Carpenters, Local 1849

National Labor Relations Board - Board Decisions

Jan 17, 1974

208 N.L.R.B. 461 (N.L.R.B. 1974)

CARPENTERS, LOCAL 1849 461
United Brotherhood of Carpenters and Joiners of
America, Local No. 1849, AFL-CIO and Robert
Young Developments, Inc. Case 19-CP-183
January 17, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PFNELLO
On March 12, 1973, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief,
Charging Party filed exceptions and a supporting
brief, and Respondent filed a brief in support of the
Administrative Law Judge's Decision and in opposi-
tion to exceptions.
Pursuant to tie 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 only to the
extent consistent herewith.
The General Counsel alleges that Respondent
violated Section 8(b)(7)(C) of the Act by picketing
Robert Young Developments, Inc., for the purpose
of securing recognition without filing an election
petition within 30 days after the commencement of
such picketing.
The Respondent admittedly picketed for recogni-
tion, but argued at the hearing that it was for
continued rather than initial recognition. At the
hearing the parties litigated only the issue of whether
Respondent picketed for continued recognition of an
employer operating under a new name or whether
the Employer was a new employer and the picketing
was for initial recognition.
The Administrative Law Judge found that the
Employer was an employer which had at one time
recognized Respondent as the collective-bargaining
representative of its employees and was operating
under a new name, but that it had successfully
terminated its collective-bargaining relationship and
that the picketing was for initial recognition. Respon-
dent has not excepted to this finding, and we adopt
it.
Although the Administrative Law Judge found that
Respondent was picketing for initial recognition, he
further found, sua sponte, that the purpose of
Respondent's picketing was to truthfully advise the
public that the Employer did not have a contract
with Respondent within the meaning of the second
proviso to Section 8(b)(7)(C) of the Act and, since
there was no "effect" shown, the picketing was not
violative of Section 8(b)(7)(C) of the Act. Such a
defense was not alleged by Respondent, nor was it
specifically litigated at the hearing. Nonetheless,
assuming arguendo that the defense is properly
before us, we do not agree with the Administrative
Law Judge's finding that Respondent's picketing met
the requirements of the publicity proviso to Section
8(b)(7)(C) of the Act.
Robert Young Construction, a sole proprietorship
owned by Robert Young. built and sold residences.
In March 1969, Robert Young terminated all of his
employees except supervisors and office clericals,
sold his equipment, and carried on his work through
subcontractors. In July 1969, Robert Young desig-
nated Bosch as his general manager in charge of day-
to-day decisions and labor relations.
Since May 1967, Robert Young Construction,
through its membership in a multiemployer bargain-
ing group, has had contracts with Respondent which
terminated in June 1971. In March 1971, Robert
Young Construction ceased doing business.
Also in March 1971, Robert Young Construction.
Inc., was formed with Robert Young, his wife, and
Bosch as stockholders. Robert Young Construction,
Inc., during March 1971, notified the Union that it
was not a party to the negotiations being then carried
on between the multiemployer group and Respon-
dent and would not be bound by any agreement they
concluded. On April 13, 1971, Robert Young
Construction, Inc., left the multiemployer bargaining
group and during May 1971 began hiring carpenters
and resumed performing its own construction work.
Robert Young Developments, Inc., was formed in
September 1971 and was owned by both Robert
Young and Bosch. In March 1972, Robert Young
Construction, Inc., transferred all of its employees to
the new company.
On April 11, 1972, Respondent informed Bosch, as
president of Robert Young Construction, Inc., that it
was negotiating with the multiemployer bargaining
group and requested that, since the company was not
a member of the multiemployer group, it bargain
separately with Respondent. Bosch refused.
During April and July 1972, Respondent then met
with Bosch and demanded that Robert Young
Developments, Inc., enter into a labor agreement
recognizing Respondent as the representative of its
employees. Robert Young Developments, Inc., re-
fused Respondent's demand. Respondent then
claimed that Robert Young Developments, Inc., was
nevertheless bound by Respondent's multiemployer
208 NLRB No. 42
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract by virtue of Robert Young Construction's
and Robert Young Construction, Inc.'s membership
in the multiemployer bargaining group.
Respondent then picketed Robert Young Develop-
ments, Inc.'s operations, starting July 19, 1972, for
more than 30 days without filing an election petition.
