Teamsters Local 36 (M. H. Golden Co.)

National Labor Relations Board - Board Decisions

Aug 31, 1984

271 N.L.R.B. 1401 (N.L.R.B. 1984)

TEAMSTERS LOCAL 36 (M. H. GOLDEN CO.)
Building Material and Dump Truck Drivers Team-
sters Local Union No. 36, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America;
Southern California District Council of Labor-
ers and its Affiliated Local Union 89, affiliated
with the Laborers' International Union of North
America, AFL-CIO; Operative Plasterers' and
Cement Masons' International Association,
Local Union 744, AFL-CIO; San Diego District
Council of Carpenters of the United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO; San Diego County Building & Con-
struction Trades Council and M. H. Golden
Company. Case 21-CP-654
31 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 30 March 1984 Administrative Law Judge
Timothy D. Nelson issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief. Respondents Laborers Local 89,
Teamsters Local 36, Plasterers Local 744, and the
Building Trades Council all filed answering briefs
to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. M.
H. Golden Company (Golden) filed unfair labor practice
charges in Case 21-CP-654 on June 16, 19831 against all
respondent parties named in the case caption. 2 After in-
vestigating those charges, the Regional Director for
Region 21 of the National Labor Relations Board
All dates are in 1983 unless otherwise specified.
2 Where no distinctions are necessary, the named respondent parties
will be called collectively "Respondents." Individually, those parties will
be called, respectively: Teamsters, Laborers, Cement Masons, Carpenters,
and Council. Often, it will be possible to lump together for descriptive
purposes all Respondents except the Council. In such cases the term Four
Crafts will be used. Sometimes it will suffice simply to refer to the
Unions.
(Board) issued an order consolidating cases, consolidated
complaint, and notice of hearing on October 6.
The consolidated complaint contained allegations that
Respondents had violated Sections 8(b)(3) and 8(b)(7)(C)
of the National Labor Relations Act (Act). Respondents
duly answered, denying any wrongdoing.
I was designated to hear these and a large number of
related cases against Respondents, some of which in-
volved Golden. As a consequence of settlements and
other informal dispositions concluded at the courthouse
steps (and, in many cases, not perfected until after the
opening of the instant trial record), the only allegations
now before me for resolution are those 8(b)(7)(C) allega-
tions contained in the consolidated complaint.3 Trial on
the 8(b)(7)(C) allegations took place in San Diego on Oc-
tober 25 and 26.
I have fully considered the posttrial briefs filed by
counsel for the General Counsel and by counsel for all
Respondents except the Carpenters.
Issues
The ultimate issue is whether Respondents-or any
one or more of them-violated Section 8(b)(7)(C) of the
Act by certain picketing against Golden. The more par-
ticular issues raised by this litigation are best identified
and understood after a summary narration of the undis-
puted facts. Accordingly, on the entire record, I make
these
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES
A. Introduction and Background
Golden, the Charging Party, is a.construction industry
entity which emerged from the dissolution and sale of
assets of a predecessor operation, also called M. H.
Golden Company. Throughout this decision Golden
refers to the new entity; Old Golden refers to the prede-
cessor. 4
Old Golden had been a general contractor in the con-
struction industry in San Diego County since the early
1900s. Since at least the 1940s Old Golden had been a
member of the San Diego Chapter, Associated General
Contractors of America (AGC). Using AGC as its bar-
gaining agent, Old Golden had been party to successive
master-labor agreements with the Four Crafts. The
master-labor agreement (MLA) effective June 16, 1980,
through June 15, 1983, was subscribed to by agents of
3 The settlement/disposition process, in addition to removing from
issue the 8(bX3) allegations in the instant complaint, also took care of a
large number of cases in which it was alleged that these Respondents vio-
lated Sec. (b)(X4Xiii)(A) and (B), and Sec. 8(e) of the Act. Included in
these cases, which are too numerous to warrant detailing here, were alle-
gations stemming from charges filed by Golden in Case 21-CC-2684 aris-
ing out of the same negotiating background and picketing conduct direct-
ed against "Golden" which is described in Findings, infra. This now dis-
posed-of "Golden" case likewise included allegations that Respondents
had engaged in unlawful "secondary" action in violation of Sec.
