United Brotherhood of Carpenters, Local 480

National Labor Relations Board - Board Decisions

Mar 29, 1974

209 N.L.R.B. 921 (N.L.R.B. 1974)

UNITED BROTHERHOOD OF CARPENTERS, LOCAL 480 921
United Brotherhood of Carpenters and Joiners of
America, Local 480 , AFL-CIO and National Mill
Designs, Inc. Case 14-CP-195
March 29, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 29, 1973, Administrative Law Judge
Thomas F. Maher issued the attached Decision in
this proceeding. Thereafter, counsel for General
Counsel and for Respondent filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that United
Brotherhood of Carpenters and Joiners of America,
Local 480, AFL-CIO, herein called Respondent,
violated Section 8(b)(7)(B) of the Act by certain
picketing undertaken against National Mill Designs,
Inc., at its Nashville, Illinois, jobsite on and after
June 7, 1973. In so concluding, the Administrative
Law Judge found that an object of Respondent's
picketing was to force or require National Mill
Designs to recognize and bargain with it as the
representative of National Mill Designs' employees.
Since he noted that a valid Board election had been
held at National Mill Designs on July 9, 1973, and
that Respondent's picketing continued after the
election, the Administrative Law Judge found that
Respondent's picketing was undertaken in part for a
recognitional object and was in violation of Section
8(b)(7)(B), which forbids such picketing within 12
months of a valid Board election.
Respondent had argued to the Administrative Law
Judge that the sole purpose of its picketing was to
inform the public that National Mill Designs did not
pay its employees the prevailing area wages or
provide them with prevailing area working condi-
tions and that this "area standards" picketing was
i The counsel for General Counsel 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 resolu-
tions with respect to credibility 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, enfd 188 F 2d 362 (C A. 3, 1941)
We have carefully examined the record and find no basis for reversing his
findings.
2 Unless otherwise indicated all dates are 1973
permissible under applicable law. The Administra-
tive Law Judge, however, found that Respondent's
picketing was motivated only in part to protest a
failure by National Mill Designs to adhere to area
standards. He found another proscribed object in the
picketing due to Respondent's intent to have deliver-
ies withheld from National Mill Designs' jobsite.
Equating this intent with a desire for recognition, the
Administrative Law Judge found that the picketing
was for a proscribed object. Unlike the Administra-
tive Law Judge, we find Respondent's sole purpose
in its picketing was to protest National Mill Designs'
nonadherence to area standards. The picketing was
thus for a permissible object and was not in violation
of the Act. In such circumstances, as explained infra,
the fact that deliveries at the jobsite were halted as a
result of the picketing is of no consequence.
In preparation for its work at the Nashville,
Illinois, jobsite, National Mill Designs entered into a
collective-bargaining contract with the Congress of
Independent Unions, herein CIU, in April 1973. It
began working on the jobsite on May 31, 1973.2 On
June 7, Respondent established a one-man picket at
the jobsite. During the course of the picketing, no
representative of Respondent talked with any em-
ployee on the jobsite. Rather, the picket carried a
sign which protested that National Mill Designs'
employees were receiving wages and working condi-
tions below those prevailing in the area.3 The
language on the sign, however, also asked employees
of National Mill Designs and other employers not to
stop working or performing services on the project.4
The Administrative Law Judge found, however, that
regardless of the picket sign's language, deliveries to
the jobsite were halted as an eventual consequence of
the picketing.
In order to resolve this situation, on June 26 a
representative of National Mill Designs contacted
Respondent and a meeting was held between the
parties the following day. The Administrative Law
Judge credited the testimony of Respondent's repre-
sentative, McGuire, and another representative of
Respondent that McGuire never suggested either the
signing of a contract or the hiring of Respondent's
members. McGuire testified that he conditioned the
removal of the picket on National Mill Designs'
paying the wages and providing the conditions that
contractors under contract with Respondent were
3 In fact, National Mill Designs was paying its skilled employees $6 50
per hour, and its unskilled employees $4 83 per hour Under the terms of the
Carpenters agreement with approximately 600 area contractors , employees
received wages of $8 30 per hour and fringe benefits were 92 cents per hour.
4 The Administrative Law Judge found that the language on the sign
carried by the picket changed during the course of the picketing The legal
effect of the language on both picket signs is the same , however, and we
consider their effect together
209 NLRB No. 162
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject to. No solution to the problem was reached at
the meeting5 and that same day, June 27, National
Mill Designs filed a petition for an election among its
employees. Listed as interested unions were the CIU
and Respondent. Prior to the election, counsel for
Respondent specifically informed the Regional
Director that Respondent did not seek recognition or
a contract nor did it desire to appear on the election
ballot. Respondent's name remained on the ballot,
however, and the CIU won the election and was
certified as the bargaining representative of National
Mill Designs' employees at the Nashville, Illinois,
jobsite on July 23. Respondent continued its picket-
ing after the election, as a result of which charges
were filed and the instant complaint arose. As noted
above, the Administrative Law Judge found the
picketing was in violation of the Act.
