Bldg. & Const. Trades Council of Ventura County

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1464 (N.L.R.B. 1964)

1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent to vary or abandon any wage, hour, seniority , or other substantive
feature of its relations with its employees which the Respondent has established in
the performance of said agreement , or to prejudice the assertion of any rights ac-
quired by them thereunder.15
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. The Union and Intervenor are each a labor organization within the meaning
of Section 2(5) of the Act.
3. All sewing machine mechanics and maintenance employees at the Respondent's
plant, excluding production employees , shipping and receiving employees , porters,
designers , assistant designers , instructors , patternmakers , order fillers , office and plant
clerical workers, professional employees , guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. District Lodge No . 71, International Association of Machinists , AFL-CIO,
was on June 6, 1963 , and, at all times material thereafter , has been and now is the
exclusive representative of all employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. By its conduct on June 10 and 20, and by failing and refusing on and after
June 6 , 1963 , to recognize and bargain with the Machinists as the exclusive repre-
sentative of the employees in the aforesaid appropriate unit , Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section 8
(a) (5) of the Act.
6. Respondent by its conduct on June 10 and 20, as described and found above,
has interfered with , restrained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)( I) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
's Beiaer Aviation Corporation, 135 NLRB 399, 408
Building & Construction Trades Council of Ventura County
[Alfred A. Westman] and Jones and Jones, Inc. and Interstate
Employers, Inc. Case No. 21-CP-103. June 30, 1964
DECISION AND ORDER
On April 9, 1964, Trial Examiner Maurice M. Miller issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in his attached Decision. Thereafter, Respondent filed ex-
ceptions to the Trial Examiner's Decision and a brief in support of
the exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
147 NLRB No. 124.
BLDG. & CONST. TRADES COUNCIL OF VENTURA COUNTY 1465
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the -brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner.
1 The Trial Examiner found that the Board has jurisdiction of the employer involved,
but further found that no unfair labor practices had been committed and recommended
that the complaint be dismissed Neither the General Counsel nor the Charging Party
has filed exceptions . Respondent has excepted to the finding as to jurisdiction only. As
no exceptions have been filed to the Trial Examiner's finding that no unfair labor prac-
tices were committed , we adopt them pro forma Inasmuch as we therefore decide to
dismiss the complaint we find it unnecessary to consider the additional reason for dis-
missal urged in Respondent's exceptions and brief
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
Upon a charge filed March 18, 1963, and duly served thereafter , the General
Counsel of the National Labor Relations Board caused a complaint and notice of
hearing, dated June 7, 1963, to be issued and served upon Building and Construction
Trades Council of Ventura County, designated as Respondent Council in this De-
cision . Therein , Respondent Council was charged with the commission of unfair
labor practices affecting commerce within the meaning of Section 8(b)(7)(C) of
the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519. The
charges were predicated upon Respondent Council's purported responsibility for the
placement of a statutorily proscribed picket line at certain construction sites where
Alfred A. Westman was then performing services as a general contractor . Copies
of the complaint and notice of hearing were duly served upon Respondent Council,
Westman , and the Charging Parties designated in the case caption . Thereafter,
General Counsel further prepared and served certain complaint amendments , relative
to the jurisdictional allegations set forth therein.
Respondent Council's answer conceded certain substantive allegations of the com-
plaint as modified , but denied General Counsel's jurisdictional allegations ; denials
were likewise noted with respect to the commission of any unfair labor practices.
Pursuant to notice , a hearing with respect to the issues was held at Los Angeles,
California, on August 21 and 22, before Trial Examiner Maurice M. Miller. The
General Counsel and Respondent Council were represented by counsel ; Jones and
Interstate were represented by Norman Jones, officer of the former and labor rela-
tions consultant for the latter. Each party was afforded a full opportunity to be
heard , to examine and cross-examine witnesses , and to introduce evidence pertinent
to the issues . When their testimonial presentations were complete , counsel and other
representatives waived their right to file briefs; oral argument , however, was heard;
various contentions presented therein have been fully considered.
Upon the entire testimonial record, documentary evidence received , and my obser-
vation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTION
A. Alfred A. Westman
Throughout the period with which this case is concerned , Alfred A. Westman, to
be designated as Westman within this decision , functioned as both a land developer
and contractor in the building and construction industry within Ventura County,
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
California. Between 1955 and 1960, he operated as a licensed general contractor,
doing business as Alfred A . Westman ; between 1960 and 1963 his general contracting
business was conducted under the name of Al Westmian "The Builder" with or
without quotation marks. Since April 1963, he has conducted business under the
name and style of Nifty-Fifty Builders.
Further, since 1954 Westman has maintained and operated a building supply
dealership designated as Westman Building Supplies; since October 1958 he has also
maintained and operated a business known as Al Westman Plumbing and Supplies.
(Most of the business enterprises designated, though centered in Oxnard, California,
specifically, were countywide in scope. Westman has, however, concurrently been
engaged in business elsewhere . Within the 1955-62 period , at various times he has
functioned as a painting contractor in Oroville, California; he has operated a small
construction firm in Hilo, Hawaii; he has maintained a lumber interest in Cass Lake,
Minnesota; he has done construction work at Big Bear, California; and he has func-
tioned as an "electrical" firm.)
Since November 1959 Westman has been the sole or principal stockholder of
Aleric Investors, Inc., designated for the record as a land development firm, while
a witness, he testified, without contradiction, that Aleric currently owns five apart-
ment buildings , various single residential properties , and some lots. Before Novem-
ber 26, 1961, Aleric's stock was held by Westman and one other stockholder, not
specified; on the date designated, however, Westman became Aleric's sole stock-
holder. He retained his status until June 1963; since that date Westman has not
been Aleric's sole stockholder, though the stock interest currently held by others
has not been detailed for the record.
Functioning as a land developer , Westman has also done business under the name
and style of Al Westman Investment Company; this name, so the record shows,
designates a partnership within which he (Westman ) holds a 50 -percent interest;
three other partners share the remaining 50 percent.
During March 1962 Westman began construction of the first of two Oxnard,
California, apartment houses. With respect to one project-located at 501 West
Aleric Street within the community noted-Westman was designated the project's
owner-builder in his corporate capacity as Aleric Investors, Inc.; with respect to the
other project-located at 440 West Aleric Street, less than one city block distant-
Al Westman Investment Company functioned as owner-builder. Westman, func-
tioning as a sole proprietorship under the name and style of Al Westman The
Builder, served as general contractor for both projects. These projects, so far as
the record shows, reflected Westman's complete involvement within the building and
construction industry , functioning in his general contractor capacity , during the
period with which this case is concerned.
B. Interstate Employers, Inc.
Interstate Employers, Inc., which will sometimes be designated as Interstate within
this Decision, currently functions as an employer association which exists, in part,
to represent member firms in collective -bargaining negotiations . Member firms may
be enrolled , for this purpose , within one of four divisions ; only one of these, the
group's building and construction division , need concern us for present purposes.
Discussions looking toward Interstate's formation had been initiated in January
1961; incorporation of the association. however, was not completed until April 4 of
that year. Interstate's bylaws declare its purpose as follows:
SECTION 1. To provide an association where employers may join together for
mutual protection and collective action by employers and groups of employers,
to the end that stable , harmonious , and peaceful relations between employers
and employees or their representatives will be promoted and established and
that wages and working conditions , fair and just both to employer and employee,
be maintained , and honest and faithful observance of all agreements and obli-
gations by all parties concerned be procured , always recognizing the public
interest as paramount.
The bylaws likewise declare Interstate 's purpose to promote and encourage the
organization of autonomous employer groups , and cooperation among such groups
and individual employers, for mutual counsel and aid in all matters relating to labor
relations. Membership is declared open to "any person, firm, association or cor-
poration" engaged in business within this country. With respect to their acquisition
of such membership, however, Interstate's bylaws provide that:
SECTION 2. ADMISSION: Membership may be obtained in this association only
upon written application by any eligible person, firm, association, or corporation,
signed by an officer or authorized agent of the employer, and approved by the
BLDG. & CONST. TRADES COUNCIL OF VENTURA COUNTY 1467
Board of Directors of this association . Such application shall be on the proper
form provided by the association , and shall be accompanied by such dues and
initiation fee as may be prescribed by the Board of Directors . [ Emphasis
supplied.]
Consistently with Interstate 's further proposed objective "to promote the recognition
and exercise of the lawful right of employers to bargain collectively for mutual
protection ," but before its formal incorporation , representatives of the association
had negotiated and signed a document designated as construction master agreement,
with District 50, United Mine Workers of America, to be designated as District 50
within this Decision.
The contract in question-with a March 10 , 1961 , effective date-purported to
bind Interstate 's building and construction division, for and on behalf of its regular
subcontractor members, and District 50, for and on behalf of member workers
affiliated with one of its construction locals. Pursuant to its terms, District 50
recognized Interstate as the sole and exclusive collective-bargaining representative
of those employers who had designated , or might thereafter designate , the association
as their collective -bargaining representative . (When the contract was signed , accord-
ing to an attached exhibit, only two firms were listed, in writing , as having given
prior consent to be bound by its terms. Subsequently, however, numerous building
and construction industry employers have purportedly become privy to the contract,
presumably by a process which will be discussed further within this Decision. The
contract-with specific reference to the possibility of such accretions by signatory
firms-required Interstate to notify District 50 whenever any firm separately com-
mitted to an agreement with the latter organization became an association member
and signified its commitment to be bound by the association 's contract. District 50
agreed that , when this happened , the construction master agreement should supersede
any separate contract between the labor organization and the particular firm
concerned .) Norman Jones , labor relations consultant for the association , listed-
within a letter dated November 21, 1963 , directed to District 50 pursuant to that
organization's request-20 Interstate members then considered bound under the
master contract ; 2 of these were designated "not active" currently , while 2 others were
listed as doubtful . (Proffering himself as a witness to explain his letter , Jones testi-
fied that the list in question had been prepared from his office records , which he
represented as not complete ; when confronted , subsequently, with a claim by District
50 Representative Bonanto that the names of several firms privy to the contract had
been omitted , Jones, according to his testimony , had other association records
searched and discovered that seven firms considered privy to District 50's master
contract on the date designated had been omitted, inadvertently , from his list.)