8(bX4)(A) and (B) and 8(e).
I Except where noted otherwise, findings below derive from the un-
contradicted testimony of Richard Hail, Golden's executive vice presi-
dent.
271 NLRB No. 222
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each of the Four Crafts, on the one hand, and by agents
of AGC and other employer associations, on the other.
For our purposes, the historical relationship can be char-
acterized as involving a single collective-bargaining unit
consisting of all employees doing Four Crafts' work for
all employer-members of AGC (and for employer-mem-
bers of other multiemployer associations signatory to the
successive MLA's).
The directors of Old Golden wished to get out of the
construction business. As a consequence, on or about
June 30, 1982, Old Golden terminated its employees, in-
cluding approximately 200 employees represented by
Four Crafts, and sold its construction equipment and re-
lated assets to an intermediate entity, Sub-1. Almost im-
mediately, Sub-I acquired the Golden name and hired
all of the employees which Old Golden had terminated.5
As part of the sale of the construction operation,
Golden acquired and assumed responsibility for comple-
tion of Old Golden's jobs-in-progress. Virtually simulta-
neous with its acquisition of that operation, Golden (as
Sub-I) joined AGC. It continued, thereafter, to use Four
Crafts employees to complete those jobs and it honored
and applied to those employees all terms in the 1980-
1983 MLA. 6
It was part of Golden's business plan, however, even-
tually to perform only construction management func-
tions and to subcontract jobsite work to other construc-
tion firms. Most new work undertaken by Golden after
June 30, 1982, was limited to such management func-
tions, although Golden admittedly undertook "two or
three" new projects using unit employees during the en-
suing 6-month period while it was otherwise "testing" its
business plan. The general pattern, however, was that
unit employees were laid off incrementally as the various
carryover contracts were completed.
B. Golden Resigns from AGC and Later Deals
Directly with Respondent
On December 28, 1982, anticipating negotiations for a
successor MLA, Golden wrote to AGC revoking AGC's
authority to conduct any further labor negotiations on its
I There were some officers and directors of Old Golden who became
associated as officers, directors, and owners of Sub- I and, in turn, of
Golden. The ownership or de facto control of virtually all of Old Gol-
den's stock was vested in two members of the Golden family. The emer-
gence of Golden, the successor entity, was attended by the introduction
into the picture of a Texas corporation, Centex, which held 80 percent of
the shares in Sub-I, and then, in Golden. The identities of the Centex
principals are not clear from the record, but it is assumed, in the absence
of more details, that they were strangers to the Old Golden operation. In
any case, the vagueness of the record makes it impossible to find that
Golden is merely a disguised continuance-or the alter ego-of Old
Golden. If anything, such a view would be contradicted by undenied evi-
dence that the owners of Old Golden wished to embark upon an entirely
new investment operation, no doubt using proceeds from the sale of Old
Golden's assets; and that they formed a new corporation, Silvergate, for
this purpose. Thus, based on findings below that Golden hired all of Old
Golden's employees and continued thereafter during its term to honor
and apply the current MLA, I treat Golden as no more than a successor
to Old Golden, one who elected to recognize the Four Crafts and to
honor their labor agreement, all as contemplated in NLRB v. Burns Inter-
national Security Services, 406 U.S. 272, 281-291 (1972).
6 Respondents admit-and I find-that Golden annually buys more
than $50,000 worth of goods and services for use in its California oper-
ations directly from suppliers outside California.
behalf. On the same date, Golden wrote to the Four
Crafts that it had revoked AGC's bargaining authority
and that it intended to terminate the current MLA.
Golden further stated in that communication to the Four
Carfts that it was willing "to discuss any and all matters
relative to the collective bargaining agreement, including
[Golden's] intention to terminate the agreement."
This communication did not trigger any immediate re-
sponse. Months later, however, on May 18, Golden
wrote to the Council7 with copies to each of the Four
Crafts stating, among other things, that Golden "pro-
poses to operate primarily as a Construction
Manager/General Contractor . . . and to permanently
and totally cease being an employer of any building
trades including, but not limited to the [Four Crafts]."
