Carpenters Dist. Council

National Labor Relations Board - Board Decisions

Feb 23, 1972

195 N.L.R.B. 530 (N.L.R.B. 1972)

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters District Council of Detroit , Wayne and
Oakland Counties and Vicinity , United Brotherhood
of Carpenters and Joiners of America , AFL-CIO
and Shepard Marine Construction Company. Cases
7-CP-133(1) and 7-CP-133(2)
February 23, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On September 9, 1971, Trial Examiner Harry R.
Hinkes issued the attached Decision in this proceeding
dismissing the complaint in its entirety. Thereafter, the
Charging Party filed exceptions, the General Counsel
filed exceptions with a supporting brief, and the Re-
spondent cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions, brief,
and cross-exceptions, and has decided to affirm the
Trial Examiner only insofar as his rulings, conclusions,
and recommendations are consistent with this Decision
and Order.
The object of the picketing following the election lost
on March 23, 1971, by the Respondent Carpenters'
District Council of Detroit was found by the Trial
Examiner to be the publicizing of substandard condi-
tions. At that time the picket signs used were consistent
with an area standards objective. Signs used in earlier
picketing-picketing began in October when the
Charging Party failed to sign a new standard agreement
as requested by Respondent-had stated that Charging
Party Shepard had no union contract, and later that
Shepard had violated its agreement with the Union.'
On January 18, 1971, the parties met; Mazurek,
president of Shepard Marine, was again asked by the
Union to sign a contract but refused for economic rea-
sons, and on January 21 the Union sent Shepard a letter
saying that it did not intend to interfere with the rights
of Shepard's employees to work without becoming
members, or to make any demand on Shepard to sign
a collective-bargaining agreement with it, but did in-
tend to inform the public that Shepard's employees
were working under substandard conditions. There-
after, when picketing occurred, the signs carried an
area standards legend. In dismissing the complaint the
Trial Examiner noted that the picketing was neither
"continuous or simultaneous," the occurrences being
As found by the Trial Examiner certain fringe benefits due the Detroit
Council based on an audit of 1968-69 were paid by Shepard in November
1970
spaced in time at a series of construction projects, and
concluded that on and after March 23 the purpose was
not prohibited by Section 8(b)(7)(B) which proscribes
picketing for recognition or bargaining where within
the preceding 12 months a valid election under Section
9(c) has been conducted. Concerning the validity of the
recent election, the Trial Examiner found that he was
bound by the certificate of election results.2 He did not
treat the unit issue. He also made no mention of the
8(a)(5) charge filed by Respondent the day before the
election and the appeal of its dismissal thereafter.'
In its cross-exceptions the Respondent attacks the
validity of the March 23 election as held in an inappro-
priate unit, and contends that the Trial Examiner
should not have considered himself bound by the cer-
tification in view of his finding that a valid "consent
agreement" had been signed by Mazurek on January
13, 1971, with the Saginaw Valley Carpenters District
Council. It views this agreement as barring Shepard
from seeking an election.4
The General Counsel excepts to the Trial Examiner's
failure to find that the picketing after the election had
a recognitional object, emphasizing in its brief that the
8(a)(5) charge was filed by the Union just before the
election and appealed thereafter. The Charging Party
takes exception to the Trial Examiner's conclusion that
the object of the picketing actually changed from recog-
nition to publicizing substandard conditions, contend-
ing that the whole purpose of the labor dispute was
recognition and a contract.'
