Brotherhood Of Painters, Etc., Local Un. No. 171

National Labor Relations Board - Board Decisions

Jun 26, 1975

218 N.L.R.B. 944 (N.L.R.B. 1975)

944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Painters , Decorators and Paperhang-
ers of America, Local Union No. 171, AFL-CIO
and Centric Corporation . Case 27-CC-539
June 26, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 17, 1974, Administrative Law Judge
Louis S. Penfield issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
- Our dissenting colleague charges that we, in
adopting the Administrative Law Judge's Decision,
have failed "to focus on the principal disputants,"
asserting that the Respondent's dispute was not with
the Air Force and the-Corps of Engineers, but rather
with certain nonunion contractors, including Quality.
Thus, he concludes, the object of the Respondent's
picketing activity commencing on April 22, and
resuming on May 6, was to compel the above-named
governmental agencies and other neutrals to cease
doing business with Quality and other nonunion
contractors.
In our view, his argument is based on the faulty
premise that the Respondent's real dispute was with
parties other than the Air Force and the Corps of
Engineers . For, as the Administrative Law Judge
found, the record is replete with evidence document-
ing the Respondent's continuing dispute with the Air
Force and Corps of Engineers which long antedated
the Respondent's picketing in April. Thus, early in
the summer of the previous year, 1973, the Respon-
dent, along with other constituent members of the
Colorado Building and Construction Trades Council,
became alarmed over the failure of several Federal
contracting agencies to enforce evenhandedly certain
regulations ' applicable to military construction
projects in the Colorado Springs area. Specificall y,,
the Respondent and the other Council members
I These regulations, contained in CFR 29, Part 5a, were promulgated by
the Secretary of Labor in 1971, pursuant to various Federal laws and
executive orders.
2 Quality was a subcontractor of Woerfel.-Towne Construction Co. A
218 NLRB No. 146
asserted that the Air Force and the Corps of
Engineers, as the contracting agencies to whom such
regulations applied, were requiring union, but not
nonunion, firms to comply with certain affirmative
action apprenticeship programs. The Council assert-
ed that this disparate treatment, vis-a-vis nonunion
contractors, placed its members at a distinct disad-
vantage when bidding on Government construction
projects. Beginning in June, the Council contacted
various officials, including contracting officers with
the Air Force and the Corps of Engineers, an
assistant regional director of the Department of
Labor and a compliance officer of the Office of
Federal Contract Compliance, Department of Labor.
The Council also wrote letters to the Secretary of
Labor and the Building and Trades Department of
the AFL-CIO. Finally, in the fall of 1973, the
Council wrote letters to Senators and members of the
Colorado congressional delegation. By April 1974,
the Council had received numerous replies promising
consideration or investigation, but no investigation
or other definitive action had been undertaken.
On April 18, two employees of a nonunion
contractor at the Peterson Field construction project,
Quality Wall, Inc.,2 visited the office of Respondent's
business manager, Robert J. Elliot, and complained
that their hourly wage ($2.50) was below standards
required on Federal construction projects. Elliott
thought that the men were entitled to the journey-
man rate of $6.67, as determined under the Davis-
Bacon Act. Thereafter, Elliott contacted Air Force
personnel at Peterson Field and demanded that he be
granted permission to inspect documents which he
believed established the higher wage scale for the job.
His request was refused, and Elliott decided to
"advertise" Quality's substandard wage. Later that
day, and on the following day, Elliott placed a picket
at an entrance to Peterson Field with a sign bearing
the following legend:
Citizens of Colorado Springs, please join us in our
protest of unfair wages paid by Quality Painting
Company [sic]. We are not engaged in a strike or
boycott. Brotherhood of Painters and Allied
Workers, AFL-CIO, Local Union 171.
The foregoing activity was not alleged as violative of
Section 9(b)(4)(B), and was offered only as "back-
ground" to the picketing activity which followed.
Beginning on April 22, the Respondent picketed
both entrances to the Peterson Field project with
signs reading as follows:
third firm, Centric Corporation , was also engaged in construction work at
Peterson Field, but had no business relationship with either Quality or
Woerfel-Towne.
BROTHERHOOD OF PAINTERS , ETC., LOCAL UN. NO. 171
U.S. Air Force and U.S. Corps of Engineers
does not enforce federal law and regulations,
CFR 29 Part 5a. They discriminate against
minorities, organized labor and union contrac-
tors. Painters Local Union 171.
This picketing continued for several days, was halted,
and then resumed at the United States Air Force
Academy, also in Colorado Springs, on April 30. The
pickets were moved back to Peterson Field for
several days in May. Shortly thereafter, all picketing
by the Respondent in the Colorado Springs area
ceased as soon as the Respondent was assured that
the Department of Labor would conduct an investi-
gation of the service agencies ' alleged failure to
enforce Federal regulations.
