Local 492, Carpenters

National Labor Relations Board - Board Decisions

Dec 4, 1974

215 N.L.R.B. 263 (N.L.R.B. 1974)

LOCAL 492, CARPENTERS 263
Local Union No . 492, United Brotherhood of Carpen-
ters and Joiners of America (Richard H . Lawrence)
and Thomas E. Waters, Jr. Case 4-CP-219
December 4, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
ployees or acceptance by these employees as their bargaining
agent, without filing a petition for an election within 30 days
after the commencement of the picketing. At the close of the
hearing, the parties waived oral argument but subsequently
filed briefs supporting their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration being
given to the arguments advanced by the parties, I make the
following:
FINDINGS AND CONCLUSIONS
On June 28, 1974, Administrative Law Judge Paul
Bisgyer issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a support-
ing brief, and General Counsel filed cross-exceptions
and an answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Local Union No. 492, United Brother-
hood of Carpenters and Joiners of America, Reading,
Pennsylvania, its officers, agents, and representatives,
shall take the action set forth in the said recommended
Order.
DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Administrative Law Judge. This proceed-
ing, with all the parties represented, was heard on March 14
and May 1, 1974, in Reading, Pennsylvania, on the complaint
of the General Counsel issued on February 11, 1974,' as
subsequently amended, and the answer of Local Union No.
492, United Brotherhood of' Carpenters and Joiners of
America, herein called the Respondent or the Union. In issue
is the question whether the Respondent, admittedly not the
certified bargaining representative of the employees of Rich-
ard H. Lawrence, a general building contractor, in violation
of Section 8(b)(7)(C) of the National Labor Relations Act, as
amended , picketed Lawrence's jobsite at the Berks County
Campus of Pennsylvania State University to gain recognition
as the collective-bargaining representative of Lawrence's em-
' The complaint is based on a charge filed by Thomas E Waters, Jr.,
attorney for Richard H Lawrence, on January 23, 1974, a copy of which
was duly served on the Respondent by registered mail on the same day
I THE BUSINESS OF LAWRENCE
Lawrence, an individual proprietor with his principal office
in Reading , Pennsylvania , is a general contractor engaged in
the building and construction industry. In the regular course
and conduct of his business during the past year, Lawrence
purchased goods and services from sources outside the State
valued in excess of $50,000.
It is conceded, and I find, that Lawrence is an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; the Question Presented
In April 1973,2 as a result of competitive bidding, Law-
rence, a nonunion general contractor, was awarded by the
General State Authority of Pennsylvania a contract to build
a library at the Berks County Campus of Pennsylvania State
University in Reading, Pennsylvania. As the general contrac-
tor, Lawrence is in charge of general construction, including
the coordination of the work of three other prime contractors.
In the performance of the construction work he had person-
ally undertaken, Lawrence utilizes a total of approximately
14 subcontractors. In addition, he employs on this jobsite
carpenters and laborers from his permanent staff, whose
number varies from 4 to 10 depending on the amount and
kind of work required to be done at a particular time. The
wage rates Lawrence pays his employees are regulated by the
general state authority and essentially conform with union
scales prevailing in the area . These rates are posted in
Lawrence's job trailer, as he is obligated to do, so that
employees may inspect them and register their complaints
with the appropriate governmental authority in the event
they are not paid the prevailing rates.
As noted above, the Respondent is charged with picketing
this jobsite in violation of Section 8(b)(7)(C) of the Act which,
insofar as pertinent, makes it an unfair labor practice for a
labor organization or its agents . . .
to picket . . . any employer where an object thereof
is forcing or requiring an employer to recognize or bar-
2 All dates relate to 1973 unless otherwise indicated
215 NLRB No. 57
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gain with a labor organization as the representative of ON THIS JOB
his employees, or forcing or requiring the employees of
an employer to accept or select such labor organization NO DISPUTE WITH ANY OTHER
as their collective bargaining representative, unless such
labor organization is currently certified as the represen- EMPLOYER OR OWNER
tative of such employees:
a CARPENTER UNION
... where such picketing has been conducted with-
out a petition under section 9(c) being filed within a
reasonable period of time not to exceed thirty days from
the commencement of such picketing . .. .