The picket sign read as follows:
STRIKE
ROBERT YOUNG DOES NOT HAVE AN AGREEMENT
WITH UNION CARPENTERS
Additional Conclusions of Law
United Brotherhood of Carpenters and Joiners of
America, Local No. 1849, AFL-CIO, by picketing
Robert Young Developments, Inc.. on and after July
19, 1972, with an object of forcing or requiring
Robert Young Developments, Inc., to recognize or
bargain with Respondent as the representative of the
employees of Robert Young Developments, Inc.,
although Respondent was not certified as the
representative of said employees, without a petition
under Section 9(c) of the Act having been filed
within 30 days after the commencement of such
picketing, has engaged in unfair labor practices
proscribed by Section 8(b)(7)(C) of the Act.
At the same time Respondent requested that Robert
Young Developments, Inc., recognize it as the
bargaining representative of its employees.
The Administrative Law Judge found that the
reference to "strike" on the picket sign was not
sufficient to show that the union's picketing was
aimed at employees rather than the public. In the
absence of 'any other activity by Respondent to show
that the picketing was not directed to the public, the
Administrative Law Judge found that the picketing,
although for a recognitional object, was protected by
the second proviso to Section 8(b)(7)(C).
Contrary to the Administrative Law Judge, we
believe that the word "strike" on Respondent's
picket sign indicates that the picketing was directed
at employees rather than to the public. Partly
because use of these words in this situation is
untruthful, such words have been held, in a similar
case, to constitute not just publicity but a "signal" to
other employees to respect a picket line.' Further-
more, Respondent's contention that it was picketing
for continued recognition implied that the picketing
was directed to Robert Young Developments' em-
ployees, or to Robert Young, and not the public. We
therefore find that Respondent's picketing was not
for the purpose of truthfully advising the public that
it did not have a contract with the Employer, and
therefore was not protected by the proviso to Section
8(h)(7)(C).2
We find, accordingly, that Respondent violated
Section 8(b)(7)(C) by picketing Robert Young
Developments, Inc., for over 30 days for the purpose
of securing recognition without filing an election
petition.
i See Hotel, Motel and Club Employees, Union Local 568, AFL-CIO
(Restaurant Management), 147 NLRB 1060, 1068 In Restaurant Manage-
ment, supra, the Board adopted the Trial Examiner's conclusion that a
picket line with the words "on strike," by proclaiming the existence of a
strike against the employer went beyond truthfully advising the public that
it did not have a contract with the employer Cf. Hoisting and Portable
Engineers, Local 101, etc, 140 NLRB 1175, wherein also a violation was
Remedy
Having found that Respondent engaged in certain
unfair labor practices , we shall order that it cease
and desist therefrom , and take certain affirmative
action designed to effectuate the policies of the Act.
Respondent shall be ordered to cease and desist from
picketing Robert Young Developments , Inc., where
an object thereof is to force it to recognize or bargain
with United Brotherhood of Carpenters and Joiners
of America , Local No. 1849, AFL-CIO, as the
collective -bargaining representative of the employees
of Robert Young Developments, Inc.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the Board hereby orders
that Respondent, United Brotherhood of Carpenters
and Joiners of America, Local No. 1849, AFL-CIO,
Pasco, Washington, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from:
(a) Picketing or causing to be picketed, or threaten-
ing to or causing to be picketed, Robert Young
Developments, Inc., where an object thereof is to
force or require Robert Young Developments, Inc.,
to recognize or bargain with United Brotherhood of
Carpenters and Joiners of America, Local No. 1849,
AFL-CIO, or any other labor organization, as the
collective-bargaining representative of the employees
of Robert Young Developments, Inc., or to force or
require the employees of Robert Young Develop-
ments, Inc., to accept or select United Brotherhood
of Carpenters and Joiners of America, Local No.
found, cited and distinguished by the Administrative Law Judge
2 In view of this finding , we need not reach the contention of the General
Counsel that, in any event . Respondent stipulated in the injunction
proceeding before the District Court that its picketing had an effect of
stopping deliveries , and for that additional reason, the General Counsel
contends, is not protected by the proviso
CARPENTERS, LOCAL 1849
1849, AFL-CIO, or any other labor organization, as
their collective-bargaining representative, unless and
until United Brotherhood of Carpenters and Joiners
of America, Local No. 1849, AFL-CIO, or such
labor organization, is, at the time of such picketing,
currently certified as the collective-bargaining repre-
sentative of such employees.
(b) In any like or related manner restrain or coerce
the employees of Robert Young Developments, Inc.,
in the exercise of their rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action which, it
is found, will effectuate the policies of the Act:
(a) Post at its business offices and meeting halls in
Pasco, Washington, copies of the attached notice
marked "Appendix."3 Copies of said notice, on
forms provided by the Regional Director for Region
19, after being duly signed by Respondent's repre-
sentative, 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
altered, defaced, or covered by any other material.