That letter further sets forth Golden's reasons for pursu-
ing this new business plan and invited either the agree-
ment of the "Building Trades" to Golden's proposal (in
which case, Golden offered to "propose an appropriate
termination treatment for those employees") or, failing
such agreement, that "Building Trades Council" itself
make "proposals for a collective-bargaining agreement
that accommodate, meet, or respond in some way to
[Golden's] reasons for ceasing to function as an employer
and make it worthwhile to remain an employer."
On June 9, a letter to Golden (and other AGC resig-
nees) was sent on Council stationery, but signed only by
agents of each of the Four Crafts, advising that a new
AGC agreement had been reached to be effective June
16 and setting forth the major changes from the prede-
cessor MLA. Recognizing Golden's current independent
bargaining status, the Four Crafts invited Golden (and
the other resignees) to sign an enclosed "Short Form
Jobsite Agreement" with the intended effect that those
signers would be bound by the substantive terms of the
new AGC contract, albeit individually.
This same proposal had been made in a group meeting
at the Laborers hall on June 8 attended by Golden and
the other contractors not represented by AGC. That
meeting and the June 10 meeting described below were
chaired by Carpenters' business manager and secretary-
treasurer Jim Clark, with various union attorneys and
Don Guthrie, the Council's business manager, in attend-
ance, but playing a passive role. It appears that there
were no discussions during the June 8 meeting directed
specifically to Golden's situation; rather such discussions
occurred in subsequent meetings at the Laborers hall on
June 10 and June 14, in which Golden was the only em-
ployer participant.
In the June 10 meeting the union participants stated
that they had no problem with Golden's proposed busi-
ness plan to discontinue operating as an employer and to
function only as a manager of construction projects.
Golden agents told the union participants that Golden
did not currently employ any bargaining unit employees
7 The Council is admitted by Respondents to be an association com-
posed of certain labor organizations, including each of the Four Crafts.
Counsel for the Council conceded at trial that the Council plays a co-
ordinating role on behalf of the Four Crafts. Respondents have denied,
however, that the Council is itself a labor organization or an "agent" or
the Four Crafts.
1402
TEAMSTERS LOCAL 36 (M. H. GOLDEN CO.)
and did not intend in the future to do so.8 It was pro-
posed from the union side that Golden sign what the
parties have termed an "area standards" subcontracting
agreement having the intended effect of committing
Golden to require any of its future subcontractors em-
ploying workers doing any Four Crafts work to be sig-
natory to-or, at least, bound by-the applicable por-
tions of the new MLA. 9
Golden and the union participants met again on June
14. This time lawyers for each side did all the talking.
Golden formally rejected the proposed "subcontractors"
agreement, but countered with a written proposal of its
own. In essence, Golden proposed what the parties have
termed a "project agreement," a form of "prehire" con-
tract in which Golden would apply the terms of the new
MLA on any project where it employed four or more
persons doing work of the type covered by the MLA.
The union participants rejected this, stating they "did not
feel it adequately protected bargaining unit work." In-
stead, they pressed for Golden's acceptance of their own
proposed subcontract agreement. Golden rejected this
again and the meeting ended on that impasse. There have
been no further communications of substance between
the unions and Golden on these matters.
C. Picketing Alleged to Violate Section 8(b)(7)(C)
Thereafter, commencing on June 16, picketing took
place intermittently at two of Golden's San Diego-area
projects, the First Interstate project and the Graham
International project. The timing, nature, and extent of
the picketing was stipulated to by all parties, as follows:
STIPULATION NO. 1
On June 16, 17, 20, 21, 22, and 23, 1983, and on
July 7, 8, 11, 12, 13, and 14, 1983, Respondent Car-
penters and Respondent Laborers picketed Golden
at the First Interstate project with picket signs
which read:
CARPENTERS-LABORERS-TEAMSTERS
AND CEMENT MASONS
AFL-CIO
ON STRIKE
M. H. GOLDEN
NO AGREEMENT
SANCTIONED BY
SAN DIEGO COUNTY
BUILDING TRADES COUNCIL
STIPULATION NO. 2
On July 25 and 26, 1983, Respondent Carpenters
and Respondent Laborers picketed Golden at the
I Apart from evidence about the undisputed status of two yard person-
nel (Pulsipher and Asch, see Miscellany. infra), there is no evidence
which contradicts Golden's statement made in the June 10 meeting that it
no longer employed any Four Crafts employees.
g The legality of such an agreement under Sec. 8(e) of the Act is not in
issue in this proceeding-that being a matter which was separately al-
leged and later withdrawn as part of the settlement/disposition process
referred to in the "Statement," supra.
