United Brotherhood of Carpenters Local No. 1245

National Labor Relations Board - Board Decisions

Apr 22, 1977

229 N.L.R.B. 236 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, Local No. 1245, AFL-CIO and New
Mexico Properties, Inc.
United Brotherhood of Carpenters and Joiners of
America, New Mexico District Council of Carpen-
ters and Joiners of America, AFL-CIO and New
Mexico Properties, Inc. Cases 28-CC-594, 28-
CP-167, 28-CC-593, and 28-CP-168
April 22, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On December 7, 1976, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief, and
Respondent Union filed a brief in answer thereto.
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
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me at Carlsbad, New Mexico, on
September 21, 1976,' based on a consolidated complaint
issued on August 30 by the Acting Regional Director for
Region 28. The consolidated complaint was based on
charges filed by New Mexico Properties, Inc. (herein called
the Employer) on August 5 and 9 alleging that United
Brotherhood of Carpenters and Joiners of America, Local
No. 1245, AFL-CIO (herein called Respondent Local),
and United Brotherhood of Carpenters and Joiners of
America, New Mexico District Council of Carpenters and
Joiners of America, AFL-CIO (herein called Respondent
District Council and together called Respondents), have
I Hereinafter all dates are 1976 unless otherwise noted.
violated Section 8(b)(4Xi) and (iiXB) and Section
8(b)(7)(C) of the National Labor Relations Act, as
amended, by picketing one of the Employer's jobsites
located in Carlsbad, New Mexico.
Issues
The principal issues are whether or not: (1) The picketing
had an organizational or recognitional objective and (2)
was conducted in such a fashion as to enmesh neutral
employers in the Respondents' primary dispute with the
Employer.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondents. The Charging Party
did not file a brief.
Upon the entire record 2 of the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Employer is a New Mexico corporation, headquar-
tered in Carlsbad, New Mexico, where it is engaged as a
general contractor in the building and construction
industry. During the past year, a representative period, the
Employer has purchased goods and materials valued in
excess of $50,000 which were transported and delivered
directly to its places of business in New Mexico from other
States. Respondents admit that, at all times material, the
Employer has been and is a person and an employer
engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(1), (2), (6), and
(7) and Section 8(b)(4) of the Act.
Il. THE LABOR ORGANIZATIONS INVOLVED
Respondents admit, and I find, that at all material times
they have been labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Participants and Background Evidence
The Employer's president is Odell Spurlin, its general
superintendent is Alton "Al" Timberlake, and its job
superintendent is Otis D. "Red" Maloney. The Employer,
at the time of the incidents alleged to be unfair labor
practices, was acting as the general contractor for the
construction of a small shopping center located at the
corner of Canal and Church Streets in Carlsbad, New
Mexico. The project, which consisted of the construction of
an Albertson's supermarket, a Revco drugstore, a small
bookshop, and a large parking lot, is located on the
northeast corner of that intersection. The Employer's
corporate headquarters were adjacent to the jobsite, and
2 Both the General Counsel and Respondents have moved to correct
certain errors in the transcnpt. They are hereby noted and corrected.
229 NLRB No. 38
236
UNITED BROTHERHOOD OF CARPENTERS, LOCAL NO. 1245
were housed in a preexisting office building on Canal Street
approximately 375 feet north of the intersection, and
approximately 25 feet behind the building under construc-
tion and across an access alley.
Respondent District Council's president is Marlin James
and its executive secretary is Luther Sizemore. It maintains
its offices in Albuquerque. Respondent Local's business
representative is David S. Sikes, and its office is located in
Carlsbad.
Spurlin, who has been a commercial real estate developer
for a number of years, testified that in 1970 he was a
partner in a development company known as Silver City
Properties, Ltd., which was engaged in a commercial
construction project near Silver City, New Mexico. At that
time he was also half-owner of The Marker Company,
which was the general contractor on that particular project.
He testified that the Carpenters local union in Las Cruces,
a member of Respondent District Council, was then
headed by James. He also testified that in 1970 the Las
Cruces local picketed Marker at the Silver City jobsite
demanding that Marker sign a collective-bargaining con-
tract with that local. As James has since become Respon-
dent District Council's president, the Charging Party and
the General Counsel contend that the 1970 picketing by
James' Las Cruces local should be considered as evidence
of recognitional objective in the instant dispute because, as
shown below, James participated in the decision to picket
the Carlsbad jobsite in 1976.
