other contractors to continue working during the picketing.
On the first day of that picketing Bexar's president, Paul
Chapline, in a telephone conversation with Yarbrough,
asked the meaning of the picketing. Yarbrough stated that
Bexar was paying substandard wages. Chapline pointed
out that he was paying the rate provided in Respondent's
extended contract. Yarbrough said he was not interested in
that contract; that he wanted Bexar to sign the new con-
tract and to work employees furnished by the Union. No
new agreement resulted.
On February 21, 1973, the Board issued a complaint
(Case 23-CB-1383) against Respondent alleging that the
above-described occasions of picketing were unfair labor
practices under Section 8(b)(3) and (d)(3) of the Act. That
proceeding was settled on March 12, 1973, the settlement
approved by the Board's Acting Regional Director for Re-
gion 23 on March 15, 1973. The settlement agreement,
which contains a typical nonadmission clause, has not been
set aside.
On August 28, 1973, the Board, pursuant to petitions
filed with Region 23 (Cases 23-RD-299 and 23-RM-294),
conducted an election in which Bexar employees voted 11
to 0 against being represented by Respondent . On Septem-
ber 11, 1973 , the results of that election were certified.
Since September 30, 1973, when the extension of the
1970 agreement expired , Bexar has operated nonunion. In
September 1974, during the time the unfair labor practices
in the present matter are alleged to have occurred , no col-
lective-bargaining agreement was in effect between Re-
spondent and Bexar.
B. Picketing at the Dayton Job
1. The allegations
The complaint alleges , and the answer admits , that be-
ginning on September 26, 1974, Respondent picketed at the
Dayton School jobsite with a sign reading as follows:
BEXAR Plumbing Co.
UNFAIR TO U.A. PLUMBERS
LOCAL #68
BY PAYING SUB-STANDARD
WAGES TO ITS EMPLOYEES
THIS PICKET DIRECTED
AGAINST BEXAR Plumbing Co. ONLY
The complaint also alleges, and the answer denies , that at
no time has Respondent 's object in picketing been to affect
the labor policies of Bexar. The complaint further alleges,
and the answer also denies, that at no time did Respondent
picket Bexar at its principal office and place of business in
Houston , Texas. The evidence is clear , this last denial not-
withstanding , that no picketing in fact occurred at Bexar's
place of business in Houston . The disputed objects re-
specting the Dayton picketing are whether the purpose was
(a) to cause Bexar 's customers to cease doing business with
it and (b) to force Bexar out of business.
2. The location and duration of picketing
The Dayton picketing continued for about 4 days in-
cluding Thursday and Friday, September 26 and 27, and
the following Monday and Tuesday, September 30 and Oc-
tober 1. It commenced each day at 7 a.m., before work on
the project started for the day. On the first day the picket-
ing was located at the entrance to the job used by all per-
sons . This entrance is on a well-traveled thoroughfare,
Highway #146 which runs south to Interstate 10 and Bay-
town and east to Liberty. At a deposition held that same
day Bexar's attorney James Carroll orally informed
Respondent's attorney Marvin Peterson and its business
representative Yarbrough that a separate gate was being
established for Bexar employees. In fact it had already
been set up. There is not a great deal of evidence in the
record concerning the separate gate . What evidence there
is indicates that on the second day of picketing the pickets
moved to that gate and continued to picket only at that
location. There is no contention by the General Counsel or
the Charging Party that Respondent engaged in unfair la-
bor practices by failing to honor the separate gate, or by
failing to conduct the picketing in accordance with the evi-
dentiary tests approved for common situs picketing in Sail-
ors Union of the Pacific (Moore Dry Dock Company), 92
NLRB 547.
PLUMBERS LOCAL UNION NO. 68
3. The effect of the picketing at Dayton
The picketing at Dayton was effective in closing down
the job . On the first morning (September 26), the picket
sign went up before the employees arrived. As employees
arrived most did not proceed onto the job but instead went
down the street to a cafe for coffee . Thereafter only about
two to four employees , in addition to the one Bexar em-
ployee on the job, worked that day. In all there should
have been from 10 to 12 employees working for employers
other than Bexar. These included carpenters , laborers, and
iron workers employed by Hollis and an electrician em-
ployed by another subcontractor. On subsequent days only
a couple of Hollis' employees , other than the Bexar em-
ployee, worked. After about 4 days of picketing Hollis re-
quested Bexar to leave the job and Bexar complied, re-
maining off the job for approximately 1-1/2 months.