When this case was heard , Interstate 's records purportedly revealed 45 member firms
privy to District 50's master contract ; however , no more than 24 of the firms, so
these records show , had signified their desire to be bound under the master contract's
terms prior to December 28, 1962 , when Respondent Council established the picket
line which the present complaint challenges as a statutory violation.
Counsel have stipulated that qualified witnesses , when called , would testify , without
contradiction , that between July 1 , 1962 , and June 30, 1963, Interstate member firms
privy to District 50's master contract purchased , in the aggregate , more than $50,000
worth of products which came to them from sources outside the State of California,
directly or no more than one step removed.
C. Relationship between Westman and Interstate
1. Issue
General Counsel has proffered no testimony , stipulations , or documentary proof
calculated to show Westman's participation in commerce , directly or indirectly, dur-
ing any relevant period . With respect to threshold jurisdictional questions , rather,
General Counsel contends that Interstate 's master contract with District 50 created
a multiple-employer bargaining unit, over which the Board would normally exercise
jurisdiction pursuant to current jurisdictional standards-this since Interstate's mem-
ber firms, bound by the contract during a relevant period, have purchased sufficient
goods in commerce to warrant Board action, pursuant to statute . Because Westman,
so the argument runs, had become an association member, privy to the master con-
tract in question , before Respondent Council began the course of conduct which the
present complaint challenges , General Counsel contends that Board jurisdiction
should be asserted regarding Westman 's dispute with Respondent Council, with
which this case is concerned . Respondent Council , however, contends that General
Counsel has produced no probative evidence that Westman ever designated Inter-
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
state as his collective-bargaining representative, or, more significantly, that he ever
committed himself to coverage under District 50's master contract; Council suggests,
rather, that Westman-when he signed various documents for the association which
I propose to discuss within this Decision-did not, thereby, reveal an unequivocal
intent to be bound in collective bargaining by group, rather than by individual,
action. These contentions present the basic question which the Board may well
consider dispositive herein, with respect to threshold jurisdictional matters.
2. How member firms acquire master contract coverage
Persons, firms, associations, or corporations engaged in business, desirous of Inter-
state membership, are requested to prepare and submit a membership application.
The form in question requires applicants to declare their desire for full, associate, or
affiliated membership; to submit a check sufficient to cover 1 year's dues; to declare
the general type of commercial activity with which they are most closely associ-
ated; to declare further that they have or may have employees who "choose" to be
represented for purposes of collective bargaining by one or more lawful labor or-
ganizations; to agree that, if admitted to membership, they will accept and agree to
be bound by Interstate's bylaws; and to agree, further:
That if the applicant desires to have INTERSTATE EMPLOYERS, INC. repre-
sent him in labor relations matters, he shall become a signatory to the "ex-
clusive collective bargaining representation notice" provided by the Associa-
tion for that purpose.
Finally, the membership application provides that its date of execution shall be
deemed to constitute the date of the applicant's membership, unless such application
is rejected by Interstate's board of directors within 31 days thereafter. Membership
applicants wishing to have Interstate function as their exclusive collective-bargaining
representative are required to execute the "Exclusive Collective Bargaining Repre-
sentative Notice" previously mentioned. This notice provides, in relevant part,
that:
1. The undersigned hereby agrees to appoint and accept the INTERSTATE
EMPLOYERS INC., as exclusive bargaining representative in all labor rela-
tions matters, including matters with the National Labor Relations Board,
other Federal and State agencies, and any and all labor organizations.
2. It is understood and agreed to by all parties that this exclusive collective
bargaining authorization can only be withdrawn in writing to INTERSTATE
EMPLOYERS, INC.,'with such withdrawal to take place sixty (60) days after
the post-marked date of such written request.
3. It is further understood and agreed to by all parties that if such withdrawal
is requested, any and all labor agreements then in effect with the undersigned's
business or businesses shall still be binding upon all parties that are signatory
to such agreement or agreements until the termination dates of such agreement
or agreements.
Various divisions of Interstate for "multi-unit collective bargaining" purposes are
listed within the notice. Signatories are free to designate one such division with
which they desire to be affiliated; alternatively, they may state their desire for "in-
dividual" representation.
Some contradictory testimony may be found in the record with respect to the
legal significance of these documents. Albert Sabatino, manager for Interstate since
April 1, 1963, testified, when questioned in direct examination as General Counsel's
first witness, that, since the negotiation of District 50's master contract on March 10,
1961, numerous additional firms have become privy thereto, and that, since his hire
for the managerial post, they have achieved contractual privity by signing Inter-
state's membership application, and the association's "Exclusive Collective Bargain-
ing Representative Notice" previously discussed. Compare Wilber F. Disney, et al.,
d/b/a Disney Roofing Material Co., et al., 145 NLRB 88, wherein the Trial Ex-
aminer , upon the record therein made, reached precisely this conclusion. Sabatino,
further, claimed to have seen Interstate files containing such documents, executed
prior to his employment as manager. (Before Interstate hired him, Sabatino had
been District 50's regional director; while functioning in that capacity, he had signed
the March 10, 1961, master contract in District 50's behalf.) During cross-
examination, however, Interstate's manager testified positively that something more
was required from member firms, throughout the association's history, before their
commitment to be bound by the group's construction master agreement with District
BLDG. & CONST. TRADES COUNCIL OF VENTURA COUNTY 1469
50 could be presumed. Since Sabatino's testimony on this point may well be dia-
positive with respect to some jurisdictional questions now under consideration, di-
rect quotation from the record seems advisable. His testimony reads as follows:
Q. (By Mr. MILLER.) Are there instances that an employer can join Inter-
state, designate Interstate as its bargaining representative, and not be bound to
this master labor agreement, Exhibit No. 4?
A. Yes, there are a number of instances .
Q. (By Mr. MILLER.) All right, I want to know if an employer joins Inter-
state, designates Interstate as its bargaining representative , and in its designa-
tion indicates that it is in the building and construction division, when that is
done, does that employer then automatically become bound to the master labor
agreement?
A. No, sir . He must indicate to us in a definite way that he wants to
become bound to it-be a member of the multi-employer group. This is de-
termined in the course of interviewing him, and asking him questions, and there
have been different procedures to determine this, such as adding the multi-
employer bargaining unit and having him initial it, and some of them have
written "I desire," "I choose to be part of the multi-employer group," and if
we don't know, if it is a situation where we don't know, then we write to this
employer member and ask him directly what his intentions are.
Q. (By Mr. MILLER.) Well, then, Exhibit 2(b) I take it . [the associa-
tion's "Exclusive Collective Bargaining Representative Notice" form] .
if this form was signed and the building construction division were indicated with
an "X" that would not automatically mean that he is a signatory to that master
labor agreement?
A. Not automatically .
Q (By Mr. MILLER.) After April 1963, Mr. Sabatino, if an employer signed
a form such as Exhibit 2(b), which is the exclusive collective bargaining repre-
sentative notice, and indicated an "X" in the building and construction division,
would this make him automatically signatory to the master labor agreement?
A. No, sir.
Q. (By Mr. MILLER.) Do you know of your own knowledge whether your
answer would be any different if I directed your attention to the period of time
before April 1963?
A. My answer would be no different.
Q. (Mr. MILLER.) Then something is required other than signing a form
such as Exhibit 2(b) before an employer is considered a signatory to the master
labor agreement?
A. Precise knowledge, yes.
Q. (By Mr. MILLER.) This precise knowledge, I take it, is personal knowl-
edge conveyed to the association from the employer that he wants to be bound
by the master labor agreement?
A. Yes.
Q. (By Mr. MILLER.) And in such a situation. I take it, it is conceivable
that an employer who signs Exhibit 2(b) could tell the association that he does
not want to be bound by the master agreement?
A. Yes.
Q. (By Mr. MILLER.) Let's talk about after April 1963. An employer could
sign Exhibit 2(b), and indicate orally to you that he does not want to be bound
by the master labor agreement; at least as far as the association is concerned,
he would not be bound, is that correct?
A. That's right.
Q. (By Mr. MILLER.) Based upon your own knowledge, do you know if your
answer would be any different if I directed your attention to the period of time
before April 1963?
A. The answer would be the same.
Q. And you say that this has happened, that employers sign Exhibit 2(b)
and yet indicate they do not want to be bound by the master labor agreement?
A. Yes.
With matters in this posture , some conclusion would certainly seem warranted-con-
sistently with Sabatino 's repeated testimony in cross-examination-that business
firms regularly accepted for Interstate membership, within the association's build-
ing and construction division, would not routinely be considered bound by that di-
vision's master contract, without some direct statement regarding their positive de-
sire to be bound thereby. I so find.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to membership applications generally, Sabatino testified, Interstate
has normally treated applicant firms as members subsequent to their dates of ap-
plication , subject to subsequent approval by the association's board of directors;
pursuant to this practice , essentially , firms have acquired provisional membership,
effective on their dates of application , subject to possible disaffiliation should their
applications be subsequently rejected. (The practice noted seemingly comports with
that portion of Interstate 's membership application form which provides that the
application's date shall be deemed to constitute the applicant 's date of membership
unless the application is rejected within 31 days thereafter . Note should be taken,
however, with respect to the seeming deviation between the practice described and
that provision of Interstate's relevant bylaw which states that membership may be
obtained only upon written application "approved" by the association's board of di-
rectors.) According to Sabatino, whose testimony in this respect was not disputed,
Interstate routinely gave District 50 representatives before April 1963 verbal or
written notice whenever a new firm acquired association membership. The labor
organization in question also received verbal or written notice whenever such a new
member firm desired coverage under the master contract, previously noted. District
50 considered new Interstate members contractually bound when they received such
a dual notice. When giving any such notice, Sabatino testified, Interstate custom-
arily provided its member firm's name and address. District 50 representatives
would then communicate with the firm and secure the names and addresses of em-
ployees; the latter would then be solicited to acquire union membership.
