Ventura County District Council of Carpenters

National Labor Relations Board - Board Decisions

Jun 13, 1979

242 N.L.R.B. 1109 (N.L.R.B. 1979)

VENTURA COUNTY DISTRICT COUNCIL OF CARPENTERS
Ventura County District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO and Compositor Construction.
Case 31-CP-277
June 13, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On March 7, 1979, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
a brief in opposition to the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
In agreement with the Administrative Law Judge, we find that the con-
versation which took place in late August 1978 between James Kelley. the
Union's business representative, and Charles Renfro, a contractor with a
worksite next to the Employer, does not establish that the September-Octo-
ber picketing by the Union at Compositor's worksites had a recognitional
object. These remarks were ambiguous as to object and in any case made for
their impact on Renfro not Compositor. Similarly, the late August remarks
of Kelly to Jim McGraw, a contractor who had hired Compositor to do the
framing work at McGraw's jobsite-not discussed by the Administrative
Law Judge-do not support the General Counsel's case. Upon being told by
McGraw that Compositor was the framing contractor at his jobsite, Keiley
responded, "You know he's not one of us," and went on to say, "This could
cost you more money than you think." We do not construe these comments
as indicating a recognitional objective or imparting such an object to the
Union's subsequent picketing of Compositor which subsequently took place.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Ventura, California, on
January 18, 1979. The charge was filed on September 15,
1978, by Compositor Construction (Company). The com-
plaint issued on October 31, was amended during the trial,
and alleges that Ventura County District Council of Car-
penters, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (Respondent) has violated Section
8(b)(7)(C) of the National Labor Relations Act (Act).
I. JURISDICTION
The Company is a proprietorship owned and managed
by Paul Compositor engaged as a framing subcontractor in
the construction industry. It annually sells goods and ser-
vices of a value exceeding 50,000 to firms in California
who satisfy the Board's direct inflow and/or outflow juris-
dictional standards.
The Company is an employer engaged in and affecting
commerce within Section 2(2). (6). and (7) and Section
8(b)(7) of the Act.
II. LABOR ORGANIZATION
Respondent is a labor organization within Section 2(5) of
the Act.
ll. ISSUE
The complaint alleges that Respondent picketed the
Company beginning on June 5. 1978, to force it to recog-
nize Respondent as the collective-bargaining representative
of its employees and to force its employees to select Re-
spondent as their representative, in circumstances eventu-
ally causing a violation of Section 8(b)(7)(C).
The answer denies any wrongdoing.
IV. THE ALLEGED UNFAIR I.ABOR PRACTICES
A. Facts
Respondent has not been the certified bargaining repre-
sentative of the Company's employees at any relevant time.
On May 31, 1978, Respondent sent a wire to the Compa-
ny's owner, Paul Compositor, asking to be supplied with
"information regarding the wages and fringe benefits you
are paying your employees" for work on a Main Street
project in Ventura. Upon receiving the wire, Compositor
invited a business representative for Respondent, James
Kelley, to his home to discuss the matter. Kelley agreed to
do so, "as a friend."'
During the resulting conversation, on the evening of the
31st, Compositor asked what the wire was about. Kelley
replied that Compositor's carpenters were not being paid in
conformity with Respondent's area standards. To Composi-
tor's query how Kelley knew this, Kelley gave no direct
answer, instead detailing the wage and fringe-benefit re-
quirements under the standard union contract and reciting
various ways Respondent might induce Compositor to
sign-by picketing, by pressuring prime contractors to oust
him from jobs, by causing his lumber shipments to be de-
layed.'
I Compositor had once worked under Kelley for a construction firm. and
the) regard each other as friends,
2 This is Compositor's credited version of the conversation. Kelley admit-
tedly could not recall it clearly--"it was quite a while ago." Kelley did recall
that the matter of Compositor's signing a contract came up. but assertedly
could not remember whether he or Compositor broached the subject. Com-
positor's recital was the more detailed and convincing of the two.