First Interstate project with picket signs which
read:
CARPENTERS-LABORERS
AND CEMENT MASONS
AFL-CIO
ON STRIKE
M. H. GOLDEN
NO AGREEMENT
SANCTIONED BY
SAN DIEGO COUNTY
BUILDING TRADES COUNCIL
STIPULATION NO. 3
On July 25, 26, 27, and August 1, 1983, Respond-
ent Carpenters picketed Golden at Gate #1 of the
Graham International project with picket signs
which read:
CARPENTERS-LABORERS
CEMENT MASONS
ON STRIKE
M. H. GOLDEN
IS UNFAIR
SANCTIONED BY
SAN DIEGO BUILDING AND
TRADES COUNCIL AND
JOINT COUNCIL NO. 42
The picketing just described was interrupted by a dis-
trict court-mandated, 10-day hiatus which, as the parties
stipulated, covered the period from 5 p.m. on July 14 to
5 p.m. on July 24. °0 By then 29 days had elapsed since
the first day of picketing.
D. The July 15 Representation Petition by the Four
Crafts
On July 15, immediately after the district court's entry
of the restraining order, the Four Crafts filed a joint rep-
resentation petition in Case 21-RC-17246 seeking an
election in a unit described as "All [nonsupervisory] em-
ployees doing jobsite construction work" for Golden. In
the space on the petition form calling for the "number of
employees in unit," the Four Crafts had entered: "Un-
known."
The petition was processed by the director's undertak-
ing of an investigation. On July 28, the director issued a
dismissal letter to the parties stating his investigative con-
clusion, in substance, that Golden "does not employ any
employees in classifications which could be included in
io The precise nature of the court proceeding, held in the United
States District Court for the Southern District of California, is not avail-
able from the record. Probabilities are that it arose from a petition filed
by the Regional Director under Sec. 10(1) of the Act. It is not clear, if it
was a 10(1) proceeding, whether it was brought in connection with the
instant Sec. 8(bX7)(C) matter, or in connection with the related Sec.
8(b)4)(A) and (B) charges also being pressed by Golden and other con-
tractors against these Respondents. Speculating, one could conclude that
Sec. 8(b)7) considerations were not involved at that stage since the Re-
gional Director had not, by then, issued any such complaint and this
would have hampered his ability to aver to the district court that he had
"reasonable cause to believe" that an 8(b)7) violation had occurred.
1403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bargaining unit .... " The parties stipulated that a
timely request for review was thereafter filed and that
the Board had not acted on that review request at any
time before this trial record closed.
The record fails to show precisely when the Four
Crafts obtained notice of the director's dismissal action,
there being no return receipts in evidence. July 28 was a
Thursday. The picketing stipulations reveal that picket-
ing was conducted against Golden by some of the Re-
spondents on one additional day after July 28, that is on
August 1, a Monday, at the Graham International
project. Were it material to the result I would infer,
given the intervening weekend, that the dismissal letter
dispatched on July 28 was not received by any of the
Four Crafts until August 1 at the earliest.