The election petition in Case 7-RM-842 was filed by Shepard Marine,
after sporadic picketing from October to February 1971 An expedited
election pursuant to Section 8(b)(7)(C) and Section 9(c) was authorized by
the Regional Director on March 12, in the following unit all employees
employed by Shepard Marine Construction Company, but excluding all
office clerical employees, operating engineers , professional employees,
guards and supervisors as defined in the Act The tally showed 11 eligible
voters no votes for and 7 against the Union
' This was the charge in Case 7-CA-8576 The Regional Director's dis-
missal was appealed to the General Counsel on April 7, and the appeal
denied April 30, 1971 See fn 4 below
4 This agreement with the Saginaw Valley Carpenters District Council is
a single-page document containing a provision to the effect that the signa-
tory employer agrees to be bound by the terms of the current agreement of
"any" other Carpenters District Council within the State of Michigan The
8(a)(5) charge was based on an alleged failure and refusal to honor this
agreement "whereby it agreed to recognize Carpenters District Council of
Detroit when performing work within the aforesaid Union's geographical
jurisdiction" and the appeal-which was denied-urged that an 8(a)(5)
complaint should be issued based on the agreement with the Saginaw Valley
Council, as well as the current agreement between the Detroit Council and
"the Employer Association in this area "
' Charging Party and General Counsel except to the Trial Examiner's
failure to credit an oral request for a contract made, according to Mazurek,
by Union Secretary-Treasurer Harrington in October, at the site first pick-
eted Charging Party points out that written requests by the Respondent for
a contract were being made about the same time and were credited Harring-
ton was present at the hearing but did not testify The Trial Examiner
discredited Mazurek in this respect because of his difficulty in recalling
events and his failure to mention this incident in an affidavit he executed for
the Board On this record we see no reason to discredit this testimony of
Mazurek that such a request was made
195 NLRB No. 97
CARPENTERS DIST. COUNCIL 531
From the above we conclude, contrary to the Trial
Examiner , that the General Counsel has sustained his
burden of proof to establish that the picketing by the
Union at the Port Huron seawall job on and after
March 23 , 1971, had a recognitional or organizational
objective within the meaning of Section 8(b)(7)(B). Re-
spondent's filing of the 8(a)(5) charge immediately
before the election, and its participation in the election
and later appeal from dismissal of the charge-factors
which the Trial Examiner did not discuss-convince us
that the picketing at the pertinent time was recogni-
tional.6 The question remains whether the election was
actually a valid election. If not, there can be no viola-
tion found.
In this proceeding Respondent 's answer denied para-
graph 12 of the complaint concerning the election held
"among the pile driving employees of Shepard." Dur-
ing the hearing , it amended its answer to contend that
the election was invalid. Thus, invalidity based upon
unit was not here pleaded affirmatively, as in the Ameri-
can Bread case urged by the Respondent as control-
ling.' The Trial Examiner declined to accept evidence
on the validity of the election but suggested an offer of
proof as to what Respondent would prove if given the
chance to demonstrate that the election was not valid,
later renewing this suggestion when a copy of the Sagi-
naw Valley agreement was received in evidence.' The
Respondent made no offer of proof and did not in-
troduce a copy of the expired contract with the Detroit
Council. In its brief to the Trial Examiner it contended
that the unit had included "only pile drivers"-citing
a transcript - page containing testimony of Mazurek-
and asserted that the Employer also employed "equip-
ment operators, electricians, tugboat operators, divers
and laborers," from which it concluded that the elec-
In November 1970 a decertification petition was filed in Case 7-RD-
912, which was dismissed on December 15, 1970 , because of the Respond-
ent Union ' s disclaimer
' American Bread Company, 170 NLRB 91, 97, 103, where the Board,
after remand to the Trial Examiner to allow the Respondent to adduce
testimony in support of its contention that the unit found by the Regional
Director in the RM case was inappropriate , affirmed the conclusion of the
Supplemental Decision that the unit was inappropriate because of the inclu-
sion of transport drivers As the election was held in an inappropriate unit,
picketing after certification of that election involved no violation of Sec
8(b)(7)(B) In that case the picketing was for initial recognition, following
denial of a demand based on cards At the remand hearing the respondent
union "took the burden of proof" rn support of its contention that 11 persons
found to be in the unit should have been excluded
We see no merit in Respondent 's contention that the skeletal Saginaw
Valley consent agreement bound the parties not to seek an election We view
this as an 8(f) type contract , which by specific proviso to that section shall
not bar a petition filed pursuant to Sec 9(c)
' The copy of this agreement was offered by Respondent's attorney for
two reasons ( 1) as relating to Mr Mazurek's credibility with respect to not
having signed such an agreement , and (2) as relating to the Respondent's
contention concerning the validity of the election under Sec 9(c) The Trial
Examiner pointed out that he was not receiving it for the second purpose
in view of his ruling not to receive any evidence concerning the invalidity
of the election , but suggested that it might be made part of an offer of proof
so that the Board would be in a position to consider whether or not the ruling
to exclude such evidence was proper
tion unit included more than the contract unit, hence
resulted in an invalid election. Now, in its cross-excep-
tions, it merely reiterates the asserted inappropriate-
ness of the election unit, again without effort to sub-
stantiate this claim though presumably the
Respondent's contract defined the unit. Appropriately
this issue should have been raised in the RM proceed-
ing. It might also have been raised initially in this pro-
ceeding, but instead it was raised by amendment of the
answer, unexplicated by an offer of proof in lieu of
testimony. On this record we see no basis for invalidat-
ing the underlying election on the ground that an all-
employee unit excluding principally operating engi-
neers and office clerical employees was inappropriate.'