242 NLRB No. 155
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following afternoon, Kelley called on Compositor at
his home again, this time uninvited. Kelley informed Com-
positor that, if he would sign a union contract, Respondent
would consent to his finishing his present jobs on a non-
union basis: and that it would withhold picketing for a few
days to give him time to decice. Kelley added that Respon-
dent would get Compositor to sign, "one way or another,"
and repeated his previous day's recital of the techniques it
might use.3
Compositor did not sign. On June 5, without further
word, Respondent began picketing the Main Street project,
continuing to do so until June 30. And on June 19, still
without further word, it began picketing a project on which
the Company was working on Poli Street in Ventura. This
lasted until July 18. The picket signs in both instances
stated:
Compositor Failure to Comply with Area Standards
On June 28, ostensibly to activate the Board's "expedited
election" machinery under the first proviso to Section
8(b)(7)(C), the Company filed a charge alleging the picket-
ing to be in violation of that section,' together with a peti-
tion for election.5 On July 12, the Regional Director issued
a letter informing the parties:
It does not appear that further proceedings on the
charge are warranted inasmuch as a timely valid repre-
sentation petition ... has been filed ... and a determi-
nation has been made that an expedited election
should be conducted ....
The letter contained instructions for appealing the Regional
Director's determination, giving July 18 as the appeal dead-
line. Affixed by stamp to the bottom of the letter in evi-
dence, which apparently was taken from NLRB files, is this
statement: "Appeal period expired 7-18-78. Case closed."
An election did not ensue, however. On July 18, coinci-
dent with the cessation of picketing on the Poli Street proj-
ect, Respondent gave the Regional Director written notice
that it disclaimed any interest in representing the Compa-
ny's employees and would take no action inconsistent with
that representation. The Regional Director thereupon is-
sued an order dated July 19, stating:
Inasmuch as [Respondent] has filed a Disclaimer of
Interest ... and is not engaged in any activity inconsis-
tent with its Disclaimer of Interest, it is hereby ordered
that the petition for representation be . . . dismissed
... . Any petition filed by [Respondent] within six
months from this date will not be entertained unless
good cause is shown to the contrary. Moreover, in the
event [Respondent] makes a claim for recognition
upon the Employer within six months from this date, a
motion by the [Employer] requesting reinstatement of
this petition will be entertained.
The conversation as thus set forth is based on the generally consistent
and credited testimony of Compositor and his wife, Geri, who was a few feet
away in the kitchen. Kelley testified in effect that he could not recall this
conversation. He did concede, however, that he spoke with Compositor "a
couple times, but I don't recall if it was all at the same time."
4 Case 31 CP 266.
5Case 31 -RM-632.
On about August 16 a former foreman for the Company
gave Kelley some check stubs and copies of pages from the
Company's payroll journal relating to the Main Street and
Poli Street projects. The journal entries indicated that the
Company's carpenters were receiving between $5.25 and
$11.50 per hour, and gave no indication of fringe benefits.
Union scale at the time was $10.77 per hour in wages, plus
$4.70 per hour in fringe benefits, with foremen receiving a
$1-per-hour wage premium. Thus fortified, Respondent
sent this wire to the Company on August 29:
This is to advise you that we have specific information
that proves that your company is not paying its car-
penter employees prevailing wages and fringes for car-
penters in this area. We therefore will engage in picket-
ing your job sites for the sole purpose of advising
members of the public of this fact. We do not claim to
represent a majority of your employees in the carpen-
ter classification and therefore are not making a de-
mand for recognition or execution of a contract. If you
can establish that you are in fact paying carpenter em-
ployees prevailing wage rates and fringes please notify
us in writing to that effect and submit your proof. Fail-
ing to hear from you within 24 hours we must assume
that our evidence is correct.
The Company's attorney replied with this wire on August
31:
This is to inform you that Paul Compositor Construc-
tion is paying its carpenter employees prevailing or
higher than prevailing wages and fringes and hereby
requests that you notify it of any specific information
to the contrary within 48 hours, or we will consider/
matter closed.
Respondent countered with this, also on August 31:
Receipt your telegram acknowledged. We have photo-
copies of foreman's time book and check stubs which
clearly prove Paul Compositor Company not paying
prevailing wages and fringes to carpenters. These
available your inspection our office. Please call for ap-
pointment. Make available to us company's payroll
records for carpenters for past 90 days or we must as-
sume your statements that Paul Compositor Company
paying prevailing wage rates and fringes to carpenters
not true.