(b) Sign and forthwith mail to the aforesaid
Regional Director such additional copies of the
aforesaid Appendix, as said Regional Director may
request, for posting by Robert Young Developments,
Inc., said Employer being willing at the latter's
Richland, Washington, premises where notices to
employees thereof are customarily posted.
(c) Notify saie. Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES AND 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
Robert Young Developments, Inc., where an
object thereof is to force or require the aforesaid
Company to recognize or bargain with us as the
representative of its employees, or where an
object is to force or require the employees of
Robert Young Developments, Inc., to accept or
select us as their collective-bargaining agent in
violation of Section 8(b)(7)(C) of the Act.
463
WE WILL NOT in any like or related manner
restrain or coerce employees at those premises in
the exercise of their rights guaranteed them by
Section 7 of the Act.
UNITED BROTHERHOOD
OF CARPENTERS AND
JOINERS OF AMERICA,
LOCAL No. 1849,
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 compli-
ance with its provisions may be directed to the
Board's Office, Republic Building, 10th Floor, 1511
Third Avenue, Seattle, Washington 98101, Tele-
phone 206-442-4532.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case , held on January 30 , 1973, is based
upon charges filed by Robert Young Developments, Inc.
on August 21, 1972, and a complaint issued on November
20, 1972, on behalf of the General Counsel of the National
Labor Relations Board , herein called the Board, by the
Regional Director of the Board , Region 19 , alleging that
United Brotherhood of Carpenters and Joiners of America,
Local No. 1849, AFL-CIO, herein called Respondent, has
engaged in unfair labor practices within the meaning of
Section 8(b)(7)(C) of the National Labor Relations Act, as
amended. The complaint was amended without objection
at the hearing. Respondent filed an answer denying the
commission of the alleged unfair labor practices.
Upon the entire record, and from the observation of the
demeanor of the one witness, and having considered the
posthearing briefs, I make the following:
FINDINGS OF FACT'
I. THE BUSINESS OF THE EMPLOYER INVOLVED
Robert Young Developments, Inc., is a State of Wash-
I The facts in almost all respects were stipulated
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ington corporation with its principal business office located
at 1201 Jadwin, Richland, Washington, where it is engaged
in the construction and sale of residential and apartment
buildings . During the past calendar year , its gross revenue
from sales or the performance of services was in excess of
$500,000 and in the same period it purchased products
valued in excess of $50,000 from suppliers who in turn
purchased said products directly from outside the State of
Washington.
Respondent admits that Robert Young Developments,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of
America, Local No. 1849, AFL-CIO, the Respondent, is a
labor organization within the meaning of Section 2(5) of
the Act.
Ill. THE QUESTIONS PRESENTED
The ultimate question presented is whether Respondent
in picketing Robert Young Developments, Inc., with a
recognitional object was picketing for "initial" recognition
in violation of Section 8(b)(7)(C) of the Act, or was
picketing in support of previously granted recognition.
Also presented is the question of whether the publicity
proviso in Section 8(b)(7)(C) immunized the picketing from
illegality.
IV. THE UNFAIR LABOR PRACTICES
A. The Facts
Respondent is not the certified bargaining representative
of the employees of Robert Young Developments, Inc.,
and it is undisputed that it has picketed this Employer's
operations since July 19, 1972, for over 30 days without the
filing of an election petition . The picket signs read as
follows:
STRIKE
ROBERT YOUNG DOES NOT HAVE AN
AGREEMENT
WITH UNION CARPENTERS
Immediately before and after the picketing, the Respon-
dent, through its business representative, Guy Adams,
demanded that Robert Young Developments, Inc., enter
into a labor agreement compelling it to recognize the
Respondent as the representative of its employees. The
Employer refused to grant recognition to Respondent.
Respondent admits that its picketing has a recognition
object, but urges it is not unlawful because Robert Young
Developments , Inc., has recognized and extended bargain-
ing rights to the Respondent . In order to understand this
defense it is necessary to view the operations of, and
relationships between , the following business organiza-
tions: Robert W. Young d/b/a Robert Young Construc-
tion, herein sometimes called Robert Young Construction;
Robert Young Construction, Inc., herein sometimes called
Construction, inc.; and Robert Young Developments, Inc.,
herein sometimes called Developments, Inc.