The Respondent admits that it picketed the jobsite for
more than 30 days without filing a representation petition
and that it was never the certified bargaining representative
of Lawrence's employees. The sole question thus to be re-
solved is a factual one-whether the picketing had as an
object recognition of the Respondent as the bargaining re-
presentative of Lawrence's employees ,3 as the General
Counsel and the Charging Party contend, or whether the only
purpose of the picketing was to publicize that Lawrence's
wages and other conditions of employment did not conform
with the Union's prevailing area standards, as the Respond-
ent vigorously maintains.
B. The Evidence
1. The picketing of the jobsite
About May 21, the Respondent began picketing Law-
rence's jobsite. This activity, which was directed and
supervised by the Union's business agent, Joseph D
Covely, continued until it ceased in March 1974 when a
10(1) injunction was issued by the United States District
Court for the Eastern District of Pennsylvania. The picket
signs carried initially and for most of the time read:
INFORMATIONAL
RICHARD R
LAWRENCE
IS PAYING
SUB-STANDARD WAGES
& CONDITIONS
3 No specific evidence was adduced to establish an independent organiza-
tional objective.
LOCAL 492
In December, the wording of these signs was changed to show
that the Union was protesting "Sub-Standard Area Condi-
tions and Wages and Fringes." The picketing was apparently
peaceful.
Covely testified that before he instituted the picket line he
visited the jobsite where he observed that the same men were
performing both laborers' and carpenters' functions in pre-
paring the footings for the foundation of the building. He
admitted that he did not know whether these men who per-
formed these dual functions were carpenters or laborers or
whether they were paid carpenters' or laborers' rates. He
further admitted that he made no effort to ascertain the ac-
tual facts but, instead, relied on his trade experience in mak-
ing'the'assumption that these men were paid laborers' rates
in performing the carpentry work. On the basis of this as-
sumption, Covely testified, he concluded that Lawrence was
paying substandard wages and operating under substandard
working conditions thereby gaining an unfair competitive
advantage over union contractors to the detriment of union
carpenters. For this reason, Covely further testified, he de-
cided to picket Lawrence. According to Covely, he observed
that the practice of the commingling of functions also con-
tinued after the inception of the picketing.'
Clarifying the substandard conditions mentioned on the
picket signs, Covely testified that they referred to the fact that
carpenters were not doing carpenters' work at carpenters'
rates. He also testified that substandard conditions included
Lawrence's practice of beginning the workday at 7 instead of
8 in the morning, as is customary on union jobs, unless the
carpenters are paid double time for the hours worked before
8 a.m. Covely, however, conceded that Lawrence's failure to
comply with the area starting time standard began subse-
quent to the institution of the picketing. Finally, Covely in-
dicated in his testimony that the concept of area standards
encompassed fringe benefits, such as the Union's health and
welfare and pension programs to which unionized contrac-
' Covely testified that his observation of the commingling of functions was
subsequently confirmed in the meeting of the parties held during a recess
in the state court proceeding for a preliminary injunction which will later
be discussed
LOCAL 492, CARPENTERS
tors contribute and which benefits Lawrence's carpenters do
not enjoy.
Despite Covely's assumption that Lawrence was not com-
plying with area wages and standards , no union representa-
tive communicated with Lawrence to discuss this situation
before the picketing was initiated. Nor, for that matter, does
it appear that any union representative ever bothered to in-
spect the posted wage rates. In June, Lawrence telephoned
Covely and inquired why he was being picketed. Covely sim-
ply responded that Lawrence should read the picket signs.
Lawrence replied that he had read the signs and they were
wrong because he was paying his employees the prevailing
wage rates. Covely retorted that Lawrence would have to
prove it. At this point, Lawrence suggested that the problem
could perhaps be resolved by them and an agreement reached
to terminate the picketing which was hurting union contrac-
tors on the job. Covely concurred in the view that an agree-
ment was possible. On this note, the conversation ended,
leaving Lawrence with the impression that Covely would
communicate with him.
Several weeks later Lawrence received a telephone call
from Leon Ehrlich, the Union's attorney, who inquired why
Lawrence wanted a meeting. Lawrence answered that lthe
picketing was interfering with the progress of the job andiwas
causing him and other contractors financial loss. He also
indicated that an agreement could possibly be reached at such
a meeting. Although Ehrlich originally seemed to be amena-
ble to a meeting, he rejected the idea when he and Lawrence
became involved in a controversy as to who should call
Covely to arrange a date for the meeting.