4. The object of the picketing
a. The theory of the affirmative case
There is no dispute that the picketing constituted induce-
ment of employees within the meaning of the Act. The
theory of the General Counsel and the Charging Party is
that this inducement was unlawful in that it was for a sec-
ondary object. In their view the picketing was unlawful
inducement within the meaning of Section 8(b)(4)(i)(B) of
the Act, and because employees of other employers were
effectively persuaded not to work, it threatened, coerced,
and restrained neutral employers and therefore was also a
violation of Section 8(b)(4)(ii )(B) of the Act . They rely par-
ticularly on General Teamsters, Warehousemen and Dairy
Employees Union Local No. 126, etc. (Ready-Mixed Con-
crete, Inc.), 200 NLRB 253 (1972); Local 215, International
Brotherhood of Electrical Workers, AFL-CIO (Rondout
Electric, Inc.), 204 NLRB 468 (1973); and Automotive Em-
ployees, Laundry Drivers & Helpers, Local No. 88, etc. (West
Coast Cycle Supply Co.), 208 NLRB 679 (1974).
b. The deposition hearing
In urging that the object of the Dayton picketing was
secondary the the General Counsel and Bexar rely on vari-
ous circumstances . One of these is their contention that
concurrent with the commencement of the picketing union
business representative Yarbrough threatened to run Bexar
out of business.
(1) The pleadings
According to the complaint Respondent on September
26, 1974, in the person of Yarbrough, threatened to run
Bexar out of business by picketing the Dayton jobsite. The
alleged objects of this statement were (a) to cause custom-
ers of Bexar to cease doing business with it and (b) to force
Bexar to go out of business. Respondent denies the allega-
tions.
159
(2) The setting
Respondent and Bexar for some time have been engaged
in a variety of litigation. In one such proceeding deposition
hearings were scheduled for September 26 at the offices of
Bexar's attorneys for the purpose of taking the testimony
of Yarbrough and Paul Chapline, the owner and president
of Bexar . The depositions, first Yarbrough's and then
Chapline's, went forward as scheduled, lasting about 2-1/2
hours.
(3) The persons present
Those present for the deposition included Yarbrough,
Respondent 's attorney Marvin Peterson , Bexar 's attorney
James Carroll , Chapline (who arrived one-half hour late),
and court reporter Terry Rigler.
(4) The version of the attorney for Bexar
Carroll testified that when Yarbrough and attorney Pe-
terson arrived at the appointed time he went out to the
reception room of his office to greet them. The court re-
porter was also present. Carroll led them down a corridor
to a conference room where the court reporter set himself
up at the end of a conference table. Carroll further testified
that earlier in the morning (about 9 o'clock) he had re-
ceived a call from Chapline, that there was a picket on the
Dayton job. Before the deposition got under way Carroll
asked Yarbrough if he knew a picket line had been put up.
Yarbrough indicated that he did. Carroll then asked,
"What's the problem?" To this Yarbrough answered, "Paul
is working where he ought not to be working. We run him
out of this county. He doesn't have any work in this county
any more and I understand some of his contractors are
displeased with him." Carroll replied that he did not know
there was any limitation on where a contractor could work.
Yarbrough said, "Oh, yes, there is." According to Carroll
he then advised Yarbrough and Peterson that Bexar was
setting up a reserved gate. There followed a discussion be-
tween the attorneys in which Peterson requested that no-
tice regarding the reserved gate status be the form of a
telegram and Carroll contended that verbal notice was ade-
quate and he might or might not send written notice.
(5) The version of Chapline
Paul Chapline testified that he arrived late at the deposi-
tion. He therefore did not know what transpired in the half
hour before he arrived. But his testimony indicates that
while he was there he heard Yarbrough make no statement
indicating that he was working at the wrong place or that
the Union had run him out of the county.
(6) The version of the attorney for the Union
Marvin Peterson, Respondent's attorney at the deposi-
tion and also an attorney of record (as is Carroll) in the
present matter, testified that he arrived at the deposition
with Yarbrough and at no time was out of his presence or
beyond earshot. He testified that he heard no such state-
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment by Yarbrough as reported by Carroll.
(7) The version of the business representative
Yarbrough testified categorically that he made no such
statement as reported by Carroll.