1. Robert Young' s business enterprises
Robert Young Construction, a sole proprietorship, was
owned by Robert Young, who for a number of years prior
to 1969 built and sold residences. In March 1969, he
terminated all of his employees except for supervision and
an office clerical and sold all of his construction equip-
ment . All building operations thereafter were carved on
through the use of subcontractors. Also, in July 1969,
Robert Young accepted employment in California, moved
his residence there, and designated Gary Bosch as general
manager in charge of the operations of Young 's business,
Robert Young Construction. From that time Bosch made
all of the day-to-day and labor relation decisions. Finally,
on or about March 9, 1971, Robert Young Construction,
under the following circumstances , ceased doing business.
On or about March 9, 1971, Robert Young Construction,
Inc., a corporation wholly owned by Robert Young and his
wife, Jacqueline Young, was incorporated and took over
the business operations of the proprietorship, Robert
Young Construction. The intent of Robert Young in
incorporating the proprietorship was to take advantage of
the limited liability provided by a corporation and to
provide an equity ownership for General Manager Gary
Bosch. The officers and board of directors of Construction
Inc. at all times have been: Robert Young, president; Gary
Bosch, vice president; and Jacqueline Young, secretary-
treasurer . The corporation took over and engaged in the
identical business as the proprietorship, land and property
development and home construction Its registered agent
with the State of Washington is Gary Bosch. Until August
1972 it operated using the contractor 's license issued to the
proprietorship. And, like the proprietorship, it initially
employed no carpenter employees, apparently using
subcontractors to perform this work. In May 1971,
however, it hired carpenter employees, none of whom had
been employed by the proprietorship. Although it does not
appear that Construction, Inc., ever totally ceased opera-
tions, all of its employees were transferred to a new
company, Robert Young Developments, Inc., on or about
March 1, 1972, under the following circumstances.
As indicated above, Construction, Inc., was formed on
March 9, 1971, to limit Robert Young's personal liability
and to give General Manager Gary Bosch an equity in the
business. Robert Young's tax attorney, however, deter-
mined that if certain real property was transferred from
Construction , Inc., it would be disadvantageous tax wise to
Robert Young. So, on the advice of his tax lawyer, Robert
Young formed a new corporation, Robert Young Develop-
ments, Inc., which was incorporated on September 30,
1971. Certain real property was transferred to this
corporation and other real property allowed to remain with
Construction, Inc. The major part of Developments, Inc.,
70 percent, is owned by Robert Young; the remainder, 30
percent, by Gary Bosch. On September 30, 1971, the
officers and board of directors were: Robert Young,
president; Gary Bosch, vice president; and Jacqueline
Young, secretary-treasurer. On June 29, 1972, the officers
were: Gary Bosch, president; Elly Rowland, vice presi-
CARPENTERS, LOCAL 1849 465
dent; and Jacqueline Young, secretary-treasurer. These
individuals, with Robert Young, comprised the hoard of
directors. On the date of this hearing, January 30, 1973, the
officers and board of directors remained the same, except
that Thomas Bosch, a brother of Gary Bosch, is now vice
president and a director, replacing Elly Rowland. Develop-
ments, Inc., is engaged in the identical business as
Construction, Inc., shares an office, telephone number, and
post office box with Construction, Inc. Like Construction,
Inc.. it has designated Gary Bosch as its registered agent
with the State of Washington. Also, on one occasion
Developments, Irc., shared an advertisement with Con-
struction, Inc. Developments. Inc., until August 1972,
operated using the contractor's license issued to the
proprietorship, Robert Young Construction. Regarding
employees, on or about March 1, 1972, all of the employees
employed by Construction, Inc.. were transferred to the
payroll of Developments, Inc., and since that date have
been the responsibility of, and have been paid by,
Developments, Inc. At all times material, Developments,
Inc., has employed employees on its construction projects
located within the Respondent's geographical jurisdiction,
a majority of whom were not members of the Respondent,
and who had not designated the Respondent as their
representative for the purposes of collective bargaining.
2. Respondent's bargaining history with Robert
Young's enterprises
The various enterprises owned by Robert Young,
described above, are located in that part of the State of
Washington known as the area of the Tri-Cities. The home
builders located in this area have formed an association
known as the Home Builders Association of the Tri-Cities,
herein called the NAHB, which on behalf of its member-
ship has negotiated a collective-bargaining agreement,
known as the carpenter agreement, with Respondent
covering all building, heavy highway and engineering
construction work within the jurisdiction of Respondent.