2. The state lawsuit ; settlement negotiations to remove the
picket line
On August 27, Lawrence's attorney, Lawrence Sager, filed
a complaint against the Union in the Court of Common Pleas
of Berks County, Pennsylvania, alleging a trade libel based on
the asserted falsity of the picket signs ' and requesting that
the picketing be enjoined and damages be awarded. A Motion
for Preliminary Injunction was also filed.6 The Union chal-
lenged the jurisdiction of the state court on the ground that
"the parties are subject to the jurisdiction of the National
Labor Relations Board, and the picketing 'arguably' may
constitute an unfair labor practice under Section 7 or 8 of the
National Labor Relations Act, as amended." As of the time
of hearing this contention was undetermined in the pending
state case.
On September 4, a hearing on Lawrence's application for
a preliminary injunction was held in the Court of Common
Pleas before Judge Warren K. Hess. At this hearing, Union
Business Agent Covely was called by Lawrence as an adverse
5 Par 8 of the state court complaint alleges that the "statements on said
signs are libelous and false in that Richard H Lawrence has been and is
paying the base union salary plus an amount that would cover health and
welfare benefits and all other benefits that comparable union employees
obtain "
6 According to Lawrence's undisputed testimony, which I credit, when he
served the legal papers in the state court action on Covely, he unsuccessfully
attempted to discuss an agreement with Covely for the removal of the
pickets Lawrence quoted Covely as saying that "if he could give the an-
swers himself, it might be deferent, but he had other people he had to answer
to 11
265
witness. Under questioning by Attorney Sager, Covely testi-
fied, in substance, that the substandard conditions the Union
was protesting were Lawrence's failure to pay the prevailing
carpenter wage rates for carpentry work; the commingling of
job functions whereby the same employees would perform
both laboring and carpentry work and on one occasion car-
penters were doing higher-paid ironworkers' jobs when they
placed rods in concrete; and Lawrence's practice of starting
work before 8 a.m., as required by the Union's expired area
contract However, he testified that he assumed that Law-
rence's carpenters were not receiving the prevailing area
rates, even though Lawrence had informed him that he
was complying with area rates and that the picket signs
misstated the facts. While Covely was being further ex-
amined concerning the Union 's terms for removing the
pickets, Judge Hess posed the following question to
Covely and received the following answer:
THE COURT.. . If you are satisfied that this contrac-
tor [Lawrence] in all respects . . was treating all his
employees as Union contractors are required to do under
the contract, then would you cease picketing?
THE WITNESS. This, I believe would be it.
THE COURT: That covers everything.
At this point, Sager requested a few minutes to confer with
his client and a recess was declared. Thereupon, Lawrence,
Covely, Attorneys Sager and Ehrlich, and two of Lawrence's
employees met in an adjoining room . During the ensuing
discussions, Ehrlich questions the two employees concerning
their wages, the nature of their jobs,' their hours of employ-
ment, and their regular starting time. Also mentioned were
the Union's complaints against Lawrence for failing to meet
area standards, the Union's recently negotiated raise of 55
cents an hour, and the establishment of an escrow fund into
which union contractors were obligated to pay the increase
pending its approval by the Federal wage board for the con-
struction industry. In addition, the Union stated that it would
send Lawrence a copy of its contract with other employers
which would indicate what he was required to do to be in
compliance with area standards and to have the pickets
removed. This meeting concluded with the understanding
that, besides this contract, the Union would submit to Law-
rence and Sager a list of area standards and conditions for the
removal of the picket line.' Upon their return to the court-
room, the parties reported to Judge Hess that they were
trying to resolve their differences. The transcript of this hear-
ing shows that "the Court stated that the case was continued,
hopefully pending settlement "
Subsequent to the state court proceeding, Attorneys Sager
and Ehrlich were in telephone communication with each
other. On September 12, Ehrlich wrote Sager the following
letter, enclosing a copy of the Union's contract:
Pursuant to our agreement, I am sending you a copy
of the Carpenter contract which will give the basic de-
tails of working conditions in the area that your client
7 Sager testified that Ehrlich was interested in the fact that one of the
employees , who was related to Lawrence , was doing carpenter 's work, al-
though he was classified and paid as a laborer
8 According to the transcript of testimony in the state action, this recess
lasted approximately 18 minutes
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will meet. The wages have been increased by 55 cents per
hour, which moneys representing 45 cents in wages and
10 cents in fringes are being held in escrow pending
ruling by the Wage Board.