As the Administrative Law Judge found, it is
abundantly clear that an object of the Respondent's
picketing was to-compel the Air Force and the Corps
of Engineers to enforce certain regulations on
federally funded construction projects. The Respon-
dent's (and the Council's) running dispute with these
Federal agencies had begun -almost a year before and
involved various governmental agencies, officers, and
representatives. The sign used during the alleged
unlawful picketing (i.e., after April 22) unmistakably
identified both the dispute and disputants-the
Respondent and the armed services agencies-and
no one else . It is true that the complaints of two
employees of a nonunion contractor, triggered the
Respondent's decision to further "advertise" this
dispute, and that the Respondent decided to name
the contractor, Quality, allegedly favored by the
disparate enforcement of Federal regulations. But
this "background" regarding Quality, not even
alleged as unlawful, only sheds ,light on the underly-
ing dispute, and, without more, does not convince us
that the nature of the dispute -had dramatically
changed to one which involved the Respondent and
Quality, Woerfel, or the other contractors on the
Peterson Field project. At best this "background"
evidence is ' equivocal, as the Administrative ' Law
Judge concluded, because it is undisputed on this
record that at no time did the'Respondent appeal to
any employees of Quality, or the employees of any
other' nonunion firm, or try to solicit or organize
them in any way. Indeed, the Respondent even
carried 'on its picketing activity at a site (i.e., the Air
Force Academy) where none of the employees of
Quality or any of the other Peterson Field contrac-
tors was engaged . Finally, all picketing immediately
ceased once the Respondent received positive assur-
ances that an investigation would be conducted, thus
3 Local 3, International Brotherhood of Electrical Workers, AFL-CIO
(Mansfield Contracting Corporation), 205 NLRB 559 (1973); New York
District Council No. 9, Brotherhood of Painters, Decorators and Paperhangers
945
ending a yearlong effort to call attention to alleged
abuses committed by the armed services agencies.
To be sure, the April 22 picketing had the effect of
causing some union employees of Centric to walk off
of the Peterson Field project, but, standing alone,
this circumstance does not support an inference that
the Respondent intended its picketing to have this
effect. Indeed, the contrary is true; for, when
interviewed by a newsman on April 23, Elliott
responded by "ask[ing] union painters and other
construction unions at Peterson Field- not to honor
the picket," and by stating that the Respondent "was
just advertising the injustice of the Government's
interpretation of the law [i.e., CFR 29, Part 5a]."
Nothing so clearly illustrates the limited object of the
Respondent's picketing activity than the foregoing.
In sum, we do not find that the General Counsel
has shown by preponderate evidence that the
Respondent engaged in conduct violative of Section
8(b)(4)(B).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
MEMBER KENNEDY , dissenting:
The issue is whether the Respondent Union
picketed a jobsite on April 22 to 26 and May 6 to 8,
1974, with an object of forcing Government agencies
and other neutral persons to cease doing business
with contractors with whom the Union had a dispute.
The Administrative Law Judge found that the Union
picketed the United States Corps of Engineers and
the Air Force solely to publicize a dispute it had with
those agencies and without an object of forcing
anyone to cease doing business with another. The
majority affirms that fmding. In my view the
evidence compels an affirmative answer to the
question in issue and establishes that the Union
violated Section 8(b)(4) herein.3
The essential facts are not disputed. In April and
May 1974, Woerfel was engaged in building housing
for the United States Air Force at Peterson Field,
Colorado. Quality, a subcontractor of Woerfel,
performed painting and drywall work on the housing
project. Centric, the Charging Party in this case, was
engaged in other work for the United States Army
Corps of Engineers at Peterson Field, Centric's work
was unrelated to that being performed by Woerfel
of America, AFL-CIO (Strip Clean Floor Refinishing &Painting Corp.) 185
NLRB 293 (1970) (with Member Jenkins in agreement ), e nfd. 79 LRRM
2703 (C.A. 2, 1971), cert. denied 79 LRRM 2803 (1972).
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Quality, and Centric had no business relation-
ship with either of them. All employees coming to
work on any Peterson Field project used only two
entrances to the field: Peterson Street and Aviation
Way.
Immediately preceding the dates in issue, Respon-
dent had been picketing at Peterson Field because of
a labor dispute it had with Quality. Respondent's
business manager, Elliott, testified that about April
18 two Quality employees reported to him that they
believed that their wages were below the wage scale
required on Federal construction jobs. Elliott said
that he was unable to verify this report with Air
Force personnel and decided to advertise Quality's
substandard wage by picketing. Respondent picketed
for 2 days at the Aviation Way entrance to Peterson
Field. The picket sign read:
Citizens of Colorado Springs, please join us in our
protest of unfair wages paid by Quality Painting
Company. We are not engaged in a strike or
boycott. Brotherhood of Painters and Allied
Workers, AFL-CIO, Local Union 171.
Respondent stopped picketing after it received a
telegram from Centric advising that Centric intended
to take legal action if it did not stop.
Soon after the picketing began, Centric notified
Respondent that Centric was a neutral employer and
not Quality's contractor; that a separate entrance
had been established on Peterson Street for Quality
and a separate entrance on Aviation Way for neutral
contractors such as Centric, their subcontractors,
their employees, and their suppliers; and that
Respondent was picketing the neutral entrance and
involving neutral employers and employees. The
telegram' ended, "We demand that you cease
picketing the neutral entrance or else unfair labor
practice charges and/or a damage action will be
filed."
Respondent then stopped the protested picketing
but resumed it from April 22 through 26 at both
Peterson Field entrances, Peterson Street and Avia-
tion Way, used by all employees who worked at
Peterson Field. It changed its picket sign to read:
U.S. Air Force and U.S. Corps of Engineers
does not enforce federal laws and regulations,
CFR 29 Part 5a. They discriminate against
minorities, organized labor and union contrac-
tors. Painters Local Union 171.
A majority of union personnel on Centric projects at
Peterson Field refused to work when the picketing
commenced - on April 22. Employees of Centric's
4 Johnson's position was Associate Assistant Regional Director, Wage
and Hour Division.
subcontractors told Centric's superintendent that
they would not work behind the picket line.