The carpenter agreement covers a multiemployer bargain-
ing unit consisting of all those employees employed by the
members of NAHB who give the association authority to
bargain on their behalf. Robert Young Construction, the
proprietorship, was a member of NAHB and, commencing
in May 1967, as part of the multiemployer unit a became a
party to successive carpenter agreements negotiated on its
behalf by the NAHB. Each one of these agreements
contained the type of union-security provision permitted in
the construction industry by Section 8(f) of the Act,
namely, requiring union membership after 8 days of
employment.3 The last carpenter agreement was entered
2 While not clear that Robert Young Construction initially was part of
the multiemployer unit, it is undisputed that by October 1, 1968. it had
become a part of this unit
a When Robert Young Construction initially became a party to the
carpenter agreement , of its two employees only one was a member of
Respondent There is no showing, however, that a majority of the employees
covered by the union-security agreement in the multiemployer unit either at
this time or at any time were not members of Respondent
4 Robert Young Construction prematurely attempted to terminate its
obligations under this contract on June 23, 1969, at which time Robert
Young by letter notified the Respondent that it was terminating the
carpenter agreement "effective immediately" explaining , in substance, that
the Respondent 's threat to institute certain legal action against him while it
into by Respondent and NAHB, on behalf of its member-
employers including Robert Young Construction, on
October 1, 1968, and was effective from that date until
June 1, 1971, "and from year to year thereafter unless
notice is given in writing by the [Respondent] or the
[NAHB] to the other party sixty days prior to the
expiration of any subsequent annual period of its desire to
modify, amend or terminate this agreement, and in such
case the agreement shall be opened for modification,
amendment or termination such as the notice may indicate
at the expiration of the period with which the notice is
given." 4
By letter of March 29, 1971, Respondent notified NAHB
of its intent to reopen the carpenter agreement "for
modification and amendments" and asked the NAHB to
schedule a negotiation meeting. The record does not
indicate when the parties first met or when they exchanged
their initial proposals. However, on April 13, 1971, Gary
Bosch on behalf of Construction, Inc., notified the
Respondent and NAHB by letter that Construction, Inc.,
was not a party to, or involved in, the negotiation of the
carpenter agreement between the Respondent and NAHB
and would not be bound by any such agreement .-9 This
letter went unanswered. In the meantime the negotiations
for a new carpenter agreement with the NAHB was
delayed by the fact that proposed agreements dealing with
wages and fringe benefits had to be submitted for approval
to the Construction Industry Stabilization Committee set
up under the Federal Government's wage-price freeze
machinery in the construction industry. Eventually, on
April 11, 1972, Respondent, through its business represent-
ative Guy Adams, by letter addressed to Gary Bosch as
president of Construction, Inc., informed Bosch that
Respondent was currently negotiating with NAHB and
hoped they would agree to a contract on April 12, 1972,
which in turn could be used as a guide for other home
builders in the Tn-City area that had not delegated their
bargaining to the NAHB. Continuing. Adams expressed
the thought to Bosch that, "[t]herefore, since your
company is not represented by the [NAHB ], please accept
this as an invitation to negotiate with us on the modifica-
tions and amendments to the body of the Agreement and
wage structure." Thereafter, as set out earlier, Adams met
with Bosch during the months of April and July 1972, at
which time Adams demanded that Developments. Inc.,
enter into a labor agreement compelling it to recognize the
Respondent as the representative of its employees.6 Bosch
refused. Finally, it seems that at one of these meetings that
Adams claimed that Developments, Inc., was bound by a
contract with the Respondent. Thus, Bosch in his letter of
might he well grounded legally was morally unconscionable
s Whether the Employer be viewed as Robert Young Construction or
Construction, inc., I find that by this letter it effectively withdrew from the
multiemployer unit covered by the carpenter agreement and, as indicated
infra, the Respondent consented to this withdrawal Respondent's attorney
during the hearing conceded that the withdrawal was timely and effective
In these circumstances, the fact that in the fall of 1971 NAHB in one of its
publications included Robert Young Construction among the list of its
members, without permission, does not demonstrate that the Employer
remained within the contractual multiemployer bargaining unit.
6 In making these demands, Adams did not intend to draw any
distinction between Construction. Inc, and Developments. Inc. regarding
them as the same employer
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 27, 1972, to Adams stated: "During our meeting on
Friday April 21, 1972, we agreed that you would supply
me, Monday, with our contract and information showing
that we are still under union agreement . As I stated then, I
cannot make a decision without knowing the situation
pertaining to whether or not we are under contract."
B. Discussion and Ultimate Findings
Section 8(b)(7)(C) of the Act, which is involved herein,
prohibits picketing by an uncertified union where an object
thereof is "forcing or requiring an employer to recognize or
bargain with a labor organization as the representative of
his employees," if such picketing has been conducted for
more than 30 days without the filing of an election petition.