Of course the conditions as set forth in the agreement
as to other conditions of employment are important: tool
storage, sanitary measures, safety measures, room on job
site for tools and lunch, existence of a grievance proce-
dure.
We point out, in addition, the following:
As to the ratio of journeymen to apprentices, if your
client uses laborers, that ratio can't be any greater.
We have an excellent health and welfare and pension
program.
Any work performed before 8 a.m. is paid at double
rate.
The letter then proceeded to list the "area of work of the
journeyman" which "laborers may not perform" and closed
with the statements:
We shall, of course, have the opportunity to visit the
job site to observe compliance and, further should have
the opportunity to see time and wage records.
We hope this information is sufficient for us to imple-
ment the agreement reached in Judge Hess' courtroom.
The next day, Sager responded by letter in which he stated:
I have reviewed your letter of September 12, 1973, with
my client. He will pay his employees the amounts that
the Union is paying, in accordance with his agreement
with the General State Authority.
As to the conditions of employment, with regard to tool
storage, sanitary measures, safety measures, room on job
site for tools and lunch, and existence of grievance proce-
dure, I do not know what you are talking about. I do not
know specifically what your client's objections are as to
the way we handle the matters, and I would ask you to
specify in detail these problems.
As to the categorization of work set forth in your letter,
my client is making arrangements to take care of the
same. I have also advised my client to start work at 8:00
a.m. or pay a double rate.
As to investigation of the time and wage records, we will
agree to the same, only at the mutual convenience of
both attorneys and one representative. With regard to
visiting the job site to observe compliance, we agree to
the same , subject to arranging mutual times , manners,
and so forth. -
Please be advised that, as of this date, my client has
taken the necessary steps, without prejudice, to "meet"
the demands of the Union. Even though we do not have
a formal agreement (and it is to be noted that everything
we are doing is without prejudice) there seems to now be
no reason whatsoever for the pickets. Accordingly, since
there is compliance with the demands of the Union,
again without prejudice to our position, you should have
the pickets removed forthwith.
After Sager's above response, there were additional tele-
phone conversations' between him and Ehrlich culminating
in Sager's advice to Ehrlich on September 19 that "everything
was ok . . . as far as wages . . . the job situation . . . toilets,
tool storage, ice cooler" were concerned. Ehrlich then "in-
dicated that a formal agreement would be signed, that inspec-
tion was to be mutually agreed upon but there was to be no
grievance procedure, no pension, but the sums equivalent
were to be paid to the people." On September 22.Sager told
Ehrlich that they had an agreement . Thereupon, Ehrlich
drafted a proposed agreement between the Union and Law-
rence which he transmitted to Sager by letter dated October
2 for Lawrence' s signature . Referring to Lawrence's inquiry
concerning the pickets, the covering letter noted that
"[t]hey will be removed when the agreement has been signed"
and the case pending in the state court "was taken care of."
The enclosed agreement contained the following provisions:
1. The Union agrees not to picket the job site of the
library at the Berks County Campus of Penn State Uni-
versity so long as Lawrence complies with the commit-
ments made herein.
2. For carpenters and carpenter apprentices, Law-
rence agrees to observe all of the conditions of the Union
contract and addendum attached hereto as Exhibit
"A"10 and made a part hereof and pay the rates therein
set out. However, Lawrence shall not be obliged to insti-
tute a pension program but the contributions in lieu
thereof shall be paid directly to employees as additional
wages; also, Lawrence shall not be obliged to institute a
grievance procedure. For work which would be covered
by union contracts for other craft Lawrence shall pay the
union rates and observe the conditions of the area for
those craft.
3. Lawrence shall pay for each hour for each employee
the sum of Fifty-five Cents ($.55) per hour in addition
to the wage rates shown in Exhibit "A", these sums
being retroactive to June 1, 1973, that figure now having
been approved by the C.I.S.C. [Construction Industry
Stabilization Committee].