At about the time of this exchange of wires, Kelley had a
conversation with Charles Renfro, whose firm was develop-
ing a site in Santa Paula adjacent to that on which the
Company was working. Kelley inquired about the framing
contractor Renfro would be using, and whether it was a
union firm. He mentioned that Compositor, next door, was
nonunion and said that if Renfro's framer were also non-
union, both projects would be picketed. 6
I This is Renfro's credited version of the conversation, corroborated in
major part by Tim McGraw, a principal in the firm for which the Company
was working, and by Richard Davis, who was supervising Renfro's project.
McGraw and Davis were nearby during portions of the conversation. The
sense of Kelley's testimony on the point seems to be that this conversation
never occurred, although this is not clear. His denial, such as it was, was less
convincing in any event than Renfro's contrary and corroborated testimony.
1110
VENTURA COUNTY DISTRICT COUNCIL_ OF CARPENTERS
Compositor did not respond to Respondent's last wire.
and, on September 7, Respondent began picketing the Poli
Street project anew, as well as the Santa Paula project on
which the Company was working. Picketing on Poli Street
continued unitl September 27 and in Santa Paula until Oc-
tober 30.7 The signs in both instances stated:
Compositor Not Paying Prevailing Wages and Fringes
On September 8 the Company again filed a charge and a
petition,' both of which were withdrawn for reasons untold
on the record on September 26. The present charge. as ear-
lier noted, was filed on September 15: and the Company
filed yet another petition on September 25, expressly re-
questing an expedited election.' This petition was with-
drawn on November 9.
The Company paid its carpenters on a piece-rate basis on
the Santa Paula project. In late October. Compositor told
Kelley that he wanted to sign a union contract. explaining
that he was getting poor quality work despite paying "out-
rageous amounts of money." Kelley replied that he could
not talk to Compositor about signing a contract at that
time, but that Compositor probabl) could cut. his piece
rates by two or three cents "and still afford to pay the union
benefits."
B. .4 nlvsis
Section 8(b)(7)(C) outlaws recognitional picketing by an
uncertified union without an election petition having been
filed "within a reasonable period of time not to exceed
thirty days from the commencement of such picketing."
This has been construed to mean that, barring unusual cir-
cumstances, recognitional picketing can continue for 30
days absent a petition without being unlawful;' 0 and that
the filing of a petition within 30 days of the picketing's
onset generally "stays the limitation and picketing may
continue pending the processing of the petition.""'
Respondent's June 5 July 18 picketing of the Main Street
and Poli Street projects plainly had the recognitional object
of inducing the Company to sign a union contract,' and.
taking the sites in combination, lasted well over 30 days."
I The picketing was enjoined by an order of a federal district court that
issued on October 27.
sCases 31 CP274 and 31-RM-648.
'Case 31 RM-654.
1o Culinary Workers, Cooks, Bartenders and Hotel-Morel Service Emplqoees
Local No. 62, ec. (Tropics Enterprises,. Inc., dh//a Tropicana Lodge, 172
NLRB 419, 423-424 (1968).
1 International Hod Carriers Building and Common Laborers Union of
America, Local 840, AFL CIO (Charles A. Blinne, dh/a C.A. Blinne Con-
struction Company), 135 NLRB 1153, 1157 (1962).
1 Thus, on May 31. Kelley told Compositor of the contract's terms anid of
vanous means Respondent might use to induce him to sign: on June 1.
Kelley told Compositor that Respondent would withhold picketing for a few
days to give him time to decide about signing, adding that, "one way or
another," Respondent would get him to sign; and, on June 5. Compositor
not having signed and without further word between Kelley and him, picket-
ing began.
11 A shift in picketing situs does not affect the running of the Ihmitation
period. Retail Clerks Store Employees Union Local 1407. as chartered s
Retail Clerks International Association, AFL-CIO (JIM. Boalter Co., Inc.,
d/b/a Jaison's). 215 NLRB 410 (1974
The Company, however, filed an election petition on June
28, which xwas before 30 days had elapsed and which con-
tinued to be pending until dismissed by the Regional Direc-
tor on July 19 -i.e., until after cessation of the June July
picketing. The principles just stated suggest, then, that the
first round of picketing was at all times lawful.
