Painters Union No. 76

National Labor Relations Board - Board DecisionsMay 13, 1970

182 N.L.R.B. 405 (N.L.R.B. 1970)

PAINTERS UNION NO 76 Brotherhood of Painters , Decorators and Paperhangers of America , Union No 76, and Gomez Painting & Decorating Co Case 17-CP-106 May 13, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On January 19, 1970, Trial Examiner Stanley N Ohlb- aum issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommend- ing that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision Thereafter, the Charing Party filed exceptions to the Decision and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner's Deci- sion, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act , as amended , the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner , and hereby orders that the com- plaint be , and it hereby is, dismissed in its entirety TRIAL EXAMINER'S DECISION I PRELIMINARY STATEMENT, ISSUES STANLEY N OHLBAUM, Trial Examiner This proceed- ing under the National Labor Relations Act, as amended (29 US C Sec 151, et seq ), on complaint of the Board's Regional Director for Region 17 (Kansas City, Missouri) dated October 22, 1969,' based upon a charge filed with him on September 24 by the above Charging Party (Gomez) was tried before me in Wichita, Kansas, on November 20 The basic issues are whether Respon- dent Union has, in violation of Section 8(b)(7)(C) of the Act, picketed the Charging Party for over 30 days without filing a representation petition under Section 9(c) of the Act, in order to force or require the Charging Party to recognize or bargain with it on behalf of employ- ees of the Charging Party, or to force or require those I All dates herein are unless otherwise specified 1969 405 employees to accept or select a labor organization to bargain for them collectively Upon the entire record' and my observations of the testimonial demeanor of the witnesses, I make the follow- ing FINDINGS AND CONCLUSIONS II PARTIES, JURISDICTION At all material times Respondent Union had been and is a labor organization within the meaning of Section 2(5) of the Act At the same times , the Charging Party has been a Kansas proprietorship engaged in the painting and decorating business , with its principal office and business place in Wichita , Kansas, rendering services valued over $50,000 annually for customers in Kansas, who in turn sell goods and render services valued over $50,000 for customers located outside of Kansas I find that at all said times the Charging Party has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that assertion of jurisdiction in this proceeding is proper III ALLEGED UNFAIR LABOR PRACTICES A Facts as Found' Gomez (Charging Party) is essentially a house painter or residential painting contractor, with emphasis if not near exclusivity upon small (1 and 2-family) private homes Gomez is not unionized and concededly does not pay union scale It is undisputed that the Union (Respondent) is not the certified bargaining representa- tive of any of Gomez's employees and that it has at no time filed a petition for that purpose under Section 9(c) of the Act The Union is a Wichita painters local having numerous union contracts arising from its collec tive-bargaining representational status The Union has never sought nor does it now seek to unionize house painters, including Gomez, who have essentially limited themselves to small residential homes Instead, the Union has restricted its organizational-recognitional efforts to painting contractors or subcontractors engaged in com mercial (e g , office building) or other large area or mass unit (e g , garden-type apartment community) con- struction projects When, therefore, in July and subsequently (1969) the Union learned that Gomez was doing the painting at two large Wichita construction projects otherwise exclu- sively union (or practically so)-the "Builders" or Y Hearing transcript as corrected in accordance with Charging Party s undated motion accompanying its posthearing brief served on December 12 which is hereby granted without opposition and in respect to other obvious and typographical errors as shown in Appendix [Appendix omitted from publication ] 3 Based upon the composite testimony of all witnesses to the extent credited contradictions and inconsistencies being resolved as here set forth considering the record as a whole including exhibits and testimom al demeanor 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Meridian" project and the "Amortibanc" or "Garvey Building" project-the .Union became concerned. The projects in question were large-scale construction pro- jects of Garvey Enterprises. The Builders or Meridian project consisted of a large, low rental, mass produced garden-type apartment community in Wichita, covering an area 4 or 5 blocks long and, about 1 t blocks wide,4 whereas the Amortibanc or Garvey Building project was a Wichita office building. At each of these projects Gomez employed about a half dozen nonunion painters at less than union scale; at Builders (Meridian) commenc- ing in June or July, and at Amortibanc (Garvey Building) commencing in September or October. Distressed over Gomez's apparent substantial expan- sion out of small-scale residential housepainting (with which the Union was not concerned), into large-scale commercial or commercial-type,painting operations (i.e., at the described Builders and Amortibanc projects), with which the Union was very much concerned because of the feared impact upon the Union's existing area wage scales and standards applicable to such construc- tion,s the Union on July 14 dispatched a letter to Gomez stating that since its wages and working conditions were below those comparably paid and assured to union paint- ers, an "informational picket" or handbilling might take place at the Builders (Meridian) jobsite in order to publicize the "unequal wages and working conditions." The letter expressly pointed out: We are not asking anyone to quit their employment or to cease doing business with anyone else. We do not claim to represent your employees nor are we attempting to. Gomez did not respond to this letter., However, according to Walter Gomez (Gomez's principal), on July 16 he encountered Union Business Representative Abbott at a local tavern and (in Gomez's words) "asked Mr. Abbott what he meant by the' letter that he wrote me. He replied that I was too cheap and said that was too big a project for me to be doing unless I joined the union . . . I just laughed and left." Abbott denies any such conversation with Gomez. Inasmuch as there is no corroboration of any kind, and I have no rational basis for selecting the testimony of Gomez as a directly interested witness over that of Abbott, nor did my testimonial demeanor observations tip the scale in Gomez's favor in this regard, my mind was left unpersuaded by Gomez. In view of Abbott's strong denial, there is lacking the required basis in substantial credible evidence to support a finding that this conversa- tion as alleged by 'Gomez (the Charging Party, in effect carrying the burden of proof) in fact occurred. It is ' Such construction is not considered to be "residential" in the same sense as the small I- or 2-family homes to which Gomez, and similar nonunion painting contractors , had previously essentially restrict- ed their operations without union cercern ' Union Business Representative Abbott's testimony indicates that the Union exercised vigilance over the maintenance of its hard-won area wage scales and standards in commercial and commercial-type construction, evidenced by its having conducted informational picketing on the occasion of noncompliance therewith (including another low- rental housing project in the previous year, 1968), and a 45-day strike from April 1 to May 16, 1969, to maintain those scales and standards therefore found that it has not been established by substantial credible evidence that Abbott made' the remarks thus attributed to him by Gomez, or that the described conversation occurred. , On July 21, through a single picket the Union com- menced picketing one of the three Builders project job- site entrances, with a sign reading: Gomez Painting and Decorating Co. has wages and working conditions on this job that do not equal this area's wages, hours, and working condi- tions obtained by Painters Local Union No. 76, AFL-CIO. We are not asking anyone to quit their employment or cease doing business with anyone else. The picketing lasted for about an hour (9-10 a.m.), resulting in employees of subcontractors other than Gomez leaving the jobsite, after which Gomez "decided to pull my [Gomez's] guys off of the job." That evening (i.e., after the picketing had ceased), on advice of his counsel, Gomez established for his employees a separate entrance to the jobsite by emplacing at one of the three entrances a sign stating , "This entrance is for Gomez Co.'s employees only. All others use the other entrance." On the following day, July 22, a union picket again appeared, limiting himself to the Gomez separate entrance. Again, however, although the Gomez separate entrance was "approximately two blocks" away from the other entrances,' employees of other subcontractors left their jobs and thereupon Gomez instructed his employees to leave. Seeing Abbott seated in a car nearby, Gomez approached and asked him what he wanted. Abbott responded that he did not want anything. Gomez persisted. According to Gomez, Abbott then remarked, "I told you once that you were going to , have to get, right to do this job.-Either join the union or I'm^going, to run you out of town." (On cross-examination Gomez added that he also told Abbott that "I ' [Gomez] was paying what I though I had to pay." According to Abbott, however, he told Gomez that "I [Abbot] had sent him [Gomez] a letter explaining this or he could read the picket sign . This is the way I explained it. He asked me if I was trying to break him and I said no. He also referred to the fact that he was paying the wages the government specified and this was good enough. Then he went on to say he could go to Kansas City or call Kansas City and get that picket taken off. I said, 'Well, for crying out loud, do it. If I am violating the law, I don't want to have a picket on there anyway.' This was the extent of our conversation." Abbott flatly denies that he told Gomez he was "going to have to get right" or that he was "going to have to join the union or [Abbott] would run him out of town," or anything like that. Again thus faced with an irreconcilable conflict of testimony between two directly interested witnesses who were the only partici- " Testimony of General Counsel's witness Schaeffer, job superintend- ent of the general contractor at the Builders project, a disinterested witness. The Gomez separate entrance is, however , said to be "visible" from the other entrances and from the other employees ' work places There is no allegation of unlawful secondary activity here involving any other employer or employee PAINTERS UNION NO.76 pants to the conversation, with no corroboration of any kind, and testimonial demeanor comparisons being unassistive in Gomez's favor, I am left with no rational basis for preferring and crediting.Gomez's version over that of Abbott, and therefore no basis of substantial credible evidence to support a fact finding that the conversation as described by Gomez actually occurred. Under the circumstances, I again find that it has not been established by substantial credible evidence, as required, that the conversation as described by Gomez in fact occured. "Picketing," or at any rate mere sitting in a car by a union emissary prepared to picket if necessary (i.e., only if Gomez employees worked), but with no sign visible, "occurred" thereafter, on a sporadic or intermittent basis at the Builders project for a few more days.' It is conceded that at all times after the Gomez separate entrance was established, any picketing that occurred was confined to that entrance. Gomez started painting the Amortibanc (Garvey Build- ing) project, also with nonunion painters at rates con- cedely below union area scale, early in September. After dispatching to Gomez on September 22 a letter substantially identical to its July 14 letter concerning the Builders project, on September 23 the Union, like- wise through a single picket carrying the same sign as at the Builders project in July, picketed the Amorti- banc project, at its then only entrance (at the front of the construction site). Thereupon, employees of other subcontractos left their jobs and later in the day Gomez ordered his own employees off. Gomez then started working nights, until early October, when he resumed working, days. The union picket reappeared on the morn- ing of October 8, at the Amortibanc project, for less than '1 hour, through Union Business Representative Abbott picketing at the only entrance to the project. After other subcontractors' employees left their jobs, Gomez ordered his employees off. When Garvey Vice President of Construction Doll informed Abbott (who, as indicated, was the picket on this occasion) that the Gomez painters were no longer on the job, Abbott discontinued picketing and most of the employees of subcontractors other than Gomez returned to work. Thereupon, Gomez resumed working nights until mid- October, at which time a second, separate entrance for Gomez employees was established at the rear of Actual dates and times of all of the picketing or mere sitting in a car without picketing and without any sign being visible, at the Builders project, were' Date(1969) 7-21 7-22 7-23 7-24 7-25 407 the Amortibanc project." The only subsequent occasion on which that project was picketed by the Union was for about a half-hour on October 17;9 limited to the Gomez separate entrance there, when employees of neither Gomez nor any other subcontractor left the job. Union Business Representative Abbott, along with Gomez and other painters, who is apparently a steady customer, of Ziz-Zag Tavern, a local bar said to be frequented by painters, has talked with Gomez (as well as with other painters, including employees of Gomez) on and off on various occasions prior to the events which have been described, on general subjects-charac- terized by Abbott as "beer-joint conversations"- of interest to painters, including their earnings.10 In this painters' "hangout" ' (characterization conceded by Gomez), Abbott had also regularly encountered and spoken to Billy Ramsey, a Gomez employee who, testify- ing here as General Counsel's witness, stated that he was told by Abbott there in the fall of 1969 that "if I [Ramsey] joined the union he [Abbott] could get me more money." Ramsey conceded, however, that he has known Abbott for some years and that this was no more than "normal conversation . . . not unusual," which had also occurred "before this"; and, indeed, that Abbott has been saying that "to me [Ramsey] ever since I have seen him [Abbott]." Ramsey further testified that on one occasion, after he told Abbott that Gomez had not started yet on the Garvey Building (Amortibanc project), Abbott "said he was going to throw a picket on it and make a nice fellow out of Walt Gomez." Ramsey conceded that Abbott has at no time indicated to him that he was out to organize or unionize Gomez's business operation; and that Abbott has at no time asked Ramsey to speak to other Gomez employees about Union representation. No other Gomez employee was produced to testify that he was at any time in any way solicited by Abbott or anybody else to join the Union or any other labor organization. Abbott readily conceded frequent casual or indolent tavern talk with Ramsey in the past to the effect that he could "make you [Ramsey] richer,' and stuff like this, you know," with Ramsey apparently ruggedly determined to stay as he was. Abbott indicated that if Ramsey had at any time joined the Union, he "would have to have put him [Ramsey] on another job." Not disputing that he had made the remark to Ramsey that he wanted 9 Until this time, the only entrance to the Amortibanc project was at the front of the jobsite. 6 Actual dates of all of the picketing (or mere car-sitting without Time picketing and without a visible sign) at the Amortibanc project were, 9-10 a m Date (1969) Time 8 hours 9-23 10am-1205pm &1235- 6 hours 3:25 p in 6 hours 21/1 hours 10-8 10-17 11.05 - 11:55 a in 10-10:35ain 7-28 10 a m -12 m 10 Indeed , in the course of one of these evidently friendly "beer- 8-6 830am-3pm joint" exchanges-undisputed by Gomez-Abbott, handling his card According to testimony of Builders project Job Superintendent to Gomez's son in Gomez ' s presence , told the son that "as soon Schaeffer , a disinterested witness of General Counsel, the only occasion as [you] served your apprenticeship , your daddy wouldn ' t want your on which he observed actual picketing (as distinguished from mere wages " This incident , providing a flavor of the relationships among sitting in a car with no sign visible ) was on July 22, and limited the parties , was volunteered by Abbott during his testimony , and General to the Gomez separate entrance Counsel has placed no reliance thereon here 408- DECISIONS OF NATIONAL LABOR RELATIONS BOARD "to make a nice fellow out of Walt Gomez ;" Abbott swore credibly - that what he meant by that expression was that "maybe this type of advertising , maybe this persoh '[Gomez] will pay a good scale or union scale" so that he would "not [be ] lowering our [union pay scale ] standard. Abbott persuasively and, to my observation, convinc- ingly denied that he has at any time in any way indicated that he wanted Gomez to sign a union contract or become unionized. Nor is there any substantial evidence that the Union ever mounted anything resembling an organizational drive or campaign here. Abbott credibly swore that the Union's purpose in picketing under the described circumstances was that "This is the only way I know to. advertise to the public that we have people lowering our.standards." Explaining, Abbott tes- tified: "Mr. Gomez is a house [emphasis supplied] paint- er. I mean that most of his work is residential which the union doesn't cope with residential because of scales and everything are so low.- Union contracts don't go into this area or field of work." According to Abbott, the Union had never picketed and has no intentiori of'picketing such "residential" jobs; but with Gomez's described expansion into large-scale commercial painting operations, the Union's prevailing area wage scales and members' livelihood were imperiled: "Thi's is the whole thing right there because commercial work is where we make our living. We just came off a 45-day strike [April 1-May 16, 1969] to get better wages and if this breaks down, we will all be working for what he [Gomez] pays„ B. Concluding Findings and Rationale Section 8(b)(7)(C) of the Act, which Respondent Union is here accused of violating, prohibits recognitional or,' organizational picketing by an uncertified union for a period exceeding 30 days without filing a petition for a representation election. The Act does not require that recognition or organization be the sole purpose of the picketing' in, order for it to be illegal. It need merely be shown that recognition or organization was one of the objects of the picketing. UMW, Pocket Local 7083 (Grundy Mining Company), 145 NLRB 247. The other side of the coin, however, is that if the object of the picketing is solely other than recognitional or organizational, Section 8(b)(7)(C) is not violated. 'It need not be emphasized that General Counsel, and not Respondent, bears the burden of proof and persuasion on these matters. This case involves an ununionized small house painter, concededly paying below prevailing area union wage scale, who, in company with other such limited entrepre- neurs, caused no concern to the Painters Union so long as he confined himself to those activities, which were ununionized. When, however, Gomez expanded to large-scale commercial or commercial-type construc- tion projects traditionally worked by union painters at union scale, the Union, fearing the effect on its prevailing area scales, notified Gomez that it intended to publicize the discrepancy, through picketing or handbilling. Such "area standards" picketing (or handbilling) to maintain the compensation rate in a geographic locality is a legiti- mate exercise of Constitutionally protected free speech. As Judge Danaher pointed out in Centralia' Building and Construction Trades Counsil v. N.L.R.B., 363 F.2d 699, 701 (C.A.P.C.): We regard it as settled that a union legitimately may be concerned that some employer is undermin- ing area standards of employment by maintaining lower standards. The, Board itself has recognized that no unfair labor practice occurs when a union engages in picketing which has for its sole object truthfully advising the public that some employer is operating, under substandard working , condi- tions." [Emphasis, supplied.] Existence of an objective proscribed by Section 8(b)(7)(C) may not be inferred upon the basis of the picketing alone . Houston Building Construction Trades Council (Claude Everett Construction Company), 136 NLRB 321, 323-24;'International Hod Carriers, Local No. 41 Calumet Contractors Association), 133 NLRB 512, 513. Nor does the fact that the area standard southt to be imposed coincides with the union negotiated rate, brand the union effort as recognitional, since picket- ing.for a'union rate is not unlawful. Houston Building, supra. In its notification to Gomez' the Union explicitly point- ed out that it was not interested in recognition or organi- zation. All of Respondent's subsequent actions, at both of the project sites involved, were consistent with that disclaimer." As shown, it has not been established byj substantial credible evidence that the Union, through its' Business Res'presentative', Abbott 'or otherwise; at any material time demanded recognition, or thai it„in any way sought, to establish a contractual relationship with Gomez12; nor that 'it, engaged in•an organizational' drive or campaign or in what may fairly be regarded as organizational activity tied to the situation complained of. There is here an absence of the recognitional demands or indicia, as well as of anything resembling an organiza- tional drive or effort; encountered in other cases involv- ing violation of Section 8(b)(7). 13 As has already been indicated, the sharply conflicting accounts by two directly interested witnesses (Gomez and Abbott) of conversa- f 11 While it is true that such a disclaimer does not preclude a finding of recognitional or organizational motivation supported by other evidence of record, in the instant case•(1) I have credited Abbott's explanation of his motive as true in fact, (2) there is an absence of substantial credible evidentiary support for a contrary finding, and (3) the burden is upon General Counsel to establish a contrary motivation on Respond- ent's part, such as through collateral inconsistent acts, and that burden has not been met 12 Thus, Gomez could have complied with the Union's area standards' maintenance desires, and thereby brought about termination of the picketing, without ever even meeting with the Union 1' Cf , e g , Local Joint Executive Board, Hotel & Restaurant Employ- ees, etc (Holiday Inns of America, Inc ), 169 NLRB 683, Butchers' Union, Local No 120, Meat Cutters (M. Moniz Portuguese Sausage Factory, 160 NLRB 1465, 1468-69; Operative Plasterers' and Cement Masons, Local 44 (Penny Construction Company, Inc ), 144 NLRB 1298, 1300; Central Kentucky Building & Construction Trades Council, AFL-CIO (Eubank & Steele Construction Co , Inc ), Case 9-CP-35, TXD dated Nov 29, 1965 , and cases there analyzed PAINTERS UNION NO 76 tions upon which alone findings here could be based, cannot, in the absence of any corroboration or corrobora- tive element whatsoever, and lacking any rational basis for testimonial demeanor preference or clue to assist in resolution of the testimonial conflicts in favor of Gomez, afford a sufficient basis for fact finding of viola- tion through Abbott of statutory requirements "The burden of proof is upon the General Counsel When the Trial Examiner is not persuaded by the testimo- ny of the General Counsel's witnesses the General Counsel has failed to meet that burden of proof " Blue Flash Express, Inc , 109 NLRB 591, 592 Nor would I feel justified in making findings based upon the vague and ambivalent, semijocular and longstandingly repeti- tive (regularly antedating the events described) taproom talk ascribed to Abbott by his bibulous convivant Ram- sey 14 The long and the short of the matter simply is that a fair preponderance of substantial credible evid- ence, as is required,15 fails to establish that the picketing here was either recognitional or organizational, as is essential before it may be deemed unlawful under Section 8(b)(7)(C) of the Act, as charged ie 17 I so find and '" It may also be noted in passing that Abbott s remark to Gomez s son-not relied on by General Counsel and which Abbott volunteered in his own testimony-in Gomez s presence long antedated the events here described and can thus hardly-somewhat analogously to Ramsey s testimonial yield-be considered to reflect organizational activity tied to the events were descnbed and thus violative of Sec 8(b)(7)(C) 11 Administrative Procedure Act 5 U S C Secs 556(d) and 706(2)(E) Consolidated Edison Co v N L R B 305 U S 197 299 Willapoint Oysters v Ewing 174 F 2d 676 690 691 (C A 9) N L R B v Bell Oil & Gas Co 98 F 2d 406 410 (C A 5) NLRB v A S Abell Co 97 F 2d 951 958 (C A 4) The burden of proof and persuasion in this regard is and remains upon General Counsel Administrative Procedure Act supra Sec 556(d) Consolidated Edison Co v N L R B supra Blue Flash Express Inc 109 NLRB 591 592 Attorney General s Manual on the Administrative Procedure Act 75 (1947) "' It is to be noted that the complaint here does not allege any unlawful secondary activity by Respondent in violation of Sec 8(b)(4) of the Act In this connection as correctly stated at the hearing by counsel for General Counsel It makes no difference whether or not there was a reserved gate set up in this case or not Respondent urges however that its punctilious honoring of the reserved entrance(s) as established by Gomez evidences its bona fides in this matter since if its objective here had really been recognitional or organizational within the meaning of Sec 8(b)(7)(C) it could have mounted pressure upon Gomez by ignoring the Gomez separate entrance(s) so as to embroil the other subcontractors as well as the general contractor in its dissatisfaction with Gomez s practices Thus in Respondents view its consistent honoring of the Gomez separate entrances is some evidence tending to support its defense that its picketing under the descnbed circumstances was neither recognitional nor organizational within the ban of Sec 8(b)(7)(C) Although Respondents argument is not devoid of appeal it is unessential to pass upon it in view of findings and conclusions here arrived at without necessity for resort to the effect if any of Respondent s honoring of Gomez s reserved entrances 11 Toward the end of the hearing General Counsel offered into evi dence over Respondents objection a stipulation by the parties in the United States District Court for the District of Kansas approved November 7 1969 by U S District Judge Frank G Theis under which picketing by Respondent was held in abeyance pending final 409 shall accordingly recommend that, under the circum- stances the required burden of proof not having been met, the complaint be dismissed "" Upon the foregoing findings and the entire record, I state the following CONCLUSIONS OF LAW 1 Brotherhood of Painters, Decorators and Paperhan- gers of America, Union No 76, Respondent herein, is and has at all material times herein been a labor organization within the meaning of Section 2(5) of the National Labor Relations Act, as amended 2 Gomez Painting & Decorating Co , Charging Party herein, is and has at all material times hereip been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of said Act 3 Assertion of jurisdiction in this proceeding is prop- er 4 It has not been established by a fair preponderance of the substantial credible evidence that, as alleged in the complaint, Respondent has engaged in any unfair labor practice in volation of Section 8(b)(7)(C) of the National Labor Relations Act, as amended Upon the foregoing findings and conclusions and upon the entire record, and pursuant to Section 10(c) of the Act, I make the following RECOMMENDED ORDER It is hereby ordered that the complaint herein, dated October 22, 1969, be and the same is hereby dismissed disposition of the instant proceeding Decision on Respondent s objection was reserved Clearly the mere fact that the Union was willing to withhold further picketing until an orderly determination by the Board upon a full evidentiary hearing of the question of the Union s right to do so may not be considered as a confession of guilt Not only was the stipulation in the nature of a settlement of the District Court application for a temporary injunction but it contains no admission of fact or law and has no probative force or materiality here Under the circumstances the stipulation (G C Exh 5-Ident ) is received merely for historical purposes as background since the matter it involves could otherwise properly be officially noticed 11 In view of the findings and conclusions here made it is unnecessary to consider whether the picketing at the two separate projects here involved may under the circumstances including their physical separation and the time hiatus involved be coupled for purposes of the 30 day petition filing requirement of Sec 8(b)(7)(C) Nor-even aside from the wording of the picket sign which was not cast in terms of the publicity proviso to Sec 8(b)(7)(C) but cf Act Sec 8(c)-is the publicity proviso to Sec 8(b)(7)(C) here involved in view of the determination that the picketing was neither recognitional nor organiza tional Houston Building and Construction Trades Council (Claude Ever ett Construction Company) 136 NLRB 321 323-24 International Hod Carriers Building Local 840 (C A Bhnne Construction Company) 135 NLRB 1153 Since the publicity proviso to Sec 8(b)(7)(C) is for this reason not involved and there is no charge of violation of Sec 8(b)(4) in any aspect the fact that the picketing may have resulted in work stoppages is irrelevant here Ibid see also NLRA Sec 8(c)