4. The following work rules shall apply:
(a) As to the ratio of journeymen to apprentices, if
Lawrence uses laborers, that ratio cannot be any greater.
(b) Any work performed before 8 a.m. is paid at dou-
ble time.
(c) The area of work of the journeyman is as follows
and laborers may not perform such work. . . .11
5. Union shall have the right at reasonable times to
visit the job site to see that all conditions herein provided
for have been met but shall not in any way interfere with
or cause any disturbance.
6. At reasonable times and upon due notice to him by
Union, Lawrence shall permit Union to see payroll re-
9 It appears that in one of these conversations Ehrlich suggested the
possibility of Including another Lawrence construction lob in any agreement
reached by the parties.
10 Exh A consisted of the expired collective -bargaining agreement be-
tween Berks Constructor Associates , Inc, and the Respondent and a Memo-
randum of Agreement dated June 1, 1973, extending the expired contract
with modifications set forth in the Memorandum
I I The particular job functions were then listed in the proposed agreement
LOCAL 492, CARPENTERS
cords to determine that provisions are being complied
with.
7. In the event that any provisions herein are violated
by Lawrence, Union shall have the right to reinstate
informational picketing without any liability.
8. Further, in addition to any other remedies, in the
event that there is a violation of these undertakings by
Lawrence as to the wage rates, Union shall have the
right to institute action on behalf of Lawrence employees
to collect sums not paid and Lawrence shall be liable for
costs, counsel fees and any other expenses attendant
upon such litigation.
9. Lawrence shall furnish to Union a certificate stating
that the foregoing has been made known to all his em-
ployees.
10. The suit pending in the Court of Common Pleas
of Berks County, Pennsylvania to No. 3800 Equity
Docket, 1973 in which Richard H. Lawrence is the
plaintiff and Carpenter's Union, Local 492 is the defend-
ant shall be withdrawn "with prejudice" and costs paid
by Lawrence.
On October 5, Ehrlich met Sager who assured him that
"everything was ok but that there should be no retroactivity,"
evidently referring to the 55-cent hourly wage increases. A
few days later, Sager informed Ehrlich that he was sending
him a letter proposing some changes in the Union's drafted
agreement. Such a letter dated October 12 was subsequently
received by Ehrlich. In the early part of November, Ehrlich
spoke to Sager's law associate mentioned in the October 12
letter and told him to make the suggested changes in the
agreement and have the agreement signed and returned to
him. Thereafter, about November 13, Sager advised Ehrlich
that Lawrence refused to sign the agreement, attributing this
development to a lack of communication between Sager and
his client.
C. Concluding Findings
The General Counsel and the Charging Party contend, in
substance, that the Respondent ' s failure to investigate
Lawrence's labor costs before picketing his jobsite and the
conditions the Respondent subsequently offered for re-
moving the pickets , as related above, clearly reveal that at
least one of the objects of the picketing was to secure
recognition and to bargain with Lawrence as the represen-
tative of his employees . Since admittedly the Respondent
picketed the jobsite for more than 30 days without filing a
representation petition and was not currently the certified
representative of Lawrence 's employees , they argue that
the picketing violated Section 8(b)(7)(C) of the Act. The
Respondent , however, denies that its picketing had any
other objective than the permissible one of publicizing
Lawrence ' s substandard wages and working conditions.
As noted above , Section 8(b)(7)(C) of the Act prohibits a
labor organization not currently the certified representative
of the employees from picketing an employer with "an" ob-
ject of forcing or requiring recognition , bargaining, or organi-
zation of the employees , without filing a petition for an elec-
tion within 30 days of the commencement of such picketing.