When a union pickets an employer for the sole
purpose of compelling compliance with prevailing
area wage and benefit standards, such "area stand-
ards" picketing is nonrecognitional and nonorganiza-
tional and therefore outside the proscription of
Section 8(b)(7).6
The Board has reasoned that a union-
has a legitimate interest apart from organization
or recognition that employers meet prevailing pay
scales and employee benefits, for otherwise
employers paying less than the prevailing wage
scale would ultimately undermine the area stand-
ards.7
But the union 's picketing must be solely for the
object of protesting nonadherence to area standards,
for, as long as one of the union 's objects is illegal, its
picketing is also illegal and it is immaterial that it
may also have other legitimate objects.8 The issue in
each case "is one of fact and not of assumptions or
presumptions ." 9 But, as the Board has stated-
if a union pickets and says to an employer, "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 independent
evidence to controvert this statement of objective,
5 One of National Mill Designs' representatives said that he thought the
Company was paying close to the area wages, and he asked what they were
McGuire testified he told him the amount of the wages and fringes. The
fringes were hospitalization , welfare , and pension The representative asked
for a copy of Respondent's contract, which was given to him McGuire
testified that he agreed it would be illegal for the Company to sign a
contract with Respondent in view of the contract the Company had with the
CIU. In fact, the credited testimony was that McGuire never asked the
Company to sign a contract
6 See, e g, Houston Building and Construction Trades Council (Claude
Everett Construction Company), 136 NLRB 321
7 Local Union No 741, United Association of Journeymen and Apprentices
the Board cannot find that the picketing has
organization, recognition, or bargaining objec-
tives.10
We find that, viewed in light of these principles,
Respondent's picketing was undertaken solely to
protest the lack of adherence by National Mill
Designs to those standards Respondent had negotiat-
ed with other area contractors. Thus, National Mill
Designs was in fact not meeting the area standards
and the record indicates Respondent had been made
gener .1iy aware of this situation. Respondent's picket
sign stated that its aim was to protest the nonadher-
ence of National Mill Designs to the area standards;
no representative of Respondent talked to any
employee of National Mill Designs during the time
of the picketing about organizing or any other
activity; at the June 27 meeting, McGuire never
requested that National Mill Designs sign a contract
with Respondent or hire its members, but only stated
that if National Mill Designs paid the area wages and
provided the area working conditions that the picket
would be removed; and Respondent 's counsel
specifically advised the Regional Director that
Respondent did not seek to organize or sign a
contract with National Mill Designs and did not wish
to be on the ballot for an election.ii
While noting that the above events took place, and
that they indicated that Respondent's objective was,
in part, maintenance of the area standards, the
Administrative Law Judge concluded that Respon-
dent also had a recognitional object in its picketing.
In support of this conclusion, the Administrative
Law Judge noted that the picketing had effectively
halted deliveries to the jobsite and that McGuire
knew this and, in fact, had intended that the
picketing would halt deliveries. The Administrative
Law Judge thereupon concluded that this desire to
halt deliveries evidenced a recognitional objective in
the picketing. In this the Administrative Law Judge
was in error.
As the Board has previously found, the fact that
picketing to protest substandard conditions is suc-
cessful in halting deliveries to the picketed premises,
or in stopping operations of the picketed employer
of the Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO (Keith Riggs Plumbing and Heating Contractor), 137 NLRB 1125,
1126
6 See National Packing Company, Inc v N L R B, 377 F 2d 800, 803
(CA 10)
9 Keith Riggs Plumbing, supra at 1126.
10 Id
ii While the Board is not bound by a union's self-serving declarations,
we have weighed these statements of position in the light of all of the other
relevant evidence presented to determine Respondent 's objective here
Brotherhood of Painters, Decorators and Paperhangers of America, Union No
76 (Gomez Painting & Decorating Co), 182 NLRB 405, 408 at In 11
UNITED BROTHERHOOD OF CARPENTERS, LOCAL 480 923
entirely, cannot in and of itself supply the necessary
evidence of a prohibited recognitional objective.12
The fact that the picketing here was successful in
stopping deliveries, and that Respondent intended
that effect, does show that Respondent was serious
about its objective of protesting the Employer's
substandard wages and conditions of employment,
In the absence of evidence that Respondent was also
seeking to force the Employer to bargain about those
matters, it does not demonstrate that the picketing
was for the objective prohibited by the statute.13
Accordingly, for all the foregoing reasons, we shall
dismiss the complaint herein in its entirety.14
while admitting certain allegations of the complaint,
denied the commission of any unfair labor practice.