Sabatino declared credibly that when he was District 50's regional director he
considered a firm bound by the master contract now under consideration (1) when
his office received notice of the firm's Interstate membership, and readiness to be
bound as a member of the multiemployer bargaining unit; and (2) when representa-
tives of his organization had an opportunity to communicate with the firm and its
workers, for the purpose of signing up the latter as District 50 members.
3. Westman 's application for association membership
Reference has previously been made to Westman's dual owner-builder and general
contractor role, with respect to the construction of two Oxnard, California, apart-
ment house projects; construction activity there had been initiated early during the
1962 calendar year. On April 12, 1962, the general contractor, functioning as Al
Westman The Builder for the purpose , signed a labor contract proffered in District
50's behalf. Counsel have stipulated that Westman's separate contract was identical
with District 50's master contract, which Interstate had previously negotiated, except
for its date, and the names of the parties bound. The contract, dated April 12,
1962 , contained a provision with respect to its reopening after 1 year and fixed
April 12, 1964. as its termination date.
With respect to the circumstances of this contract's execution, Westman testified
that "we" had summoned District 50's Representative Petry from Los Angeles to
.address his employees; the contractor declared that he had signed District 50's con-
tract shortly thereafter. During the course of his visit, I find, Petry had left copies
of Interstate 's membership application and "Exclusive Collective Bargaining Repre-
sentative Notice" with Westman , and had explained District 50's multiple -employer
contract with the association. Thereafter , according to Westman's testimony, his
workers-their number not specified-became District 50 members.
The general contractor testified that he subsequently invited Norman Jones to
explain District 50's construction master agreement ; when he received Jones' explana-
tion, Westman declared he signed Interstate 's membership application and "Exclu-
sive Collective Bargaining Representative Notice" both with a June 1, 1962, date.
These documents were signed in the name and style of Al Westman The Builder
specifically.
While a witness, Westman testified positively that he signed a check dated June 1,
1962, to cover his application for full association membership ; he declared that the
check had been turned over to his secretary for mailing, concurrently with the two
Interstate forms which he (Westman) had just signed. The general contractor
professed lack of knowledge with respect to the date when his secretary actually
committed these documents to the mails. Before he left the stand, however, counsel
stipulated for the record that : ( 1) all of his business checks, during this period, had
been serially numbered; (2) the serially numbered check which he had signed just
before his Interstate check had been dated June 25 and had been cashed during
June; (3) his Interstate check , though next in sequence , had been dated June 1 and
had been cashed January 8, 1963; (4) his next numbered check had been dated
June 27, and had been cashed during June. (When counsel were considering this
stipulation , Jones, functioning as the Charging Parties' representative , offered a
BLDG. & CONST. TRADES COUNCIL OF VENTURA COUNTY 1471
stipulation that Westman's check had been cashed on December 28, 1962; interest-
ingly, this date-which was subsequently determined to be inaccurate-was the date
when Respondent Council first established the picket line which General Counsel
now challenges as an unfair labor practice.) Westman could not explain this patent
discrepancy with respect to the date and subsequent history of his serially numbered
Interstate check; while a witness, he could only declare that the check in question
had really been signed on June 1, but that he could not say when his secretary had
committed it to the mails.
General Counsel has proffered documentary evidence-specifically a letter, dated
June 19, 1962, directed to District 50 by Norman Jones for the association-which
purports to advise the union that Westman had joined Interstate and desired to be
bound by the master contract. The record, however, reveals that Jones, when sub-
sequently requested to provide a list of Interstate members privy to District 50's
master contract, failed to list Westman among the 20 firms named . ( Proffering
himself as a witness , Jones testified that Westman's name had been one of seven
left off his list inadvertently ; during cross -examination , he claimed that the names
omitted by him had been subsequently supplied within a letter dispatched to District
50 from the office of Interstate's president. Jones, however, conceded lack of cer-
tainty with respect to the matter; no copy of such a supplementary list has been sup-
plied for the record.) Jones could only speculate that his office had probably re-
ceived Westman 's mailed membership application and collective-bargaining designa-
tion, together with his check, during June, but that, for some reason not specified,
the contractor's check had not been forwarded to Interstate's president, consistently
with his routine procedure, for proper recording and subsequent deposit. The labor
relations consultant declared that his office normally notified District 50's repre-
sentative, by telephone or letter, whenever new firms joined Interstate and agreed to
be bound by District 50's master contract; he contended that his June 19 letter,
directed to the union , constituted ' such a notice and reflected his office 's receipt of
Westman's membership application and collective -bargaining designation. Con-
sidered, however, within the context provided by the record as a whole, Jones' testi-
mony, since it derived primarily from speculation, can hardly be considered proba-
tive. Questions of credibility aside, however, his testimony's significance will be
discussed further within this Decision.
On January 4, 1963, Interstate's secretary-treasurer acknowledged receipt of West-
man's application for association membership together with his check . The gen-
eral contractor was advised that his application would be considered by Interstate's
board of directors and that:
Final determination as to the status of your application will be made at that
time . Upon determination as to membership status, you will immediately be
notified. Should the board of directors be unable to accept your application
you will receive dues refund in full.
On January 8, Interstate's President Calhoun notified Westman that his membership
application had been approved by that group's board of directors; previously within
this Decision , reference has been made to the fact that Westman's association dues
check was cashed on the date designated.
D. Conclusion
Pursuant to General Counsel's complaint, Respondent Council is charged with
picketing violative of Section 8(b) (7) (C), conducted at Westman 's apartment house
construction projects beginning on December 28, 1962, and continuing for 134
calendar days; calculation reveals that May 9, 1963 , marked the termination of the
picketing which General Counsel presently challenges . As noted previously, no
contention has been made that Westman 's business operations , within any relevant
annual period which either preceded or included the period noted , would , considered
in themselves , satisfy the Board's present jurisdictional standards . General Counsel
does contend , however, that the Board should exercise its legal jurisdiction, with
respect to the dispute between Respondent Council and the general contractor, since
Westman had joined Interstate and become privy to the group 's master contract with
District 50 either before Respondent Council established its challenged picket line, or
while the pickets were being maintained. With matters in such a posture, General
Counsel argues, the conceded participation in commerce of other firms then privy to
the master contract should be considered sufficient to warrant the Board 's assumption
of jurisdiction over Respondent Council's dispute.
Whenever a record reveals some established pattern of multiple-employer bar-
gaining which the Board would consider sufficient to justify Board process if the
multiple-employer group were involved , jurisdiction will likewise be asserted, rou-
: 1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinely with respect to problems which involve particular employers privy to such
group bargaining, regardless of the extent to which these employers may participate
in commerce . Various decisions have made it clear, however, that, before agency
jurisdiction can be invoked with respect to cases involving specific employers pur-
portedly linked with other firms in multiple-employer bargaining , there must be
probative evidence that the particular employer concerned , through his course of con-
duct vis-a-vis the multiple-employer group, has revealed an unequivocal intent to be
bound in collective bargaining by group, rather than individual , action. Santa Clara
County Pharmaceutical Association , et al., 114 NLRB 256. Such a conclusion has
been found warranted when record evidence has revealed the personal participation
of specific employers with other firms in joint negotiations , or when such employers
have delegated to some joint bargaining representative authority to conduct negotia-
tions on their behalf, and have uniformly adopted, thereafter, contracts resulting
from such negotiations . Electrical Contractors of Troy and Vicinity, 116 NLRB
354; Santa Clara County Pharmaceutical Association, supra; cf. N.L R.B. v. Gottfried
Baking Co., Inc., et al., 210 F . 2d 772 (C.A. 2), in this connection.
Counsel for Respondent Council contends , precisely , that reliable, probative, and
substantial evidence cannot be found herein revelatory of the general contractor's
readiness to be bound by the multiple-employer construction master agreement which
Interstate and District 50 had previously negotiated . Earl Gordon, d/b/a Gordon
Electric Company, 123 NLRB 862, 863; see also, "General Counsel's Administrative
Ruling," Case No. F-1211, 44 LRRM 1343 , in this connection . Counsel suggests,
rather, that Westman 's course of conduct , though it reveals the submission of his
membership application to Interstate , followed by that organization 's final "approval"
with respect to his membership , merely proves his prior separate commitment to be
bound by District 50's form contract , not his willingness to be bound by some master
contract identical in content , previously signed by Interstate negotiators for their
multiple-employer group.
With the record in its present posture, Respondent Council 's contention cannot
be cavalierly dismissed . Documentary material proffered by General Counsel does
warrant a determination that Westman submitted to Interstate representatives, some-
time during the period with which this case is concerned , both a membership appli-
cation and collective-bargaining designation . However, testimony by Interstate's
manager, which has not been contradicted , clearly reveals that the mere submission
of such forms, in behalf of some business enterprise , has not been considered suffi-
cient, so far as the association is concerned , to bind the firm in question , pursuant
to the group's construction master agreement , previously negotiated . No reliable,
probative , or substantial evidence has been proffered that Westman ever provided a
positive declaration of his desire to be bound , thereafter, by this multiple-employer
contract.
