Construction, Shipyard, Etc., Local 1207

National Labor Relations Board - Board Decisions

Mar 8, 1963

141 N.L.R.B. 283 (N.L.R.B. 1963)

CONSTRUCTION, SHIPYARD, ETC., LOCAL 1207 283
ployment as authorized in Section 8(a) (3) of the Act, as modified by the Labor
Management Reporting and Disclosure Act of 1959.
WE WILL offer immediate and full reinstatement to Clarence Bodey.
WE WILL make whole Clarence Bodey for any loss he may have suffered as
the result of the discrimination against him.
,All our employees are free to become, remain, or refrain from becoming or remain-
ing members of any labor organization.
ADAMSON COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 720 Bulk-
ley Building, 1501 Euclid Avenue, Cleveland 15, Ohio, Telephone No. Main 1-4465,
if they have any question concerning this notice or compliance with its provisions.
Construction , Shipyard and General Laborers Local 1207, AFL-
CIO; and Building and Construction Trades Council of Tampa,
Florida and Alfred S. Austin Construction Company, Inc.
Case No. 1 3-CP-2O. March 8, 1963
DECISION AND ORDER
On September 5, 1962, Trial Examiner Leo F. Lightner issued his
Intermediate Report in this proceeding, finding that the Respondents
had engaged in certain unfair labor practices, and recommending that
it cease and desist therefrom and take certain affirmative action as set
forth in the attached Intermediate Report. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a supporting
brief. The General Counsel submitted a brief generally supporting
the conclusions of the Trial Examiner.'
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner except as modified hereafter.
In finding the violations alleged, the Trial Examiner held that an
object of Respondent Union's picketing 3 was recognition and con-
cluded that while the picketing was for a dual purpose, i.e., informa-
tional as well as recognitional, it was still violative of the Act because
1 The Charging Party filed a motion to remand for the taking of additional evidence
with respect to the effect of the picketing . In view of our conclusions herein, the motion
is denied.
Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Members Rodgers, Fanning,
and Brown].
5The parties stipulated that the picketing occurred here during three intervals, April 2
to 4, April 30 to May 11, and from May 22 to June 6, 1962 (all dates inclusive), by
Laborers Local 1207.
141 NLRB No. 24.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there were delivery and work stoppages. The Trial Examiner also
found that the Council 4 as well as the Union 8 violated Section
8(b) (7) (C) because they were engaged in a joint venture and were
responsible for the acts of each other in pursuing the common objective.
The Respondents contend, inter alia, that the picketing here was
designed to publicize the failure of Austin Construction Company to
conform to area wage standards and was, therefore, not violative of
the Act. Secondly, they contend that the Council is not responsible
for the picketing by the Union because the Council did not participate
in any decision to picket, nor did the Council ratify such conduct by
the Union.
For the reasons noted hereafter, we agree with the Trial Examiner
that recognition was an object of the picketing. Unlike those cases
in which the Board has found that picketing was solely to protest
the payment of substandard wages and hence did not fall within the
proscriptive ambit of Section 8(b) (7),s the facts in the present con-
troversy do not support the view that the picketing here was simply
to protest that Austin did not pay area "prevailing wages." In the
Claude Everett case, for example, in which the Board found the
picketing was for such a purpose, the Trades Council in that case
had inquired about the wage rates being paid and was informed that
the wages were lower than those negotiated by local unions with
other employers in the area. The Board also found there that the
Council did not, either in its letter or conversation with the affected
employer, or by its picket sign, claim to represent that employer's
employees or request recognition by the employer. Moreover, that
Council had made similar protests in the past about substandard wages
without requesting recognition as the bargaining agent.
In the present case, Mooneyhan, president of the Respondent Coun-
cil, admittedly did not know or even inquire about the wage rates paid
to laborers by the Company, nor was any such inquiry made by
Collins, business agent of the Laborers Union. In addition, we note
that Respondents' other conduct belies their claim that they were
merely engaged in wage protest picketing. Mooneyhan admitted that
his purpose in arranging meetings with Austin, on behalf of all the
business agents of the various building trades, was to persuade Austin
to employ all union help on his projects (not merely to urge Austin
to pay prevailing wages). Secondly, the picket sign originally drawn
up specifically for picketing at Austin's jobsites clearly disclosed a
' Building and Construction Trades Council of Tampa, Florida.
c Construction, Shipyard and General Laborers Local 1207, AFL-CIO, hereinafter re-
ferred to as the Union , or the Laborers Union.
0 See Claude Everett Construction Company, 136 NLRB 321; Keith Riggs Plumbing and
Heatanq Contractor, 137 NLRB 1125. Member Rodgers dissented in both cases. See
footnote 8, infra.
CONSTRUCTION, SHIPYARD, ETC., LOCAL 1207 285
recognition purpose in its text.' Although the text of the sign was
altered after Collins, business agent of the Union, had consulted with
his attorney, we are persuaded that the original wording of the picket
sign expressed the Union's real aim in picketing.'
Under all the circumstances, we find that the picketing here, which
continued for more than 30 days without a representation petition
having been filed, had a recognitional object. In view thereof, and
as it appears clear from facts detailed in the Intermediate Report that
the picketing was not for the informational purpose authorized by
the second proviso to Section 8(b) (7) (C),9 we conclude that the
Union, by its picketing, violated Section 8(b) (7) (C) of the Act.10
We also agree with the Trial Examiner that the Council is respon-
sible for the picketing by the Union. After a discussion about Austin
at a regular weekly business agents' meeting on March 30, 1962, Col-
lins ordered picket signs which stated that Austin did not recognize
or have a contract with the Laborers Union. On the same day that
Collins ordered the picket signs, Council President Mooneyhan, who
was also present at the business agents' meeting, made the initial con-
tract with Austin and admittedly indicated to Austin that by meeting,
Austin might avoid being picketed. Picketing at Austin's jobsites by
the Union began on April 2, 2 days before the scheduled meeting. At
the termination of a rather inconclusive meeting on April 4, Mooney-
han offered to see about getting the picketing stopped if Austin would
agree to another meeting. Pursuant to Mooneyhan's request on
April 4, the picketing of Austin's jobsites ceased. After a number of
inquiries by Mooneyhan li seeking another meeting, Austin, by letter
dated April 24, stated they would continue to use union labor on a
voluntary basis and impliedly rejected requests for another meeting.