The Board has held that picketing does not fall within this
267
statutory proscription if its only purpose is to publicize that
the employer's wages and fringe benefits are below those
established in the union 's area contracts.12 In so holding, the
Board has acknowledged a union 's legitimate interest to pro-
tect its negotiated standards from being undermined by an
employer operating under inferior conditions and therefore to
picket such employer to induce him to conform with its
standards. However, it is clear from the decisions that the
area standards thus protected are only those related to labor
costs which, if not observed, give the nonobserving employer
an unfair competitive advantage over those who pay the pre-
vailing wage scales and fringe benefits." If, on the other
hand, the purpose of the picketing also encompasses the ac-
ceptance by the picketed employer of noneconomic working
conditions, such as seniority or a grievance procedure, or
even the method of allocation of benefits," this might well
betray the recognitional objective of the picketing. Finally, it
is equally well settled that, notwithstanding the language of
the picket signs, where evidence discloses that the picketing
was really not directed at the elimination of substandard
wages and fringe benefits or was additionally aimed at achiev-
ing recognition or organization of the employees, the Union
would be in violation of Section 8(b)(7)(C).15 To be sure, it
may not be a simple matter to distinguish between the differ-
ent objects and, as in any case involving motive, this question
must, of necessity, be determined on the basis of the union's
total conduct.
Reviewing the entire record, I am not persuaded that the
Respondent's picketing was limited to advertising Law-
rence's alleged substandard wages and fringe benefits, as the
Respondent vigorously insists. Rather, I find that the picket-
ing also had recognitional and bargaining objectives. Thus,
the Respondent made no genuine or substantial effort to
ascertain the actual wage rates paid by Lawrence to his em-
ployees or the fringe benefits available to them before institut-
ing its picketing 16 Admittedly, no union representative in-
spected the posted wage rates or contacted Lawrence to
secure the information, as would be expected would be done
were the Respondent solely interested in maintaining area
12 Houston Building and Construction Trades Council (Claude Everett
Construction Company), 136 NLRB 321, 322-323 (1962), Local Union No
741, United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Keith
Riggs Plumbing and Heating Contractor), 137 NLRB 1125, 1126 (1962),
Centralia Building & Construction Trades Council (Pacific Sign & Steel
Building Co., Inc.), 155 NLRB 803, 806 (1965), enfd 363 F 2d 699, 701
(C A D C, 1966), Retail Clerks International Association , Local Union No.
899, AFL-CIO (State-Mart, Inc., d/b/a Giant Food), 166 NLRB 818, 823
(1967), Sales Delivery Drivers, Warehousemen and Helpers Local 296 of
Santa Clara and San Benito Counties, California (Alpha Beta Acme Mar-
kets, Inc.), 205 NLRB 462 (1973), Automotive Employees, Laundry Drivers
& Helpers, Local No 88, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America (West Coast Cycle Supply
Co), 208 NLRB 679 (1974)
13 Ibid
14 Sales Delivery Drivers, supra Retail Clerks International Associa-
tion, supra
15 Operative Plasterers' and Cement Masons' International Association,
Local Union No 44, AFL-CIO (Penny Construction Company, Inc), 144
NLRB 1298, 1298-1300 (1963), Centralia Building & Construction Trades
Council, supra, Sales Delivery Drivers, supra
16 Centralia Building and Construction Trades Council, supra, Construc-
tion, Shipyard and General Laborers Local 1207, AFL-CIO (Austin Con-
struction Company, Inc), 141 NLRB 283, 284 (1963), Retail Clerks Inter-
national Association, supra, 822, Sales Delivery Drivers, supra
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standards. Indeed, to justify the picketing, Business Agent
Covely testified that he relied on his observation that the
same men were performing laborers' and carpenters' func-
tions. Although admitting that he did not know whether
these men who performed the dual functions were carpenters
or laborers or what rates they were being paid, Covely simply
assumed that these men were receiving laborers' rates for
doing carpentry work and that therefore Lawrence was pay-
ing substandard wages and operating under substandard con-
ditions. Manifestly, such an assumption is an inadequate basis
on which to justify area standards picketing Moreover, if the
maintenance of area standards were the Respondent's sole
concern, it is incomprehensible why it did not communicate
with Lawrence to apprise him of the specific standards with
which he was required to comply before subjecting him to a
picket line. It is not without significance that, even when
Lawrence telephoned Covely after the picketing started and
asked him why he was being picketed, Covely only responded
that he should read the signs and, when Lawrence stated that
the signs were wrong because he was paying his employees
prevailing rates, Covely retorted that Lawrence would have
to prove it. However, Covely still did not define for Lawrence
what were the area standards he was failing to observe. It thus
appears that, whatever solicitude Lawrence's alleged inferior
working conditions caused the Respondent, I do not believe
that its picketing objectives were confined to protecting area
standards and excluded recognition as the bargaining re-
presentative of Lawrence's employees.