General Counsel suggests that Jones ' letter dated June 19, 1962, probatively reveals
Westman's previously declared desire to be bound . For various reasons, however,
no probative significance can be attached to such a letter. First, while a witness,
Jones could merely testify that Westman's membership application form, collective-
bargaining designation , and check had "probably" been received by him; he declared
that he and his associate merely "think" the letter was sent to notify District 50
regarding the general contractor's desire to be bound, thereafter , by the master
contract . (Jones conceded that his speculation with respect to the letter derives
merely from knowledge regarding the routine normally followed within his office
when membership applications and collective -bargaining designations directed to
Interstate are received from employers. ) Nevertheless , when District 50 subsequently
requested a complete list of Interstate members privy to the construction master
agreement , Jones did not submit Westman's name . Queried subsequently by District
50 representatives with respect to several omitted names-seven in number-Jones
replied that he had no records with respect to the employers in question within the
files of his labor relations consultant firm, but thought that such records were "out in
my Interstate office" instead . Jones' concession , when District 50's representative
questioned him, that his records were not complete , cannot be reconciled with his
subsequent testimony in this case regarding the routine which his labor relations firm
followed whenever Interstate forms and checks were received ; that testimony reads as
follows:
A lot of times when they would send the forms to us, they would also send the
checks and we, in turn would make photostatic copies of the form, because we
needed them when we filed charges to show the Board they belonged to the
association; what day they were signed; and we would send everything back to
the association . [ Emphasis supplied.]
BLDG. & CONST . TRADES COUNCIL OF VENTURA COUNTY 1473
0
Secondly, no proof has been provided that Westman 's application for Interstate
membership-assuming , arguendo , that it had been submitted-had been approved
by the association 's board of directors , pursuant to the requirements of the group's
bylaws, prior to Jones' dispatch of the June 19 letter; whatever documentation the
record provides with respect to the general contractor 's membership status would
clearly warrant a determination that he did not become a regular Interstate member,
qualified to claim coverage under District 50's master contract , until January 8, 1963.
Thus, Jones' purported June 19 declaration that Westman had "joined" Interstate
clearly derived from the consultant 's gratuitous assumption regarding the probability
of a decision which the group 's board of directors had not yet made. Finally, with-
out any reliable , probative , or substantial evidence proffered for the record sufficient
to sustain a determination that Westman had ever capped his membership application
and collective -bargaining designation with a positive declaration regarding his desire
to be bound by Interstate 's multiple-employer contract , Jones' purported June 19
declaration relative to the general contractor's desire clearly merits characterization
as pure hearsay. Should , a determination be considered warranted , despite the
record's tentative quality, that Jones based such a declaration merely upon Westman's
formal submissions , without regard to Interstate 's subsequent treatment of the gen-
eral contractor 's application , responsible triers of fact would still be forced to con-
clude that the consultant 's report with respect to Westman 's purported desire reflected
nothing more than his gratuitous conclusion.
With matters in this posture, neither District 50's presumptive readiness to treat
Westman as bound under the construction master agreement after June 19, nor the
comparable readiness of Jones to consider him contractually committed, can be
considered dispositive with respect to his real status.
General Counsel contends that , whatever the record may show with respect to the
date when Westman prepared and submitted his membership application , collective-
bargaining designation , and check , determination would be warranted that he become
privy to District 50's master contract on January 8, 1963, when Interstate 's board
approved his membership application and cashed his dues check . Significantly, how-
ever, President Calhoun 's January 8 letter, previously noted, makes no reference to
Westman's rights or responsibilities under the master contract; nor does the record
otherwise show that the general contractor ever provided any Interstate representative
with "precise knowledge" communicated in some "definite " way that he desired to
be bound by the association 's contractual commitment . Under these circumstances,
Westman 's conceded membership status subsequent to January 8, while Respondent
Council 's picket line was still being maintained before his Oxnard construction
projects, cannot , without more , confirm his "unequivocal intent" to be bound in
collective bargaining by group, rather than individual action.
The general contractor 's separate contract with District 50, signed April 12, 1962,
was, so far as the record shows, still in force ; though it provided for reopening
within 1 year it had an April 12, 1964 , termination date. Westman, therefore, was
contractually bound pursuant to his separate District 50 agreement, .regardless of
his subsequent decision to seek Interstate membership. Article II, section 2, of
District 50's master contract , though not cited by counsel , would seem to be relevant
in this connection ; it reads as follows:
The Association shall immediately notify the Union when any Employer who is
party to an agreement with this Union becomes a member of the Association
and signatory to this Agreement . The Union agrees that in such event, the
Association Agreement shall supersede any individual agreements heretofore
signed by the Employer with said Union . [ Emphasis supplied.]
Pursuant to this contract language, novation takes place only when some business
enterpise privy to a separate District 50 agreement becomes both an Interstate mem-
ber and master contract signatory . Proof that Westman specifically desired his
membership application and collective-bargaining designation to bring about such
a novation cannot be found in the present record.
Though District 50 representatives may have considered the novation in question
complete-because of some nugatory notice, verbal or written , received from Inter-
state's labor relations consultant-their presumption with respect to Westman 's status,
thereafter , provides no legal justification for a determination that he was , really,
contractually bound as part of Interstate 's multiple-employer group. (Though
General Counsel might conceivably contend that Jones ' notice reflected some "hold-
ing out" with respect to Westman 's new contract status, nothing in the record
will justify a determination that District 50 took any action in reliance upon the
consultant 's representation .) With matters in this posture, reliable , probative, and
substantial evidence regarding Westman's membership status within a multiple-
756--236-65-vol. 147-94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer group contractually bound, throughout the period during which Respondent
Council purportedly maintained a statutorily proscribed picket line; must seemingly
be considered lacking; stipulations for the record, therefore, with regard to the
commerce participation of firms concededly within the multiple-employer group
cannot be relied upon, presumably, to justify Board process with respect to Respond-
ent Council's dispute with Westman.
The record, however, reveals that Interstate and District 50 representatives initiated
negotiations, early in April 1963, looking toward a new master contract. This was
subsequent to the date on which Westman's membership application had been
approved by Interstate's board of directors. There can be no reasonable ground
for doubt that Westman-whatever his status vis-a-vis Interstate's multiple-employer
bargaining group may have been prior to commencement of the 1963 negotiations-
was presumptively privy to the group's joint action, through association representa-
tives, with respect to these negotiations. Since his membership had previously been
confirmed by Interstate's board of directors, determination would seem warranted
that his concurrent "Exclusive Collective Bargaining Representative Notice" had
likewise been acknowledged. True, General Counsel has presented no definitive
proof that Interstate's negotiators, when they listed members of the multiple-employer
group in April 1963 for District 50's information, listed Westman, publicly, as one
of the employers they purported to represent . Nevertheless , inference would seem
justified that the Oxnard contractor, with no revocation of his prior collective-
bargaining designation on record , would have been represented , then, by associated
spokesmen ; having declared his consent previously with respect to such representa-
tion, Westman would necessarily have "become" a member of the represented group
when negotiations began.
Respondent Council's challenged picket line, before the second of Westman's two
apartment hound construction projects, was, so far as the record shows, still being
maintained.
Well-established decisional doctrine reveals this Board's disposition to rest jurisdic-
tional determinations upon the particular "factual picture" presented regarding a
given firm's participation in commerce concurrently with the commission of pur-
ported unfair labor practices. Mountain Pacific, Seattle, and Tacoma Chapters of
the Associated General Contractors of America, Inc., and Joe A. Jussel, Member,
117 NLRB 1319, 1327-1328. Upon the present record, this principle would seem
to have determinative significance . Compare Marble Polishers , Machine Operators
and Helpers, Local No. 121, AFL-CIO, and its Agent John Foglia (Miami Marble &
Tile Company), 132 NLRB 844; Oregon Labor-Management Relations Board, 136
NLRB 1207 , 1210 , in this connection . Since Respondent Council purportedly
maintained its challenged picket line for at least 1 month following the commence-
ment of Westman 's presumptive "participation" in collective-bargaining negotia-
tions upon a multiple-employer basis, General Counsel's contention that the Board
should consider proper the exercise of its statutory jurisdiction herein, based upon
stipulated figures regarding the participation in commerce of the general contractor's
fellow association members likewise committed to group bargaining , would seem to
have legal merit . With due regard, then , for the jurisdictional standards which the
Board presently applies ( see Siemons Mailing Service, 122 NLRB 81, and related
cases ) I find myself constrained to recommend assertion of the Board 's jurisdiction
herein as technically well-grounded and necessary to effectuate statutory objectives.