On April 30, the Union resumed picketing. On May 15, the Union
wrote Austin a letter in which it acknowledged that they learned on
April 27 that Austin had failed to agree to meet with any of the busi-
ness agents as requested in Mooneyhan's letter.
7 The original picket sign which was used on one occasion for several hours stated that
Austin Construction Company "does not recognize or have a contract with Laborer's
Local 1207 " The sign was altered to read "Austin Construction Company lowering
wages & working conditions negotiated by Laborers Local 1207." The Board has held
that language like the original picket sign indicates a recognition or bargaining object.
Leonard Smitley et at . d/b/a Crown Cafeteria, 135 NLRB 1183.
8 Member Rodgers would find that the picket signs as changed also evidenced Respondents'
recognitional object. See the dissenting opinions in Claude Everett Construction Company
and Keith Riggs Plumbing and Heating Contractor , supra.
See Atlantic Maintenance Co., 136 NLRB 1104.
10 In view of our holding here, we find it unnecessary to determine whether the work
stoppages or interruptions of deliveries had the proviso effect
n In addition to several telephone inquiries requesting a meeting with Austin, Mooneyhan
wrote a letter, dated April 13, 1962, stating "the Business Agents of the Building Trades
crafts are requesting a meeting with you at your earliest convenience to discuss the pos-
sibility of supplying you with qualified workmen in your building and construction jobs."
[Emphasis supplied.]
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the timing and sequence of events enumerated above,
and the activities of Mooneyhan as president of the Council, it is ap-
-parent that the efforts of the Union and Council were coordinated to
compel, as the Trial Examiner found, Austin to employ union mem-
bers and recognize the Union as the representative of the laborers.
Under all the circumstances, we conclude that the Council is equally
responsible with the Union for the picketing engaged in here.
On the basis of the foregoing, we find that by picketing Austin for
more than a reasonable time after April 2,1962, without filing a timely
petition, Respondents violated Section 8(b) (7) (C) of the Act.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Tampa,
Florida, on July 17, 1962, on the complaint of the General Counsel, as amended, and
the answer of the Respondents, Construction, Shipyard and General Laborers Local
1207, AFL-CIO, herein referred to as the Laborers, and Building and Construction
Trades Council of Tampa, Florida, herein referred to as the Council.' The issue
litigat-°d is whether the Respondents engaged in unfair labor practices and thereby
violated Section 8(b) (7) (C) of the Labor Management Relations Act, 1947, as
amended, 61 Stat. 136, herein called the Act. Rulings on motions for dismissal, by
Respondents, were reserved and are disposed of in accordance with my findings
herein The parties waived oral argument. Briefs filed by the General Counsel and
Respondents have been carefully considered.
Upon the entire record and from my observation of the witnesses, I make the
following.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Alfred S. Austin Construction Company, Inc.,2 is a Florida corporation which
maintains its principal office and place of business in the city of Tampa, Florida,
where it is engaged in the building and construction industry as a general contractor.
During the 12-month period preceding the issuance of the complaint, a representative
period, said Company purchased and received from sources located outside the State
of Florida goods or services valued in excess of $50,000. The complaint alleges, the
answer admits, and I find, that said Employer is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find that Construction , Shipyard
and General Laborers Local 1207, AFL-CIO, herein called Laborers , is a labor
organization within the meaning of Section 2(5) of the Act.
The complaint alleges, the answer denies, and , I find it unnecessary to determine
whether Building and Construction Trades Council, of Tampa, Florida , herein called
Council , is a labor organization within the meaning of Section 2(5) of the Act, for
reasons appearing infra.3 The proscriptions of Section 8(b) apply with equal force
to a labor organization "or its agents."
'A charge was filed on May 8, 1962, amended charges were filed on May 23, 1962,
May 28, 1962; and June 14, 1962; the complaint was issued on June 14, 1962
2 Name of employer amended at hearing to reflect correct identity
s See Building and Construction Trades Council of Tampa and Vicinity, AFI CfO
( Tampa Sand and Material Co.), 132 NLRB 1564, 1570.
CONSTRUCTION, SHIPYARD, ETC., LOCAL 1207
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issue
287
The principal issue raised by the pleadings and litigated at the hearing is whether
Respondents , as more fully set forth in the complaint , engaged in activity in contra-
vention of the provisions of Section 8(b)(7)(C) of the Act, by picketing specified
jobsites of the Employer , where an object thereof was to force the Employer to recog-
nize and bargain with Respondent Laborers as the collective -bargaining representative
of the Employer's employees and to force or require employees of said Employer to
accept and select Respondent Laborers as their collective-bargaining representative,
where Respondents were not currently certified as the representative of said employ-
ees, and where a valid petition under Section 9(c) of the Act, involving said employ-
ees, was not filed within a reasonable period of time from the commencement of such
picketing.
It is undisputed that picketing took place at the times and places alleged, how-
ever, the Council denies that it was engaged in said picketing , the Laborers denies
that the picketing was with the objects alleged . It is undisputed that neither the
Council nor the Laborers was currently certified as the representative of the em-
ployees of the Employer, and no petition under Section 9(c) of the Act was filed
by either organization prior to the hearing herein.