Accordingly, we find that the election held on March
23, 1971, was a valid election within the meaning of
Section 9(c) of the Act, and that the Respondent's pick-
eting of Shepard Marine at the Port Huron seawall job
on and after that date violated Section 8(b)(7)(B) of the
Act.
CONCLUSIONS OF LAW
1. Shepard Marine Construction Company is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Carpenters District Council of Detroit, Wayne
and Oakland Counties and Vicinity, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. By picketing Shepard Marine at the Port Huron
seawall job on and after March 23, 1971, with an object
of organizing, or gaining recognition for, a unit of the
Company's employees although a valid election under
Section 9(c) of the Act, not won by the Respondent,
had been conducted for such employees within the
preceding 12 months, Respondent has engaged in un-
fair labor practices within the meaning of Section
8(b)(7)(B) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
9 We note that the record shows that Charging Party's marine construc-
tion work "entails pile driving and dredging " We also note that the unit
described in the exhibit which consists of a segment of the Saginaw Valley
District Council consent agreement, entitled "Pile Driving Supplemental
Agreement ," purports to cover "employees performing work on Pile Driv-
ing Operations" and goes on to describe such work in terms that would
appear to encompass all field employees of a marine construction contractor
Although Mazurek 's testimony concerning coverage of the expired contract
with the Detroit Council was that "laborers , operators and people that have
done painting" were "not" covered , he also testified to the versatility of his
"regular" employees , that is, "pile drivers and laborers and operators, weld-
ers One may be driving this afternoon and tomorrow he might be driving
a pile He might be doing welding tomorrow "
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth herein,
occurring in connection with the Company 's opera-
tions as described in section I of the Trial Examiner's
Decision , have a close , intimate , and substantial rela-
tionship to trade , traffic, and commerce among the
several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(b)(7)(B)
of the Act, we shall order that it cease and desist there-
from, and take certain affirmative action which will
effectuate the policies of the Act. In accord with our
usual practice the 1-year statutory ban against this
picketing shall run from the date when picketing ceased
approximately 3 weeks after the March 23, 1971, elec-
tion. Local Joint Executive Board of Las Vegas (Custom
Catering, Inc., d/b/a Blue Onion), 182 NLRB 250, fn.
10.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent , Carpenters
District Council of Detroit, Wayne and Oakland Coun-
ties and Vicinity, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, its officers , agents,
and representatives , shall:
1. Cease and desist from picketing or causing to be
picketed Shepard Marine Construction Company with
an object of either forcing or requiring the Company to
sign a contract with it or in any other manner to recog-
nize or bargain with it as the representative of the
Company's employees, or forcing or requiring the em-
ployees to accept or select it as their collective-bargain-
ing representative , where within the preceding 12
months a valid election under Section 9(c) of the Act
has been conducted among the said employees and has
not been won by the Respondent.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business office and meeting hall copies
of the attached notice marked "Appendix."10 Copies of
said notice , on forms provided by the Regional Direc-
10 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD "
tor for Region 7, after being duly signed by Respond-
ent's authorized representative , shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to members
are customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not al-
tered , defaced , or covered by any other material.