The General Counsel seems to contend. however. that
the original recognitional object carried over to the Septem-
ber 7 October 30 picketing; that the disclaimer of recogni-
tional interest on which the Regional Director premised his
July 19 dismissal of the first petition therefbre improperly
forestalled an expedited election and thus worked to nullit
the protective shield of the petition: and that the first round
of picketing consequently became unlawful after 30 days
and the second round from its inception.
The General Counsel's theory appears sound. A union
cannot hide behind a petition when its own conduct frus-
trates the realization of an expedited election as intended
by the first proviso to Section 8(b)(7)(C). Moreover, since
the dismissal of the original charge concerning the June
July picketing was meant only to set the stage for an expe-
dited election and not to be a final disposition on the merits,
it cannot be deemed a bar to a finding based on the present
charge regarding the legality of that picketing.'"
But, to prevail on his theory, the General Counsel must
show that the September 7 October 30 picketing had a rec-
ognitional object." It is concluded, based on the totality of
the evidence, that it did not, and that the complaint conse-
quently is lacking in merit.
Given the 50-day hiatus between the two rounds of pick-
eting, it is not to be presumed that the original recognitional
object carried over to the second round. In addition. the
second round was preceded by a significant change of cir-
cumstances Respondent's obtaining hard evidence in mid-
August that the Company indeed was paying below area
standards. And even then, before starting to picket anew.
Respondent informed the Company of this evidence and
invited it to come forward with evidence of its own, which it
declined to do. These circumstances, in combination with
the area-standards purport of the picket signs and Respon-
dent's disclaimers of a recognitional object to the Regional
Director upon cessation of the former picketing and to the
Company before resumption militate against such an object
in the second round.'
" E.g., Chicago Printing Pressmen's Union No 3. and Franklin Union Vo. 4.
International Printing Pressmen & Assistants U'nion of North I merica. FL
CIO (Moore Laminating, Inc.), 137 NLRB 729. 733 1962)
"1 Sec. 101 23 of the Board's Statements of Procedure states: (a) A repre-
sentation petition . . is handled under an expedited procedure when the
investigation of the charge has revealed that . . 12 picketing of the em-
ployer is being conducted for an object proscribed b Section 8(bh7)
Sec. 101.24(a) states: "Upon the determination that the issuance of a direc-
tion of election is warranted on the petition, the regional director, absent
withdrawal of the charge. dismisses it subject to an appeal to the general
counsel in Washington, D.C."
' A conclusion need not be reached in this decision whether the petitions
filed by the Company on September 8 and 25. one or the other of which was
pending from September 8 until after cessation of the second round of pick-
eting, insulated that picketing from iolation, een i recognitional. on and
after the 8th
' See generally, John's VIallev Foods, 237 NlRB 425 ( 1978): t'nited Broth-
erhood of Carpenters and Joiner of A merica, Local No 1245 4FI. C10 (Ne,'
(('ontinued,
lll
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSION OF LAW
Respondent did not violate the Act as alleged.
Upon the foregoing findings of fact, conclusions of law,
Mexico Properties, Inc.), 229 NLRB 236 (1977). The General Counsel argues
that a recognitional object is inferable from Kelley's late-August comment to
Renfro about the Company's being nonunion and the prospect of picketing,
and from his October comment that Compositor probably could cut his piece
rates on the Santa Paula project "and still afford to pay the union benefits."
The latter comment, however, was too ambiguous to support the argued-for
inference that Respondent knew the Company then to be meeting area stan-
dards; and the former, standing alone, was not sufficiently revealing of the
proscribed object to overcome the array of countervailing evidence. See Ray-
mond F. Schweitzer, Inc. I/a Old Angus Restaurant, 165 NLRB 675 (1967).
and the entire record,' and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 19
The complaint is dismissed in its entirety.
'' Errors in the transcript have been noted and corrected.
'9 All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
1112