B. Respondent Local's Recognitional Overtures
The Employer's general superintendent, Al Timberlake,
who was unable to be very specific about dates, testified
that sometime during the last three months of 1975 he had
a conversation with Respondent Local's business represen-
tative, David Sikes, at Timberlake's office north of the
jobsite. Sikes said the conversation occurred in December
1975 or January 1976. At that time the project had only
recently begun and had not yet reached the stage where
carpenters would be required. Because the building was to
be constructed of steel frame and masonry and did not
even require forms for the footings, carpenters were not
needed until after the structure's shell was completed. At
the time of this particular conversation that stage had not
yet been reached. According to Timberlake, Sikes asked if
the Employer would like to put some carpenters to work.
Timberlake said that they did not yet need carpenters and
asked if hiring carpenters would involve more than merely
putting them to work. Sikes said yes, that Respondent
Local would ask the Employer to sign a standard contract.
Timberlake asked to see a copy of the standard contract so
that he could give it to his attorfney for review. Sikes, who
did not have an extra copy with him, promised to deliver
one to Timberlake on the following day, and within a day
or two, did give Timberlake a copy. Timberlake said he
immediately reported this conversation to Company
President Spurlin.
Spurlin testified that sometime during November 1975 he
had walked into Timberlake's office and found him sitting
with Sikes and another individual, apparently a business
agent for Respondent Local. He recalls Sikes saying that
the Union wanted to provide jobs for its members. Spurlin
said that he told Sikes that the Employer wished to hire
local people and would use Respondent Local's carpenters
if any were available. He also testified that he told Sikes
that he would pay the carpenters union scale, whatever it
was, but would not sign a collective-bargaining agreement
because he did not wish to jeopardize the job opportunities
of anyone, whether they were union members or not.
Later, Timberlake had two or three telephone conversa-
tions with Sikes. Timberlake could not be specific with
regard to when these conversations occurred, saying only
that the last one occurred sometime during the first three
months of 1976. Timberlake and Sikes agree that in those
conversations Sikes asked if the Employer had made any
decision on whether or not to sign the agreement. During
the last conversation, which Sikes said occurred in late
March or early April, Sikes mentioned that the agreement
which he had given Timberlake earlier had expired and had
been superseded by a new one. Timberlake said that he still
had not given his copy to his attorney for review and said
that, if a new one was in effect, it would be pointless to give
his attorney the old contract. Accordingly, he asked Sikes
to send him a copy of the new agreement. Sikes said he
would. However, at no time did Sikes or anyone from the
Union ever actually send Timberlake or Spurlin a copy of
the new agreement. Timberlake also testified that at no
time during any of these conversations did Sikes ask him
what wages the Employer paid its carpentry employees.
Sikes testified that, sometime in March, an individual
named Randy McDonald came to Respondent Local's
offices to inquire about the apprenticeship program. At
that time he spoke to Sikes, and mentioned that he was
working for the Employer, doing common laboring and
some carpentry work. He did not say he was working at the
Albertson's project. Sikes testified that McDonald told him
that he was paid $2.75 per hour for the common labor and
$3.50 or $4 per hour for the carpentry work. In April,
according to Sikes, two members of Respondent Local, Bill
Folsom and Roy Beeson, told Sikes that they had been to
the Employer's Albertson's project and had spoken to a
superintendent named Red3 about obtaining carpentry
work. Sikes testified that Folsom reported to him that when
Red asked how much he worked for, Folsom replied that
he worked for the union scale. When Folsom told him what
the union scale was, Red replied, "Well, that's more than I
make; we usually pay a lead carpenter, or layout carpenter,
$5 an hour." Sikes reported this information to Respondent
District Council's officials James and Sizemore.
C. The Prevailing Wages
At the hearing, it was established that the Employer paid
its carpenters employed on the Albertson's jobsite $6.50
per hour and its carpenter helpers $6 per hour. As these
employees were residents of El Paso, Texas, the Employer
also provided them with free housing, which was valued at
$50 per week. The Employer did not have either pension or
3 Undoubtedly Red Maloney, the Employer's project superintendent.
237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
health insurance plans, nor did it have a vacation program
for which the Albertson's project employees were eligible.
The newly negotiated statewide contract between Res-
pondents and the multiemployer group contained the
following wage and fringe scales as of April 1, 1976:
Journeyman carpenters-$8.50 per hour wages, plus $2.20
for fringe benefit programs including vacations, health
insurance, and pension plans-a total of $10.70 per hour.
Apprentices received, depending upon their level of
experience, an hourly wage scale ranging from $5.10 per
hour to $8.08 per hour plus the $2.20 fringe contributions,
for a total package ranging from $7.30 per hour to $10.28
per hour.