(8) The version of the court reporter
Court reporter Terry Rigler testified, somewhat reluc-
tantly, that he did not recall any such statement by Yarb-
rough as reported by Carroll. When pressed on cross-ex-
amination he clarified his testimony by explaining that he
meant that no such statement was made . He did admit,
however, that when he first entered the conference room he
busied himself for a few moments setting up his reporting
equipment which consisted of a stenotype machine. His
testimony and experience indicates that the period required
for such setting up is typically short . Rigler admitted that
while setting up he probably did not pay attention to what
others were saying . On the other hand , it must be noted
that court reporters are trained to be alert to what is said
while an official record is being made . Whether this means
that Rigler was or was not alert to what was being said at
other times is anyone 's guess . He was not that certain in his
recollection of the particular occasion . He admitted that a
statement about having run Bexar out of the county could
have been made and he did not remember it. He also ad-
mitted hearing someone say something about working out
of Harris County but he did not know who.
(9) The transcript of the deposition
The transcript of the deposition was not offered in evi-
dence , apparently because all counsel felt it would be of
little value . In the circumstances I infer that the deposition
itself contained no reported language of Yarbrough similar
to that testified to by Carroll. This together with the testi-
mony of Carroll and the other circumstances indicate that
if Yarbrough made the alleged comment he did so before
the taking of testimony began.
(10) Resolution of credibility
The evidence about the deposition poses the difficult
problem of assessing contradictory testimony of'two mem-
bers of the bar, both of whom' are counsel of record in the
present matter . Both appeared to be credible witnesses. In
testifying about this incident Yarbrough appeared to be a
credible witness . As noted above , Chapline does not cor-
roborate Carroll's version because he was not present dur-
ing the first half hour . Peterson and Yarbrough corrobo-
rate each other and they both are somewhat corroborated
by the court reporter . The weight of credible evidence sup-
ports Yarbrough 's denial . Accordingly , I find that a pre-
ponderance of the evidence fails to support the allegation
that he made the statement . That particular portion of the
complaint should be dismissed.
c. The failure to picket Bexar at its own premises
Bexar's office is in a converted residence about 1 mile
from the center of Houston on a street which carries a
substantial, but not a high , volume of traffic . The neigh-
borhood is mixed residential and commercial . Bexar is lo-
cated between a two-story apartment on one side and a
private residence on the other, and across the street from
an elementary school.
As noted earlier , it is clear that Respondent did not at
any time picket Bexar's own premises . The General Coun-
sel and Bexar urge that failure to picket at the home office
is a circumstance indicating a secondary object in picket-
ing at Dayton.
The extent to which picketing at Bexar's own premises
would have reached its employees is not completely clear.
Some would have had to cross and work behind such a
picket line . In September 1974 this group would have in-
cluded Chapline himself (company owner and president),
the estimator (company vice president ), one secretary, one
bookkeeper, and one utility employee . Bexar also em-
ployed a regular serviceman who frequently went out on
and returned from short service jobs . Bexar also had three
apprentices who performed work in the shop and also fre-
quently went out to obtain materials from supply houses or
to deliver material to jobsites . Thus, at the time of the Day-
ton picketing approximately nine members of Bexar's staff
would have been constantly confronted if the picket had
been placed at Bexar's own premises . According to Chap-
line at the time of the Dayton picketing the Company had
a total of 14 employees , 6 of whom were so-called field
men.
Bexar also had about six construction jobs going, but
only two were full-time jobs . The Company had six trucks
used in construction and service work. One of these was
regularly assigned to the serviceman described above. A
second was regularly assigned to W.R. Bond then working
on the Dayton job. Bond took his truck home at night and
ordinarily proceeded directly from home to the Dayton
job. A picket at Bexar 's own premises would have reached
him only if for some reason he would have come in to the
shop.
The other four trucks were unassigned . The record is not
clear how often they left and returned. I infer from
Chapline's testimony that the balance of the field employ-
ees were engaged in construction and service work. These
could travel directly between their home and jobsite by
private car if they chose . On some occasions they might
have to come to Bexar 's own premises for supplies. And in
any event they had the option if they so desired to report to
Bexar 's office to obtain transport to a jobsite . Any field
employees availing themselves of this service or coming to
the home office for supplies would on such occasions have
had to cross a picket line placed there but would not have
had to work continuously behind the picket line . Chapline
testified without contradiction that in September 1974 he
had five or six field employees reporting briefly to the shop
in the morning and returning again at quitting time, about
4 p.m. He later testified , apparently inconsistently, that
seven or eight persons would have had to cross such a
picket line.