B. Background
Some, but not all, of the evidentiary facts are undisputed. It may be inferred from
the evidence that prior to January 1962 the activities of the Employer, Alfred S.
Austin Construction Company, Inc., were largely in the field commonly identified
as residential construction in the Tampa, Florida, area. The Employer commenced
certain commercial construction, with which we are here concerned in the following
sequence: (a) Will Building commenced January 1962; (b) Golden Shores Con-
valescent Center and Forrest Terrace Medical Center (two buildings-common job-
site ) commenced late February or early March 1962; (c) Cummins Diesel com-
menced March 1962; and (d) Mr. and Mrs. K's Beautiful Clothes commenced in
early May 1962.
The picketing with which we are here concerned took place during three different
intervals : (1) April 2 to April 4, 1962 (inclusive), at jobsites (a), (b), and (c),
supra; (2) April 30 to May 11, 1962 (inclusive), at jobsites (b) and (c), supra, and
May 8 to May 11 (inclusive), at jobsite (d), supra; and (3) May 22 to June 6
(inclusive) at jobsites (b), (c), and (d), supra.
C. Sequence of events relative to the demand upon Employer
An unspecified number of "craft" locals in the Tampa area, including the Laborers,
are members of and pay per capita tax, based upon membership, to the Building and
Construction Trades Council of Tampa, Florida, which is an affiliate of the Building
Trades Department, AFL-CIO. Some business of the Council is conducted at
meetings of delegates elected by constituent locals, other business is conducted at
meetings of the business agents of the various locals. We are here concerned with
the latter. At all times pertinent herein, A. G. Mooneyhan was president of the
Council and W. G. Collins was business agent for the Laborers. Mooneyhan was
also business agent for the Sheet Metal Workers. The business agents met regularly
at 10 a.m. each Friday morning.
Mooneyhan related that at a meeting of the business agents on the morning of
Friday, March 30, 1962, Collins stated that he was tired of some of these contractors
around here paying less than the prevailing wage, and he was going to do something
about it, and he discussed the Austin job, Alfred S. Austin Construction Company,
"but he did not tell us definitely he was going to picket or anything else." 4 Collins
acknowledged that he first heard about a proposed meeting with Austin at this business
agents' meeting on the morning of March 30.5 Collins acknowledged that the
president of the Council and the business agents "call on these different contractors-
(to) see if we can sell, organize maybe, through said contractors."
On the afternoon of March 30, Mooneyhan telephoned Alfred S. Austin, president
of the Employer Corporation. Austin credibly testified that Mooneyhan advised
• I credit this statement of Mooneyhan only to the extent that it indicates that Collins
did participate in the meeting and discussion. This credibility finding Is based upon con-
flicting testimony of Collins and Austin relative to subsequent events.
5 Collins' disclaimer that he was a party to the decision to contact Austin is not
credited by reason of the evidence relative to subsequent events, set forth infra.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was president of the Council and business agent of the Sheet Metal Workers
Union . Mooneyhan hold Austin that he was desirous of setting up a meeting between
Austin and the business agents , including Mooneyhan , "to discuss using some union
help on our jobs." Austin responded that he was not certain he was interested in
such a meeting. Mooneyhan then advised Austin , "If we would have this meeting
it was probable that we could prevent some of the other trades from picketing our
jobs They had been talking about doing this " Mooneyhan advised Austin that
he would bring business agents of the different trades, and , upon inquiry, enumerated
laborers, carpenters , ironworkers , painters , plumbers, and others A meeting on
Wednesday, April 4, 1962, was agreed upon.
Mooneyhan corroborated Austin 's testimony to the extent of asserting that he had
advised Austin that there would be 6, 8 , 10, or 12 business agents at the meeting.
Mooneyhan acknowledged specifying the different crafts for whom he was speaking
and acknowledged that it was possible that he had mentioned "laborers," among
others. Mooneyhan acknowledged telling Austin that there was a possibility of
picketing , that he knew of "contemplated picketing ." Mooneyhan did not deny
Austin 's assertion that Mooneyhan advised him that the purpose of the meeting was
"to discuss using some union help on our jobs." 6
On April 4, 1962 , only Mooneyhan and Eckstein , Carpenters ' business agent,
appeared . The Employer was represented by Austin and John Turbiville , counsel,
and two others whose identity is unimportant Mooneyhan explained that others
that he had intended to bring were not able to be there as it was necessary for them
to be out of town. Mooneyhan , upon request , stated the purpose of the meeting
was that he wanted the Employer to use union help on all of the Employer 's jobs.
Austin explained that they were using union help through subcontractors, who were
mainly union . Austin further explained that the crews of the Employer were com-
prised only of carpenters and laborers . Mooneyhan responded that he was aware
of these facts but that he would like the Employer to have all union help . Mooney-
han then inquired whether Austin would agree to another meeting, since different
business agents were not present , and if Austin would agree to having the Laborers'
business agent come up and talk to him about using union help from their organiza-
tion. Austin responded by calling attention to the fact that the Laborers was at that
time picketing Austin 's jobs, the picketing having commenced on April 2. Since the
purpose of the meeting was to avoid this picketing , Austin asserted that he did not
believe another meeting would be in order. Mooneyhan expressed regret that
the picketing had taken place before the meeting , he was "afraid something like
that would happen ." Mooneyhan inquired whether Austin would be receptive to
another meeting if Mooneyhan could arrange to have the Laborers cease the
picketing .? Turbiville advised Mooneyhan that before there would he any agreement
relative to a further meeting Mooneyhan should write a letter stating the purpose
of the meeting and which business agents would be in attendance . Austin advised
Mooneyhan that they were doing both residential and commercial work , that he had
a number of employees who had been with him for a number of years and he did
not believe it would be fair to discharge them in order to have the Union furnish
union employees , that if the commercial end of the Employer's business built up
sufficiently it was quite possible that in the future Austin would voluntarily request
help from the Union.