The second proviso to this section, commonly known as
the publicity proviso, exempts from the prohibition "any
picketing or other publicity for the purpose of truthfully
advising the public (including consumers) that an employer
does not employ members of, or have a contract with, a
labor organization" unless an effect of such picketing is to
induce employees of other employers not to pick up or
deliver goods or perform services.
In the instant case, Respondent picketed with signs
stating that the Employer does not have a contract with
Respondent. Immediately prior to, and after, the com-
mencement of this picketing, a representative of Respon-
dent requested that the Employer recognize the Respon-
dent as the bargaining representative of its employees.
Clearly, the language of the picket sign and the statements
of Respondent's representative, taken together, establish
that, in picketing the Employer the Respondent was
motivated by a recognitional objective. In these circum-
stances, since Respondent has not been certified to
represent the Employer's employees and the picketing has
been carried on for over 30 days without an election
petition having been filed, it would seem that Respondent
violated Section 8(b)(7)(C) by its picketing unless, as
contended by Respondent, the picketing was not for an
object of "initial" recognition or unless the second proviso
in 8(b)(7)(C), the publicity proviso, immunized the picket-
ing. I shall now set out and discuss my ultimate findings
with respect to these defenses.
I
Construction, Inc., and Developments, Inc., I find,
constitute one employer for purposes of the Act. They
share the same office, post office box, phone number, on
one occasion advertised together, and until August 1972
used the same contractor's license. In short, they represent
themselves to the public as a single enterprise. Even more
important, there is common ownership and control, and
Gary Bosch exercises control over the labor relations
policies of both companies. Also, all of the employees of
Construction, Inc. were transferred without a break in their
employment to Developments, Inc. and both employers
are engaged in the identical business. In short, I am
convinced that whether they are viewed as a single
T Building and Construction Trades Council of Santa Barbara County,
AFL-CIO, et al. (Sullivan Electric Co.), 146 NLRB 1086, 1087, also see, Bay
Counties District Council of Carpenters, etc (Disney Roofing & Material), 154
employer or alter egos of each other, or whether Develop-
ments, Inc., is the successor to Construction, Inc., that in
the circumstances of this case Developments, Inc., and
Construction, Inc., have been one employer, at all times
material, for the purposes of the Act. Cf. International
Union of Operating Engineers, Local 428, AFL-CIO, 169
NLRB 184; N.L.R.B. v. Burns International Security
Services, Inc., et al, 406 U.S. 272, 277-281; Associated
Transport Company of Texas, Inc., et al., 194 NLRB (1972)
62.
Regarding the relationship between Construction, Inc.,
and Developments, Inc., hereafter referred to collectively
as Developments, Inc., and the proprietorship, Robert
Young Construction, I am of the opinion that Develop-
ments, Inc., is the same employer as, or the alter ego of,
Robert Young Construction. Developments, Inc., was
formed for the purpose of taking over the business of
Robert Young Construction. As late as August 1972,
Developments , Inc., operated using the contractor 's license
issued to Robert Young Construction. The principal
investor and the motivating force in forming Develop-
ments, Inc., was Robert Young, the sole owner of Robert
Young Construction. And the same person , Gary Bosch,
controlled, conducted, and was responsible for the opera-
tions , including labor relations , of Developments , Inc., in
the same manner as he had done with respect to the
operations of Robert Young Construction. I realize that
there was no transfer of employees from Robert Young
Construction to Developments, Inc., and that under
conventional successorship doctrine (see N.L.R.B. v. Burns
International Security Services, Inc., et al., supra ) this
mitigates against a finding that Developments , Inc., is a
successor employer to Robert Young Construction. I do
not believe, however, that the conventional tests for
successorship apply in a situation such as the instant case
which does not involve the normal arms' length transfer of
a business between unrelated sellers and purchasers. Cf.
Stateside Shipyard and Marina Inc., 178 NLRB 516, 518.
In the light of the foregoing, and the whole record, I find
that at all times material Robert Young Construction,
Robert Young Construction, Inc., and Robert Young
Developments, Inc. have been one employer or the alter
egos of each other for purposes of the Act, and hereafter I
will refer to each of them as the Employer.
II
The Board has held in a number of cases that Section
8(b)(7)(C) is not to be literally applied so as to reach
picketing by a recognized union to secure a new agreement
or to secure compliance with an existing contract , since the
section was
intended to proscribe picketing having as its target
forcing or requiring an employer' s initial acceptance of
the union as the bargaining representative of his
employees. [Emphasis supplied.]?