From April 30 through May 5 Respondent picket-
ed at the United States Air Force Academy (also in
Colorado Springs) where, according to Elliott, it had
the same problems that it had at Peterson Field but
with a different contractor. On May 6 Respondent
returned to Peterson Field to picket.
It resumed picketing on May 6 at the Aviation
Way entrance to Peterson Field. This activity
continued until May 8 when the business manager, of
the Colorado Building and Construction Trades
Council, Donlon, was advised that the contracting
agency would not investigate complaints unless
Elliott removed the picket.
Testimony by Government and union representa-
tives shows the nature of the controversy. - Labor
Department Official Johnson4 testified that in April
1974 Respondent's business manager, Elliott, told
him that Quality was paying substandard wages, that
Elliott was "not necessarily" asking the Government
to terminate the contract of an offending contractor
but to insure that the contractor paid the appropriate
wage. Johnson said that he also talked to Trades
Council Business Manager Donlon regarding several
Arms and the removal of the pickets before any
investigation could take place.
Elliott testified that Respondent picketed at Peter-
son Field on April 18 to advertise Quality's substan-
dard wages, but that the picketing, only a few days
later, beginning on April 22, was to advertise a
dispute with the United States Air Force and the
Corps of Engineers. Elliott was not asked specifically
the purpose of the May 6 to 8 picketing. He stated
generally that, while Respondent's dispute was with
nonunion subcontractors on military construction
projects, it was also with the Government agencies
which were not requiring nonunion subcontractors to
comply with Federal regulations. He said that, when
he could not determine from the Government
contracting agency Quality's wage , rates, he "fig-
urp[d ] out the lesser of two' evils and that our biggest
fight was with the United States Government," and
that he then established the April 22 pickets. Elliott
referred to Department of Labor regulations govern-
ing employment of apprentices,5 intended, he said, to
insure employment of minorities. He said that union
contractors adhered to such regulations but 'non-
union contractors did not.
Elliott further explained Respondent's dispute with
Quality. He testified that the journeyman pay rate, as
determined under the Davis-Bacon Act, was $6.67 an
hour. He testified that he received complaints from
two of Quality's employees that Quality paid only
5 Resp. Exh. 2.
BROTHERHOOD OF PAINTERS, ETC., LOCAL UN. NO. 171 947
$2.50 an hour, and that, as Quality did not have the
type of apprenticeship program Respondent thought
it should have, he thought that Federal regulations
required that Quality pay a higher journeyman rate.
While conceding that he knew Quality had an
approved apprenticeship program, Elliott also
seemed to complain that Quality was not paying
certain monetary amounts, based on number of
employees, into the industry apprenticeship training
fund .6 According to Elliott, union contractors' higher
labor standards, together with their employment of
less productive, untrained apprentices, placed union
contractors at an economic disadvantage in contract
bidding.
Elliott equivocated when asked the purpose of the
picketing. In reply to counsel for the General
Counsel's question whether the purpose was "to
force or require the Corps of Engineers and the Air
Force to cease doing business with Woerfel-Towne,"
Elliott qualified his answer with a question. He
replied, "No. How could I do that? They issued the
contract. How would my little old picket stop them?
You give me credit for more power than I have got, I
am afraid." Subsequent to this questionable denial,
Elliott answered more directly. But correspondence
in late 1973 between the Trades Council and
Government contracting agencies shows that the
Council had requested Government contracting
agencies to cease doing business with Woerfel and
desired that these agencies stop contracts with
nonunion contractors until the latter came into
compliance with apprenticeship regulations.7
On these facts the Administrative Law Judge found
that Respondent Union had no specific dispute with
Quality; that its dispute was with the United States
Air Force and Corps of Engineers which would not
require nonunion contractors and subcontractors to
comply with Federal regulations respecting employ-
ment of apprentices; and that the picketing on April
22 and May 6 was undertaken to publicize this
dispute. He therefore held that Respondent did not
intend to induce the Government agencies to remove
Woerfel, Quality, or other contractors from Govern-
ment projects, to induce Woerfel to cancel Quality's
subcontract, or to induce union members employed
on the various construction jobs at Peterson Field to
stop working. The majority adopts these findings.
Contrary to the majority, the factual picture shows,
as the General Counsel contends, that Respondent's
6 Department of Labor regulations, as introduced in the record and
retied on as the basis of Respondent 's complaint against nonunion
contractors and the Government , do not mention monetary contributions to
apprenticeship training funds . Resp. Exh. 2.
7 Resp. Exit. 27. As described by Respondent's business manager, Elliott,
Respondent and the Council were "in this fight together."
8 "... it has become settled that the mere language of the picket sign
does not of itself establish the legality of the picketing nor even its real
dispute was with Quality and other nonunion
contractors and subcontractors which did not em-
ploy apprentices and that Respondent's picketing
was directed against neutrals, such as Centric and the
Air Force, to force them to cease doing business with
Woerfel or other contractors using subcontractors
like Quality, and, similarly, to cause employees of
neutrals to cease working.
The recital of the uncontroverted facts demon-
strates that Respondent's dispute was with nonunion
employers which did not adopt labor standards like
those of union contractors. The majority's view of
the dispute as one between Respondent and the
Government fails to focus on the principal dispu-
tants. While Respondent's business manager, Elliott,
testified, at times, that Respondent's dispute was
with the Government, his testimony can only be
described as equivocal for he also testified that the
dispute was with contractors who did not adopt
union standards.