During the meeting on April 4 Eckstein handed Austin a copy of the area a' ree-
ment between the Carpenters and the Florida West Coast Chapter of the Associated
General Contractors of America , Inc., and asked Austin to look it over and consider
it.
Austin related that the whole conversation was along the lines that Austin consider
using union help. Austin advised Mooneyhan that he felt that if he used union help
exclusively he would be out of competition in the residential field because very few
contractors building homes were using all union help.
Mooneyhan sought to establish that "prevailing wages" were discussed. His
testimony is illuminating.
Q. In your conference with Mr Austin , what was the discussion concerning
prevailing wage standards?
° Mooneyhan was not sure, but asserted , "I don't believe there was any discussion about
prevailing wages" In this first telephone conversation
4 Austin acknowledged that Mooneyhan asserted that he (Mooneyhan ) represented the
Sheet Metal Workers and was not authorized to speak on behalf of any other craft In
the light of other undisputed facts herein , including Mooneyhan ' s admitted knowledge
that Austin employed only carpenters and laborers , I do not find this assertion credible
CONSTRUCTION, SHIPYARD, ETC., LOCAL 1207 289
A. The conversation concerning prevailing wages was brought up in dis-
cussion of our contracts and I believe it was probably offered by me ... .
Q. Whose contracts?
A. Any of the building contracts. The question was brought up as far as our
using or them using all union labor. In other words, he (Austin) seemed
to think that is what we were trying to do, is have a closed shop, and we tried
to explain our contracts are what we thought was legal and they provided for
wages and covered the union and the non-union people, and that we established
the prevailing wages by collective bargaining and that is what we were after,
to see a fair wage was paid.
Q. But there was nothing said in connection with the prevailing wages
Mr. Austin was paying to those people he employed as laborers?
A. No, sir, I don't believe so.
Q. To your knowledge, did Mr. Austin's wage standards change after the
picketing was removed on the 5th of April?
A. I don't know what he was payir_g the men, I don't know what he is
paying them now. The only thing I know is what the sheet metal workers
received that were working for subcontractors for him.
Q. But these were subcontractors that hau contracts with you, is that
correct?
A. That is correct.
Q. And these were not people that Mr. Austin employed as sheet metal
workers?
A. That is correct.
Mooneyhan asserted that after his meeting with Austin, on April 4, he contacted
Collins, Laborers' business agent. Mooneyhan told Collins that he had met with
Austin and that union contractors on the jobs were going to be faced with losing
their contracts, inferentially by reason of admitted work stoppages and delivery
stoppages which resulted from the picketing. Mooneyhan requested Collins to
remove the pickets. It is undisputed that the picketing ceased after April 4.8
Approximately a week after the April 4 meeting there was a telephone conversation
between Mooneyhan and Austin. Mooneyhan advised Austin that he had Collins
remove the pickets, and inquired as to when Austin would be agreeable to meeting
with the business agents Austin reminded Mooneyhan of Turbiville's request that a
request for a meeting be in the form of a letter. Austin quoted Mooneyhan as
having said, "If I have to write a letter, I could ask Mr. Hamilton (counsel for
Respondents) to do it or get the Laborers to do it." 9
On April 13, 1962, Mooneyhan, as president of the Building and Construction
Trades Council of Tampa, Florida, wrote a letter to Austin. In the letter he advised:
Following my meeting with you and our telephone conversation, the Business
Agents of the Building Trades Crafts are requesting a meeting with you at your
earliest convenience to discuss the possibility of supplying you with qualified
workmen in your building and construction jobs.
The Business Agents meet regularly each Friday morning, at 10 a in., at the
Electrician's Hall, at Franklin and Henderson, and if this would convenient for
s Mooneyhan's assertion that he told Collins that there were "fair contractors" on the
job, that the plumbers, painters, and several others were being affected by the picket-
ing, and that there was a possibility of the business agents getting together with Austin
if the picketing were stopped is credited. However, Mooneyhan's assertion that Collins
advised him that if they wanted to get together with Austin he would take his pickets
down but he (Collins) did not have any desire to meet with Austin is not credited.
Obviously, this assertion was not communicated to Austin, and subsequent events as well
as other testimony of Mooneyban cause me to find such an assertion implausible Mooney-
han acknowledged his reason for so advising Collins to be his understanding that if the
pickets were taken down Austin would agree to meet with "all of the agents."
Collins' assertion that at this time, April 4, be advised Mooneyhan that he (Collins)
would not meet with the Company at any time is not credited Mooneyhan's advice to
Austin, a week after this event, that either Mooneyhan, or his lawyer, "or the Laborers"
would write a letter requesting a meeting with Austin sharply conflicts with this assertion
of Collins as to the latter's advice to Mooneyhan It appears most unlikely that Mooney-
ban would have made the representation he did to Austin relative to the writing of the
letter had Collins advised Mooneyhan as Collins and Mooneyhan now claim.
9I credit the testimony of Austin. Mooneyhan was "unable to recall" saying anything
about having the Laborers write a letter relative to the meeting.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you, we could meet at that time . However, if this would not be satisfactory,
then please notify me of a time and place suitable to you.
Hoping to hear from you as soon as possible , I remain.
On April 24 , 1962 , Austin responded to the above letter as follows:
This will acknowledge your letter of April 13 , 1962 , regarding use of your
workmen on our construction projects. As I previously informed you, we
frequently use union trades on our jobs and I am sure we will undoubtedly
continue to follow this course in the future. However, as I mentioned , we feel
that it should continue to be on a voluntary basis.