Respondent contends its picketing of the Employer did not
NLRB 1598. 1605: Local Union No 612, etc. (Deaton Truck Line), 150
NLRB 514, 517: Warehouse Employees Union Local 570, etc (Whitaker
Paper Co), 149 NLRB 731.
CARPENTERS, LOCAL 1849 467
have an "initial" recognition object inasmuch as the
Employer had previously recognized the Respondent; and
Respondent was irying to get the Employer to comply with
an existing bargaining obligation under the carpenter
agreement which was being renegotiated. I disagree. In my
view the record establishes that the Respondent's picketing
has "as its target forcing or requiring [Developments,
Inc.'s ] initial acceptance of the [Respondent] as the
bargaining representative of [its] employees." Building and
Construction Trades Council of Santa Barbara County,
AFL-CIO, ei al. (Sullivan Electric Co.), supra at 1087.
The Employer's last contract with the Respondent was
entered into on October 1, 1968, and was effective from
that date until June 1, 1971. The Employer for a major part
of this period, over 2 years from March 1969 until May
1971, employed so construction employees. At about the
same time the Employer in 1971 commenced to reemploy
construction employees, it notified Respondent and
NAHB that it was withdrawing from the multiemployer
bargaining unit represented by NAHB and would not be
bound by the results of Respondent's negotiations with the
NAHB. Respondent acquiesced in the Employer's timely
withdrawal from the multiemployer unit and thereafter
sought recognition and bargaining on a single-employer
basis. The Employer, as a single employer, at all times
refused to recognize Respondent. Finally, it was stipulated
by Respondent that at all times, including the dates of the
picketing, it was in effect a minority union, specifically that
it did not represent a majority of the Employer's employees
employed on the various construction projects and that less
than a majority of these employees were members of
Respondent.8
In summation , the Respondent had no bargaining
constituency among the Employer's employees for over 2
years, the Respondent when the Employer reemployed
such employees accepted the Employer's withdrawal from
the multiemployer unit and unsuccessfully sought recogni-
tion in a single employer unit in which the Respondent did
not represent a majority of the employees. These circum-
stances demonstrate to my satisfaction that in picketing the
Employer the Respondent was not picketing in support of
the bargaining rights it had already secured in the
historical multiemployer unit, but the picketing was
designed to force or require the Employer's "initial"
acceptance of the Respondent as the bargaining represent-
ative of employees in a single employer unit, despite the
fact that the Respondent did not represent a majority in
such a unit. Clearly, such picketing is identical to the so-
called "blackmail picketing" for which 8(b)(7)(C) was
meant to cover .9 See, Warehouse Employees Union Local
570, etc. (Whitaker Paper Co.), supra, at 734.
In concluding that Respondent's picketing was not for
initial recognition, I have considered its argument that the
1968 multiemployer carpenter agreement to which the
s Although the stipulation, as set out above, is not a model for clarity, I
find from the record as a whole and from the stipulation itself that the
parties meant to stipulate and in fact did stipulate that the Respondent was
a minority union among the Employer's employees whom Respondent was
attempting to represent
9 I realize, as the Charging Party and General Counsel point out, that the
initial contract between the Respondent and the Employer was apparently
entered into pursuant to the provisions of Section 8(f) of the Act, that the
Employer was a party has never terminated, that negotia-
tions were only opened to amend and modify the
agreement, and that under these circumstances the Em-
ployer was obligated to continue to honor the agreement at
the time of the picketing. In this connection the record
shows that the 1968 carpenter agreement by its terms only
grants to the party-signatories, the Respondent and
NAHB, the power to terminate the agreement at the
expiration date. They chose in 1971 not to terminate the
agreement but rather to open the entire agreement "for
modifications and amendments." Thus, it literally appears
that the 1968 agreement was never terminated. Neverthe-
less, I cannot accept Respondent's contention that the
Employer, despite its timely withdrawal from the contrac-
tual multiemployer bargaining unit embodied by the
carpenter agreement, was still obligated to honor the
agreement. This would be inconsistent with the Employer's
withdrawal from the contractual bargaining unit and, in
large part, makes such a withdrawal meaningless. In this
regard, I note that a multiemployer bargaining relationship
is a consensual matter and that the Employers have an
absolute right to withdraw from such a unit, subject to
certain ground rules established by the Board. Retail
Associates, Inc., 120 NLRB 388. The Employer in the
instant case followed these rules. Under all these circum-
stances, including the Respondent's minority status among
the Employer's employees and the timely withdrawal by
the Employer from the multiemployer unit, I am of the
view that the Employer was not obligated at the time of the
picketing to honor the 1968 multiemployer carpenter
agreement. Cf. Retail Clerks International Association,
AFL-CIO v. Montgomery Ward & Co., 316 F.2d 754, 757
(C.A. 7, 1963) ("An implied condition of the contracts was
the continuance of that status as such certified representa-
tive.")