The only employers who could correct the situation
which Respondent deplored were the ones who did
not adopt wage and apprenticeship standards which
Respondent was insisting upon. That was the
message on the original April 18 picket signs. It
advertised a dispute with Quality, a nonunion
subcontractor. The change in wording on later signs
did not alter the nature of the primary dispute, which
had not been resolved.8 We observe that new picket
signs, first used on April 22, naming Government
agencies, were coincident with Centric's notice to
Respondent that a separate entrance to Peterson
Field had been established for Quality's employees.
Nevertheless, the Union picketed the neutrals'
entrance on Aviation Way used by Centric and
others coming to do business and work at all projects
at Peterson Field, as well as Quality's Peterson Street
entrance. And the picket was successful in causing
union personnel on Centric projects to refuse to
work. When Respondent moved its picketing to the
Air Force Academy on April 30, it was because it
had "the same problems" with another contractor
that it was having with Quality at Peterson Field.
When Respondent returned to Peterson Field on
May 6, there had been no resolution of its dispute
with Quality or with other employers which did not
employ apprentices under standards demanded by
Respondent. The facts leave no doubt that Respon-
dent embroiled Government agencies and other
object or objects. Thus, even though a picket sign expressly states that it is
informational for `customers and the public only,' with no oral supplemen-
tation by pickets, it has been held that the picketing may nevertheless be
violative of the Act. See, e.g ., N.L R.B. v. Local 254, Bldg. Service Employees,
376 F.2d 131 (C.A. 1), cert denied 389, U.S. 856 ...." Mansfield
Contracting Corporation, supra, Administrative Law Judge 's Decision at sec.
III, B, 3.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neutral persons, with whom Respondent had no
dispute, in a controversy between it and primary
employers by pressuring the neutrals not to do
business with the primary employers and by pressur-
ing employees of neutrals to withhold their services
from the neutral employers. Mansfield Contracting
Corporation, supra; Strip Refinishing & Painting Corp.,
supra.
The court-approved principle of the above-cap-
tioned cases is that Section 8(b)(4)(B) of the statute
protects Government agencies from secondary pres-
sures that "threaten, coerce, or restrain" the same as
it does in the case of a private person. Respondent
stands in no better position when the neutrals it
pressured included a Government agency. Signifi-
cantly, the Administrative Law Judge and my
colleagues in the majority make no mention of these
controlling precedents. They appear to assume that
Respondent's pressuring Government contracting
agencies immunized Respondent from the proscrip-
tions of the statute. But a union's right to appeal to a
Government agency is not in issue here. Significant-
ly, the Union pressured neutrals other than Govern-
ment agencies . As Respondent's primary dispute was
not with the Air Force and the Corps of Engineers,
Respondent's picketing of these agencies and other
neutrals with an object to compel them to cease
doing business with nonunion contractors was for a
statutorily proscribed object.
Moreover, as demonstrated above, Respondent did
not isolate its asserted governmental dispute. It
pressured other neutral persons and their employees
working at Peterson Air Force Base or coming there
for business reasons . The Board held in Mansfield
Corporation, supra, adopting the Administrative Law
Judge's statement, that "violation of Section 8(b)(4)
requires only that an object of the challenged activity
be within that section's proscriptions; not that every
object be."
The General Counsel has proved that Respondent
had a longstanding dispute with the nonunion
contractors whose actions prompted the picketing;
Quality's actions, while recent, were just the latest in
a running dispute with the nonunion contractors;
Respondent's initial picket sign named Quality as the
offending employer; Respondent ceased picketing
Quality only when Centric threatened it with legal
action; Respondent designated the Air Force and
Corps of Engineers, on its picket sign only when it
resumed picketing at the two entrances to Peterson
Field; and it picketed the Air Force Academy
because of a dispute with still another contractor.
Respondent ceased picketing only because Labor
Department officials would not undertake an investi-
gation of its complaint unless it did.9
I find that the General Counsel has proved that
Respondent coerced and restrained neutral persons
for the statutorily proscribed object of forcing them
to cease doing business with Quality and others.
9 The newspaper report of Respondent business manager's self-serving
statement that he told employees not to honor the picket line obviously has
no bearing upon an ascertainment of Respondent's object.
DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD , Administrative Law Judge: This
proceeding was heard before me in Colorado Springs,
Colorado, on August 6, 1974. The complaint is based on a
charge filed by Centric Corporation on April 23 , 1974. The
complaint alleges Brotherhood of Painters , Decorators and
Paperhangers of America , Local Union No. 171, AFL-
CIO, herein called Respondent , engaged in unfair labor
practices violative of Section 8(b)(4)(i ) and (ii)(B) of the
Act. All parties were given full opportunity to participate
in the hearing and after the close thereof the General
Counsel and Respondent each filed a brief.
Upon the entire record in this proceeding and upon my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
Centric Corporation, the Charging Party, herein called
Centric, is a general contractor in the building and
construction industry . Since on or about May 15, 1973,
Centric had a contract with the United States Army Corps
of Engineers , herein called the Corps of Engineers, to
construct a headquarters building at Peterson Field,
Colorado, for use of the United States Air Force. The total
value of services and materials provided for in the contract
exceeded $1 million . Since on or about June 17, 1974,
pursuant to another contract with the Corps of Engineers,
Centric has been engaged in the construction of a data
processing center also at Peterson Field and also for the
use of the United States Air Force . Total value of services
and material to be provided pursuant to this contract
exceeds $1 million . I find the total value of the goods and
services which have been, and which will be , furnished by
Centric at these Peterson Field projects to have a
substantial impact on National Defense and assertion of
jurisdiction in a proceeding involving Peterson field
construction projects to be appropriate, pursuant to
existing Board policies.