Your continued interest in our problems is appreciated.
The picketing was resumed April 30 , 1962 . Collins "did not remember" if he
knew, when picketing was resumed on April 30, that Austin had refused to meet
with the business agents of the Council.'°
D. The picketing-related Laborers' activity
On March 30 , 1962 , the same day as the meeting of the business agents, supra,
and of the afternoon telephone call from Mooneyhan to Austin requesting Austin
to meet with the business agents, supra , Collins, Laborers ' business agent, gave
instructions for the picket signs to be printed ." It is undisputed that the signs as
originally prepared, I find pursuant to Collins' instructions, read:
ALFRED S. AUSTIN
CONSTRUCTION COMPANY
Does NOT
recognize or have
a contract with
LABORER'S
LOCAL 1207
Collins' assertions relative to the wording of the sign , which was changed before
use, and the motivation for the change , is confused as well as self-contradictory.
Collins asserted:
Well, due to the fact when I was having these signs printed for this job, my office
contacted your office (Attorney Hamilton's ) concerning the writing of the sign,
and when I received them back from the painter I immediately phoned you
and told you that is not what I wanted on the sign , due to the fact there was not-
didn 't have any idea or any intentions of getting a contract with this company,
but I wanted a wording concerning the wages and conditions on the job.
Immediately thereafter Collins testified:
So due to the fact, you instructed me the wording to be put on this sign , so this
was on a Saturday , so I had to call the man who painted the signs for me and
tell him I had to have a different sign printed . He informed me he wouldn't
have time to do the whole complete job over again , as they consisted of ten signs,
but he would make a strip to put across this other to cover up the original sign,
and I gave him the wording for the original sign, and he printed this strip to be
put on this sign . Then I in turn stapled this over the other sign which I used to
picket this job.
With the insert attached the picket sign read:
ALFRED S. AUSTIN
CONSTRUCTION COMPANY
LOWERING WAGES
& Working Conditions
Negotiated by
LABORER'S
LOCAL 1207
It is undisputed that the sign as modified was the sign which appeared at all times
during the picketing , except for 2 days, on approximately May 8 and 9, the attachment
10 Collins ' letter of May 15 to Austin, infra, asserts such knowledge as of April 27
u Collins ' testimony was self-contradictory . He asserted relative to authorizing the
preparation of the signs , "No, I didn't authorize them, my office phoned the painter"
Thereafter , he testified , "I gave instructions for the picket signs to be printed up a
Friday afternoon , before Monday."
CONSTRUCTION, SHIPYARD, ETC., LOCAL 1207 291
became separated from one sandwich board and on those 2 days one sign appeared
in its original form at one of the picket sites. This sign was promptly removed
when the Laborers became aware of its condition.
Collins acknowledged that Laborers was a member of and paid a per capita tax
to the Council. Collins was present at the meeting of the business agents on the
morning of Friday, March 30, when the Austin jobs were discussed.12 Collins, in
response to an inquiry as to the connection of the Building Trades Council with the
Laborers' activities, testified:
Q. Well, there is testimony here that Mr. Mooneyhan contacted Mr. Austin
and discussed with him certain problems relative to some of his employees or
some of the employees of the subcontractors. What capacity does the Building
Trades Council have in that connection?
A. Well, in that capacity they've discussed many times how they can-the
president and the business agents call on these different contractors and see if
they can help them or whether they are making mistakes and the worker is not
doing enough; that is more or less his function. Or see if we can sell, organize
maybe, through said contractors.
The picketing, which began on April 2, was discontinued on the morning of April 5.
Collins acknowledged that on April 4, Mooneyhan requested a removal of the
pickets.13 Picketing was reinstituted on April 30, after Austin's letter of April 24
declining Mooneyhan's request that he meet with the business agents. The initial
charge herein was field on May 8. The picketing was discontinued, for the second
time, on May 11.
On May 15, the Laborers sent a letter to Austin, over the signature of Collins. In
this letter the Laborers indicated that the picketing was discontinued on April 4 at
the request of Mooneyhan "who indicated the picketing by this organization might
be preventing other organizations from entering into agreements with your com-
pany." The letter also stated that on April 27 the Laborers learned that Austin had
written to Mooneyhan "but had neglected to agree to meet with any of the business
agents as requested in Mr. Mooneyhan's letter. Thereafter, this organization advised
Mr. Mooneyhan and the business agents of the other crafts that this organization
intended to resume picketing of your jobs for the purposes set out in our handbill
and intended to continue such action without any further concession to wishes or
possible effects on any other labor organization." The letter further stated that on
May 11, the picketing was discontinued at the request of the Laborers' counsel "in
order to relieve the urgency of investigation of charges filed by your company with
the NLRB ...." The letter then advised that: (1) the Laborers did not claim or
seek to represent any of Austin's employees; (2) the Laborers objected to Austin's
failure to provide the laborers employed by it the wages and working conditions
established by the Laborers in the area; (3) the Laborers intends to use all lawful
means to publicize its dispute with Austin; (4) action taken by the Laborers would
be without reference to the existence or possibility of any recognition or agreement
between Austin and any other labor organization; (5) Collins and the other officers
of the Laborers are the only persons authorized to speak on behalf of the organiza-
tion; and (6) pickets utilized by the Laborers "will be furnished written instructions "
A copy of the instructions were enclosed with a request that the Laborers Local be
advised in the event of any violation of the instructions. Then follows a disclaimer
that the organization seeks to be recognized or to bargain with Austin and an asser-
"Collins' testimony was "I heard discussion that there was going to be a meeting, and
as I-let me rephrase that sentence, I was under the understanding that there was going
to be a meeting between Mr. Austin and some of the Building Trades' business agents, in
which I was no party to, which I didn't ask to be a party to, but it had nothing to do
with my decision of putting pickets on his job." I do not credit Collins' disclaimer.