III
The fact that Respondent, as I have found, picketed the
Employer for recognition within the meaning of Section
8(b)(7)(C) does not end this matter, for 8(b)(7)(C) provides,
in the so-called publicity proviso, that
nothing in this subparagraph (C) shall be construed to
prohibit any picketing or other publicity for the
purpose of truthfully advising the public (including
consumers) that an employer does not employ mem-
bers of, or have a contract with, a labor organization,
unless an effect of such picketing is to induce any
individual employed by any other person in the course
of his employment, not to pick up, deliver or transport
any goods or not to perform any services.
In construing this proviso, the Board has held that, even
though picketing is conducted for a proscribed object, a
Board does not in a normal 8(f) situation presume majority status simply by
virtue of the contract's existence, and accordingly will not find an employer
in violation of Section 8(a)(5) and ( 1) of the Act for repudiating the
contract, absent some showing that the Union has in fact obtained majority
status See, e g, R J Smith Construction Co, 191 NLRB 693. However, in
view of my findings above. I need not decide the effect of an 8(f) contract in
the context of an alleged violation of Sec 8 (b)(7)(C) of the Act
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of Section 8(b)(7)(C) is not established if the
picketing is for the purpose of truthfully advising the
public, including consumers, that the employer does not
employ members of, or have a contract with, a labor
organization, unless an effect of such picketing is to induce
a stoppage of deliveries and/or services. Retail Clerks
Union Local 324, etc. (Barker Bros. Corp.), 138 NLRB 478.
The picketing in the instant case, in my view, was
conducted for informational purposes. Thus, the picket
signs stated, "STRIKE. ROBERT YOUNG DOES NOT
HAVE AN AGREEMENT WITH UNION CARPEN-
TERS." This language brings the signs within the literal
wording of the publicity proviso. There was no contention
nor evidence that the picketing caused any interruption of
work or deliveries so as to have a sufficient impact on the
Employer's operations to constitute an "effect" within the
meaning of the publicity proviso. There is no evidence of
conduct by Respondent which establishes that the picket-
ing rather than "for the purpose of truthfully advising the
public" was merely a tactic to advise employees of the
Employer and other contractors and subcontractors
working on the picketed projects of the existence of
Respondent's controversy with the Employer and to
induce them to leave work. The use of the word "strike" by
itself on the sign is not sufficient for me to infer that the
purpose of Respondent's picketing was to signal economic
action, rather than to truthfully advise the public. See,
Hosting & Portable Engineers Local 101, etc. (Sherwood
Construction Co.), 140 NLRB 1175, 1178-79, where the
Board in a case involving the use of a picket sign almost
identical to the one used here, found that the purpose of
the picketing was not to truthfully advise the public. This
conclusion, however, was based solely on the manner in
which the respondent union in that case conducted the
picketing. As already indicated, the evidence in this case
does not establish that the Respondent in conducting its
picketing, or by other conduct, acted inconsistent with a
purpose of truthfully advising the public that the Employer
had no contract with Respondent.
IV
To sum up , I find that Respondent 's picketing , although
for a recognition object , was for "the purpose" of truthfully
advising the public that the Employer did not have a
contract with the Respondent and, therefore , such picket-
ing fell within the ambit of the second proviso in Section
8(b)(7)(C). I rely particularly on the fact that Respondent
picketed the Employer with signs substantially embodying
the language of the second proviso and that Respondent
took no other action indicating the purpose of its picketing
was not to inform the public that the Employer did not
have a contract with the Respondent . I also find that
Respondent's informational picketing did not constitute
"an effect," within the meaning of the second proviso in
Section 8(b)(7)(C). I find , therefore , that in the absence of
"an effect" attributable to the informational picketing,
Section 8(b)(7)(C) is not violated . Accordingly , I shall
recommend dismissal of the complaint herein.
CONCLUSIONS OF LAW
1. Robert Young Developments, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of
America, Local No. 1849, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor
practices within the meaning of Section 8 (b)(7)(C) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: io
ORDER
The complaint is dismissed i n its entirety.
10 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and order, and all objections thereto shall be
conclusions, and recommended Order herein shall, as prodded in Sec deemed waived for all purposes