Pursuant to notice a trial was held before me in St. Louis,
Missouri, whereat all parties were present, represented, and
afforded full opportunity to call and cross-examine
witnesses, and to file briefs. Briefs and reply briefs were
filed by the parties. Upon consideration of the entire
record, including the briefs filed with me, and upon my
observation of the witnesses appearing before me,i I make
the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE NATURE OF THE EMPLOYER 'S BUSINESS
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
12 Retail Clerks International Association, Local Union No 899, AFL-CIO
(State-Mart, Inc, d/b/a Giant Food), 166 NLRB 818, 822.
13 The situation herein is distinguishable from those arising under Sec
8(b)(7)(C), where picketing for a recognitional or organizational objective is
exempted from the proscription of the section if carried out for information-
al purposes, unless the picketing has the effect of stopping deliveries. See
Claude Everett Construction Company, supra at 324
14 Keith Riggs Plumbing, supra, Steamfitters Local Union No 614, United
Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO (Trumbo Welding and
Fabricating Company), 199 NLRB No 158, cf San Francisco Joint Board of
International Ladies Garment Workers Union, AFL-CIO (Romay of Califor-
nia), 171 NLRB 761 The fact that the Administrative Law Judge views the
law as it has developed with respect to the application of Sec 8(b)(7)(B) to
"area standards picketing" as resting on "abstruse distinctions" does not
free him from his obligation to apply established Board precedent.
Insurance Agents' International Union, AFL-CIO (The Prudential Insurance
Company of America), 119 NLRB 768, 773; Lenz Company, 153 NLRB 1399,
1401
DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER , Administrative Law Judge: Upon a
charge filed on July 20, 1973, by National Mill Designs,
Inc., against United Brotherhood of Carpenters and
Joiners of America, Local 480 , AFL-CIO, Respondent
herein , the Regional Director for Region 14 of the
National Labor Relations Board , herein called the Board„
issued a complaint on behalf of the General Counsel of the
Board on July 27, 1973, against the Respondent alleging a
violation of Section 8(b)(7)(B ) of the National Labor
Relations Act, as amended (29 U.S.C. £ 151, el seq. ), herein
called the Act . In its duly filed answer the Respondent,
1 I have considered the testimony of each witness, including those whose
testimony I have not referred to. In evaluating the testimony of each witness
I have relied specifically upon his demeanor at the trial and I have made my
findings and drawn inferences upon them accordingly Apart from
considerations of demeanor I have taken into consideration inconsistencies
National Mill Designs, Inc., Charging Party herein, is an
Indiana corporation maintaining its principal office and
place of business in the City of Minneapolis, Minnesota. It
maintains jobsites in the States of Georgia, Illinois, Iowa,
and Pennsylvania. Charging Party is, and has been at all
times material herein, engaged in the building and
construction industry as a feed mill construction contrac-
tor. Its jobsite located at Nashville, Illinois, is the only
facility involved in this proceeding.
During the year ending December 31, 1973, which is a
representative period in operations during all times
material herein, the Charging Party in the course and
conduct of its business operations engaged in the perform-
ance of construction contracts in excess of $800,000 in
Georgia, Illinois, Iowa, and Pennsylvania, and will have
purchased and caused to be transported and delivered at
its Nashville, Illinois, jobsite, construction goods and
materials valued in excess of $50,000 of which goods and
materials valued in excess of $50,000 were transported and
delivered to its jobsite in Nashville, Illinois, directly from
points located outside the State of Illinois.
National Mill operates jointly with T. E. Ibberson
Company, also located in Minneapolis, Minnesota, and
these two enterprises have common stock ownership,
National Mill being primarily the labor contractor and
Ibberson the designers and builders.
Upon the foregoing facts based upon admitted com-
plaint allegations and uncontradicted testimony I conclude
and find Charging Party to be an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE STATUS OF THE RESPONDENT
It is admitted and I accordingly conclude and find that
United Brotherhood of Carr enters and Joiners of America,
Local 480, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
and conflicting evidence. If, in any specific instance, I have failed either to
detail a resolution of conflicts or to have analyzed specific testimony it is for
the reason that, in my judgment, this Decision would only be to that extent
encumbered, and no advantage to the understanding of my findings would
be served Bishop and Malco, Inc, d/b/a Walker's, 159 NLRB 1159, 1161
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Issue Involved
The nature of the picketing engaged in by Respondent.
III. THE UNFAIR LABOR PRACTICE
1. The facts
National Mill Designs, Inc., and T. E. Ibberson
Company, an affiliated enterprise described above, con-
tracted in late 1972 with Washington County Service Co., a
grain and fertilizer enterprise located in Nashville, Illinois,
to build two concrete grain storage bins as an annex to the
existing structure. Work on this project began on May 31,
1973. The total cost of this construction was estimated to
be $400,000. Prior to January 1, 1973, National Mill's
project manager, George A. Corcoran, communicated with
Trueman Davis, an official of the Congress of Independent
Unions (C.I.U.), exploring the possibility of entering a
labor agreement. An agreement between the C.I.U. and
National Mill was executed in April 1973 and work on the
job commenced on May 31. This work consisted of
excavation, building of concrete forms, placing of steel
reinforcements, and masonry work, including the pouring
and finishing of concrete.