E. Miscellany
There was litigation over the questions of the duties
and authorities of two individuals employed by Golden
after it had declared itself to be out of the business of
employing unit employees. Both of these persons, Pul-
sipher and Asch, worked in an equipment yard where
Golden traditionally maintained construction vehicles
and other equipment when not in use on its construction
projects.'' Asch was salaried and held the title shop
foreman or assistant. Pulsipher was an hourly paid pur-
chasing agent. These individuals had been deemed to be
within the historical Four Crafts unit-at least before
Golden began phasing in its new business plan-but
there is room for debate whether their post-June 16 as-
signments were substantially similar in character to their
normal job task before then. There is also similar basis
for doubt whether their post-June tasks would be proper-
ly regarded as being within the "jobsite construction
work" unit identified in the joint petition filed by the
Four Crafts on July 15. It is also not clear whether the
Four Crafts were aware of these two persons' continuing
employment at the time the joint petition was filed, or, if
so, whether they were the target of the petition. It ap-
pears from statements of counsel during trial and on brief
that Respondents would have me find that Pulsipher was
a supervisor and that Asch was a nonsupervisory unit
employee. Such a finding would enable the Four Crafts
to argue that they were seeking an election in a 1-man
unit, thus exempting their picketing from the proscrip-
tions of Section 8(b)(7)(C) under a doctrine alluded to
below in the analysis.
Because I do not find it necessary to the outcome of
this case to discuss further or decide the status occupied
by either Pulsipher or Asch on and after June 16, I leave
that subject and turn directly to an analysis of the signifi-
cant questions.
I" By June, the yard equipment was being sold off and Pulsipher's and
Asch's activities were directed towards that equipment-disposition proc-
ess-not towards ongoing maintenance.
11. ANALYSIS AND CONCLUSIONS
A. Introduction; General Legal Setting, the
Contentions of the General Counsel
In pertinent part Section 8(b)(7)(C) outlaws picketing
by a union of any employer for organizational or recog-
nitional purposes where no election petition has been
filed "within a reasonable period of time not to exceed
30 days from the commencement of such picketing." As
the Board noted in Blinne'2 Section 8(b)(7) is a product
of legislative "compromise between strong contending
forces and deeply held views on the role of organized
labor in the free economic life of the Nation." Id. 135
NLRB at 1155. The resulting language adopted by Con-
gress has been described as "confusing" and "murky."
Morris, The Developing Labor Law (2d ed., Vol. II) at
1064. The same may be said of many of the construing
cases.
The General Counsel's brief begins by noting that
under the Supreme Court's decision in Higdoni3 and the
Board's decision in Noonan a "recognitional" objective
exists-and Section 8(b)(7)(C) is violated-when a union
pickets to obtain a Section 8(f) "pre-hire" agreement
without a petition having been filed within 30 days from
the start of picketing. And the General Counsel's central
factual contention is that the picketing of Golden by Re-
spondents was to obtain just such a prehire agreement.
For reasons unnecessary to detail, the General Counsel
would contend that all Respondents (save the Teamsters)
were involved at all times in "joint venture" picketing
which, in fact, exceeded 30 days. But, avoiding legal
complications arising from the fact that a petition was,
indeed, filed within 30 days after the instant picketing
commenced,15 the General Counsel maintains that, in
circumstances where Golden did not employ any unit
employees when the picketing began, and did not intend
to do so in the future, such picketing "violated Section
8(b)(7)(C) ab initio." And it is this latter, ab initio, con-
tention which the General Counsel readily concedes
would break new legal ground if adopted herein; for not
only is there no Board precedent for such a proposition,
but there are indications that it is a disfavored rationale,
as I discuss next.
In Noonan, supra, the Board could have held, but did
not, that the union's picketing to compel Noonan to sign
a prehire agreement privileged by Section 8(f) was in-
valid from the outset. Rather, the Board relied on the
fact that the picketing for that object exceeded 30 days.
(142 NLRB at 1133.) And, perhaps more directly to the
tZ Hod Carriers Local 840 (Blinne Construction), 135 NLRB 1153
(1962).
13 NLRB v. Ironworkers Local 103 (Higdon Contracting), 434 U.S. 335
(1978).
14 Operating Engineers Local 542 (R. S. Noonan), 142 NLRB 1132
(1963), enfd. 331 F.2d 99 (3d Cir. 1964), cert. denied 379 U.S. 881.
L5 As the stipulated facts reveal only 29 days had elapsed from the
commencement of any picketing until the point at which a district court
issued a temporary restraining order against further picketing for a 10-
day period. And, on July 15, well before any picketing was resumed, the
Four Crafts had filed their petition seeking an election and certification in
a unit of all of the Golden's nonsupervisory jobsite construction employ-
ees.