The New Mexico State Labor Commission, during 1976,
issued, pursuant to the state prevailing wage law, minimum
wage rates for public works projects. In March, the
commission determined that the prevailing journeyman
carpentry rate for the Carlsbad area was $8 per hour plus
$2.10 per hour fringe benefits covering vacations, health
insurance, and pension plans. Later, in July, that office
issued two other decisions in which it determined that the
prevailing scale for journeyman carpenters in that area had
increased to $8.50 per hour plus fringe benefit contribu-
tions of $2.20 an hour.
Thus it is clear that, in June, the Employer was paying its
carpentry employees significantly less than the wages
prevailing in the area.
D. The Commencement of Picketing
On approximately June 25, Respondent District Council
President James told Sikes by telephone to make hotel
reservations in Carlsbad for himself and for Marcial Rey, a
retired business agent, because Respondent District Coun-
cil had determined to picket the Employer's Albertson's
project. Sikes did so and, on the morning of June 28, James
and Rey arrived in Carlsbad. James brought with him a
letter to Spurlin. The letter had been drafted by representa-
tives of the District Council, and Sikes had not seen it
before.
Shortly thereafter, James, Sikes, and Rey went to the
Employer's headquarters. James and Sikes delivered the
letter to Spurlin, while Rey waited outside in an automo-
bile. The meeting between the two union officials and
Spurlin took place in a conference room. Aside from
greetings, the individuals said little to each other. James
explained to Spurlin that he had a letter to give him. While
James and Sikes waited, Spurlin read it in its entirety.
The letter stated that Respondent District Council had
investigated the Employer's wages being paid its carpentry
employees at the Albertson's project and had determined
that the wages were substandard "i.e., below the wage rates
and benefits prevailing in [theJ area. In short, your labor
costs do not meet the area standards. We seek only the
equalization of competitive advantage between you and
other contractors who do meet area standards." The letter
then referred to the prevailing wage scales as determined
by the U.S. Department of Labor and the State Labor
Commission. It went on to say that its information was
based on verbal reports and that Respondents had been
unable to obtain copies of the Employer's payroll reports.
It asked the Employer to supply the Union with appropri-
ate documents "to verify or disprove" its present informa-
tion. The letter then asserted that the Union did not seek to
represent or organize the Employer's employees or to
obtain a collective-bargaining agreement; rather, it was
concerned only with the payment of substandard wages
and benefits. Finally, the letter stated that Respondents
intended to engage in peaceful picketing to inform the
public of that fact.
Sikes testified that, after Spurlin read the letter, he said
"O.K." and James then told Spurlin that if he had any
questions he could contact the individuals listed in his
letter - either Respondent District Council's attorneys or
its executive secretary, Sizemore.
Immediately thereafter, James and Sikes left Spurlin's
offices and instructed Rey to begin picketing. Spurlin
decided to notify Job Superintendent Red Maloney that
Respondents might picket the job. However, by the time he
left his office to find Maloney, Rey had already begun
patroling the sidewalks bordering the project on the west
and south. The placard carried by Rey read:
NOTICE TO PUBLIC
NEW MEXICO
PROPERTIES, INC.
PAYS
SUBSTANDARD
WAGES & BENEFITS
NEW MEXICO
DISTRICT COUNCIL
OF
CARPENTERS
That evening the Employer constructed a 36-inch high
wire mesh fence around the property and established two
reserve gates. The primary gate, known as gate 1, was
located on the western border of the property on Canal
Street and was immediately adjacent to the Employer's
permanent office building. This gate also controlled the
alley entrance to the building under construction. The
Employer placed a sign at that gate stating that it was for
the use of the Employer and its employees as well as its
suppliers, and that all other persons must use gate 2. The
Employer hired a high school student, Von Burba, to
monitor gate 1. The distance from gate I to the corner of
Church and Canal was 340 feet.
Gate 2 was located on the southern border of the
property on Church Street, approximately 225 feet east of
the intersection of Church and Canal. Witnesses, however,
estimated that gate 2 appeared to be as much as 500 feet
from the intersection. The sign at gate 2 stated that it was
for the use of all employers, employees, and persons and
suppliers other than the Employer and its employees and
238
UNITED BROTHERHOOD OF CARPENTERS, LOCAL NO. 1245
suppliers. It directed persons having business with the
Employer to enter through gate 1. 4 The Employer did not
place a monitor at gate 2.