E. Postscript
Normally, when commerce figures have been proffered sufficient to establish an
employer's participation in commerce within some relevant period , the simple de-
termination that the particular firm's demonstrable commerce involvement satisfies
the Board's discretionary jurisdictional requirements would be completely dispositive
of jurisdictional questions . With matters in their present posture, however, some
further comment seems warranted. Reference has previously been made to certain
testimony, stipulations, and documentary material which might well justify a con-
clusion that Westman did not really complete his Interstate membership application
through proper submissions until January 4, 1963; certainly determination would
seem to be justified that he gave no probative sign of his desire to be bound con-
tractually-through group, rather than individual, action-prior to that date. Janu-
ary 4 followed, by 7 days, Respondent Council's placement of its presently chal-
lenged picket line. Upon this record, there would seem to be some ground, at
least, for suspicion that the general contractor , when he found himself confronted
-with a picket line arguably" within this Board's cognizance, sought to purchase the
privilege of invoking Board process through his acquisition of Interstate membership
BLDG. & CONST. TRADES COUNCIL OF VENTURA COUNTY 1475
This agency has previously declared its readiness to exercise jurisdiction over labor
disputes involving employers whose participation in commerce , directly or vicarious-
ly, may have coincided , chronologically , with the commencement of purported un-
fair labor practices . Mountain Pacific, Seattle, and Tacoma Chapters of the As-
sociated General Contractors of America , Inc., supra; Marble Polishers , Machine
Operators and Helpers, Local No. 121 , AFL-CIO, supra . These decisions , however,
reveal the Board 's refusal to relinquish jurisdiction-found warranted in the light of
the particular factual picture " which existed when purported unfair labor practices
were committed-merely because the employers involved had subsequently tried to
resign from some multiple-employer group whose members clearly were sufficiently
engaged in commerce. No other case has come to my attention wherein this agency
has been requested to assert jurisdiction under circumstances which suggest a par-
ticular employer 's desire to join a multiple-employer group specifically in order to
create, thereby, some presumptively sufficient ground for the invocation of Board
process with respect to a current dispute . (Conceivably , thorough investigation
might well reveal that Interstate 's raison d-etre derives , precisely , from its leader-
ship 's desire to provide small businessmen-not, themselves , sufficiently involved in
commerce , severally , to fall within this agency's jurisdictional ken-with a method
whereby their separate dealings in commerce may be aggregated to reach a dollar
volume level worthy of Board cognizance . Some hints that the association 's labor
relations consultant thus views its function may be found within the record. Like
the question of "What song the Sirens sang , or what name Achilles assumed when
he hid himself among women" questions with respect to the nature of Interstate's
role, "though puzzling ," cannot be "beyond all conjecture ." Sir Thomas Browne,
"Urn-Burial ," chapter 5 . Such questions , however, would seem to have mere "back-
ground" relevancy , within the context of the present case. ) With matters in their
present posture , no definitive conclusions have been drawn with respect to the record
suggestion , not fully developed , that Westman may have sought to purchase some
legal standing , prerequisite to his request for protection under Federal law, sub-
sequent to the placement of Respondent Council's picket line . The Board , however,
might well find such a determination warranted , or consider the matter worthy of
further investigation . The possibility that Westman really did, belatedly, try to
procure a Federal "umbrella" has been noted, then , because it raises a question-
which the Board, within its discretion , may wish to consider-regarding the propriety
of asserting jurisdiction with respect to the present charge. See N .L.R.B. V. Indiana
& Michigan Electric Company, 318 U.S. 9, 18-19; Vaughn Bowen, et al., 93 NLRB
1147, in this connection.
II. THE RESPONDENT LABOR ORGANIZATION
The Building & Construction Trades Council of Ventura County, designated as
Respondent Council in this Decision , is, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of the Act , as amended.
M. THE UNFAIR LABOR PRACTICE CHARGE
A. Westman's first contract with Respondent Council
On November 22, 1955 , Alfred A. Westman signed a so-called short form con-
tract proffered in Respondent Council 's behalf. This contract, on its face, was
characterized as an agreement between Westman and the Building & Construction
Trades Councils of 12 southern California counties ; for present purposes , however,
whatever interest councils other than Respondent Council may have had with respect
to the contract , requires no discussion . Westman , pursuant to the contract , recog-
nized Respondent Council and its affiliated local unions as "the sole and exclusive
bargaining representative" of all his employees , on work within Respondent Council's
jurisdiction . (For the purposes of this case , the contract's substantive terms may
be disregarded ; none of them have been challenged as violative of the statute.) The
contract contained a conventional termination clause which provided that it would
remain in full force and effect for a period of 1 year , and from year to year there-
after, absent 60 days' written notice given by either party that termination was
desired.
Westman's testimony regarding his subsequent compliance with this contract was
quite confused . First, he testified that he had complied with its terms until some-
time during the fall of 1958 . Subsequently , the general contractor testified that on
or about November 19, 1956 , he had dispatched a letter to Respondent Council
"cancelling" his contract; he conceded , however, that he could not produce docu-
mentary proof with respect to such a letter's preparation and dispatch. When
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
queried further, during cross-examination, Westman declared that he had complied
with the designated 1955 contract as long as he remained active in business as a
general contractor, or until sometime during the 1959 calendar year. This testi-
mony was subsequently modified; Westman reported that he had complied with the
contract's requirements until October 1958, when his plumbing supply business was
initiated. Later, he testified that he had complied with the contract during this
period, but that his compliance had not been complete. Subsequently, Westman
declared that he had complied with the contract only when he had construction jobs.
Finally, he declared that he had complied with Respondent Council's contract while
engaged on construction projects which required employees, but not while engaged on
construction projects which he and his son had handled personally.
With particular reference to the general contractor's purported 1956 contract can-
cellation, Ronald Benner, executive secretary of Respondent Council, testified cate-
gorically that no communication, written or verbal, reflective of Westman's desire to
terminate his contractual commitment, was received during the calendar year in
question. Considered with regard for the record as a whole, particularly in view
of the general contractor's confused recitals, Benner's testimony clearly merits
credence. (Westman, for example, further testified, despite his reiterated belief
that Respondent Council's 1955 contract had been canceled by letter within 1 year,
that some workmen hired by him during 1957, their craft not specified, had been
dispatched from union halls. Counsel have stipulated, with the general contractor's
testimonial concurrence, that he signed a further contract with the District Council
of Carpenters on June 18, 1958, for a 1-year term, with a conventional automatic
renewal clause; Westman conceded that he made payments to the Carpenters' health
and welfare fund thereafter, and that carpenters employed by him were union mem-
bers until sometime during the 1960 calendar year. Further, he conceded that he
had signed a contract proffered by the Plumbers Union when he started his plumbing
supply business in October 1958, and that he made payments to that group's health
and welfare fund thereafter. Though Westman declared that, between 1958 and
1960 specifically, his carpenter crew consisted of his son, his nephew, and one
workman who had been with him for years, he conceded that all three men had
retained their Carpenters Union membership until sometime in 1960.) When con-
trasted with Benner's clear-cut denials regarding any 1956 cancellation notice, West-
man's uncorroborated testimony that he dispatched a contract termination letter lacks
persuasive power; his subsequent conduct belies his persistent testimony that such a
letter was sent.
The general contractor testified, however, that, during some 1959 conversation
with Business Agent Flores of the Laborers' Union, he requested the latter to con-
vey a verbal message to Respondent Council regarding his (Westman's) desire to
cancel "any and all" contracts which he then had with Council affiliates. (Though
he tried to suggest, first, that this verbal notice was given to cancel , inter alia, his
Building Trades Council contract, Westman subsequently testified that the notice
was calculated merely to terminate his 1958 Carpenters and Plumbers contracts,
together with "three, four, and five" booklet contracts, not identified for the record,
which he had purportedly signed, or which had been shown him without a request
for his signature, during previous years.) With respect to this testimony, no cor-
roboration has been proffered. While a witness, •Westman did report his "recent"
discovery that a letter wherein he had purported to cancel "any and all" agreements
by which he might then be bound had been dispatched to someone he could not
recall; he could not, however, produce a copy, nor could he produce proof that such
a letter had ever been mailed. He could not even testify positively with respect to
its date.
With matters in this posture, no justification whatever can be found for a deter-
mination that Westman's 1955 contract with Respondent Council was ever canceled
in conformity with its termination provision.
B. Respondent Council's second contract
While a witness, Westman testified without contradiction that, for personal reasons
not presently relevant, his work as a general contractor was curtailed during the
latter part of 1959, 1960, and 1961; Respondent Council's executive secretary con-
firmed his testimony inferentially when he declared that he had had no contacts or
problems with Westman during the years in question.
During March 1962, however, Westman began construction work on the Oxnard
apartment house projects previously noted. His decision to sign District 50's con-
tract for his construction workers, shortly thereafter, has been mentioned; so far
as the record shows, Westman's new contract, which he signed as Al Westman The
Builder, general contractor, covered all construction workers then employed by him
for the construction projects in question.
BLDG. & CONST. TRADES COUNCIL OF VENTURA COUNTY 1477
On June 1, 1962, Business Agent Merryman of the Painters Union protested the
general contractor 's reliance upon District 50 members as painters ; placement of a
picket line was threatened . Thereafter, on June 4 or 5, Merryman returned with
Respondent Council 's executive secretary . Westman, functioning as the project's
general contractor , was accused of noncompliance with Respondent Council's 1955
contract ; when he protested and proclaimed his desire to continue work without
reference to that contract for various stated reasons , Benner posted a picket , forth-
with , before the construction projects. ( Credible testimony will support a deter-
mination that Respondent Council's picket was joined by one posted by the Painters
Union ; the presence of the latter , however, cannot be considered material .) Picket-
ing continued for 3 days. When Benner returned on June 7, he renewed his demand
for Westman 's compliance with Respondent Council's 1955 contract . Westman,
presumably speaking as the projects' general contractor , reiterated his prior claim
that Respondent Council 's contract had been terminated by notice . His testimony,
which Benner did not trouble to deny, reveals that he went on to declare , "If you
think that I am bound by any agreement , I hereby cancel any and all agreements right
now." During the conversation , reference was made , somehow, to Westman 's owner-
builder relationship with one of the construction projects, under the name and style
of Aleric Investors , Inc.; Benner promptly declared that he would require Aleric,
likewise , to sign a contract.
Westman , presumably by way of reply, mentioned his District 50 contract ; Benner
was advised that the contract in question contained a provision for cancellation on
60 days' written notice. According to Respondent Council 's executive secretary,
whose testimony in this respect I credit, Westman represented that this notice period
was currently running, but that the period still had some 20 days to run . (Actually,
Westman's District 50 contract , which had been signed April 12 of that year, still
had most of its initial 2-year term to run .) Confronted with these representations,
Benner proffered a contract for Aleric to sign , which Westman signed June 7, 1962,
in the designated corporation 's behalf . When he signed the document , however,
Westman was, concededly , the corporation 's sole stockholder.