(b) Sign and mail to the Regional Director for Re-
gion 7 sufficient copies of said notice , to be on forms
provided by him, for posting by Shepard Marine Con-
struction Company , if willing , at places where it cus-
tomarily posts notices to its employees.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket or cause to be picketed
Shepard Marine Construction Company with an
object of forcing or requiring the Company to sign
a contract with us or in any other manner to recog-
nize or bargain with us as your collective -bargain-
ing representative where within the preceding 12
months a valid election under Section 9(c) of the
Act has been conducted among you and we have
not won that election.
CARPENTERS DISTRICT
COUNCIL OF DETROIT,
WAYNE AND
OAKLAND COUNTIES
AND VICINITY, UNITED
BROTHERHOOD OF
CARPENTERS AND
JOINERS OF AMERICA,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 500 Book Building, 1249 Washington Boule-
CARPENTERS DIST . COUNCIL 533
yard, Detroit, Michigan 48226, Telephone 313-226-
3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY R HINKES, Trial Examiner- The charge in Case
7-CP-133(l) was filed by Shepard Marine Construction
Company, hereinafter referred to as Shepard or Employer, on
March 30 and served on Carpenters District Council of De-
troit, Wayne and Oakland Counties and Vicinity, United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO, hereinafter referred to as the Union or Respondent, on
March 31, 1971. The charge in Case 7-C-133(2) was also
filed by Shepard on April 5, 1971, and served upon Respond-
ent on or about April 7, 1971. Pursuant to these charges a
complaint was issued on April 12, 1971, alleging that the
Union had picketed Shepard on March 15, 1971, to compel
Shepard's piledriving employees to accept the Union as their
collective-bargaining representative and to compel Shepard
to recognize and bargain with the Respondent as the repre-
sentative of its pile-driving employees although the Union
had not been certified as such representative , and a valid
election had been conducted within the preceding 12 months.
These acts were alleged to be unfair labor practices within the
meaning of Section 8(b)(7)(B) of the Act. By answer duly filed
Respondent denied the commission of any unfair labor prac-
tices.
A hearing was held before me in Detroit, Michigan, on
June 3, 4, and 15, 1971, at which all parties were afforded full
opportunity to be represented, examine witnesses, and ad-
duce relevant evidence.' At the conclusion of the hearing
counsel were invited to make oral argument and counsel for
the General Counsel made a brief presentation. Briefs have
been received from counsel for the Charging Party as well as
counsel for the Respondent, and have been given careful
consideration
Upon the entire record in this proceeding, I make the
following.
FINDINGS OF FACT
I JURISDICTION
Shepard , a Michigan corporation , maintains a principal
office at Mount Clemens , Michigan , and a branch office at
New Orleans , Louisiana It is engaged in the business of
marine construction and during its fiscal year ending June 15,
1970, its gross revenues exceeded $500,000 . During the same
period of time it purchased wood and steel piling and other
materials valued in excess of $50,000 , which materials were
shipped to Shepard 's jobsites in the State of Michigan directly
from points outside the State of Michigan . Since on or about
February 22, 1971, Shepard has been engaged in the con-
struction of a shoreline erosion control wall for and in the city
of Port Huron , Michigan , where it employs approximately
five employees on the job. Shepard will purchase and have
shipped to its Port Huron jobsite from points located outside
the State of Michigan steel sheet and other materials valued
in excess of $50,000 The complaint alleges and I find that
Shepard is now and has been at all times material herein an
employer engaged in commerce within the meaning of Sec-
tion 2 (2), (6), and (7) of the Act.
' The typographical errors in the transcript of the proceedings are hereby
corrected
The complaint alleges, Respondent's answer admits, and I
find that Carpenters District Council of Detroit, Wayne and
Oakland Counties and Vicinity, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, herein called the
Union or Respondent, is and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
II THE UNFAIR LABOR PRACTICES
A Background
Shepard was a party to a collective-bargaining agreement
with the Union which expired in May 1970. On or about June
5, the Union sent a letter to Shepard requesting Shepard to
be available to sign a new standard agreement when com-
pleted. Again around September 18 and October 5, Shepard
received additional letters from the Union requesting that
Shepard sign the new agreement . Shepard did not comply and
on October 28 wrote the Union that it was its understanding
that "we have no active contract with the Carpenters District
Council at this time."