1404
TEAMSTERS LOCAL 36 (M. H. GOLDEN CO.)
point, the Board concluded: "In our view, a holding here
that a union can picket indefinitely [emphasis added] to
force an employer to sign a pre-hire contract would run
contrary to the purposes of the section." Id. at 1135.
In Teamsters Local 282 (General Contractors), 262
NLRB 528 (1982), the Board was again invited to adopt
the proposition that any picketing for prehire recognition
under circumstances where there were no current em-
ployees in the proposed voting unit violates Section
8(b)(7)(C). In that case, admittedly recognitional picket-
ing was conducted for 3 days to achieve inclusion into
an existing bargaining unit of certain persons found by
the Board to be guards within the meaning of Section
9(b)(3) of the Act. Rejecting the rationale that the pick-
eting violated Section 8(b)(7)(C) ab initio because any
election petition which might have been filed could not
be processed due to the "nonexistence of the voter unit,"
the Board relied instead on its finding that the picketing
union would be "ineligible to be certified as the collec-
tive-bargaining representative because it would be admit-
ting both guards and nonguards to membership." (262
NLRB at 530.)t
The General Counsel's ab initio theory in this case
may therefore be seen as another attempt to place before
the Board the proposition which the Board has so far in-
dicated a reluctance to embrace. I do not find it neces-
sary to decide this recurring and vexing question be-
cause, as I conclude below, the picketing in this case was
not recognitional in character. Rather, for reasons more
fully explicated in my decision in Carpenters Local 2361
(Adams Insulation Co.), 248 NLRB 313, 318-321
(1980),17 I merely record here my doubts about attempts
to apply to cases involving certifiable unions the ration-
ale tailored by the Board in such cases as Teamsters
Local 282 and A-I Security, supra, to meet unique prob-
lems posed when a union which is uncertifiable due to
the strictures of Section 9(b)(3) pickets to obtain recogni-
tion in a mixed guard/nonguard unit.
Also, because I do not find that the picketing was re-
cognitional in its purpose, I do not address the more
subtle questions whether Respondents-or any smaller
grouping of them; and, if so, which ones-were properly
chargeable with responsibility for all, or any discrete
portions of, the picketing which was stipulated to have
occurred. For the same reasons, I do not deal with the
alternative defense advanced by some Respondents that
if the picketing was recognitional in purpose, it was not
for initial recognition, but rather it was done in the con-
text of an existing bargaining relationship and was there-
"8 The Board here followed the precedent established in Service Em-
ployees Local 73 (A-] Security Service), 224 NLRB 434 (1976). There, a
divided Board (Chairman Murphy and Member Fanning dissenting) held
that the statutory proscriptions in Sec. 9(b)(3) of the Act against certifica-
tion of a union as the representative of employees in a bargaining unit of
guards where the union also admitted nonguards to membership required
the conclusion under Section 8(b)(7)(C) that recognitional picketing by
such a union for any duration would violate the statute.
17 The Board found it ultimately unnecessary in Adams Insulation to
pass on the rationale advanced in the JD passages just cited. (248 NLRB
at 313-315.)
fore exempt from the proscriptions of Section
8(b)(7XC).' I
B. The Purpose of the Picketing
The General Counsel does not identify the evidence
on which he relies when he asserts summarily: "In the
instant case it is clear that Respondents were seeking a
Section 8(f) 'pre-hire' agreement." My own view of the
record is that this is not at all clear. Indeed it appears to
be contradicted by the General Counsel's presentation of
evidence through Golden's agent Bail, as I discuss next.
Bail's testimony makes it clear that when the parties
left the bargaining table after their final session on June
14, they were at impasse, this being the nature of that
impasse: the union participants wanted an area standards
subcontractors' clause whereby Golden would use only
those subcontractors who would honor and apply to
their employees doing Four Crafts work the wages, ben-
efits, and working conditions-in short, the standards-
established in the MLA then recently concluded between
the Four Craft an AGC. Golden was unwilling to accept
this, but was prepared to offer a kind of modified prehire
agreement whereby Golden would apply the MLA on
those jobs where it employed four or more Four Crafts
unit employees. The unions would not accept that pro-
posal, because it did not adequately protect unit work.