PLUMBERS LOCAL UNION NO. 68 161
Yarbrough testified that the reason Respondent did not
picket at the home office was that its location did not af-
ford sufficient public appeal for the picketing . Chapline, on
the other hand, testified in contradiction , and I find, that
between 7 and 8 : 30 in the morning a couple hundred cars
typically passed the home establishment. It is thus clear
that a picket at the office would have had some public
appeal . On the other hand, Bexar has had many construc-
tion jobs from time to time which Respondent has not
picketed, according to Yarbrough because the job loca-
tions did not allow for adequate public appeal. He also
pointed out that the Dayton project involved a public
school and that such projects possess inherent public ap-
peal. I note that school construction has political implica-
tions so that working conditions on such a job may well be
of interest to citizens in the area of the school. Picketing at
the home office of a construction company would not
reach such citizens.
At the Dayton job Respondent did not expect to effec-
tively appeal to Bexar employees . At the time of the picket-
ing only one Bexar employee was working on that job.
Thus, the purpose of the Dayton picketing had to be some-
thing other than an appeal to the primary employees. This
also explains the Union's lack of interest in appealing to
primary employees at Bexar's own premises.
Not only Bexar's office but also the union office are
located reasonably close to the center of Houston. The
Dayton jobsite is a substantial distance outside Houston.
The General Counsel and the Charging Party urged that
this is an additional circumstance to support an inference
that the Dayton picketing was carried on for a secondary
object. The Dayton jobsite is different from the location of
Bexar's own premises and that is one of the circumstances
to be considered in assessing Respondent 's object in pick-
eting at Dayton. Plauche Electric, Inc., 135 NLRB 250
(1962). The availability of Bexar's own premises as a loca-
tion for picketing provides only slight support for the con-
tention that the Dayton picketing was for a secondary ob-
ject . To be sure Respondent might have picketed at the
home office where it would have appealed to Bexar person-
nel working there and going in and out of those premises.
It would also have appealed to the public passing that loca-
tion . The availability of the home office location , however,
does not preclude lawful picketing at a construction project
which is a common situs . Plauche Electric, Inc., supra. In
fact in this case picketing at the home office could not have
reached one primary , Bond , the only primary employee
working at Dayton. He traveled directly from home to the
jobsite and back without going to Bexar's own premises
and could only be reached by a picket at the Dayton job.
The substantial distance between the home office and
the Dayton jobsite is another circumstance . If these two
locations were closer together it would be easier to con-
clude that the Union's legitimate purposes could as well
have been served by an appeal at Bexar's home office as at
a construction project. But where , as here , the distance is
substantial , the appeal at one location reaches totally dif-
ferent persons than at the other location. Different primary
employees would be reached . A different segment of the
public would be reached . And Respondent points out, the
nature of the Dayton job makes it a matter of special inter-
est to persons in that community.
The General Counsel and Bexar correctly point out that
common situs picketing necessarily involves neutral em-
ployees whereas picketing at Bexar 's own premises would
not have done so to the same degree . But because of the
circumstances referred to above I find the Union 's failure
to picket the home office to be of little help in determining
the object of the Dayton picketing.
d. Union knowledge of Bexar wages
When asked the reasons for the Dayton picketing, Busi-
ness Representative Yarbrough testified , "Because of the
fact that we had prior knowledge that Bexar Plumbing
Company had had a history of paying substandard wages."
Phillip Lord , who in mid- 1974 became a business represen-
tative for Respondent and for 3 years before that had been
its president , described the Union's reasons as follows:
A. Well, you know, we have, of course , had prob-
lems with Bexar Plumbing Company for several years
now.
Q. Yes, sir.
A. And, of course , we were still wanting to hopeful-
ly see that he paid the same wages everybody else did
if he's going to compete with the union contractors, so
he's, you might say, been a thorn in our side, and so
it's just about-whenever he gets a nice job , well, we
are interested in making sure that he stays on a com-
petitive basis, so-
Q. What do you define as a nice job?
A. School, basically school work or large commer-
cial projects , but basically school job.