A week thereafter, on June 6, two men appeared at the
Company's field office, introducing themselves as repre-
sentatives of the Laborer's local. When Corcoran informed
them of the Company's contract the C.I.U. one of the two
asked if that meant that the Company would not be hiring
any of their men "through the hall." In reply, Corcoran
assured them that he could put their men to work but that
they would have to join the C.I.U. After replying that that
would be out of the question the visitors engaged in some
small talk and left the premises. There is no claim that
these individuals represented or were agents of the
Respondent herein.
On the following morning a picket appeared at one of
the entrances of the jobsite carrying a large umbrella
bearing the inscription "Carpenters Local 480" in red
letters. He also carried a picket sign, 30 inches square,
bearing the following inscription:
CARPENTERS EMPLOYED ON THIS PROJECT
Are receiving wages and working conditions
below those prevailing in this area
CARPENTER'S LOCAL 480
NATIONAL MILL DESIGN
Employees employed by this and other
employers are not requested to cease
performing services
As an eventual consequence of this picketing deliveries
to the plant were stopped. Thus Respondent's business
representative, James McGuire, testified on direct exami-
nation that in a subsequent meeting with the Company's
vice president and general manager , John F. Dunser,
Dunser said to him, "I guess you know I am here because
we have a problem out at the Washington County Grain
Elevator, you've got a picket line out there that's stopping
my deliveries and got my job bogged down." McGuire thus
confirmed earlier testimony of company officials to the
same effect. Specifically, it appears that contemporaneous
with the appearance of the pickets and thereafter the
drivers of McLean Trucking and local Ready-Mix Con-
crete plant have ref-ised to make deliveries.
On June 26 Project Manager Corcoran approached the
picket and asked for and received the telephone number of
Respondent's business manager . General Manager Dunser,
who came to the project to seek a solution to the existing
problem, thereupon called the Respondent's headquarters
in Freeberg, Illinois, and arranged with an individual
answering the telephone to be present on the following
morning to meet with the Union official. The meeting with
Business Agent McGuire took place as tentatively planned,
on June 27, at 10 a.m. Also present was Harold Hangsle-
ben, the Union's recently retired assistant business agent
and financial secretary.
What occurred at this meeting is the subject of
conflicting testimony. In the resolution of it, as previously
noted (supra. fn. 1), I have considered the demeanor of
those testifying and present at the trial as well as the
realities of the specific items of testimony and the
inferences to be reasonable to be drawn from them. In this
respect, to the extent that I discredit the specific testimony
of any witness, I shall so state, with the specific under-
standing that in so doing I may well credit other testimony
of the same witness , relying as I do upon the well-settled
evidentiary rule that it is not uncommon "to believe some
and not all" of a witness ' testimony.2
Business Agent McGuire described the beginning of the
meeting thus:
We talked for a few minutes about the weather or
something. Finally, Mr. Dunser said, "I guess you
know I am here because we have a problem out at the
Washington County Grain Elevator, you've got a
picket line out there that's stopping my deliveries and
got my job bogged down. I want to know what we can
do about solving the problem." I said, "I have a picket
sign informing the public that you are not a legitimate
operator, that you are not working under the same
conditions and wages that we are accustomed to in this
area." I said, "This is our position. This is why we have
the picket sign up."
At this point it is Dunser's credible testimony that
McGuire replied : "It is effective." When questioned by his
attorney if he had made this reply McGuire concurred, but
at considerable length, thus:
A. I explained to him when he made his initial
complaint about the line, I told him it was information-
al picket line informing the public that they are not
paying the wages and fringes or the people on that type
2 N L R B v Universal Camera Corporation, 179 F 2d 749, 754 (C A 2)
UNITED BROTHERHOOD OF CARPENTERS, LOCAL 480 925
of work in this area accustomed to seeing. The
contractors are crying about it. We are here to inform
the public what you are doing, it is a phony deal,
regardless it is effective, its getting the job done. I said,
"Yes it probably is."
Q. He is the one who used the word effective, is
that it?
A. Yes, but I am sure I agreed with him, though.
In further description of the conversation McGuire
continued:
He then said, this is one of the reasons, he told me
some of the problems that he had, "this is one of the
Ireasons that we signed the C.I.U. contract out there."
was in the position of listening most of the time. I let
him do the talking. I tried to answer the questions. It
was a pretty congenial type of conversation.