Although the General Counsel relies on the Centric
contracts with the Corps of Engineers for jurisdictional
purposes , the complaint also alleges that another contrac-
tor, Woerfel-Towne Construction Co., herein called Woer-
fel, also had a contract with the Corps of Engineers, for the
construction of base housing at Peterson Field . It is further
alleged that Woerfel had subcontracted certain dry wall,
painting, and insulation work on its construction project to
Quality Wall, Inc., herein called Quality.
BROTHERHOOD OF PAINTERS , ETC., LOCAL UN. NO. 171 949
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
This proceeding concerns the lawful or unlawful nature
of certain picketing which commenced on April 22, 1974,
at Peterson Field, an armed forces installation in Colorado
Springs, Colorado. The picketing is alleged as coercive
conduct directed at Centric, Woerfel, and others, and also
to be conduct that induced individuals employed on
Peterson Field Construction projects to strike or cease to
work. The General Counsel claims the picketing to have
had an object of "forcing or requiring" the Corps of
Engineers or the Air Force to "cease doing business with
Woeri[el," or to force Woerfel "to cease doing business with
Quality" and thus to have been unlawful within the
meaning of Section 8(b)(4)(i) and (ii)(B). Respondent
contends that it did not picket for an unlawful object.
Respondent asserts that it conducted the picketing in a
lawful manner with the sole object of protesting the failure
or refusal of the Air Force or the Corps of Engineers to
comply with certain "laws of the United States, executive
orders of the President , and rules and regulations issued
thereunder.... "
We will first consider the nature of the picketing and its
effect, then the alleged lawful or unlawful objects, and
finally evaluate the significance of what transpired in terms
of the statutory mandate.
A. The Job Projects at Peterson Field and the
Picketing Which Took Place
At the time the picketing commenced on April 22,
Centric was engaged in the construction of an administra-
tion building and a data processing center at Peterson
Field. At the same time, Woerfel was working on the
construction of a housing project also located on Peterson
Field, Centric and Woerfel had no business relationship
whatsoever with one another. Employees coming to work
on any Peterson Field project could reach their respective
worksites through only two entrances, one known as the
Peterson Street entrance, and the other as the Aviation
Way entrance.
Quality, a subcontractor of Woerfel, was engaged in wall
board and painting work on the housing project. This is a
type of work which falls within Respondent's jurisdiction.
Quality was at the time a nonunion contractor. It is not
shown that at any time Respondent had ever undertaken to
organize Quality's employees, or that it had approached
such employees or the Quahty management for any
purpose either relating to Quality's work at the Peterson
Field project or anywhere else.
Robert J. Elliot, business manager of Respondent,
testified that on or about April 18, two employees who had
been working for Quality, at the Peterson Field project
came to his office, and advised him that they believed they
were being paid, below the prevailing scale required for
Federal construction jobs. Elliot undertook to confirm this
information through United States Air Force personnel at
Peterson Field. He was refused permission by such
personnel to inspect documents which he believed would
have established the scale for the job. Elliot was convinced
that he had a right to inspect these documents because they
concerned information relating to compliance by contrac-
tors with existing Federal laws and regulations. After being
rebuffed, Elliot decided that he "would advertise Quality
Wall's substandard wage by picketing." On April 18 or 19,
Elliot placed a picket at the Aviation Way entrance to
Peterson Field, carrying a sign bearing the following
legend:
Citizens of Colorado Springs, please join us in our
protest of unfair wages paid by Quality Painting
Company. We are not engaged in a strike or boycott.
Brotherhood of Painters and Allied Workers, AFL-
CIO, Local Union 171.
Shortly after the picketing started, counsel for Centric
sent a telegram to Respondent asserting that Woerfel, not
Centric, was the only one involved with Quahty, that
Respondent's dispute appeared to be with Quality and
therefore that a separate entrance had been established for
Quality employees on Peterson Street, with a neutral
entrance being maintained at Aviation Way for the use of
neutral general contractors such as Centric, its subcontrac-
tors and their employees and suppliers. The telegram
protested the picketing at the neutral entrance which it
claimed had the effect of involving neutral employers and
their employees in Respondent's dispute with Quality, and
it demanded that Respondent cease picketing such neutral
entrance, or else unfair labor practices would be filed.
After 2 days, the picketing at the Aviation Way entrance
with the above-described picket signs ceased. The com-
plaint does not allege this picketing to have been unlawful.
The evidence relating thereto came into the record solely
for background purposes.
On April 22, pickets appeared at both the Peterson Street
and Aviation Way entrances carrying signs bearing the
following legend:
U. S. Air Force and U. S. Corps of Engineers does
not enforce federal laws and regulations, CFR 29 Part
5a. They discriminate against minorities, organized
labor and union contractors. Painters Local Union 171.
Respondent denies any specific dispute with either
Woerfel or Quality. Respondent contends its picketing at
all times to have been directed solely at the Air Force and
Corps of Engineers and to have had the sole purpose of
publicizing a longstanding dispute with those armed
service agencies concerning the uniform application of
certain Federal laws and regulations on federally funded
construction projects.