Further indicating a recognitional objective is the fact that
included in the substandard conditions that the Respondent
was protesting was Lawrence's practice of beginning work at
7 o'clock in the morning, instead of 8, which, under the
Union's contracts, required the payment of double time for
the hours worked before 8. While it is true that overtime rates
enter into an employer's labor costs and therefore justify the
pressure of picketing to force a nonunion employer to pay
area overtime rates, it appears to me that working hours are
noneconomic in nature and do not justify picketing to force
a nonunion employer to change his working hours to suit a
union . Since the employees' working hours are a normal
subject for collective bargaining, the Respondent's picketing
in protest of the Respondent's practice of starting work before
8 o'clock supports an inference that the picketing had recog-
nitional and bargaining objectives.
Similarly revealing a recognitional objective is Covely's
affirmative response to Judge Hess' question during the State
Court hearing for a preliminary injunction whether he would
terminate the picketing if he were satisfied that Lawrence was
treating his employees in all respects as union contractors
were required to treat their employees under the contractors'
agreement with the Union. Covely' s willingness to remove
the pickets under such terms, which were not restricted to
labor costs, but which encompassed the entire gamut of col-
lective-bargaining subjects, including noneconomic terms,
implies that at least one of the objectives sought to be
achieved by the picketing was recognition of the Respondent
as the bargaining representative of Lawrence's employees.
Indeed, this became apparent in the discussions during the
recess in the state court hearing and in the September 12 letter
and the October 2 proposed agreement, which the Respon-
dent's attorney subsequently sent to Lawrence's attorney.
Without repeating the details of these documents, which are
fully set forth above, it is sufficient to note that they contain
both labor cost items and noneconomic terms whose accept-
ance the Respondent required as the price of withdrawing the
pickets While the October 2 proposed agreement made some
changes in the proposals embodied in the September 12 letter,
the nature of the contractual relationship sought to be estab-
lished was essentially the same. Significantly, the October 2
proposed agreement obligated Lawrence among other things,
"to observe all of the conditions of the Union contract and
addendum attached" to the agreement," except for the pen-
sion program and grievance procedure. Moreover, provision
was made in the agreement for the Respondent's right to
institute a lawsuit on behalf of Lawrence's employees to en-
force the wage rates prescribed in the agreement. In addition,
the agreement obligated Lawrence to advise his employees of
its terms and provided for the withdrawal of the state court
action. To borrow the Board' s language in the Centralia
case:18
... With such an agreement in effect, very little would
be left in the field of collective bargaining to a represen-
tative chosen by [the employer's] employees, and there-
fore the will and choice of employees when and if exerted
with respect to a bargaining agent would be thwarted
and nullified. I think the freedom of employees to make
their own choice in such matters cannot lawfully be
foreclosed in this manner.
Challenging the sufficiency of the evidence to support a
finding of a recognitional objective, the Respondent contends
that the September 12 letter and the October 2 proposed
agreement, as well as other documents, were improperly re-
ceived in evidence. It argues that these documents were part
of settlement negotiations which developed out of the above-
mentioned state court proceeding brought by Lawrence to
enjoin the picketing at his jobsite and that for this reason the
documents were inadmissible. As shown above, the discus-
sions were undertaken principally to explore the terms under
which the Respondent was willing to withdraw the pickets.