Then he said that he had went this way because he had
all kinds of problems before and he dust couldn't see
any other way because it was more profitable for his
company to operate that way; he would again like to
get the picket line down to see if he couldn't get the
problem solved, but he didn't think it was legal that he
sign a contract with us. I agree with that and we, I
think, had several other discussions, about the wages,
for one thing. He said that "We think we are paying
close to your wages, anyway." He asked me what they
were and I told him the wages and fringes. He asked
me for a copy of the contract. I gave him a copy of the
contract. I think I had a phone call again, he thumbed
through it, read it over, and again said he didn't think it
was legal that he sign a contract with us. I agreed with
that. I think with that he got up and asked if we would
give him another copy of the contract. We said, yes, we
would give him a couple of them. I think we gave him
one and his assistant one. I think we gave them three
copies of the contract. He said, "We'll talk to our
attorney and get back to you."
When asked by Dunser what it would take to solve his
problem McGuire stated that if he was paying wages of a
legitimate operator Respondent would not object; that if
they would work under the same wages and conditions that
the contractors under contract with the Respondent are
required "to live up to" Respondent would not have a
picket line there.
There is a direct conflict on the matter of whether or not
Respondent conditioned the removal of the picket on
either the signing of an agreement with it or the hiring of its
members. Thus both the Company representatives Corcor-
an and Dunser testified that he did so. Corcoran quoted
McGuire as stating that the picket would remain until his
people were employed on the job. And when reminded by
Dunser that they already had a contract with the C.I.U. he
was quoted as replying, "Well, there are ways." And again,
Corcoran testified that Dunser, summarizing at the close of
the meeting, asked if they had to "have your people
employed" to get nd of the picket line. And McGuire was
quoted as replying, "We at least have to have an
agreement." Dunser corroborated this testimony by Cor-
coran and elaborated as follows:
Yes. I questioned whether it would be possible for
us-I told Mr . McGuire in my opinion we could not sign
a labor agreement with his union and that we were
currently signators to a C. I.U. agreement. Mr. McGuire
stated , and I quote, "You can sign a contract with me."
I questioned this and he stated that there were ways
that this could be done . This came up several times in
the conversation and I told him , well, I would have to
discuss it with our attorney to know whether it was
possible or what could be done about it. He agreed that
he would also discuss it with their attorney.
On cross-examination , however , Dunser withdrew some-
what from his earlier testimony relative to signing a
contract, thus:
Q. You knew it was illegal to sign an agreement in
the face of another labor-agreement , did you not?
A. In my opinion it was, yes.
Q. You so stated that?
A. I so stated that in my opinion I felt it was illegal
to sign one agreement when you were already a party
to another.
Q. And Mr. McGuire agreed with that, he said it
probably was, didn't he?
A. No initially, no, he didn't say that.
Q. Did Mr. McGui:e agree with that, that it was
probably illegal to sign an agreement with him?
A. Mr. McGuire initially said that it could be done.
Q. Did Mr. McGuire in that conversation with you
say it was probably illegal to sign an agreement with
him?
A. Towards the end of the conversation he said,
"You are probably right, I will have to check with my
attorney."
McGuire, on the other hai.d, denied having stated that the
Company would have to sign a contract with Respondent
or hire its members. In fact he limits his conversation with
Dunser on this subject to a reply to inquires as to members
available for work by saying that the Union did have men
available . Former Financial Secretary Hangsleben corro-
borates McGuire's denials of the statements relative to the
need for contract and the hiring of Respondent 's members.
In the resolution of this testimonial conflict it is
significant to note that at no time during the picketing of
the jobsite has it been claimed that any representative of
Respondent, including the picket and McGuire, talked to
any employee on the job , ite at any time . Consistent with
Respondent 's efforts to thus avoid the appearance of
seeking recognition , and having assured myself by observa-
tion of Respondent's witnesses of its astuteness in avoiding
such appearances , I am disposed to accept McGuire's and
Hangsleben's testimony that McGuire never suggested
either the signing of a contract nor the hiring of
Respondent's members , and I reject the contrary testimo-
ny, accordingly. But in finding as I do , however , I do not
mean to imply that Respondent 's intent in this matter was
in conformance with its statements.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Throughout McGuire's testimony constant reference is Dear Mr . Solien:
made to the need for maintenance of the prevailing area
standards of wages and working conditions. And implicit
in this, of course, is the complaint that the Company did
not conform. Indeed McGuire specifically testified to
telling Dunser that the purpose of the picket line was to
inform the public that they were not paying the wages and
fringes for this type of work that people in this area are
accustomed to seeing. He told them that the contractors
were complaining about it. But when asked if he explained
to Dunser the working conditions that were not being lived
up to McGuire stated "I don't think I went into that, no."