Picketing with the foregoing legend continued at both
the Peterson Field gates throughout the week of April 22.
The pickets were removed from these gates at that time,
but commencing on April 30 and continuing through May
5, appeared at the United States Air Force Academy also
located in Colorado Springs with signs carrying the same
legend . Neither Woerfel, Quality, nor Centric was involved
on construction projects at the Academy during that week.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The pickets were moved back to Peterson Field entrances
in the week following May 5 , but were removed shortly
thereafter when Respondent was assured that the Depart-
ment of Labor would conduct an investigation of the
dispute relating to the Federal regulations, but that such
investigation would not proceed while picketing continued.
James Greer, superintendent of- the Centric projects at
Peterson Field, testified that a majority of the union
personnel on the Centric jobs refused to work when the
picketing commenced on April 22. Greer stated that the
laborers did continue to work , but that carpenters, iron
workers, electricians and plumbers did not . Greer was told
by several employees that their refusal to work came about
because of the pickets . Greer had no communication with
the pickets themselves . He states that he made efforts to
communicate with the business agents of some of the local
unions involved, but he does not report what he was told
by any of them . Employees who were members of the
carpenters union and iron workers union came back to
work within a day or two after the picketing started.
However, electricians and plumbers who were members of
their respective unions , did not return until after the
pickets had been removed.
Elliot testified without contradiction that he had never
requested or suggested to any representative of the Corps
of Engineers or the Air Force that Woerfel be removed
from the project , nor had he requested or suggested to
Woerfel that it cease doing business with Quality . ' Elliot
also denies that Respondent ever had , or expressed, the
broader general purpose of forcing or requiring the Corps
of Engineers or Air Force to cease doing business with all
nonunion contractors . Elliot states that Respondent at no
time intended or directed that any employees working on
any Peterson Field project should cease work because of
the picketing . The legend on the picket sign is not
inconsistent with this statement, and it is not shown that
the pickets themselves or any representative of Respon-
dent , or any other union , asked any employee working on a
Peterson Field project not to cross the picket line. In a
Colorado Springs newspaper of general circulation dated
April 23 , 1974, the day following commencement of the
alleged unlawful picketing , Elliot, after describing the
dispute as being with the Corps of Engineers and the Air
Force, is quoted as stating that he had "asked union
painters and other construction unions at Peterson Field
not to honor the picket line." In the same article , Elliot is
further quoted as stating that by picketing the Union was
"just advertising the injustice of the Government 's inter-
pretation of the law."
B. The Federal Laws and Regulations and the
Efforts of Respondent and Other Unions To End
Their Alleged Discriminatory Enforcement
Respondent's defense is predicated upon its insistence
that at no time did it picket with an unlawful object. As
above indicated, Respondent insists that at all times its sole
picketing object was to publicize the alleged failure of the
Corps of Engineers and Air Force to require equitable
compliance on the part of all contractors who had obtained
construction contracts at Colorado armed services projects,
with certain Federal regulations . The thrust of the action is
directed at the Corps of Engineers and the Air Force
because as the contracting agencies they have the primary
obligation by law to see that such regulations are fully and
equitably complied with. The picketing followed extensive
efforts by Colorado construction industry unions directed
at these two agencies, as well as other government sources,
seeking investigation of, and a remedy for, these alleged
unlawful practices.
The Federal regulations which are of particular concern
to us here relate principally to the implementation of an
apprenticeship program designed to insure that minorities
will have equal opportunities to participate in training
programs which may qualify the participants for journey-
man status in various construction industry crafts.
Regulations resulting from the laws or executive orders,
generally designated in this record as CFR Part 5a, were
promulgated by the Secretary of Labor in 1971 and were to
be made applicable to all Federal construction contracts
after January 30, 1972. In substance, the regulations
require that contracting agencies using Federal funds must
demand clauses in all construction contracts in excess of
$10,000 requiring the contractors to employ apprentices or
trainees on the project at a ratio of journeymen to
apprentices which has been established by the Secretary of
Labor. The definition of a Federal contracting agency
would include the Corps of Engineers and the Air Force.
An apprentice is defined as any person individually
registered in a bona fide apprenticeship program registered
with the United States Department of Labor or a state
apprenticeship agency recognized by the Department. A
trainee is defined as a person receiving on-the-job training
in a construction occupation. Contractors bound by these
regulations include both the prime contractor and any
subcontractors working for him. These contractors must
agree to make "diligent efforts" to hire apprentices or
trainees on their projects in the appropriate ratios, and to
assure that 25 percent of such apprentices arein their first
year of training. A contractor, of course, will be deemed to
have fulfilled his "diligent efforts" when he actually
employs the appropriate ratio number. However, the term
"diligent efforts" is not precisely defined, and apparently
its application in any particular situation is left to
determination by the contracting agencies . Complaints that
the contracting agencies are not requiring full compliance
with these regulations may be considered by the Depart-
ment of Labor.