Shepard had jobs under contract at the Beacon Cove
Marina in Mt. Clemens, Michigan, the Grand Trunk Rail-
road Yards in Port Huron, Michigan, and Botsford Hospital
in Detroit, Michigan, the Andor project in Southfield, Michi-
gan, the soil erosion seawall in Mt . Clemens, Michigan, and
the soil erosion seawall in Port Huron, Michigan.
1. The Beacon Cove Marina
The uncontradicted testimony of Robert Rausch and Wes-
ley Biland, employees of Shepard, establishes that in the fall
of 1970, early in October, Don Sudau, an admitted business
agent of Union Local 674, came out to the job and told
Rausch to shut the job down because the Company was in
arrears on benefits. Shepard ignored Sudau's order.
2. The Grand Trunk Railroad job
The uncontradicted testimony of James Mazurek, presi-
dent of Shepard Marine, establishes that Shepard started this
job in the first week of October 1970. Amos Warwick, an
admitted business agent of Carpenters Local 1067, told
Mazurek that he would shut Shepard down because Shepard
was behind in its fringe benefit payments to the Union. On
October 5 picketing commenced at the Grand Trunk job, in
which activity Warwick participated. The picket signs, which
were not introduced in evidence, were described as stating
that Shepard had no union contract. This language, however,
was changed about 10 days later when the signs recited that
Shepard had violated its agreement with the Union. The
picketing continued and later that month truckers entering
and leaving the project experienced some of the picketers
throwing stones and breaking their truck windows Don Sze-
linski, a truckdriver at that project, testified that George
McDonald, an admitted business agent for the Union, tried
to force his way into the cab of a truck just before the rock
throwing began, and a union committeeman threw a rock
through Szelinski's truck window. According to Szelinski,
Warwick told him they were picketing because Shepard did
not have a contract. Mazurek further testified that the em-
ployees of the Austin Company, which was also involved in
the Grand Trunk Railroad job, refused to cross the picket
lines As a result, a meeting was held on October 30, attended
by Mazurek, Warwick, Jim King, an admitted business agent
of Carpenters Local 19, John Harrington, an admitted agent
of the Union, and others, at which, according to Mazurek's
testimony, Harrington asked Mazurek if Mazurek would
consider signing with the Union now, but Mazurek declined.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The picketing continued until around November 10 when
Shepard's contract was cancelled.
3. The Botsford Hospital job
Shepard's next job was at the Botsford Hospital which
commenced sometime during the first half of December 1970.
On the day Shepard was scheduled to start its operation
Mazurek was notified that picketing had started and all work
had shut down. Mazurek then cancelled his contract, moving
his equipment off the jobsite without commencing any opera-
tions there. David Taylor, construction manager at Botsford,
testified that he conferred with union representatives, includ-
ing Harrington. Harrington allegedly told Taylor that Shep-
ard had been working with a consent contract, that there was
some disagreement concerning fringe benefits, but he did not
say that the pickets would continue until Shepard signed a
contract with the Union.
4. The Andor job
William Korte, president of the Maurice V. Rogers Com-
pany, a general contractor, testified that Shepard did piledriv-
ing for him at this jobsite starting around December 16. On
December 18 he learned that a 24-hour strike notice had been
given by the Carpenters Union. George McDonald, the Un-
ion's business agent, told him that the job was to be shut
down because he was using a nonunion subcontractor, Shep-
ard Marine. Shepard left the job and Korte finished its work.
There was no picketing
5 The Mt. Clemens seawall job
Shepard commenced this job around January 11, 1971. On
January 18, Mazurek met with union representatives. Mazu-
rek explained that he could not live with the union contract
because nonunion contractors were taking work away from
him. The Union refused to abandon their standard contract
but offered to allow Mazurek to use smaller crews. Mazurek
told the Union he was not paying union scale and could not
afford to do so. Several days later the Union sent Shepard a
letter dated January 21 which read in part:
This Union has ascertained that wages and rates of pay
for your pile-driver employees on this project are sub-
stantially below that which has been negotiated by the
Union with contractors engaged in marine construction
in this area. We have found that you are free to underbid
fair contractors on work of this sort because of the sub-
standard wages and benefits involved.