It is generally conceded, however, that in this conversation
a discussion of the contents of both the C.I.U. and
Carpenters contractors were pursued, and at Dunser's
request a copy of Respondent's contract, which included
the wage rates, was given to him. Dunser likewise testified
that he was not solicited by McGuire to pay prevailing
wages. Contrarily, Project Manager Corcoran testified that
there was a conversation about prevailing wages. The
subject matter of this testimony, not included in Corcor-
an's earlier pretrial affidavit, stands contradicted by both
Dunser and by Business Agent McGuire, and is otherwise
not corroborated. I accordingly reject it and conclude and
find that at the June 27 meeting McGuire did not
specifically request that the Company pay its employees
stated prevailing area wages and live up to stated
prevailing area working conditions.
Upon the conclusion of the meeting Corcoran and
Dunser repaired to St. Louis and consulted for the first
time with the Company's attorney. McGuire indicated to
them as they parted that he would consult with Respon-
dent's attorney. Thereafter, on the same day, June 27, the
Company filed a petition with the Regional Director of the
Board for an election among its employees in Case
14-RM-440. In the election thereafter held four of the five
employees eligible to vote selected the C.I.U. as their
bargaining representative, one additional employee voting
for Respondent, and on July 23, 1973, the Board, through
its Regional Director, certified the C.I.U. as the majority
representative for collective-bargaining purposes in the
following unit which I find to be appropriate for all
purposes herein:
All employees employed by the Employer at its
Washington County Service Company grain elevator
site , P. O. Box 226, Route 127 North, Nashville,
Illinois, jobsite, EXCLUDING office clerical employ-
ees, professional employees, guards and supervisors as
defined in the Act.
In connection with preparations for the proposed election
counsel for the Respondent informed the Regional
Director that it did not wish its name to appear on the
ballot. Thus, in his letter dated July 2, 1973, he stated:
3 Sec 8(b)(7)(B) reads as follows.
(b) It shall be an unfair labor practice for a labor organization or its
agents-
(7) to picket or cause to be picketed , or threaten to picket or
cause to be picketed , any employer where an object thereof is
forcing or requiring an employer to recognize or bargain with a
labor organization as the representative of his employees, or
Your Mr. Neely telephoned me today and I again
advised him that the Union does not seek recognition,
it does not seek a contract and it does not seek to
organize. As I stated to you in my letter of June 28,
1973, in relationship to Case No. 14-CP-194, we do not
desire to appear on any ballot and the placement of us
on a ballot would be in error.
Several days prior to the July 9 election a new picket sign
replaced the one then being carried. It stated as follows:
NOTICE TO THE PUBLIC
EMPLOYEES OF
NATIONAL MILL DESIGN
ARE RECEIVING WAGES AND CONDITIONS
BELOW STANDARDS ESTABLISHED IN THIS
AREA BY CARPENTERS LO. 480. EMPLOYEES
OF THIS AND OTHER EMPLOYERS ARE NOT
TO REFRAIN FROM WORKING ON THIS PROJECT
The significant differences between the old and new signs
appear in the final sentence. The earlier signs stated
"Employees employed by this and other employees are not
requested to cease performing services. The latest sign
reads: "Employees of this and other employers are not to
refrain from working on this project." The picketing has
continued to and through the trial of this matter and there
is no evidence that the deliveries which it effectively
stopped in the beginning have since resumed.
2. Analysis and Conclusion
Basic to a determination of the legal status of Respon-
dent's picketing is a resolution of its true nature. Whether
or not, that is, its sole purpose is to inform the public that
the Company does not pay its employees prevailing area
wages or provide them with prevailing area working
conditions. If this is not its sole purpose but it is found also
to be for the purpose of organizing employees or seeking to
represent them in the face of a valid Board certification of
another union, here the C.I.U., then a violation of the Act
has been committed. Encompassed in this, of course, are
the consequences of this picketing, wherein the employees
of other employers have been induced not to make
deliveries or transport goods to and from the premises of
the picketing employer.3
The right to engage in what has come to be known as
area standards picketing was approved by the Board in
International Hod Carriers, Building and Common Laborers'
forcing or requiring the employees of an employer to accept or
select such labor organization as their collective bargaining
representative , unless such labor organization is currently
certified as the representative of such employees
(B) where within the preceding twelve months a valid
election under section 9(c) of this Act has been conducted
UNITED BROTHERHOOD OF CARPENTERS, LOCAL 480 927
Union of America, Local No. 41, AFL-CIO (Calumet
Contractors Association), 133 NLRB 512, and Houston
Building and Construction Trades Council (Claude Everett
Construction Co.), 136 NLRB 321. Representative of the
courts' acceptance of this concept is a decision of the
United States Court of Appeals for the District of
Columbia Circuit in Centralia Building and Construction
Trades Council v. N. L. R.B. [Pacific Sign & Steel Bldg. Co.],
363 F.2d 699 (1966), wherein it stated (at 701):
We regard it as settled that a union legitimately may be
concerned that some employer is undermining area
standards of employment by maintaining lower stand-
ards (fn. omitted). The Board itself has recognized that
no unfair labor practice occurs when a union engages
in picketing which has for its sole object truthfully
advising the public that some employer is operating
under substandard working conditions. [Emphasis
supplied.]