This contract , on its face , purported to bind Aleric Investors , Inc., designated for
contract purposes as "Employer, Developer and/or Owner-Builder" and the Building
& Construction Trades Councils of 12 designated southern California counties, Re-
spondent Council included . Declaring that "both the Employer , Developer and/or
Owner-Builder have authority and control over the contracting and subcontracting of
all work . . . and should , therefore , assume responsibility for the compliance by
their Contractors and Sub -Contractors with the provisions of the appropriate collec-
tive bargaining agreements ," the contract provided that it would apply to and cover-
. all building and construction work performed by, the Employer , Developer
and/or Owner-Builder within the jurisdiction of any' union affiliated with the
Councils and. the contracting or subcontracting of work to be done at the site
of the construction , alteration , painting , repair or demolition of a building,
structure or other work.
Among other things, Aleric contracted that "all work performed within the jurisdic-
tion of any union affiliated with the Councils shall be performed pursuant to an
executed agreement with the appropriate union . . . affiliated with the Council in
the area in which the work is performed "; that it would "abide by all of the terms
and conditions of the current agreements of the respective crafts employed" for
company projects ; and that it would "contract or subcontract work . . . only to a
person , firm, partnership or corporation that is party to an executed , current agree-
ment with the appropriate union . . . affiliated with the Council in which area the
work is performed ." Further, Aleric contracted that:
The provisions of the Agreement shall be binding upon the Employer , Developer
and/or Owner-Builder and upon any firm, partnership, company or corporation,
in which the Employer , Developer and/or Owner-Builder or any of its owners,
partners , officers or stockholders has a substantial ownership interest. [Em-
phasis supplied.]
The contract was declared effective on its execution date, to remain effective for 1
year and from year to year thereafter , subject to the right of "either party" to give
60 days' written notice, before any stated anniversay date, of its desire to terminate
the contract.
Westman had raised questions , during the discussion which preceded his execution
of the contract now under consideration , regarding his District 50 commitment.
Benner thus sought legal advice with respect to the possible regularization of
Respondent Council's contractual relationship with him as both the current project's
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
designated "Employer, Developer and/or Owner-Builder" and general contractor
Pursuant to his counsel's suggestion, Respondent Council's executive secretary re-
quested Westman's secretary to prepare a contractual addendum, which reads as
follows:
Alfred A. Westman agrees [that] Aleric Investors, Inc., successors Ito Alfred A.
Westman will put into full force and effect the agreement entered into with the
Ventura Bldg. Trades Council and Alfred A. Westman in the year 1955, as
amended. This stipulation effective July 20, 1962.
The contract, thus supplemented, was signed by Westman in his capacity as Aleric's
president. Benner signed the document for Respondent Council. Respondent
Council's picket line was thereupon removed; whatever craftsmen may have ceased
work resumed their regular tasks.
C. Subsequent developments
When queried with respect to further developments, during the months which
followed, Westman testified that business representatives for "numerous" labor
organizations visited Aleric 's apartment house construction site; several , the general
contractor declared, requested him to sign again short-form Building & Construction
Trades Council contracts , similar to Respondent Council's June 7 contract. West-
man's testimony in this respect, however , fails to persuade . (Respondent Council
proffered no testimony to rebut the general contractor's declaration that various craft
union business representatives may have visited his projects ; upon the entire record,
however, I have not been convinced that they were there to repeat Benner's contract
solicitation .) While a witness , the general contractor was not asked to designate
the capacity pursuant to which such business representatives requested him to sign
proffered contracts . When queried in cross-examination , he finally conceded that
several of them , whose visits he purportedly recalled , had not been designated as
visitors to the projects within his prior statements . Westman could proffer no specu-
lation regarding the reason why such callers purportedly requested that he re-sign
Respondent Council's short-form contract. With due regard for the patent proba-
bilities of the situation, I find that, following the June 7 commitment given by
Westman as Aleric 's president pursuant to the terms of Respondent Council's proffered
contract, Al Westman The Builder, functioning as Aleric's general contractor, was
visited by various craft union business representatives who merely sought some
"executed agreement" with him , wearing his general contractor's hat, covering their
respective craft jurisdictions.
D. Respondent Council 's renewed picket line
Shortly before December 28, 1962, Benner learned that Westman had , sometime
previously , commenced construction work on his second Oxnard apartment house
project, located gat 440 West Aleric, less than one block distant from his first construc-
tion site. Further , Benner learned-so he testified , at least-that Westman was not
complying with his Building & Construction Trades Council contracts. (Specifically,
Benner testified , without contradiction , that he learned Westman's workers-his son,
son-in-law, and two others-had not been hired through Respondent Council's craft
affiliates; that they had not been hired through contractually sanctioned hiring pro-
cedures, and that they were not receiving wages and fringe benefit allowances cur-
rently "prevailing" within the Ventura County labor market.) On the date desig-
nated, therefore, Respondent Council's executive secretary, accompanied by Business
Representative Flores, previously mentioned , visited Westman's projects . He pro-
tested the general contractor 's failure to comply with his contractual commitments.
Considered as a whole, the record warrants a determination that Benner further
declared Respondent Council 's intention to post pickets before both apartment house
projects. Westman, substantially, replied that if such pickets were posted, he (West-
man) would answer Respondent Council 's demand in court . Benner and Flores, I
find, then left the vicinity and returned shortly after the noon hour with a picket
whose sign read:
AL WESTMAN UNFAIR
Substandard Wages and Conditions
Ventura Building Trades Council
When the picket's patrol began, Westman-functioning under the name and style of
Al Westman The Builder, specifically-was the general contractor on both construc-
tion projects previously noted. With respect to the first of these, located at 501 West
Aleric, Oxnard, Aleric Investors, Inc., was owner-builder; with respect to the other.
BLDG. & CONST. TRADES COUNCIL OF VENTURA COUNTY 1479
located at 440 West Aleric, the owner-builder was Al Westman Investment Com-
pany, previously noted. Respondent Council's picket, so the record shows paraded
before each jobsite alternately.
E. Subsequent developments
On or about January 15, 1963, Benner called upon Eddie Goulette, doing business
as C. & E. Construction Company, at Westman's 501 West Aleric office; Goulette
was one of Westman's partners in Al Westman Investment Company, owner-builder
for the 440 West Aleric project. According to Benner, Goulette asked whether
Respondent Council would remove its picket line from the last designated project
if he (Goulette) took over the general contractor's function for that project and
hired workmen through Council affiliates. Benner, so his testimony shows, declared
that if Goulette intended to perform work as a general contractor, Respondent Coun-
cil would want a contract signed. Goulette thereupon signed Respondent Council's
proffered contract. Westman was advised by Respondent Council's executive secre-
tary that "half" of their dispute had been "straightened out" thereby; he was re-
quested to consider a complete settlement. So far as the record shows, however,
nothing came of Benner 's suggestion . (While a witness , Westman insisted that
Goulette's signature did not bind Al Westman Investment Company and that, despite
Goulette's action, he, "Al Westman The Builder," continued to function as the gen-
eral contractor for 440 West Aleric, operating under his District 50 contract.
Benner testified, contrariwise, that Goulette's employees took over construction work
at the designated location. The record with respect to this development, therefore,
reveals a testimonial conflict; no need for its resolution, however, appears.) Be-
lieving that construction work at 440 West Aleric would now proceed within the
framework fixed by Respondent Council's contract with Goulette, Benner directed
the Council's picket to cease his patrol before the designated location.
The picket, however, continued to patrol before Westman's 501 West Aleric proj-
ect. Thereafter, on March 18, 1963, Jones and Interstate filed the present charge.
(A previous charge, bottomed upon the presence of Respondent Council's picket be-
fore both projects, had been filed on January 4, 1963; General Counsel, however,
had issued no complaint upon this charge. The relationship, if any, between the
filing of this prior charge and Interstate 's written acknowledgment of Westman's
membership application, previously noted-both of which took place on the same
day-must remain a matter for speculation.) Two days later-presumably by way
of riposte-Benner sued Westman in California Superior Court; his suit was filed, in
Respondent Council's behalf, against Alfred A. Westman, general contractor, and
Aleric Investors Inc., to enforce Respondent Council's 1955 and 1962 contracts.
Thereafter, on May 9, 1963, Westman filed a notice of completion for his 501
West Aleric project. Respondent Council's picket was promptly advised verbally
that should he continue to picket after that date he would be picketing Aleric, owner
of the completed project, rather than "Al Westman The Builder" functioning as
the project's general contractor. Picket activity before the designated project loca-
tion thereupon ceased.
Conclusions
A. Issues
Respondent Council's course of conduct-so General Counsel' contends-must
be considered squarely within the statutory proscription.
Considered in relevant part , Section 8(b) (7) makes it an unfair labor practice
for a labor organization , in certain designated situations, to picket or threaten to
picket any employer , where "an object" of such conduct is forcing or requiring an
employer to "recognize or bargain" with it , or forcing or requiring employees to
"accept or select" it as their collective-bargaining representative , unless such labor
organization is "currently certified" as such a representative . Subparagraph (C) of
the provision in question proscribes such conduct , specifically , where no petition for
a Board election under Section 9(c) has been filed "within a reasonable period of
time not to exceed thirty days" from the picketing 's commencement.
General Counsel argues that Respondent Council 's picket-despite the fact that he
carried a sign which purported to protest Westman's failure to meet "area standards"
relative to wages, hours , and working conditions-patrolled the general contractor's
projects for the purpose of forcing or requiring him to "recognize or bargain" with
Respondent Council, specifically . Since the Council was not then "currently cer-
tified" as the representative of Westman 's workers , and since no representation
petition was filed within the "reasonable period " required by Section 8(b) (7) (C),
General Counsel contends that Respondent Council's picket line should be found
subject to Board interdiction.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Council, however, suggests that Westman's parallel 1955 and 1962
contractual commitments really defined the challenged picket's purpose. Since the
Council's purported object was to protest Westman's persistent breach of these con-
tracts, and to secure his compliance with their terms, counsel for respondent labor
organization contends that it cannot legitimately be charged with the placement of
a picket line for the purpose of forcing or requiring the general contractor to proffer
recognition.