Q. Where there is a lot of money involved?
A. Yes, sir.
Respondent admits that before establishing the Dayton
picket no inquiry was directed to Bexar management to
learn what wages were being paid on that job. Bexar urges
that such lack of communication with management dem-
onstrates that the substandard wages message on the picket
sign was a subterfuge , citing Sales Delivery Drivers, etc. Lo-
cal 296, et al. (Alpha Beta Acme Markets, Inc.), 205 NLRB
462 (1973), and Automotive Employees, Laundry Drivers &
Helpers, Local No. 88, etc. (West Coast Cycle Supply Co.),
208 NLRB 679 (1974), recent Board decisions involving
Section 8(b)(7) of the Act . From this Bexar argues that
because the purpose of the picketing was pretextual, it is
inferable that one object of Respondent was to pressure
neutral employers not to do business with Bexar.1
During the period of the extended 1970 agreement union
officials had reason to think Bexar was not paying the
higher rates of the newer agreement then in effect with
other contractors because Bexar was insisting that the old-
er agreement with the lower rates remained operative for it.
Yarbrough testified vaguely that in 1973 on the C. E. King
and Aldine School jobs he had spoken with Bexar employ-
'See International Brotherhood of Electrical Workers, AFL-CIO, Local
323 (Indian River Electric, Inc), 206 NLRB 377 (1973); but cf . Local 25,
International Brotherhood of Electrical Workers, AFL-CIO (Eugene lovine,
Inc) 208 NLRB 337 (1974).
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees about the wages being paid. And Lord credibly testified
that in June or July 1973 he spoke with then Bexar employ-
ee David Shaffell on the Willis School job about the wages
he was receiving and about how the job was going. But
conditions in 1973 bear too little relation to those in 1974
to be satisfactory evidence of union motive in the Dayton
picketing. Yarbrough testified he received a couple of
phone calls, one from a Mr. Barrymore who complained
that Bexar paid a wage too small for the hours worked. But
the record does not reveal when this call occurred. Its ma-
teriality to the issue involved here is not apparent.
Respondent also offered the testimony of two former
Bexar employees to the effect that they were not paid prop-
erly for overtime work. One, John Simon, was employed by
Bexar from May 1973 to December 1973. The other, Farrel
Campbell, was employed for 6 to ,7 weeks in 1973. Chap-
line contradicted their testimony. But aside from that, their
testimony also relates to the distant past. Moreover, they
both indicated that even at the time of the Dayton picket-
ing they still had not informed the Union about being paid
improperly. Their information, therefore, could not have
been a reason for the Dayton picketing. What Bexar in fact
paid is irrelevant if the Union did not know about it.
Evidence of more recent vintage supports Respondent's
defense. The Dayton picketing was Lord's responsibility.
He made the decision to picket about a week before setting
it up. He credibly testified that before doing so he visited
the jobsite on three occasions. On the first occasion he
spoke with the project superintendent for Hollis, the gener-
al contractor. The record does not indicate what, if any-
thing, he learned.
On Lord's second visit to the job, about 3 weeks prior to
the picketing, he spoke with a young man at the Bexar
trailer who was either stacking or assembling some soil
pipe. Chapline had testified that during September he had
no one helping Bond at the Dayton job except for deliver-
ing and unloading. The man, whom Lord described, told
him he was working for Bexar. Lord then asked if he was a
plumber, and he replied he was an apprentice or helper. He
said he was making $3 an hour. Lord asked whether he also
received vacation or insurance, to which the man replied
that he had some insurance. Finally, Lord inquired if he
was enrolled in an apprentice school. He replied he was
not.
Respondent's agreement with union contractors in'the
area at that time provided an hourly rate of $3.64 for first-
year-apprentices in addition to amounts for vacation sav-
ings, a service charge, a tool allowance, apprentice training,
and pension and welfare fund contributions.
On his third visit to the Dayton job Lord did not speak
with anyone. What he had learned on his second visit,
however, gave sufficient reason to think that at least on the
Dayton job Bexar's labor costs were not comparable to the
labor costs of competing union contractors in the area.
Yarbrough testified that he learned from Chapline at the
deposition hearing on September 26 about the range of
wages Bexar was paying. The General Counsel points out
that by then the Dayton picket had already been set up. Of
course if Yarbrough did obtain pertinent wage information
on that occasion, it could bear on the Union's reasons for
continuing the picket for several days thereafter. I find,
however, that Yarbrough did not acquire such information
at the deposition hearing. No one else present corroborated
him in this regard. At other points in his testimony he ad-
mitted that on September 26 he did not know what cash
dollars Bexar paid in wages. Chapline denied giving him
such data. I credit that denial.
5. Conclusion regarding Respondent's objects
On the morning that Respondent set up the Dayton
picket it also advised other member unions of the Houston
Building Trades Council that it was establishing the picket.