In summary, the only proposal for something in the
nature of a prehire contract on the table immediately
before the picketing began had come from Golden-not
the unions. The only proposal then on the table from the
union's side reflected their acquiescence in Golden's
"business plan" to cease being an employer and their de-
cision to pursue instead a device which would insure that
work done on Golden's projects by subcontractors
would be done under MLA standards.
If this is so then it would appear strained to suggest
that the picketing which immediately followed the June
14 impasse was for any purpose other than to achieve by
economic action that which the unions had been unable
to achieve at the bargaining table, i.e., an area standards
subcontrators' agreement. And if, as I conclude, the
latter purpose underlay the ensuing picketing campaign,
the law appears to be settled that such picketing is not
"recognitional" and thus does not implicate Section
8(b)(7). North Central Montana Trades Council (Sletten
Construction Co.), 222 NLRB 176 (1976); see also Gar-
ment Workers (Hazantown), 212 NLRB 735 (1974).19
Although not explicit in the General Counsel's asser-
tion that the unions were seeking a prehire agreement, it
may be that the General Counsel relies on the fact that,
before the unions and Golden ever met to negotiate sepa-
rately, they had sent Golden (and other AGC resignees)
a letter inviting those employers to sign short-form
t' The Laborers main defense is that the picketing was not recogni-
tional because it was aimed at achieving a subcontractors agreement. The
brief filed by the other Respondents (excluding the Carpenters, who filed
no brief) contains an imposing variety of alternative contentions, includ-
ing that the picketing was not for initial recognition. The Laborers adopt
that latter contention in the alternative.
1i Such picketing may implicate other sections of the Act, notably
Secs. 8(b)4) and 8(e); but, as noted above, these issues were otherwise
disposed of by the parties and are not before me.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreements. If this is the underpinning for the General
Counsel's claim, I reject it. That letter appears to have
been sent to Golden and the others without any particu-
lar regard for Golden's special circumstances; and, when
the unions and Golden began their own separate series of
meetings on and after June 10, that short-form proposal
ceased to be in the picture. During those meetings, as the
General Counsel's evidence clearly shows, the unions in-
dicated that they did not have any problem with Gol-
den's business plan. And their subsequent area standards
subcontractors' proposal can only be taken as an indica-
tion that they had abandoned any prehire contract inten-
tions they might have held until then,2 0 in the light of
Golden's stated intention to cease functioning as an em-
ployer of Four Crafts unit employees.
There is yet another potential basis in this record for
the General Counsel's claim that Respondents were seek-
ing a Section 8(f) prehire arrangement with Golden. Al-
though raised in a different context, the General Counsel
alludes to the fact that the Four Crafts eventually (after
the lion's share of the picketing had already been con-
ducted-and then temporarily enjoined) filed a joint peti-
tion seeking certification in a unit of Golden's jobsite em-
ployees. This joint petition is argued by the General
Counsel to be "inconsistant [sic] . . . [with] any conten-
tion that Respondents do not seek to represent any of
. . .Golden's employees and that therefore the picketing
was not for a 'recognitional' ... objective."
There is arguable inconsistency in these circumstances,
to be sure, and, if the record were devoid of any other
background, that inconsistency might acquire greater sig-
nificance in seeking to determine the purpose of the pick-
eting in question. But, on this record, where Golden had
insisted that it did not intend to employ any future unit
employees and the unions had acquiesced in this plan it
would impute a certain perversity to the unions to sup-
pose that their picketing goal was to obtain what would
necessarily be a hollow commitment from Golden for a
prehire agreement in the purely hypothetical event that
Golden were to change its mind and to hire unit employ-
ees at some future point.
Moreover, inasmuch as the General Counsel maintains
that, as of June and thereafter Golden "did not (and does
not, and does not intend to) employ any employees in
the unit," there is more than arguable "inconsistency" in
the General Counsel's parallel assertion that the unions
nevertheless wanted to represent those (nonexistent) unit
employees.