General Counsel counters with a suggestion that Respondent Council's 1955 con-
tract with Westman, functioning as a general contractor, had "lapsed" or been
"abandoned" through disuse; that Respondent Council's 1962 contract with Aleric,
functioning as a property developer, created no binding commitment for Al Westman,
general contractor, since it could not supersede his prior District 50 commitment;
and that respondent labor organization, therefore, could not legitimately claim to
have been recognized as the representative of Westman's workers prior to the date
when the challenged picket began his patrol.
These contrasted contentions, preliminarily, present the questions which must now
be considered.
B. Respondent Council's contractual privity with Westman
General Counsel's contention that the general contractor's 1955 contract with Re-
spondent Council had "ceased to be operative" between them before construction
work began on his local apartment house projects fails to persuade. No reliable,
probative, or substantial evidence has been proffered herein, sufficient to warrant a
determination that this contract was ever terminated by proper notice. (Westman's
testimony that he dispatched some sort of written termination notice to Respondent
Council, during the 1956 calendar year, lacks the detail normally required to provide
necessary "verisimilitude" for the general contractor's "otherwise bald and uncon-
vincing narrative"; further, documentary corroboration with respect to the prepara-
tion and dispatch of such a purported notice of termination, which any businessman
of reasonable acumen would have preserved, could not be produced. The general
contractor's testimony regarding his purported verbal cancellation of the contract in
question, during some 1959 conversation with a craft union business representative.
likewise cannot be taken seriously; considered as a whole, his testimony will support
no definitive conclusion with respect to specific contracts which he wished to cancel.
Further-even with an assumption, for the purpose of argument, that Westman
thought he was canceling Respondent Council's contract-such a verbal cancellation
would clearly call for rejection as a nullity.) General Counsel suggests that West-
man failed to observe his purported contract between 1958 and 1962, during which
period he did comparatively little construction work. The general contractor's
testimony, however, reveals that he signed contracts with two craft groups during
1958, and complied with these contracts for some time thereafter. Should his
vague, generalized testimony that he fell out of compliance with these contracts,
sometime after their purported verbal cancellation, be credited, nothing in the record
would warrant a determination that such purported failures of compliance were
known to Respondent Council, that they would really have merited consideration as
compliance failures, or that they were condoned.
With respect to General Counsel's contention that Westman confirmed his prior
"abandonment" of this 1955 document when he signed District 50's contract, two
points should be made: First, the general contractor's unilateral action, seemingly
taken without the concurrent cognizance or acquiescence of Respondent Council,
clearly cannot be said to reflect their mutual relinquishment of previously viable
commitments. Second, Westman's signature on District 50's contract could not,
pursuant to that document's terms, work a cancellation of his prior Building Trades
Council commitment; article II, section 4 of District 50's contract provided, spe-
cifically, that any worker "whose work is covered by a valid and subsisting agree-
ment between his Employer and any other Union, at the time of the execution of
this Agreement" shall not be covered by nor entitled to the benefits of such contract
during its stated term.
With matters in their present posture, therefore, determination seems fully war-
ranted that, so far as Westman and Respondent Council are concerned, their 1955
contract remained viable at all times material herein; I so find.
General Counsel, consistently with his basic theory that Respondent Council lacked
legal status as the recognized representative of General Contractor Westman's em-
ployees when the challenged picket line was established, contends further that the
organization's June 7, 1962, contract with Aleric should likewise be considered lack-
ing in significance. By way of support for this contention, General Counsel cites
testimony that (1) Aleric, functioning as owner-builder for one Oxnard apartment
BLDG. & CONST. TRADES COUNCIL OF VENTURA COUNTY 1481
house construction project had no construction workers employed when the contract
was signed; (2) Westman, functioning as the project's general contractor, never gave
effect to Respondent Council's purported agreement, but continued to observe his
District 50 contract; and (3) Respondent Council never attempted to force West-
man's compliance with its purported contract until the December picket line was
posted.
These contentions, however, fail to persuade. During one record discussion,
General Counsel contended that Aleric Investors, Inc., like most of Westman's other
business enterprises previously listed within this decision, was his alter ego merely,
functioning as a corporation for purposes not presently germane. Nevertheless, he
would have Respondent Council's 1962 contract with Aleric disregarded because
Aleric, functioning as a corporate property developer, hired no construction workers;
further, he suggests that Respondent Council's newest document, despite its supple-
mentary commitment whereby Aleric purportedly became privy to Westman's 1955
contract, contained no new commitments binding upon Westman, functioning as a
general contractor. General Counsel cannot have it both ways; Westman, Aleric, and
Westman Investment must be treated as either one business entity or separate firms.
Any detailed discussion of Westman's multifarious business guises would require a
digression from presently relevant questions. There can be no room for doubt, how-
ever, that-while Westman may have been trying to conduct his most recent con-
struction business operations in trinitarian form, functioning as a property developer
both in corporate and partnership guises while performing work as a general con-
tractor with a sole proprietorship designation-Respondent Council's executive secre-
tary legitimately considered him a unitary reality for contract purposes. Basically,
Respondent Council 's second proffered agreement , which Westman signed as the
contract's designated "Employer , Developer and/or Owner-Builder" while wearing
his corporate hat, contained a commitment that he would contract work to himself,
functioning as a general contractor while wearing his sole proprietorship hat, only
when privy to executed, current agreements with the appropriate unions having work
and territorial jurisdiction for the area within which the work would be performed.
Further, Westman's contractual commitments as "Employer , Developer and/or
Owner-Builder" while wearing his corporate hat were specifically conceded to be
binding upon any nominally different "firm, partnership, company or corporation"
with respect to which he had a substantial ownership interest. Taken together, these
contractual provisions clearly bound Westman , functioning as a general contractor,
equally with Aleric, functioning as the project 's owner-builder.
With matters in this posture , Westman 's failure to comply with Respondent
Council 's second contract , while functioning as general contractor , cannot be said to
negate his contractual obligation. Nor can Respondent Council's failure to take
prompt steps, prior to December, looking toward the general contractor's compelled
compliance, legitimately be considered to reflect some "waiver" or "abandonment"
destructive of the labor organization's recognized status.
C. Respondent Council's purpose in picketing
We turn, then to the question of Respondent Council's picket line objectives.
Reference has already been made to counsel 's contention that-since respondent
labor organization was already privy to viable contracts both with Westman, func-
tioning as a general contractor, and with Aleric, functioning as a property developer-
no determination would be warranted that the picket line challenged herein was
established to win "recognition" within the meaning of the statute. Section 8(b) (7),
however , defines picketing as an unfair labor practice where an object thereof is
forcing or requiring an employer to "recognize or bargain" with a labor organization
as his workers' representative. Concurrence with Respondent Council's contention
that the picket line was not being maintained to compel recognition, therefore, can-
not be considered diapositive of the present case; we must still consider whether "an
object" of Respondent Council's conduct was a compelled bargain.
Counsel for the respondent labor organization contends that his clients' December
picket line, like the picket line placed before the construction project 6 months previ-
ously, was really intended to force or require Westman, functioning as a general con-
tractor, to comply with his viable labor contracts. I find merit in the suggestion.
(Respondent Council's picket carried a sign which purported to protest Westman's
"substandard wages and conditions" merely. Counsel for respondent labor organi-
zation, however, has not really pressed his contention that the challenged picket line
should be found free of any proscribed purpose because Respondent Council's sign
protested Westman's purported failure to meet "area standards" with regard to
wages and conditions of work. During oral argument, counsel did suggest that such
a protest was within Respondent Council's contemplation; no reliable, probative
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony had been proffered during his presentation, however, calculated to estab-
lish that any significant differential existed between Westman's wage scale or condi-
tions of work and wage rates or conditions of work prevalent on construction
projects within the county. In any event, the picket sign legend, despite its failure
to pinpoint Westman's claimed "breach of contract" as Respondent Council's basic
grievance, cannot really be considered inconsistent with a determination that the
picket line was established to protest his failure to meet contractual commitments.)
Fairly read, however, the second of these contracts does, inter alia, visualize a possi-
bility that Westman, functioning both in his capacity as owner-builder and general
contractor, might be required to bargain further to carry out his commitments.
Recognition of this possibility may be found in article II, wherein the "Employer,
Developer and/or Owner-Builder" agrees to perform work "pursuant to an executed
current agreement with the appropriate union having work and territorial jurisdic-
tion," and likewise article IV of the contract, wherein the designated contract party
agrees to let work on contract or subcontract only to persons, firms, partnerships, or
corporations similarly bound. Though the legal status of the general contractor's
1958 contracts with the Carpenters' and Plumbers' unions may be somewhat cloudy,
within the four corners of the present record, this agency certainly could reasonably
conclude that one, at least , of the purported contractual breaches which Respondent
Council's picket line was placed to protest lay in Westman's performance of project
work without "executed, current" contracts with various craft union affiliates of
Respondent Council, specifying wage rates and other terms and conditions of work.
Determination would seem warranted, further, that one aim of Respondent Council's
picket line, at least, was to secure Westman's execution of such agreements.
Thus, while the challenged picket line certainly may have been intended to protest
Westman's presumed failure to comply with various hiring hall, wage, union security,
and fringe benefit requirements found within the contracts which Respondent Coun-
cil's craft affiliates within Ventura County currently maintained , determination would
seem warranted that an additional object of the picketing was to compel Westman,
functioning as a general contractor, to bargain with Respondent Council's craft
affiliates and to sign contracts with them; I so find. And since Respondent Council,
despite its lack of current certification, maintained the picket line for several months
without filing a representation petition "within a reasonable period of time" such
conduct, on its face, would seem to merit statutory proscription.