Picketing can be and frequently has been found to be
illegal.4 But this determination does not rest simply upon
the characterization given to the picketing, e.g., consumer
picketing, product boycott, etc., but upon an analysis of
what the picketing is for and/or what it does. Quoting
Professor Archibald Cox, an authority on this particular
subject, the United States Court of Appeals for the Second
Circuit stated that "the best solution would be to treat the
union's objective as a question of fact."5 Indeed to treat it
otherwise and rely simply upon a characterization of the
picketing, a characterization which is frequently self-
serving, would be to suggest that a per se immunity has
been applied. The use of this legal short-cut has been
precluded by the Supreme Court .6 Clearly, then, it is not
enough merely to say that this has been declared to be
"area standards" picketing and then dispose of the issue by
the citation of applicable case law. It is at this point that we
"treat the union's objective as a question of fact."
Accordingly, I am not persuaded simply by the claim made
first on the picket signs, and on frequent occasions
thereafter, through pleadings, testimony, and brief, that
this picketing is in protest of area wage standards and
working standards and is therefore exempt. I class such
claims as self-serving and to the extent they reach out for
legal support I find them attaching to the concept "area
standards picketing" the same per se debility rejected by
the Supreme Court.
Having thus disposed, at least for present purposes, of
the formalisms abounding here, the determination of the
question of fact would properly be in order. In this area the
Board has provided appropriate guidance. Thus, "[U ]nlaw-
ful motive in picketing situations, as intent in a discharge
case, is not often proved by admission [fn. omitted].
Rather, the motive for the act in question, be it discharge
or picketing, must be ascertained from the context of
preceding and subsequent as well as attendant circum-
stances. While denials or disavowals of unlawful objective
may not be discounted because they are self-serving, they
nevertheless are not to be credited merely because they are
uttered." 7 Viewed against such a backdrop Respondent's
continued insistence that it does not seek recognition here
and that its picketing is solely to advise the public of the
horrendous situation at the Company's project loses much
of its surface appeal. When Business Agent McGuire was
told that deliveries were being held up by the picketing he
admits to having "explained" the purpose of the picket line
as being informational and that "it is effective, it's getting
the job done." Specifically he quoted himself as replying as
to the effectiveness of the picket, "Yes, it probably is." At
this meeting the company officials were addressing
themselves simply to the problem they came there to solve;
the picket and the problems it was causing. There is no
dispute of this in the record. So, when McGuire replied to
their complaint by commenting upon the picket's effective-
ness the only reasonable inference to be drawn from this
reply is that he considered the picket to be doing what it
was intended to do.8 From its answer, then, I can only
conclude that he was satisfied that the desired effect was
being accomplished; namely, the shutting down of the
project.
It cannot be denied, of course, that it was also desired
that the area standards and working conditions be
publicized. For this is the essence of true "area standards
picketing. " 9 That this message was being transmitted can
be assumed only from the fact that the picket sign was
displayed; for no where in the record does it appear that
the picket was called upon to explain to anyone what the
minimum area wage standards and working conditions
actually were; nor does it appear that either the company
officials themselves were provided this information before
the meeting. In fact McGuire testified that when Dunser
told him at the meeting the Company was paying union
wages "or close to them," he, McGuire, disputed them.
Whereupon, to quote McGuire, Dunser said, "What are
they?" and McGuire told him. Nor was the Company
previously informed of the area working standards, for
McGuire, when asked on cross-examination if he explained
to Dunser the conditions they should be living up to,
replied, "I was in the answering position, he was doing the
questioning. I don't think I went into that, no."
It is thus apparent from the testimony supplied by the
Respondent's principal witness that information concern-
ing the alleged subject matter of the picketing, the area
prevailing wages, and working conditions, never reached
the company officials until they came to the Union looking
for it; nor is there any evidence of anyone else having been
acquainted with this information as a result of the picketing.
Consequently, if the picketing was effective it certainly was
not so in the area of disseminating information. The only
4 N L R.B v. Denver Building and Construction Trade Council [Gould &
Preisnerl , 341 U.S. 675.688, 689.
5 IV.LR B. v Local 182, International Brotherhood of Teamsters, Ware-
housemen, Chauffeurs and Helperv ofAmeriea, 314 F 2d 53. 58 (C A 2, 1963),
44 Minn . L. Rev at 266-67.
6 Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America', NLRB. (LosAngeles-Seattle Motor
Express), 365 U S. 667(1961).