It is worth noting finally that the eventual filing on
July 15 of the joint petition by the Four Crafts is, at best,
a fragile basis from which to impute a prehire contract
purpose to the pre-July 15 picketing. While not ruling
out reliance on evidence of conduct engaged in by a
union at one point in time to explain the union's purpose
in picketing at a substantially different point, the Board
20 1 do not reach the question whether, in the circumstances, the initial
effort to get Golden to sign a short-form agreement amounted to an at-
tempt to achieve an 8(f) prehire contract with Golden.
has also indicated a certain wariness on that score. See,
e.g., Adams Insulation, supra, 248 NLRB at 313-315, and
cases cited therein. Here, for all the reasons noted above,
I find such wariness to be especially appropriate. I thus
conclude that the General Counsel has not met his
burden of establishing by a preponderance of the reliable
evidence in the record as a whole that the picketing was
recognitional within the contemplation of Section
8(b)(7)(C). 21
I would, therefore, dismiss the complaint. 22
Based on the foregoing analysis, I render these ulti-
mate
CONCLUSIONS OF LAW
1. Golden is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and the
Board's jurisdiction is properly invoked where the alleg-
edly unlawful actions of Respondents were shown to
have affected Golden's operations in commerce.
2. The Teamsters, Laborers, Cement Masons, and Car-
penters are each labor organizations within the meaning
of Section 2(5) of the Act.
3. It is unnecessary to determine whether the Council
is itself a labor organization or whether it acted as an
agent for the Four Crafts or any one of them.
4. The preponderance of the credible evidence in the
record as a whole fails to show that the allegedly unlaw-
ful picketing was for "recognitional" purpose within the
contemplation of Section 8(b)(7)(C) of the Act; accord-
ingly, the complaint may not be sustained.
21 If it were necessary to press this analysis further and to answer to
the question "Why, then, did the Four Crafts file the July 15 petition, if
not out of a genuine, recognitional, desire to achieve certified status as
the representative of whatever jobsite construction employees Golden
might employ?" I would conclude as follows: It is more probable than
not that tactical considerations were motivating influences. Among the
more obvious possibilities here would be a desire, by the filing of a peti-
tion before 30 days had elapsed, to blur the legal picture under Sec.
8(bX7)(C) and to provide an arguably lawful basis for continuing picket-
ing after the district court's 10-day restraining order had expired. Alter-
natively, within the same tactical framework, the Four Crafts might have
hoped to establish that the unit sought by the petition consisted of only
one employee (see Miscellany in findings, supra), thus privileging recog-
nitional picketing forever under the precedent established in Teamsters
Local 115 (Villa-Barr Co.), 157 NLRB 588 (1966). But such tactical moti-
vations do not truly explain the real intention underlying the picketing
campaign-especially where there is more obvious and direct evidence
that the true purpose of picketing was to pressure Golden to accept the
proposal which the unions had left on the bargaining table 2 days before
the picketing began, i.e., to commit itself to using only subcontractors
who would apply to their employees the standards established in the new
MLA.
22 Although the General Counsel might have contended, based on the
stacking of inferences, that the picketing campaign was a single, continu-
ous, single-purpose process which endured for more than 30 days, he falls
short of contending alternatively that such picketing would violate Sec.
8(b)(7)(C) in these circumstances. Rather, as noted, he seeks only to vin-
dicate the proposition that recognitional picketing for a Sec. 8(f) prehire
contract violates Sec. 8(bX7XC) if conducted for any time at all. Accord-
ingly, such an alternative and hypothetical question is not before me
unless I were, in effect, to stand in review of what was apparently a con-
scious judgment by the General Counsel to limit his complaint. Where I
am not invited to play that role, and where that alternative possibility is
itself fraught with difficulties too numerous to warrant explication, I
choose not to burden this decision further by addressing it.
1406
TEAMSTERS LOCAL 36 (M. H. GOLDEN CO.)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend- The complaint is dis
ed2a The complaint is dis
w If no exceptions are filed as provided by Sec. 102.46 of the Board's Board and all objection
Rules and Regulations. the findings. conclusions, and recommended poses.
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
1407
ORDER
smissed.
.s to them shall be deemed waived for all pur-