Respondents' picketing continued until August 16, when
it ceased because the Employer no longer had carpenters
employed at the jobsite. During the 49 days that Respon-
dents picketed the project, there were a number of
subcontractors present and performing work. These includ-
ed Grinnell Fire Protection, Alameda Electric, Elms
Roofing, Greer Construction, Summers Sign Co., Taber
Painting, and Woodall Services. Albertson's also hired an
electrical contractor, Image National, from Boise, Idaho, to
erect a large electric "Albertson's" sign in the parking lot
near the corner of Church and Canal Streets.
On June 28, the first day of picketing, at separate times,
managerial representatives of Grinnell and Sullivan asked
Sikes if they should leave the job. Sikes gave them a copy of
the letter James had given Spurlin, and told them "No, we
are picketing New Mexico Properties only." Spurlin said
that the representatives of both firms attempted to contact
the unions which represented their employees to find out
what to do. Sullivan's employees remained on the job.
When the Grinnell employees went to lunch, they did not
return until the following day. Thereafter they continued
working at the site until they were finished with their
portion of the job.5
Also on June 28, the Employer's own carpenters left the
job and did not return for several weeks.6
The Employer had ordered some precut doors from
Dennison Door Company, and when they were brought to
gate I by a common carrier, Whitfield Transportation, the
driver refused to enter and make the delivery. As a result,
the Employer asked the Whitfield driver to drop the doors
at anotherjobsite, where they were picked up and delivered
by the Employer's own employees. 7
The single picket, usually Rey, generally confined his
patroling to gate I. However, from his vantage point at gate
I, he could neither see gate 2, nor the stores' interiors as the
west side of the building consisted of a windowless 18-foot-
high masonry wall. He could only see 2 or 3 feet into the
back doorways of the building because of the oblique angle
of vision from the alley driveway. In order to see gate 2, the
picket had to walk south on Canal Street to a point
approximately even with the southern edge of the building.
Even that view was partially obstructed by equipment and
supplies stored in the parking lot. To see into the stores
themselves, the picket, several times a day, walked to the
corner of Canal and Church, sometimes remaining there
for as long as 15 minutes. At no time did any picket patrol
Church Street or gate 2. They never were closer to gate 2
than 225 feet, the distance between the gate and the corner.
However, at some time during the course of the
picketing, the Image National employee, under contract
4 On approximately July 30, another union having a separate and distinct
dispute with a subcontractor, Alameda Electric, began picketing the project.
At that time, the signs were changed to require Alameda also to utilize gate
I and to refrain from using gate 2. This change has no beanng on the instant
case.
5 The General Counsel does not allege the Grinnell incident to be
violative of the Act, undoubtedly because the June 28 picketing was in
conformance with the Board's common situs picketing rules and because the
publicity proviso to Sec. 8(b)(7)C) is not involved herein.
I These were the pnmary's employees and accordingly no violation of
vwith Albertson's to install their large electric sign at the
southwest corner of the parking lot, the corner in question,
decided not to perform that work. The record is unclear
regarding what caused his refusal to install the sign. I note,
however, that some portion of his work involved electrical
connections, and that there was a labor dispute involving
Alameda Electric and another union, which occurred
during the instant dispute. It may be that the other union's
picketing caused Image National to leave the job. Certainly
no evidence was adduced tending to show that Respon-
dents' activity was responsible. Later, the sign installation
was let to Summers Sign Company and, on one occasion,
one of Respondents' pickets (not Rey) was seen talking to a
Summers employee at the corner. There is no evidence
regarding the substance of that conversation. Whatever the
conversation was, it had no effect on the Summers
employees, because they completed the erection of the sign
without interruption.
During the entire period of the picketing, the Employer
made no complaint to the Respondent that the picketing
was in any way improper, although Respondent District
Council's letter delivered to Spurlin on June 28 urged him
to advise Sizemore if the rules regarding primary picketing
were not being followed.
Analysis and Conclusions
A. The Alleged Recognitional Objective
The General Counsel contends that the 1970 recognition-
al picketing by another affiliate of Respondent District
Council in another city involving another employer should
be taken as evidence of a current recognitional object here.
He argues that since James was the executive officer of that
local union and since Spurlin was a principal of that
employer, it is likely that Respondent District Council has
continued to have an interest in obtaining recognition from
Spurlin and his various businesses.