13 Collins' confusion is apparent from his testimony relative to this conversation
Q At the time the pickets were removed, did you have any information that there
was to be scheduled or whether there was to be contemplated, a meeting between the
business agents of the Building and Construction Trades Council and Austin,
A. The only meeting I was informed of that would he held, was when I was asked
to take down my picket signs , so that the contractors, subcontractors which were in-
volved in this matter which had contracts with the subs on the Austin construction
job, could talk over these matters. I also at that time informed the business agent
for the sheet metal workers that I would not meet with the Company at any time.
I have found supra, footnote 8, the last declaration was not communicated to Austin,
and Mooneyhan's later representations to Austin cause me to find It incredible.
708-006-64-vol. 141-20
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion that it is interested in protecting the rates of pay and working conditions which
it has negotiated with other employers in the area. For the latter purpose a copy
of the current agreement with the Florida West Coast Chapter of the Associated
General Contractors of America, Inc., was enclosed.
It is thus established, and I find, that when the picketing was resumed on April 30,
the Laborers knew that Austin had declined to meet with the business agents, as
requested by the Council.
The handbill, referred to in the Laborers' letter of May 15, is headed "WHY WE
ARE PICKETING." The handbill disclaims any intent to organize the employees
of Austin or to get Austin to sign an agreement. The handbill recites that the
picketing is to advertise that the Company does not provide its employees working
as laborers the wages and benefits which have been established in the area as pre-
vailing rates. The handbill then recites "We are trying to persuade this company
to provide its laborers the wages, working conditions, and benefits which contractors
who pay their employees the officially determined wage rate for building and con-
struction work in this area provide for their employees." The handbill recites the
effect of the failure of the Austin Company to provide such benefits as: ( 1) more
difficult for contractors providing such benefits to bid successfully on jobs; (2) makes
maintenance and improvement of such benefits more difficult; and (3) deprives the
community of increased buying power.
The fact that the dispute is only with the Austin Company is noted and employees
of suppliers of that Company were requested to honor the picket line, while other
employees were requested to continue working. It is undisputed that the handbill
was used throughout the three periods of picketing.
The picketing resumed on May 22, 1962. A petition for an injunction under
Section 10(1) was filed on June 4, 1962. On June 6 a stipulation providing for the
cessation of picketing pending final disposition of this matter was entered.
It is undisputed that during the picketing there occurred failures of individuals
employed by suppliers, service companies, trucking companies, and persons other
than Austin, to make pickups or deliveries at the picketing premises or to perform
services at such premises. Said failures occurred during the time of the picketing
and were occasioned by the presence of a picket or pickets at the jobsites.
E. Analysis of evidence and concluding findings
I have found above, and it is conceded, that neither the Council nor the Laborers
was currently certified as the representative of the employees of the employer, no
petition under Section 9(c) of the Act was filed by either organization within the
prescribed period.
Proscriptions of Section 8(b)(7) apply only relative to picketing for an object
of "recognition," bargaining," or "organization," as therein specified. International
Hod Carriers, etc., Local 840 (Charles A. Blinne, d/b/a C. A. Blinne Construction
Company), 135 NLRB 1153. Informational picketing, even when coupled with a
proscribed object, is protected by the publicity proviso to Section 8(b)(7)(C), pro-
vided it is "for the purpose of truthfully advising the public 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 a work stoppage or delivery stoppage. Local
Joint Executive Board of Hotel and Restaurant Employees etc. (Leonard Smitley
et al. d/b/a Crown Cafeteria) 135 NLRB 1183. Purely informational picketing,
not coupled with a proscribed objective of "recognition or organization," even where
the picketing interferes with deliveries and services, does not constitute a violation
of this section of the Act. Houston Building and Construction Trades Council
(Claude Everett Construction Company), 136 NLRB 321.
Numerous Board decisions hold, however, that picketing is within the proscrip-
tions of Section 8(b)(7)(C) where an object is organization or recognition, even
where coupled with informational picketing, where the effect of such picketing is
work stoppages or delivery stoppages, by an individual employed by any other
person. That such stoppages occurred herein is undisputed.
The nature of the demand made upon Austin is next considered. Mooneyhan,
on March 30, advised Austin that he wanted to meet with him in order to discuss
Austin's using union help. When Austin indicated reluctance to meet for that pur-
pose he was advised by Mooneyhan that such a meeting "could prevent some of the
other trades from picketing" Austin's jobs. Mooneyhan acknowledged knowing
that Austin did not directly employ sheet metal workers, and that he did employ
carpenters and laborers. In discussing the business agents he would bring with him,
Mooneyhan mentioned the Laborers among others. At the meeting on April 4
Mooneyhan left no doubt that he was seeking to have Austin employ all union help.
Mooneyhan indicated a willingness to undertake to have picketing stopped provided
CONSTRUCTION, SHIPYARD , ETC., LOCAL 1207 293
Austin would agree to meet with the business agents; the Laborers ' business agent
was particularly mentioned. During this meeting Eckstein handed Austin a copy
of the Carpenters' local agreement and requested Austin to consider it.
It is undisputed that the pickets were removed because of Mooneyhan 's repre-
sentation to Collins that Austin had agreed to meet with the business agents. Mooney-
han's letter of April 13 clearly states his objective in attempting to arrange the sub-
sequent meeting with Austin as "to discuss the possibility of supplying you with
qualified workmen in your building and construction jobs."