It does not appear whether this notice to other unions in-
cluded the advice that union members were not required to
respect the picket line. Cf. Local 660, International Brother-
hood of Electrical Workers, AFL-CIO, et al. (Traffic Safety,
Inc.), 125 NLRB 537, 539 (1959). But the picket sign stated,
"This picket directed against Bexar Plumbing Co. only."
Thus, the sign itself informed anyone who bothered to read
it that the picket line was not intended to have its normal
and traditional appeal to unionized employees working at
the site. Yet it did have that effect with a considerable
number of neutral employees resulting in a substantial
work stoppage. In my view, however, the fact that Respon-
dent was the beneficiary of this cohesive sympathy among
working men does not impugn its motive in picketing.
By analogy it is argued that object should be inferred
from Respondent's alleged ignorance regarding Bexar
wage rates while protesting substandard wages. As noted
above, however, Respondent was not entirely uninformed
on the subject because business representative Lord ac-
quired a modest amount of reasonably current information
from his visits to the Dayton job. As Respondent points
out, none of this was verified by checking with Bexar man-
agement. But I have been referred to no rulings that a
union is limited in the sources of intelligence upon which it
may rely in pressing an industrial dispute, nor that a union
must accept as believable information it may receive from
management. Here, Respondent had some information
from a nonmanagement source. It was not a great deal of
information, but, it was not unreasonable for Lord to act
upon it as he claims he did. There is really no substantial
reason, therefore, for inferring an unlawful object from
Respondent's failure to ask Bexar management for wage
data on the Dayton job. Compare Automotive Employees,
Laundry Drivers & Helpers, Local No. 88, etc. (West Coast
Cycle Supply Co.), supra.
. Heavy reliance is also placed on the assertion that Yarb-
rough made coercive statements at the deposition hearing
on the first morning of picketing. As set out earlier herein,
the record does not satisfactorily establish that he made
those statements. That facet of the case; therefore, lends no
support to the theory that the Dayton picketing was for a
proscribed object.
Thirdly, it is contended that failure to picket the Bexar
home office demonstrates a secondary object. As found
earlier herein, that circumstance is some but very slight
evidence of proscribed object. Standing alone I would find
it insufficient to establish prima facie the essential element
.of object.
Beyond these points there is virtually no evidence of
PLUMBERS LOCAL UNION NO. 68
events or conduct by Respondent reasonably proximate to
the Dayton picketing which throws light on the object of
the picketing. In these circumstances reliance on occur-
rences long predating the 6-month limitation set out in Sec-
tion 10(b) of the Act is misplaced, especially where, as
here, those events were the subject of a settlement agree-
ment, which apparently was complied with and remains
viable. Those matters are too remote in time to have signif-
icant meaning in determining the object of the Dayton
picketing. Moreover, unless Respondent's object is more
clearly established by evidence from within the Section
10(b) period than appears to be the case here, I have seri-
ous doubt that reliance on pre-10(b) events accords with
the teaching of Local Lodge No. 1424, International Associ-
ation of Machinist, AFL-CIO [Bryan Mfg. Co.] v. N. L. R. B.,
362 U.S. 411 (1960).
In sum , considering the record as a whole, there is insuf-
ficient evidence to warrant a finding that the Dayton pick-
eting was for either an object to cause Bexar's customers to
cease doing business with Bexar or an object to force Bexar
out of business. Accordingly, the allegations in the com-
plaint that such picketing constituted unfair labor practices
proscribed by Seciion 8(a)(b)(i) or (ii)(B) of the Act should
be dismissed.
CONCLUSIONS OF LAW
1. Bexar and Hollis are employers within the meaning of
Section 2(2), engaged in commerce and in an industry af-
163
fecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent by its business representative Kenneth
Yarbrough did not on September 26, 1974, engage in unfair
labor practices within the meaning of Section 8(b)(4)(ii)(B)
of the Act by threatening to run Bexar out of business by
picketing at its Dayton jobsite.
4. Respondent during the period September 26 through
October 1, 1974, did not engage in unfair labor practices
within the meaning of Section 8(b)(4 8(b)(4)(i) or (ii)(B) of
the Act by picketing at Bexar's Dayton jobsite.
5. An object of the aforesaid picketing was neither (a) to
cause Bexar's customers to cease doing business with Bex-
ar, nor (b) to force Bexar to go out of business.
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:
ORDER2
The complaint is dismissed in its entirety.
2 In the event no exceptions are filed as provided by Sec 102.46 of the
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 be
deemed waived for all purposes