We wish to inform you that this Union does not intend
to interfere with the rights of your employees to work
without becoming members of our organization nor does
it make any demand upon you to sign a collective bar-
gaining agreement with us. However , it is our intention
to inform the populace in this area that your employees
work under sub-standard conditions. We shall do this by
means of peaceful primary picketing and other forms of
publicity.
On or about January 21 picketing began at this jobsite.
According to Mazurek, the signs read "Shepard Marine Con-
struction Company admits that it pays substandard wages as
paid by the Carpenters in this area." At first there were some
40 to 50 pickets at the jobsite, but this number diminished
until the picketing ended on or about the first of February.
Shepard's work continued at this project for some 3 or 4
weeks after the picketing ended.
According to employee Rausch, Union Agent Warwick
told him that he ought to get Shepard to sign a contract so
that Rausch would get more money for his crew.
6. The Port Huron seawall
Shepard filed a petition for an election among its field
employees on February 9, 1971, and began the Port Huron
seawall job around February 15. Picketing by the Union
started around March 10. According to Mazurek, pickets,
including Warwick, carried signs that Shepard did not pay
prevailing rates. During the week of March 18 Warwick was
seen taking pictures of the trucks entering and leaving the
jobsite and he told Mazurek that this was being done to
demonstrate that the trucks were not damaged. Some scuffl-
ing ensued between the pickets and Shepard's employees but
ended when Warwick interceded.
On March 23 an election was held purusant to the Regional
Director's order. A majority of votes were cast against repre-
sentation by the Union. Picketing, however, continued up
until the election.
B. The Alleged Violation of 8(b)(7)(B)
As noted above, the picketing at the Port Huron seawall
job which started around March 10 continued until the elec-
tion of March 23 and for some time thereafter. Some wit-
nesses testified that the picketing continued for 1 week after
the election while others testified that it continued from 2 to
3 weeks after the election. In any event the signs carried by
the pickets did not change and stated only that Shepard did
not pay carpenters the prevailing rates.
In the first week of April installers arrived at the jobsite to
install electric service. Union Agent Warwick spoke to the
crew of the electric company after which the crew left. On
April 10 the telephone company sent an installer to install
telephones on the job. Warwick spoke to the installer, who
refused to cross the picket line and left. Phones were installed
about a month later when there were no pickets.
ANALYSIS AND CONCLUSIONS
Section 8(b)(7)(B) of the Act makes it an unfair labor
practice for a labor organization or its agents to picket or
threaten to picket any employer where an object thereof is
forcing or requiring an employer to recognize or bargain with
a labor organization as the representative of his employees,
(unless such labor organization is currently certified as the
representative of such employees) where within the preceding
12 months a valid election had been conducted.
There is no doubt that an election was conducted on March
23, 1971, at which time the Union was not certified as the
representative of Shepard's employees. Counsel for the Un-
ion, however, aqgues that the election of March 23 was not
valid. At the hearing he offered to establish that Shepard had
executed a consent agreement with the Saginaw Valley Car-
penters District Council (not be confused with the Respond-
ent herein), by which Shepard agreed to be bound by all the
terms and conditions of the most current collective-bargain-
ing agreements of any other Carpenters District Council
within the State of Michigan; that, accordingly, Shepard was
bound by the collective-bargaining agreement which the Re-
spondent Union had executed with local employers following
the expiration of the collective-bargaining agreement between
the Union and Shepard which expired on April 30, 1970. I
ruled that I deemed myself bound by the certification which
was issued on April 1, 1971. See the Decision of the Trial
Examiner in Local 334 (Exquisite Construction Company),
183 NLRB No. 62. However, inasmuch as Mazurek in his
testimony denied signing such a consent agreement, counsel
for the Union was permitted to offer testimony to discredit
Mazurek. Counsel for the Union offered the testimony of
Richard Bowen, a recognized handwriting expert, who tes-
tified that Respondent's Exhibit 2, the consent agreement of
CARPENTERS DIST COUNCIL 535
January 13, 1971, was signed by Mazurek. I credit his tes-
timony and find that a valid agreement had been executed by
Mazurek and the Saginaw Valley Council requiring Mazurek
to observe the terms of any collective-bargaining agreement
executed by the Respondent Union herein. Under such cir-
cumstances it would appear that Shepard's petition of Febru-
ary 9, 1971, may have been barred by the consent agreement
of January 13.