It is undisputed that the picketing ceased on April 4 to afford Austin an oppor-
tunity to meet with the business agents and to agree to use all union labor. The
picketing was resumed after Austin refused to engage in such a meeting. Collins
left no doubt as to the purpose of Mooneyhan contacting Austin. He advised, inter
alia, "See if we can sell, organize maybe, through said contractors." It thus clearly
appears, and I find, that the object for which Mooneyhan sought to have Austin meet
with the business agents, including Laborers, was organization and recognition.
Respondents urge that neither Mooneyhan nor the Council was the agent of the
Laborers. I have not credited the disclaimer uttered by Mooneyhan in his first
meeting with Austin, in which he advised Austin that he was not authorized to speak
for the Laborers. Respondent relies on the Board decision in Sunset Line and
Twine Company case.14 The Board said, "In determining whether or not the evi-
dence does afford a basis for holding the Unions responsible for the episodes in
question, the Board has a clear statutory mandate to apply the ordinary law of
agency." Thereafter, the Board set forth, inter aka:
Agency is a contractual relationship, deriving from the mutual consent of prin-
cipal and agent that the agent shall act for the principal. But the principal's
consent, technically called authorization or ratification, may be manifested by
conduct, sometimes even passive acquiescence as well as by words. Authority
to act as agent in a given manner will be implied whenever the conduct of the
principal is such as to show that he actually intended to confer that authority.
It is undisputed that Collins participated in the meeting of the business agents on
the morning of March 30. It may reasonably be inferred, from the evidence, that
it was Collins who made reference to picketing Austin's jobs at that time, as related
by Mooneyhan to Austin that afternoon. Collins acknowledged that he knew that
a meeting with Austin was being arranged. It would require naivete to find that
Collins did not know the purpose of Mooneyhan's telephone call to Austin on the
afternoon of March 30, particularly in view of Collins' admission that he knew that
Mooneyhan stated he would get in touch with Austin and set up a meeting. Then
followed a sequence of events: Mooneyhan advised Austin he would bring the
Laborers' business agent, among others, to the meeting on April 4; at the meeting on
April 4 Mooneyhan expressed regret that certain business agents, including Collins,
were out of town and requested a further meeting for the purpose of meeting with
these business agents, including Collins; Mooneyhan advised Collins to remove his
pickets because Austin has agreed to meet with the business agents and Collins sus-
pended the picketing. On April 11 Mooneyhan advised Austin he (Mooneyhan)
or his lawyer, or the Laborers, would write a letter requesting a meeting; on April 13
Mooneyhan advised Austin that "the business agents of the building trades crafts
are requesting a meeting with you"; no exception relative to Collins is noted; when
Austin refused to meet with the business agents Collins was so notified on Friday,
April 27; the picketing was resumed on Monday, April 30. During all this period
of time Collins, fully advised as to the activities of Mooneyhan, never contacted
Austin relative to Mooneyhan's request that Austin hire all union employees, in-
cluding laborers. Under these circumstances I find the Building and Construction
Trades Council, through its president, Mooneyhan, was in fact the agent of the
Laborers.
General Counsel correctly urges that where picketing which is ostensibly infor-
mational, but is transparently not for that purpose, circumvention of the statutory
prohibition of Section 8(b)(7)(C) will not be tolerated, citing the Board decision
in Philadelphia Window Cleaners case.15 In that case the Board found that the
evidence "taken in its total context" plainly disclosed that the Respondent's picketing
was not for the informational purpose authorized by the proviso
"International Longshoremen's and Warehousemen's Union, C 10 ; and Local 6, etc.
(Sunset Line and Twine Company), 79 NLRB 1487, 1507, 1508.
15 Philadelphia Window Cleaners & Maintenance Workers' Union, Local 125 (Atlantic
Maintenance Co ), 136 NLRB 1104. See also Local 3, International Brotherhood of
Electrical Workers, AFL-CIO (Jack Picoult and Al Picoult d/b/a Jack Picoult), 137
NLRB 1401.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mooneyhan sought to equate prevailing wage standards with "any of the building
[trades] contracts," then admitted no knowledge of the wages paid to laborers by
Austin. This record is silent as to the "prevailing wage rate" under the Davis-Bacon
Act, and the disparity, if any, of Austin's wage rates.16
The complaint alleges that the Council "by and through Local 1207" engaged in
the picketing. It is further alleged that Respondents engaged in and have been
engaged in the picketing, an object thereof being to force Austin to recognize and
bargain with Respondent Local 1207. There is no evidence that the Council directly
engaged in the picketing.17
It is patent that the demand of Mooneyhan constituted a request for recognition
of the Laborers, among others. The picketing was resumed only after Austin's
rejection of that demand. Accordingly, for the reasons indicated, I find that an
object of the picketing was recognition. Since there were work stoppages and de-
livery stoppages, I find the picketing was within the proscriptions of Section 8(b)
(7) (C), even though it was dual-purpose picketing.
Upon consideration of all of the foregoing and the entire record as a whole, I
am convinced and find that the Council and Laborers were engaged throughout their
activity, including the unlawful conduct, in a joint-venture relationship to bring
economic pressure to bear against Austin to compel Austin to replace his work force
with union members and to recognize the Laborers as the representative of his em-
ployees in that classification. In pursuit of the common venture, each is the agent
of the other and equally responsible for the conduct committed by the group in
pursuing the common objective. International Organization of Masters, Mates, and
Pilots, etc. (Chicago Calumet Stevedoring Co., Inc.), 125 NLRB 113, 131 and foot-
note 18 thereof, citing National Maritime Union, AFL-CIO, et al. (Standard Oil
Company, an Indiana Corporation), 121 NLRB 208; Hitchman Coal and Coke Com-
pany v B. Mitchell, individually, et al., 245 U.S. 229, 249.