It is Respondent's contention that with the advent of
these regulations member unions of the Colorado Building
and Construction Trades Council, herein ^ called the
Council, including Respondent, immediately undertook to
and did establish joint apprenticeship training programs
which fulfilled the requirements of the Federal mandate,
and which resulted in the union contractors in the
Colorado area having available to them a supply of
apprentices that would enable them to meet the required
ratios on the Federal jobs. On the other hand, Respondent
claims that nonunion contractors either would not, or were
unable to, promote similar programs, with the result that in
most instances they did not have available an adequate
reservoir of apprentices to meet the requirements of the
regulations . When a contractor meets the required ratio of
BROTHERHOOD OF PAINTERS , ETC., LOCAL UN. NO. 171 951
apprentices to journeymen , he incurs added costs since in
the first 2 years of training apprentices do not produce as
efficiently as journeymen. Respondent contends that the
Corps of Engineers and Air Force by equating the so-
called diligent efforts of the nonunion contractors with the
actual accomplishments of the union contractors provided
the firmer with a cost advantage when bidding on Federal
construction projects. The effect was to reward their failure
to _ achieve the objectives of the Federal program, and to
penalize the union contractors who had actually met the
requirements . It is the alleged . failure of the Corps of
Engineers and the Air Force to insist that similar standards
of compliance be demanded of all contractors that is the
core of the, dispute.
While at Peterson Field it was Respondent alone that
conducted the picketing, the Council, acting for all of its
members, including Respondent, had been pressing for an
investigation of and a remedy for the alleged inequities.
Commencing in the fall of 1973, the president of the
Council lodged complaints by letter, and otherwise, with
the contracting agencies themselves , with Congressmen
and Senators , with the Secretary of Labor, and with local
representatives of the Department of Labor. Copies of
many of the letters sent, and the replies thereto are in the
record. By April 1974, this extensive correspondence had
produced numerous replies promising consideration or
investigation and setting forth a variety of interpretations
regarding the regulations. However, these efforts had
resulted in no definitive action taken to correct the alleged
problem, nor had they prompted an on-the-site investiga-
tion of the practices which were allegedly taking place.
Thus, Respondent represents that As picketing was
instituted to dramatize and publicize this past failure to get
action, with the hope that it might prove a means of
bringing about a definitive resolution. As we have seen,
following the commencement of the picketing, both
Respondent and the Council renewed efforts to have the
local representatives of the Department of Labor initiate
an investigation of these complaints. This time they were
successful, and with the removal of the pickets an
investigation was launched which was still in process at the
time of the hearing.
C. Discussion of the Issues and Conclusions
There will be an 8(b)(4)(B) violation where the conduct
of a union is found to have induced or encouraged
employees to strike, or is found to have threatened or
coerced an employer, and in either case an object of such
conduct is one proscribed by the statute, such as "forcing
or requiring any person . . . to cease doing business with
any other person..... If there exist dual objects, and one
is proscribed, there will be a violation even though the
other object is a lawful one. In the instant case we have
before us an issue of whether there were dual objects of this
nature.
Picketing will usually be found to encompass both
inducement of employees 'and coercion of the employer,
but there may be circumstances which would negate this
effect. Respondent here contends that it picketed neither to
induce employees or coerce employers unlawfully. There is
some question if such intent was made sufficiently clear,
but whether or not this be so, Respondent's principal
defense rests on the claim that it has not been established
in this record that the picketing was for a proscribed "cease
doing business" object.
The General Counsel's theory of a statutory violation
appears to rest on the following rationale : that Respon-
dent, upon learning that Quality was paying substandard
wages picketed the Peterson Field gates on April 18,
specifically naming Quality on the picket signs carried;
that such conduct suffices both to support an inference
that Respondent had a dispute with Quality, and to
establish that its picketing had an object of putting
pressure on the Corps of Engineers or the Air Force to
cease doing business with Woerfel , or upon Woerfel to
cease doing business with Quality; that the Corps of
Engineers, the Air Force, Woerfel, and Centric were all
neutral with regard to Respondent's dispute with, Quality,
thus the picketing of the project was designed unlawfully to
enmesh them in a dispute not their own ; that although this
initial picketing is not alleged in the complaint to have
been unlawful , the new picketing commencing on April 22
amounted to an extension of it and was undertaken for the
same purposes, with the change in the picket sign language
amounting to no more than a change in tactics brought
about because a reserved gate had been established for
Quality employees; and that since the picketing has
induced employees of Centric and its subcontractors to
leave their jobs and it has an unlawful object, there is an
8(b) (4)(B) violation not affected by the existence of a
simultaneous dispute with the armed services relating to
the equitable application of Federal regulations.
The theory of the General Counsel as outlined above is
tenable only if it can be found to rest upon a solid factual
basis. I am not convinced from the record before me that
such a basis has been established on grounds that are more
than matters of,conjecture.
The General Counsel attaches too little significance to
the longstanding dispute which all the Colorado construc-
tion unions had with the armed services agencies in
Colorado. Their complaints regarding the equitable appli-
cation of Federal regulations commenced in the late
summer of 1973. Correspondence introduced in the record
shows broad scale and continuing efforts directed at a wide
variety of persons and agencies aimed at bringing about an
investigation of alleged inequities which might lead to an
acceptable resolution . The record is clear, however, that
responses to these complaints by April 1974 had neither
resulted 'in any real investigation, nor produced any other
action directed at a solution of the problem. While this
agency is clearly not the forum for considering the merits
of these claims, it is readily apparent that they encompass
matters of understandable concern to building trades
unions if in fact it be true that the application of the
regulations placed union contractors at a disadvantage
when bidding for construction contracts on Colorado
military installations. Thus, we find the events of April
1974 taking place against a background of a specific, long
established, and significant dispute directly with the Corps
of Engineers and the Air Force. While the statute may in
some instances , preclude Respondent from involving
neutrals in a dispute of this nature, the continuing
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existence and significance of the dispute even should not
be ignored in evaluating the events which transpired.