Hereafter a contract, regardless of its duration, will bar,
during its entire term, petitions of either the employer or
the union who are parties to the agreement. Absorbent
Cotton Company, 137 NLRB 908.
Nevertheless, I am bound by the certification of April 1, 1971.
Respondent may raise these issues with the Board by appro-
priate exceptions to this Decision.
Counsel for the Union also appears to argue that the Re-
spondent should not be responsible for picketing which was
engaged in by various locals of the area. As noted above,
however, George McDonald, an admitted business agent for
the Respondent, participated in the picketing on the Grand
Trunk Railroad job. Harrington, another admitted agent of
the Respondent Union, was involved in the picketing at the
Botsford Hospital job. On the Andor job it was McDonald
who threatened the shutdown because the general contractor
was using Shepard. Business agents of the locals, such as
Sudan , Warwick, and King, participated in other activities
described above. In many instances they acted in concert with
officers of the Respondent Union. Finally, the constitution
and bylaws of the Respondent Union give the secretary-
treasurer of the Respondent Union supervision and direction
over all business agents of the locals, and reserves to the
Respondent Union legislative and executive powers on all
matters relating to the general interest and welfare of the
locals. I conclude that the activities of the Union members
and representatives at the various jobsites cited above were
cooperative and coordinated, in'short, a common undertak-
ing, and that the activities of each can be and should be
imputed to all.
Having established the responsibility of the Respondent
Union for the activities described at the various jobsites men-
tioned above, and having ruled that the validity of the elec-
tion cannot be attacked before me in view of the certification
issued by the Regional Director, the only issue remaining is
the object of the picketing which occurred on and after
March 23, the date of the election. Such picketing was unlaw-
ful if an object of such picketing was to force Shepard to
recognize or bargain with the Union. The picket signs at the
Port Huron seawall job, however, merely protested Shepard's
substandard wage rates. Such picketing is not recognitional
picketing and does not come within the terms of Section
8(b)(7). The Board has stated in Laborers Local No. 41 (Calu-
met Contractors Association), 133 NLRB 512:
Respondent's admitted objective to require the [em-
ployer] to conform standards of employment to those
prevailing in the area, is not tantamount to, nor does it
have an objective of, recognition or bargaining. A union
may legitimately be concerned that a particular em-
ployer is undermining area standards of employment by
maintaining lower standards. It may be willing to forego
recognition and bargaining provided subnormal working
conditions are eliminated from area considerations.
Counsel for the Charging Party correctly states that "de-
termination of the Union's objective is a question of fact,"
citing N.L.R.B. v. Local 182, International Brotherhood of
Teamsters, 314 F.2d 53 (C.A. 2). He is also correct when he
states "a union's attempt to disassociate picketing from
recognitional purposes does not succeed simply by suspend-
ing picketing for a short period of time, disavowing any
claims of representation in letter form, and utilizing wording
consistent with area standards objectives on picket signs,"
citing Knit Goods Workers Local 155, 167 NLRB 763. He
argues that the Union's "pattern of conduct over a period of
time extending from May of 1970 to the date of the election,
during which the Union picketed many of the jobsites of
Shepard for the obvious purpose of recognition" demon-
strates that the picketing at the Port Huron seawall job was
for the purpose of recognition. I do not agree.
The threatened shutdown of the Beacon Cove job was
because the Company was in arrears on benefits. Exhibits
received in evidence establish that the Union billed Shepard
for some $1,700 claimed to be owing on fringe benefits, and
Shepard paid such amount to the Union on November 10,
1970. Similarly, Warwick's threat of shutdown at the Grand
Trunk Railroad job was because of these fringe benefit arrear-
ages. The first picket signs, however, were described as stating
that Shepard had no union contract. This language was
modified about 10 days later to state that Shepard had vi-
olated its agreement with the Union, which apparently it had.