7 International Ladies' Garment Workers' Union, AFL-CIO (Coed Collar
Company), 137 NLRB 1698 , 1699-1700 . See also NLRB v Local 182.
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers ofArnenca, 314 F.2d 53, 58 (C.A. 2, 1963).
s "Effective , producing a decided, decisive, or desired effect." Webster's
Seventh New Collegiate Dictionary ( 1971). G. & Mernam Co.
9 Centralia Building and Construction Trades Council v. N L RB,
supra.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasonable inference to be drawn is that it was effective in
the actual result that it was achieving, namely the
curtailment of deliveries.
By following the recommendation of the Second Circuit
in Local 182, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, supra,
to "treat the union 's objective as a question of fact" it is
obvious that the truthful advising of the public here was
not the sole objective of the picketing , and I so find.
Research in this particular area of the law leads me to
the conclusion that much obfuscation , sophism, and
syntactical contradiction has occurred since the enactment
of the Landrum -Griffin amendments into law. I refer
particularly to the obstruse distinctions that have been
made in cases and learned articles to differentiate intent
from effect , from purpose , from objective . Relying upon
the intuitive intelligence of whomever reviews these
findings and conclusions , I am disposed to treat any
among the four terms as distinctions without significant
difference . Thus it is sufficient for my purposes here to
conclude that when Respondent intended by its picketing
to effect the withholding of deliveries then that was an
objective , which might otherwise be described as its
"purpose ." Having exposed its objective by branding it as
effective Respondent 's business agent has thereby mani-
fested , to my satisfaction, a purpose of withholding
deliveries.
In such a context it now becomes appropriate to assess
the disavowals of recognition and organization made by
Respondent . Assuming Respondent to be responsible for
the foreseeable consequences of its conduct,1° I certainly
cannot assume its purpose of withholding deliveries to be
either a prank or unreasoned vindictiveness. Labor
organizations , however devoted they may be to the raising
of area working standards have an equally compelling
objective of organizing employees and representing them
for collective-bargaining purposes . Respondent 's interest
and activities in this latter area were not misunderstood
here , witness McGuire 's testimony that Respondent
represented the employees of 600 contractors in the area,
and that 200 of its members were unemployed . Under such
circumstances it is not unreasonable to assume that
Respondent coveted the membership and representative
rights of the Company 's employees , disavowals to the
contrary notwithstanding . Furthermore , and bluntly put, I
10 Cramer v U S, 325 U S 1, 31
11 International Ladies' Garment Workers' Union, AFL-CIO, supra, in 7
12 For an analogous situation wherein the true purpose of the
withholding of services was recognized by the Board , see Amalgamated
Meat Cutters and Butcher Workmen of North America (AFL), Local No 421
(The Great Atlantic and Pacific Tea Company), 81 NLRB 1052, 1057, citing
United States v International Union, United Mine Workers, 77 F Supp 563,
566 (D.C D C.), affd 177 F 2d 29,35 (C A D C), cert denied 338 U S 871,
do not credit the testimony of disinterest and disavowal,
nor do I believe the picket sign wording, nor the letters of
disavowal placed in evidence. This judgment I make from
the context of all that has transpired,it and particularly
upon the statement of satisfaction that was made by
McGuire when appraised of what he considered the
effectiveness of picketing.12
Frankly, I must confess to a lack of understanding of so
many of the permutations and combinations traditionally
relied upon for legal support of conduct in this particular
area of labor relations . But what I do understand is the
practical significance of a picket line which stops deliveries
while the source of the picket, here the Respondent,
blithely awaits an unstated solution to the impasse he has
created. I cannot believe that Section 8(b)(7)(B) was ever
intended to be so judicially or administratively sterile as to
suggest that the Congress which enacted it did not know
what it was doing when it did so. Regardless of what has
been written heretofore I am persuaded that a further
review, at this time, on these facts , may suggest some
solution short of economic havoc.
In summary, therefore, upon all of the foregoing, I
conclude and find that by picketing and causing to be
picketed the Company's project from July 7, 1973, to the
present time, a period within which another union, the
C.I.U., had been selected and certified as the Company's
employees' representative following a valid election,
Respondent was not only advising the public of the
Company's failure to abide by area standards of wages and
working conditions but was also seeking to force or require
the Company to recognize and bargain with it as the
representative of its employees. This I further conclude and
find to constitute a violation of Section 8(b)(7)(B) of the
Act.
IV. THE REMEDY
Having found that the Respondent has been, and is now,
engaged in picketing National Mill Designs at its Nash-
ville, Illinois, project for organizational and recognitional
objects, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
wherein the lower court stated:
These men, it is contended, did as individuals , what they had a right
to do, work or not work, and they decided not to work
Now we have to consider the validity of that claim objectively If a
nod or wink or a code was used in place of the word "strike" there was
just as much a strike called as if the word "strike " had been used