The credibility determinations herein are based upon the demeanor of the witnesses;
the consistency or inconsistency of the testimony of a particular witness. or as com-
pared to the testimony of other witnesses; the plausibility or implausibility of the
testimony of a particular witness in the light of the record as a whole, including ap-
parent discrepancies, faulty memories, and evident exaggerations.
Accordingly, I am constrained to find, on the basis of the record as a whole, that
Respondent Council and Respondent Laborers engaged in picketing within the pro-
scriptions of and in violation of Section 8(b) (7) (C) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Employer described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondents engaged in certain conduct violative of the
Act, I shall recommend that Respondents be ordered to cease and desist from engaging
in such conduct and take certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Austin is an employer within the meaning of Section 2(2) of the Act and is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act
2 Respondent Construction, Shipyard and General Laborers Local 1207, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
18 Cf Local 107, International Hod Carriers, etc (Texarkana Construction Comnpany),
138 NLRB 102.
11:itooneyhan 's disclaimer that he in any manner participated in a decision to picket
Austin's job is not credited. Neither do I credit Mooneyhan's testimony that on and
after April 30 he asked Collins on several occasions if he would stop picketing but that
Collins would not tell him whether he would or would not or when he was going to picket
or anything else. I find these assertions of Mooneyhan and equivalent assertions of Collins
implausible.
CONSTRUCTION, SHIPYARD, ETC., LOCAL 1207 295
3. Building and Construction Trades Council of Tampa, Florida, is an agent of
the above-named labor organization within.the meaning of Sections 2(13) and 8(b)
of the Act.
4. By picketing the jobsites of Austin without a petition under Section 9(c) being
filed within a reasonable period of time, Respondents engaged in unfair labor prac-
tices within the meaning of Section 8(b) (7) (C) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that the Respondent Construction, Shipyard and General Laborers Local 1207,
AFL-CIO, its officers, agents, successors, and assigns, including its agent, Building
and Construction Trades Council of Tampa, Florida, shall:
1. Cease and desist from picketing Alfred S. Austin Construction Company, Inc.,
or its jobsites, with an object of forcing or requiring said Austin to recognize or
bargain with Respondent Local 1207 unless and until the Respondent Local 1207 has
been certified as a bargaining representative for the employees of Austin, in an
appropriate unit, by the Board as provided by the Act.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Post in conspicuous places in the Respondent's business offices, meeting halls,
and all places where notices to their members are customarily posted, copies of the
attached notice marked "Appendix." 18 Copies of said notice, to be furnished
by the Regional Director for the Twelfth Region, shall, after being duly signed by
official representatives of the Respondents, be posted by the Respondents immediately
upon receipt thereof and be maintained by them for 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Twelfth Region signed copies of the
aforementioned notice for posting by Alfred S. Austin Construction Company. Inc,
if said Company is willing, at its place of business, and where notices to its employees
are customarily posted. Copies of said notice, to be furnished by the Regional Direc-
tor for the Twelfth Region, shall, after being signed by the Respondents, as indicated,
be forthwith returned to the Regional Director for disposition by him.
(c) Notify the Regional Director for the Twelfth Region, in writing, within 20
days from the date of the receipt of this report, what steps the Respondents have
taken to comply therewith. It is further recommended that, unless within 20 days
from the date of the receipt of this Intermediate Report the Respondent shall notify
the aforesaid Regional Director in writing that it will comply with the foregoing rec-
ommendations,19 the National Labor Relations Board shall issue an order requiring
the Respondents to take the aforesaid action.
181n the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
19 In the event these recommendations be adopted by the Board, this provision shall be
modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondents have taken to comply therewith."
APPENDIX
NOTICE TO ALL MEMBERS OF CONSTRUCTION, SHIPYARD AND GENERAL LABORERS
LOCAL 1207, AFL-CIO AND BUILDING AND CONSTRUCTION TRADES COUNCIL OF
TAMPA, FLORIDA, AND TO THE EMPLOYEES OF ALFRED S. AUSTIN CONSTRUCTION
COMPANY, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT picket or cause to be picketed, Alfred S. Austin Construction
Company, Inc., Tampa, Florida, where an object thereof is to force or require
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the aforesaid Company to recognize or bargain with Construction , Shipyard and
General Laborers Local 1207, AFL-CIO, as the representatives of its employees,.
in violation of Section 8(b) (7) (C) of the Act.
CONSTRUCTION, SHIPYARD AND GENERAL
LABORERS LOCAL 1207, AFL-CIO,
Labor Organization.
Dated------------------- 'By-------------------------------------------
(Representative ) ( Title)
BUILDING AND CONSTRUCTION TRADES
COUNCIL OF TAMPA, FLORIDA,
Agent.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board 's Regional Office , Ross Build-
ing, 112 East Cass Street , Tampa 2 , Florida, Telephone No. 223-4623 , if they have
any question concerning this notice or compliance with its provisions.
Tennsco Corp. and Stove Mounters ' International Union of'
North America , AF L-.CIO , Local No. 160 . Case No. 26-CA-
1274. March 11, 1963
DECISION AND ORDER
On October 1, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices , and recom-
mended that the allegations of the complaint pertaining thereto be,
dismissed. Exceptions to the Intermediate Report, together with a.
supporting brief, were filed by the Respondent. The General Counsel
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning]..
The Board has reviewed the rulings of the Trial Examiner made at
the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the. exceptions. and briefs, and the. entire record in the case,,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, except as indicated below.
The Trial Examiner found that Respondent violated Section
8 (a) (1) by threatening a number of employees, including applicants
for employment, that it would shut down its plant before recognizing
a union, and by otherwise interfering with their Section 7 rights. He
141 NLRB No. 21.