Further consideration of the statute's basic purpose, however, suggests that a
different conclusion may be required.
Within various decisions , this Board has summarized the basic statutory scheme
of Section 8(b) (7) (C) as reflective of a congressional purpose "to settle, whenever
possible, by means of an expedited election , problems resulting from recognition and
organizational picketing " . Chicago Printing Pressmen's Union No. 3 et al. (Moore
Laminating, Inc.), 137 NLRB 729, 732-733; International Hod Carriers, Building
and Common Laborers' Union of America, Local 840, AFL-CIO (Charles A. Blinne,
d/b/a C. A. Blinne Construction Company), 135 NLRB 1153, 1158. See also,
Dayton Typographical Union No. 57 v. N.L R.B., 326 F. 2d 634 (C.A.D.C.), 54
LRRM 2535, 2537, which decision includes a comprehensive review of relevant
legislative history. Such a congressional purpose, however, could not reasonably be
effectuated within the context of this case . General Counsel has made no claim
herein that Respondent Council's picket line had an "organizational" purpose. And
his contention that the labor organization in question sought "recognition" has been
rejected; as previously noted, Respondent Council already had recognition, since
Westman functioning as a general contractor had, from a strictly legal point of view
at least , recognized its representative status by signing its proffered 1955 contract
which he never, thereafter, terminated pursuant to its terms. Further, Westman had
subsequently confirmed such recognition, functioning in behalf of his corporate
alter ego as property developer and owner-builder, when he signed Respondent
Council's proffered 1962 contract in Aleric's name . The latter document, by the
terms of its addendum, confirmed the readiness of Westman's corporate alter ego to
"put into full force and effect" the previous contract which he had signed as a general
contractor. Further, it reflected his commitment to deal with Respondent Council
and its constituent craft union locals, both as an "Employer, Developer and/or
Owner-Builder" and as a sole proprietorship doing business as a general contractor
This second contract-the legality of which, under the statute, has not been chal-
lenged herein by General Counsel or any other party-plainly obligates Westman to
bargain with Respondent Council and its constituent organizations to the extent
necessary to carry out its terms, which include a commitment to execute "current"
agreements with "appropriate" unions having work and territorial jurisdiction
Nothing in the present record would warrant a conclusion that Respondent Council's
professed reliance upon Westman's signed contracts to justify its challenged picket
BLDG. & CONST. TRADES COUNCIL OF VENTURA COUNTY 1483
line was pretextual merely. The decision to picket his construction projects, there-
fore, cannot properly be considered "blackmail" picketing, the evil which Section
8(b)(7)(C) was primarily drafted to proscribe. See Dayton Typographical Union
No. 57 v. N L.R.B., supra, and the legislative history cited therein.
True, picket lines have been found violative of the statute, within various Board
decisions, where labor organizations previously given nominal or contractual recog-
nition maintained pickets following some employer's withdrawal of such recognition.
American Federation of Grain Millers, Local Union No. 16, AFL-CIO (Bartlett and
Company, Grain), 141 NLRB 974 (picketing "to obtain an acceptable bargaining
contract" following the termination of a prior contract after due notice); Sapulpa
Typographical Union No. 619, etc. (Ed K. Livermore, et al., d/b/a Sapulpa Daily
Herald), 138 NLRB 180 (picketing to protest a claimed refusal to bargain in good
faith for a new agreement, following the termination of a prior contract upon proper
notice); Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (Woodward Motors, Inc.), 135 NLRB 851 (picketing
to protest an employer's withdrawal of recognition, previously conceded as a pre-
condition to negotiations for a first contract , when negotiations were subsequently
suspended); Local 705, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, et al. (Cartage and Terminal Management Cor-
poration), 130 NLRB 558, reconsideration denied; International Hod Carriers, etc.,
Local 840 (Charles A. Blinne, d/b/a C. A. Blinne Construction Company), 135
NLRB 1153, 1168, footnote 29 (picketing "in support of an economic demand at a
bargaining table" where neither recognition nor willingness to bargain were really in
issue, but merely the employer's reluctance to grant the particular demand). None of
these cases , however, dealt with the propriety , under the statute , of picket lines main-
tained by some labor organization properly claiming current contractual privity with
the picketed employer , calculated to protest his purported breach of some contrac-
tual obligation, including specific commitments to bargain further. Whatever justifi-
cation there may be for equating picketing within the factual context of the oases
cited with so-called "blackmail" picketing, General Counsel has not persuasively
demonstrated that such equation would be warranted when the picketing union
properly claims current contractual recognition.
This Board has found picket lines beyond the scope of Section 8(b)(7)'s basic
proscription when it has concluded that the labor organization responsible was not
seeking "recognition" or "organization" as its immediate object. Local 259, In-
ternational Union United Automobile, Aircraft and Agricultural Implement Workers
of America, UAW, AFL-CIO (Fanelli Ford Sales, Inc.), 133 NLRB 1468 (picketing
to obtain reinstatement of a striker or discharged worker); International Hod Car-
riers, Building and Common Laborers Union of America, Local 840, AFL-CIO
(Charles A. Blinne, d/b/a C. A. Blinne Construction Company), supra (picketing to
protest a refusal to bargain, or other unfair labor practices of 'the employer); Houston
Building and Construction Trades Council (Claude Everett Construction Company)
136 NLRB 321 (picketing to protect area labor standards). Picketing conducted
to protest a firm's breaches of contract surely would likewise seem to merit charac-
terization as conduct not directed toward the statutorily proscribed "recognition"
objective.
When "breach of contract" picketing is involved, the statute's expedited election
procedure, pursuant to the mandate of Section 8(b)(7)(C)'s proviso, certainly
cannot be considered necessary or appropriate for a resolution of the specific "prob-
lems" which inspired the picket line. Since, in such cases, the picketing labor
organization's claimed right to bargain would be derived not merely from the statute
but from a contract found currently viable, statutory interpretations which, essen-
tially, would require it (1) to relinquish its right to claim contractual recognition,
and (2) to submit to a midcontract election test of its representative status as the
price for picketing, can hardly have been within congressional contemplation.
(The Board now permits recognized, though uncertified, bargaining representatives
without viable contracts but currently engaged in contract negotiations, voluntarily to
seek the benefits of certification through the filing of representation petitions Gen-
eral Box Company, 82 NLRB 678. And, consistently, the Board likewise permits
employers currently involved in negotiations with a previously recognized bargain-
ing representative looking toward renegotiation of a reopened contract, to file
representation petitions calculated to test such a representative's continued majority
status J. P. O'Neil, et al., d/b/a J P. O'Neil Lumber Company, 94 NLRB 1299;
union with currently viable contracts have not been required to terminate such con-
tracts whenever they seek a representation election , voluntarily, within employee
groups which they represent Lone Star Producing Company, 85 NLRB 1137.
Representation petitions filed by employers privy to current contracts with uncer-
tified unions, however, have been rejected whenever such contracts have been found
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficient to call for the Board's application of its contract-bar rules. Pazan Motor
Freight, Inc., 116 NLRB 1568, 1570. Most recently, the Board has concluded that
"where the incumbent union is the certified bargaining representative, a current
contract should constitute a bar to a petition by either of the contract parties during
the entire term of that contract" regardless of the fact that such a petition might
otherwise be timely under contract-bar rules. Montgomery Ward & Co., Incor-
porated, 137 NLRB 346. And, finally, the Board has held, consistently, that when
some "inicumbent, uncertified" union holds a current contract with an employer,
no representation petition filed by the employer will be entertained for the dura-
tion of the contract's term. The Absorbent Cotton Company, 137 NLRB 908. Since
the Board does not permit a contractually bound employer to avoid its valid com-
mitments or contractual obligations through the use of Board process, particularly
through the filing of representation petitions, statutory objectives could hardly be
promoted, with logical consistency, by a determination that unions privy to currently
viable contracts, whether certified or not, may be required to face the test of a rep-
resentation election, within a picketing context, upon pain of Board sanctions.)
For the reasons indicated, I find Respondent Council's picket line should not be
considered subject to proscription, pursuant to Section 8(b) (7) (C) of the statute.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and upon the entire record
in the case, I recommend that the present complaint against Building and Construc-
tion Trades Council of Ventura County be dismissed in its entirety.
Blue Motor Coach Company and General Drivers, Warehouse-
men and Helpers, Local Union No. 89, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America. Case No. 9-CA-2875. June 30,1964
DECISION AND ORDER
On April 28, 1964, Trial Examiner Samuel Ross issued his Decision
in the above-entitled proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices in viola-
tion of the Act, and recommending that Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Decision. Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the General Counsel
filed a brief in answer to the Respondent's exceptions and brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
1 Respondent takes exception to the Trial Examiner's conduct of the hearing, alleging
restrictions on its right to cross- examine , bias and prejudice, improper refusal to grant a
continuance, and a denial of due process. We are satisfied, on the basis of the entire
record, that these allegations are wholly without merit. The assertions of the Respond-
ent, whether based on the record or on alleged off-the-record conduct, do not indicate that
the Trial Examiner had prejudged this case or acted with any prejudice to Respondent.
To the contrary, the record discloses that the Trial Examiner conducted the hearing in
a judicial manner, and his Decision shows a thorough and careful appraisal of the facts,
wholly within the meaning of Section 102.35 of the Board 's Rules and Regulations,
Series 8, as amended. Therefore , we affirm the Trial Examiner 's denial of a continuance,
and we deny Respondent 's request for removal of the Trial Examiner.
147 NLRB No. 134.