I have given further thought to my ruling made at the hearing
and find no merit in the Respondent's contention
It is true that an offer of settlement or compromise is
generally not admissible in evidence to establish liability in
subsequent litigation between the parties.19 However, it is
equally well settled that this rule is not without qualification
and does not "exclude evidence of statements of fact or of
opinion, even those conceding liability, though made in
negotiations for compromise . . .."20 In the present case, it
is clear that the documents were introduced as an admission
of fact for the very narrow purpose of establishing that the
17 The September 12 letter enclosed a copy of the Respondent 's ,contract
"which will give the basic details of working conditions in the area that your
client will meet "
18 Centralia Building & Construction Trades Council (Pacific Sign & Steel
Building Co, Inc), 155 NLRB 803, 806 (1965), enfd 363 F 2d 699, 701
(CAD C, 1966)
19 4 Wigmore, Evidence §1061 (Chadbourn rev. 1972), Model Code of
Evidence, American Law Institute, Rule 309, Comment a, pp 192-194
20 Model Code of Evidence, supra, 194, see also 4 Wigmore, Evidence,
supra, Factor v Commissioner of Internal Revenue, 281 F 2d 100,125 (C A
9, 1960), cert denied 364 U S 933 (1960), Nauv Commissioner ofInternal
Revenue, 261 F 2d 362, 364-365 (C A 6, 1958)
LOCAL 492, CARPENTERS
picketing had a recognitional objective as indicated in the
terms the Respondent imposed as a condition for removing
the pickets." Moreover, the documents were admissible to
contradict the Respondent's position taken in the Board case
that an object of its picketing was not recognitional.22 Ac-
cordingly, I find that the rule of exclusion of an offer of
settlement or compromise is inapplicable to the situation here
involved. In any event, were Ito find that the documents in
question were inadmissible and not entitled to any probative
weight, I would, nevertheless, find a sufficient evidentiary
basis in the events preceding the discussions for the removal
of the picket line for a determination that an object of the
picketing was recognitional.
In short, I conclude that, despite the Respondent's pro-
testations to the contrary and the legend on the picket
signs, an important object of the picketing was to force
Lawrence to recognize and bargain with the Respondent
as the representative of his employees. As the Respondent
was not the certified representative and failed to file a
petition for an election under Section 9(c) of the Act, I
find that it violated Section 8(b)(7)(C) of the Act
IV THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease and
desist from engaging in the unfair labor practices found and
to 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. Lawrence is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By picketing Lawrence's jobsite where he is engaged as
general contractor in the building of a library at the Berks
County Campus of Pennsylvania State University, with an
object of forcing or requiring Lawrence to recognize and
bargain with the Respondent as the representative of his em-
ployees, although the Respondent was not currently certified
as such representative and failed to file a petition under Sec-
tion 9(c) of the Act within 30 days from the commencement
of the picketing, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(b)(7)(C) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
21 Cf Factor v Commission ofInternal Revenue, supra, 125, where,the
Court of Appeals noted
Independent statements of facts made during the course of such
negotiations are, however, admissible This is especially true if "the
party making the proposal apparently intended to make no concession
but to exact all that he deemed himself entitled to " [Citations
omitted ]
22 Cf NLR.B v Gotham Industries, Inc, 406 F 2d 1306, 1313 (C A 1,
1969)
269
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issued the following recom-
mended:
ORDER23
The Respondent, Local Union No 492, United Brother-
hood of Carpenters and Joiners of America, its officers,
agents, and representatives, shall:
1. Cease and desist from picketing or causing to be pick-
eted, or threatening to picket or to cause to be picketed, the
jobsite of Richard H. Lawrence at the Berks County Campus
of Pennsylvania State University, Reading, Pennsylvania, un-
der conditions prohibited by Section 8(b)(7)(C) of the Act,
where an object thereof is forcing or requiring Lawrence to
recognize or bargain with the Respondent as the representa-
tive of his employees.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Post at its business and meeting halls copies of the
attached notice marked "Appendix."24 Copies of said no-
tice, to be furnished by the Regional Director for Region 4,
after being duly signed by an authorized representative of the
Respondent, shall be posted immediately thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Forthwith mail to the Regional Director for Region 4
signed copies of the aforementioned notice for posting at
Lawrence's jobsite at the Berks County Campus of Pennsyl-
vania State University, Reading, Pennsylvania, in places
where notices to Lawrence's employees are customarily
posted, if Lawrence is willing to do so.
(c) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of receipt of this Order, what
steps the Respondent has taken to comply herewith
23 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
24 In the event that the Board's 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 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, or
threaten to picket or cause to be picketed, the jobsite of
Richard H. Lawrence at the Berks County Campus of
Pennsylvania State University, Reading, Pennsylvania,
under conditions prohibited by Section 8(b)(7)(C) of the
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Act, as amended, where an LOCAL UNION No 492, UNITED
object thereof is forcing or requiring Lawrence to recog- BROTHERHOOD OF CARPENTERS AND
nize or bargain with us as the representative of his em- JOINERS OF AMERICA
ployees.