Mazurek also testified that Harrington asked him to sign with
the Union, but that -he refused. An affidavit executed by
Mazurek for, the Board makes no mention of this alleged
conversation with Harrington. In view of Mazurek's admit-
ted difficulty in recalling many events. I conclude that Har-
rington made no such statement to him at the Grand Trunk
Railroad job.
At the Botsford Hospital job, witness Taylor, called on
behalf of the General Counsel, admitted that Harrington did
not say that the pickets would continue until Shepard signed
a contract with the Union, but instead spoke of some disa-
greement'concerning fringe benefits.
On the Andorjob which commenced around December 16,
there was no picketing. McDonald's threat to shut down that
job was based upon the general contractor's violation of his
contract with the Union requiring him to use union subcon-
tractors. Finally, the Mt. Clemens seawall job which started
around January 11, 1971, was accompanied by a meeting
between Shepard and the Union at which Shepard admitted
he could not and would not pay union scale. The Union then
informed Shepard that it would inform the public that Shep-
ard's employees work under substandard conditions. The
picketing that followed referred only to the substandard
wages paid by Shepard. Shepard's employee Rausch testified
that Union Agent Warwick told him he ought to get Shepard
to sign a contract so that Rausch would get more money for
his crew. This, it could be argued, was a, demand for recogni-
tion. It was not, however, made to Mazurek but only to an
employee who was obviously not in a position to comply with
Warwick's statement if it were really a demand for recogni-
tion. Moreover, this isolated incident would hardly establish
a recognitional objective by the Union. In Local 741 (Keith
Riggs Plumbing), 137 NLRB 1125, the union solicited an
employee of the company to join the union . The Board held
that such an incident involving a single employee would not
be sufficient to negate the union's repeated statements that the
picketing was designed only to protect wages and other stan-
dards. In Teamsters Local 200 (Bachman Furniture Com-
pany), 172 NLRB No. 119, a union agent told a warehouse
manager that the employees of the company needed the un-
ion. In view of the union's protest of the company's substand-
ard wages the Board held that the union agent's statement
was insufficient to establish an unlawful objective. Here War-
wick's statement to Rausch that Rausch ought to get Mazu-
rek to join up in order to get more money for the crew can
also be equated with the Union's efforts to raise Shepard's
substandard wage rates rather than to achieve a collective-
bargaining relationship.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor is this a case where the Union expressed its demands
for area standards in terms of benefits set forth in the area
contracts. See Local 899 (Giant Foods), 166 NLRB 818.
Moreover, the activities of the Union were neither continuous
nor simultaneous. Each event was separated from the next
event by some space of time. Even were the picketing continu-
ous it would not necessarily follow that the objectives of the
Union were necessarily unchanged from the beginning of the
picketing in the fall of 1970 through the Port Huron seawall
job. See Local 500 (Mission Valley Inn), 140 NLRB 433, 439.
Nor does it matter with respect to Section 8(b)(7) whether or
not the picketing interfered with deliveries and services, pro-
vided the picketing was not for an object of recognition or
organization. Houston Building Council (Claude Everett Con-
struction Company), 136 NLRB 321
I Conclude that the General Counsel has not sustained his
burden of proof to establish that the picketing by the Union
at the Port Huron seawall job on and after March 23, 1971,
violated Section 8(b)(7)(B) inasmuch as such picketing did
not have a recognitional or organizational objective as evi-
denced by the activities at that site, nor as evidenced by other
activities of this Union prior thereto with respect to this
Employer. I shall therefore recommend that the complaint be
dismissed.
CONCLUSIONS OF LAW
The General Counsel has not sustained his burden of proof
to establish that the Respondent Union violated Section
8(b)(7)(B) of the Act when it picketed Shepard Marine Con-
struction Company on and after March 23, 1971.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclu-
sions of law I recommend that the, complaint in this case be
dismissed in its entirety.