I recognize that there are cases, such as that cited by the
General Counsel, United Brotherhood of Carpenters and
Joiners of America, Local 745, AFL-CIO (James W. Glover,
Ltd.), 178 NLRB 684 (1969), which provide that such
remote evidence is admissible as background. Nonetheless,
even in that case it does not appear that either the Trial
Examiner or the Board relied to any great degree on that
evidence. Because the union was engaged in apparent area
standards picketing, the Board and the Trial Examiner
relied on evidence demonstrating that the union was not
really interested in the wages actually being paid by the
employer and would not be satisfied until the employer met
every term and condition in that union's area collective-
bargaining agreement, including recognition and union
security. Neither of those factors is present in this case, and
Sec. 8(bX4)B) is alleged as to them. In explanation of their departure from
the job, I note that the record contains some hearsay evidence that they may
have been members of a sister local in El Paso. If so, I speculate that they
may have feared some sort of internal union discipline.
I The General Counsel does not allege the Whitfield incident to be
violative of the Act, undoubtedly because Whitfield was not a neutral, but a
supplier of the primary. N. LR.B. v. International Rice Milling Co., Inc., 341
U.S. 665 (1951); N.LR.B. v. United Steelworkers of America [Carrier
Corporation], 376 U.S. 492 (1964).
239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that 8-year-old evidence was admissible in Glover
does not persuade me that the 6-year-old evidence here
should be considered of any probative value, particularly
where the earlier dispute occurred in another city, involved
another local and another employer. Accordingly, I give no
weight whatsoever to the 1970 picketing in Silver City.
I do, however, agree with the General Counsel that, in
late 1975 and in early 1976, Sikes' approaches to the
Employer regarding the Employer's hiring Respondent
Local's members and signing a collective-bargaining
agreement are conclusive evidence that Respondent Local
had a recognitional object at that time. Yet, no such
approaches were made after late March or early April
when, in response to Timberlake's request, Sikes said that
he would forward him a copy of the new agreement.
However, Sikes never did so and 3 months passed before
the picketing began. Moreover, during the intervening
period Sikes learned that Respondent was paying wages
and fringe benefits inferior to those negotiated by Respon-
dents and inferior to those prevailing in public works
projects as set by the State Labor Commission. It was the
presentation of this knowledge to Respondent District
Council by Sikes that triggered the picketing. In fact, Sikes
testified, and there is no evidence to contradict his
assertion, that he played no part in Respondent District
Council's decision to picket the Employer.
As the Board said in Local Union No. 741, United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
AFL-CIO (Keith Riggs Plumbing and Heating Contractor),
137 NLRB 1125, 1125-26 (1962):
A labor union normally seeks to organize the
unorganized and to negotiate collective-bargaining
contracts with employers; but it also 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 standards. Indeed the importance of maintaining
area standards as a matter of public as well as union
interest was long ago endorsed by Congress by its
enactment of the Davis-Bacon Act (40 U.S. Code, Sec.
276a, et seq.) relating to public contracts. It has
application, of course, whether or not employees of
public contractors are organized or have a collective-
bargaining contract.
Hence, 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, the Board cannot
find that the picketing has organization, recognition, or
bargaining objectives.' As the Board stated in the
reconsidered Calumet Contractors case: 2
Respondent's admitted objective to require the
Association ... to conform standards of employ-
ment to those prevailing in the area, is not
R Even before receipt of this information it had reason to suspect that the
Employer was paying inferior wages because of the low wage being paid to
McDonald, even though McDonald was not a skilled employee.
tantamount to, nor does it have an objective of,
recognition or bargaining. A union may legiti-
mately be concerned that a particular employer is
undermining area standards. It may be willing to
forego recognition and bargaining provided sub-
normal working conditions are eliminated from
area considerations.
The question of objectives in every case is one of fact
and not of assumptions or presumptions.
I McLeod v. Chefs, Cooks, Pastry Cooks and Assistants, Local 89, et
at. (Stock Restaurant), 280 F.2d 760 (C.A. 2).
2 International Hod Carriers, Building and Common Laborers' Union
of America, Local No. 41, AFL-CIO (Calumet Contractors Association et
al.), 133 NLRB 512 (1961) (Members Rodgers and Leedom dissenting);
Houston Building and Construction Trades Council (Claude Everett
Construction Company), 136 NLRB 321 (1962) (Members Rodgers and
Leedom dissenting).
However, the Board has also held that, where a union's
avowed area standards objective can be shown to be false
or otherwise unsupportable, then an organizational or
recognitional object can be inferred. See Sales Delivery
Drivers, Warehousemen and Helpers Local 296 of Santa
Clara and San Benito Counties, California; et al. (Alpha Beta
Acme Markets, Inc.), 205 NLRB 462, 469 (1973), and
Automotive Employees Laundry Drivers & Helpers Local 88
(West Coast Cycle Supply Co.), 208 NLRB 679, 680 (1974). I
cannot conclude, based on the record evidence, that
Respondents' picketing here was a pretext and not a
legitimate protest against the Employer's payment of
inferior wages. Certainly, the General Counsel's citation of
Judge Penfield's assertion in Alpha Beta Acme (at 471) that
"there must have been an investigation and an evaluation
of comparative standards carried out with as great a degree
of thoroughness as the circumstances will permit" does not
answer the question. The nature and extent of the
investigation, in my opinion, need only to be sufficient to
accomplish the purpose. 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 1026, 1031 (1972). In this particular
instance, Respondent Local obtained wage information
about the Employer from two of its members, who had
dealt directly with the Employer's job superintendent. s
There is no obligation, so far as I am aware, that a union in
these circumstances is required to verify that information
by other means, and that a failure to make such a
verification is tantamount to no investigation at all, or that
a proscribed object should be presumed because the
investigation could have been improved upon. But cf.
General Service Employees Union Local No. 73, AFL-CIO
(A-I Security Service Co.), 224 NLRB 434 (1976). Accord-
ingly, I am not persuaded by the General Counsel's
argument that a recognitional or organizational object
should be presumed from Respondents' failure to verify the
information reported to it by its members. Certainly
Spurlin did not tell James and Sikes, on June 28, that their
240
UNITED BROTHERHOOD OF CARPENTERS, LOCAL NO. 1245
information was wrong. Moreover, as I noted above, their
information was in fact reasonably correct.
However, even if one of the Respondents' objectives was
the lawful protest of the Employer's failure to meet the
prevailing wage standards, the picketing may be found
unlawful if it can be shown by other evidence that another
object is proscribed. 9 It is clear that, beginning in the latter
part of 1975 and continuing until the latter part of March
1976, Sikes' conduct demonstrated an interest in obtaining
a collective-bargaining agreement from the Employer. In
view of the 3-month hiatus between Sikes' last inquiry and
Respondents' picketing, the question which is presented is
whether or not the earlier recognitional object continued
through that hiatus period and attached to the picketing.
The General Counsel argues that the object of the
picketing should be determined by an analysis of all the
circumstances surrounding and leading up to the picketing.
In his view, such an analysis demonstrates that the
picketing had recognition as at least one of its objects. I
agree that all the surrounding circumstances should be
closely scrutinized and that the objects of the picketing will
be discerned from such a scrutiny.
The difficulty with the General Counsel's analysis of the
surrounding circumstances is that he does not take into
proper account the hiatus and the avowed object of the
picketing. In order to conclude, as the General Counsel
urges, that Sikes' prehiatus statements are evidence of a
posthiatus object, I must presume that the Union's object
remained the same after the hiatus. Both the courts and the
Board have cautioned against this approach. In fact, the
concept of a presumption of continued unlawful object,
absent evidence to support the presumption, has been
clearly rejected. It was first rejected by the U.S. Court of
Appeals for the Second Circuit in 1957. See N.LR.B. v.
Local 50, Bakery and Confectionary Workers International
Union, AFL-CIO, 245 F.2d 542 at 547 (1957). Later, the
same circuit adhered to the rule in a 100) case, McLeod v.
Chefs, Cooks, Pastry Cooks and Assistants, Local 89 (Stork
Club), 280 F.2d 760 at 764 (1960). See also Kaynard v.
Knitgood Workers Union, Local 155, International Ladies'
Garment Workers' Union, AFL-CIO, No. 67, 64 LRRM
2838 (E.D.N.Y., 1967). The Board, though at first having
doubts about this approach, accepted the logic in Local
344, Retail Clerks International Association, AFL-CIO
(Alton Myers Brothers, Inc.), 136 NLRB 1270, 1273 (1962),
and recently specifically adopted an Administrative Law
Judge's decision following those cases, Building and
Construction Trades Council of Philadelphia and Vicinity,
AFL-CIO (AItemose Construction Co.), 222 NLRB 1276, fn.
2(1976). See also San Francisco Local Joint Executive Board
of Culinary Workers, Bartenders, Hotel, Motel and Club
Service Workers, AFL-CIO (ABP Enterprises, Inc. d/b/a
Perry's), 207 NLRB 199, 204 (1973). Thus, it is fair to say
that, in a situation where a union's object is initially
unlawful, and it subsequently renounces the unlawful
object in favor of a lawful one, there is no presumption that
9 N.L.R.B. v. Denver Building & Construction Trades Council [Gould &
Preisnerl, 341 U.S. 675. 688-689 (195 1).
10 Such evidence was found in a case relied on by the General Counsel,
San Francisco Joint Board International Ladies Garment Workers Union,
AFL-CIO (Romay of California), 171 NLRB 761 (1968). but, as demon-
strated infra, is not present here. RomaY, is, therefore, inapposite on its facts.
the original object continues absent evidence supporting
it.10
Applying that rule, it follows that the burden is on the
General Counsel to prove that the unlawful object is
continuing. Thus, the question I must answer is whether or
not the General Counsel has proved that Respondents here
continued to have recognition as an object of its conduct
after the hiatus. I must conclude that the General Counsel
has not met this burden. First, I note that Sikes never sent
Timberlake or Spurlin a copy of the newly negotiated area
agreement. Second, there was a passage of nearly 90 days.
Third, during the intervening 90 days, Respondents
learned that the Employer was not paying wages and fringe
benefits to its carpentry employees which met either the
standards negotiated by the Union with other employers or
the standards as found by the State Labor Commission.
Fourth, the Union advised the Employer prior to com-
mencing picketing that its object was to protest the
Employer's payment of substandard wages and fringe
benefits, but that, if it could be shown that it did so, the
pickets would be removed. The last observation is, of
course, not conclusive,'1 but in the context of this case is in
my view significant. As the General Counsel has adduced
no other evidence tending to show an unlawful object, I
conclude that he has not met his burden of proof.
Accordingly, I shall recommend that the 8(bX7)(C) portion
of the complaint be dismissed.
B. The Alleged Enmeshment of Neutrals
The General Counsel contends that Respondents violat-
ed Section 8(bX4))i) and (iiXB) of the Act when the picket
intermittently left the primary gate and walked with his
picket sign to the intersection of Canal and Church Streets.
This argument is premised on the General Counsel's view
that Respondents did not strictly conform to the common
situs picketing rules set forth in Moore Dry Dock. 12 That
decision holds that common situs picketing will be
presumed to be lawful and primary if it meets the following
conditions: "(a) the picketing is strictly limited to the times
when the situs of dispute is located on the secondary
employer's premises; (b) at the time of the picketing the
primary employer is engaged in its normal business at the
situs; (c) the picketing is limited to places reasonably close
to the location of the situs; and (d) the picketing discloses
clearly that the dispute is with the primary employer." The
parties agree that Respondents complied with rules (a), (b),
and (d) and that the question is whether or not Respon-
dents complied with rule (c), requiring them to picket
places reasonably close to the location of the primary
disputant, the Employer herein.
When it established the reserve gates, the Employer
accomplished two things: First, it separated the neutral
employers/persons from the situs of the dispute, and
placed their entry point to the jobsite a significant distance
away from the primary's entry point. Second, it attempted
"H Operative Plasterers' and Cement Masons' International Association,
Local Union No. 44, AFL-CIO (Penney Construction Company, Inc,), 144
NLRB 1298, 1300, fn. 2 (1963).
12 Sailors' Union of the Pacific (Moore Dry Dock Company), 92 NLRB
547. 549 (1950).
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to limit Respondents' picketing to a place adjacent to the
primary's offices and at the primary's entry point. The
separation of the primary disputants from the neutral
persons at the jobsite by reserve gates is merely a
refinement of Moore Dry Dock and received the Supreme
Court's stamp of approval in the General Electric case.13
Thus the Moore Dry Dock rules must be adhered to at the
reserve gate to avoid a presumption of illegal object.
But, the Board said in International Brotherhood of
Electrical Workers, Local Union 861, and Arneth Lar4 its
agent (Plauche Electric, Inc.), 135 NLRB 250, 255 (1962),
that the Moore Dry Dock rules are not to be applied on an
indiscriminate "per se" se" basis, but are to be regarded as
[evidentiary] aids in determining the underlying question
of statutory violation.'4 In fact, the Plauche decision was
the Board's response to court criticism that the Moore Dry
Dock rules were being applied on a wooden and mechani-
cal basis. The General Counsel's theory of this case, too,
appears to be an attempt to apply the Moore Dry Dock
rules in such a fashion.
Respondents were no doubt attempting to picket the
project as efficiently as possible. They wished to engage in
their right to picket the primary gate, but also needed to be
aware of two things: (1) whether primary employees were
on the job and (2) whether the neutral gate was being
observed. Since, for the most part, Respondents utilized
only one picket at the project, it was impossible for the
single picket to accomplish all three jobs at once. Certainly,
Respondents had the right, if not the obligation under
Moore Dry Dock rules (a) and (b), to determine whether or
not primary employees were inside the building.15 In order
to accomplish that purpose, the picket had to walk to a
point where he could see into the building. Second, in order
to determine if the neutral gate was being observed by
primary employees, he had to walk to approximately the
same point. When he did so, however, he lost immediate
contact with the primary gate which was being utilized by
the Employer and its suppliers. In order to best accomplish
all three purposes, the picket chose to walk to the corner
with his picket sign.
The General Counsel argues that, although Respondents
may have had a legitimate need either to see into the
building or to see the neutral gate, nonetheless, the picket
should have left his sign at gate I. Such an analysis, in my
view, is at best unrealistic. First, at no time did Respon-
1S Local 761, International Union of Electrical, Radio and Machine
Workers, AFL-CIO [General Electric Company] v. N.LR.B., 366 U.S. 667
(1961).
14 Accord: N.L.R.B. v. Northern California District Council of Hod
Carriers and Common Laborers of America, AFL-CIO; Construction and
General Laborers Union Local No. 185, AFL-CIO, 389 F.2d 721, 725 (C.A. 9,
1968).
1S In International Union of Operating Engineers, Local Union No. 450,
AFL-CIO (Linbeck Construction Corporation), 219 NLRB 997 (1975), the
union tried very hard to comply with Moore Dry Dock, and though it was
ultimately vindicated still had to defend against a charge of noncompliance.
16 Local Union No. 227, Amalgamated Meat Cutters and Butcher
Workmen of North America, A FL-CIO (Iowa Beef Packers, Inc), 185 NLRB
858 (1970); N.LR.B. v. Associated Musicians, Local 802, AFL [Gotham
Broadcasting Corp. (Station WINS)], 226 F.2d 900 (C.A. 2, 1955).
17 The Board, in dealing with alleged transgressions of other Moore Dry
Dock rules, such as rule (b), the requirement that the primary employer be
present at the site, has treated minor literal transgressions realistically. See
cases such as International Union of Operating Engineers, Local 675, AFL-
CIO (Industrial Contracting Co.), 192 NLRB 1188 (1971) and International
dents' pickets come nearer than 225 feet to the neutral gate
(some witnesses thought the gate was even farther away)
and no neutrals were enmeshed there. Second, while I
recognize that the effectiveness of the picket is not
necessarily a measure of its legality,l6 nonetheless there is
no evidence that while at the corner the picket had any
impact on neutrals either entering the neutral gate or
working inside the building. Third, the General Counsel's
theory would require a union to go either to the additional
expense and trouble of placing a permanent nonpicketing
observer at the site or to require a union to temporarily
abandon its right to picket while making the necessary
observations of the neutral gate and the site. I am aware of
no rule of law imposing such a burden on a picketing
union. Finally, there is no independent evidence that
Respondents attempted to induce neutrals from perform-
ing work at the jobsite. Accordingly, I am unable to apply
the Moore Dry Dock rules as requested by the General
Counsel, for such an application would be, in the
circumstances of this case, wooden, mechanical, and
unrealistic.' 7 I shall, therefore, recommend that the
8(b)(4)(i) and (ii)(B) portion of the complaint be dis-
missed. 18
Upon the foregoing findings of fact and upon the entire
record, I hereby make the following:
CONCLUSIONS OF LAW
1. New Mexico Properties, Inc., is an employer within
the meaning of Sections 2(1), (2), (6), and (7) and 8(b)(4) of
the Act.
2. Respondents are labor organizations within the
meaning of Section 2(5) of the Act.
3. Respondents have committed no unfair labor prac-
tices within the meaning of either Section 8(b)(7XC) or
8(b)(4Xi) and (ii)(B) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 19
The consolidated complaint is dismissed in its entirety.
Union of Operating Engineers, Local Union No. 450, AFL-CIO (Linbeck
Construction Corporation), 219 NLRB 997 (1975). In those cases the
primary's presence at the site was intermittent and unpredictable, in one
instance a "cat and mouse" game, and the Board refused to hold the union
to strict Moore Dry Dock standards, because of the physical difficulty of
doing so.
1i In view of my decision here, it is unnecessary to pass on Respondents'
alternative defense that the "related-work" doctrine privileged noncompli-
ance with Moore Dry Dock. See General Electric, supra, Oil, Chemical and
Atomic Workers International Union, AFL-CIO, and its Local Union No. 4-
23 (Firestone Synthetic Rubber & Latex Company), 173 NLRB 1244 (1968),
and the dissenting opinion of Members Fanning and Jenkins in Carpenters
Local Union No. 470, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (Mueller-A nderson, Inc.), 224 NLRB 315 (1976).
1i In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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.
242