The General Counsel appears to regard the report of
substandard wages by Quality employees, and the mention
of Quality on the initial picket sign as sufficient to establish
that Respondent had a real dispute with Quality, and that
it was undertaking to resolve it by pressing neutrals to
bring about the removal of Quality front the jobsite. Such a
conclusion appears to rest on tenuous grounds at best.
While it may be assumed that any labor union would
prefer that all contractors have union contracts, or pay
union scale, the record does not show Respondent taking
active steps to pursue such objectives. There is no evidence
whatsoever that Respondent had at any time, specifically
sought to organize or bargain for Quality's employees or
indeed that it was, or ever had been, pursuing any general
campaign to enlist the unorganized contractors in its, craft.
Respondent learned of the substandard wages not in the
course of organizing , or in pursuits directed at any
contractors , but from employees that voluntarily came to
it. Respondent's followup upon receiving such information
was not to go -to Quality, or any other project contractor,
but to go directly to the Air Force . This suggests that it
viewed the information as evidence that the long-protested
inequities were continuing . The armed services agencies
had primary responsibility for insuring compliance `with
the Federal regulations . No reason appears why this might
not have been achieved by merely requiring that an
offending contractor shape up' rather than that he be
removed from the job. Only when rebuffed by the Air
Force did Respondent decide to publicize the fact of the
substandard wages by picketing . Under the circumstances
naming Quality on the picket sign does not necessarily
signify a dispute with Quality, but may have been done for
purposes of identification. I view such equivocal conduct
occurring against the background of Respondent's dispute
with the ,- armed services agencies as providing scant
support for an inference that Respondent either had a
specific dispute with Quality or had the dual object of
putting pressure on neutrals to gain the removal ] of Quality
from the job. Under the circumstances I find there to be
insufficient evidence to, support a fording that the initial
picketing commencing on April 1§ was for an ' object
proscribed by Section 8(b)(4)(B).
As noted above the initial picketing with the picket, signs
naming Quality is not even alleged to be unlawful. I have
found that such picketing did not have 4 proscribed object.
Thus, if the picketing commencing on April 22 is -to be
found unlawful such finding must rest on circumstances
other than a carryover from the earlier activity. The April
22 picket signs not only make no mention- of Quality, but
they are tailored to describe the dispute with the armed
services agencies . Nothing occurred in the course of the
picketing , either on the picket lines, or in connection with
any project contractors, armed services personnel, , or
project employees suggesting that Respondent was pressing
for Woerfel's or Quality's removal from the job, or even
was seeking to have employees of project contractors
observe the picket lines . On the contrary, Elliot himself
related to the general public in the newspaper story on
April 23 the limited character of the dispute, and
represented that the picketing was not aimed at keeping
project employees off the job. While there is no evidence
that Elliot, or any other construction industry union
representative , affirmatively directed project employees
who had left, their jobs because of the pickets to return to
work, neither is there evidence that anyone of them gave
any indication to the contrary. This does not negate the
fact that the picketing actually did induce some project
employees of neutral employers to leave their jobs, but it
does suggest that this was not Respondent 's intent and that
the sole object of the picketing was what Respondent
claims . This is likely, for had Respondent also had a "cease
doing business" object, as the General Counsel claims, it is
doubtful that it would have taken any steps calculated to
have employees cross its picket line.
The removal of the pickets to the Air Force Academy
where neither Woerfel nor Quality was present lends
further credence to Respondent's claim that the sole object
of the picketing concerned the dispute with armed services'
agencies , and did not include an additional unlawful
object. Finally, the circumstances which led to the removal
of the pickets altogether give further support to Respon-
dent's assertion as to object . Respondent had long been
pressing for investigation and resolution of the alleged
inequities in the application of the regulations. The
picketing precipitated such an investigation provided
Respondent removed the pickets . The pickets were
removed, and the investigation proceeded without regard
to the continued presence of Woerfel and Quality on the
jobsite.
In view of the foregoing, I am convinced and find that
the General Counsel has not established by a preponder-
ance of evidence that Respondent's picketing at Peterson
Field had the unlawful objects alleged °of either bringing
about the removal of Woerfel, the prime contractor, or the
removal of Quality, the subcontractor; frpm Peterson Field
construction projects. On the contrary, I find that
Respondent had no specific dispute with Quality, and that
it undertook the picketing solely to publicize and drama-
tize its longstanding dispute with the Corps of Engineers
and the Air Force relating to the equitable application of
Federal regulations , and that in pursuit of such object it
did not seek to, nor ' did it, involve neutrals 'by unlawful
inducement of their employees. Accordingly, I find that it
has not been established in this record by a preponderance
of evidence that Respondent has engaged in conduct
violative of Section 8(b)(4)(i) and (ii)(B) of the Act, and I
shall recommend that the complaint be dismissed in its
entirety.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Brotherhood of Painters , Decorators and, Paperhang-
ers of America, Local Union No. 171, AFL-CIO, the
Respondent herein , is a labor organizatign within the
meaning of Section 2(5) of the Act.
2. Respondent has not engaged in' unfair labor prac-
tices as alleged in the complaint.''
BROTHERHOOD OF PAINTERS , ETC., LOCAL UN. NO. 171 953
Upon the foregoing findmgs of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
ORDER1
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes.