Teamsters Local 203 (Union Interiors)

National Labor Relations Board - Board Decisions

Apr 30, 1990

298 N.L.R.B. 315 (N.L.R.B. 1990)

TEAMSTERS LOCAL 203 (UNION INTERIORS) 315
International Brotherhood of Painters and Allied
Trades, AFL-CIO, Local 203 and Union Interi-
ors, Inc. Case 17-CP-293
April 30, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 13, 1989, Administrative Law
Judge Nancy M. Sherman issued the attached deci-
sion. The Charging Party filed exceptions,' and the
Respondent filed an answering brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions3 and to adopt the recommended
Order.
The complaint alleged that the Respondent's
April 16-23, 1987 picketing at the Holiday Inn job-
site violated Section 8(b)(7)(C) of the Act. The
theory of the General Counsel was that under John
Deklewa & Sons, 282 NLRB 1375 (1987), the 8(f)
picketing involved here was unlawful from its in-
ception. In light of the Board's recent decision in
Laborers Local 1184 (NVE Constructors), 296
NLRB 1325, (1989), the judge rejected the General
Counsel's theory and found that this 6-day period
of picketing did not exceed a "reasonable period of
time" within the meaning of Section 8(b)(7)(C).
The Charging Party excepts, asserting that the
Respondent engaged in recognitional picketing at
other locations involving Union Interiors, Inc. and
Ozark interiors, Inc. at various times since 1985
and after April 23, 1987, and that these events
show that, 'at least by April 23, 1987, the Respond-
ent's picketing had exceeded a reasonable length of
time without having filed an election petition. We
find this exception to be without merit. The Gener-
1 The Charging Party has requested oral argument The request is
denied as the record , exceptions , and briefs adequately present the issues
and the positions of the parties
2 The Respondent also requested that the Charging Party's exceptions
be "dismissed or disregarded ." Although the Charging Party's exceptions
with attachments do not strictly comply with the requirements of Sec.
102.46(b)(1) of the Board's Rules and Regulations , we find that the ex-
ceptions are not so deficient as to warrant disregarding them.
2 In Jim Alderson, et al, v. Union Interiors, Inc., et at, No. 88-3330-
CV-S-4 (W.D. Mo., Dec 15 , 1989), a case involving parties different
from those here, but relied on by the Charging Party, the court found
that Union Interiors , Inc. and Ozark Interiors , Inc. were not alter egos or
a single employer. With respect to the judge's alter ego/single employer
findings in the , instant case , however, we note that they were based on
the parties ' stipulation for purposes of this case only, that Union Interiors,
Inc. and Ozark Interiors, Inc. were a single employer and alter egos. We
also note that the disposition of the issue of single employer/alter ego
status is not determinative of the result in this case.
al Counsel, not the Charging Party, determines the
theory of the case. See, e.g., Castaways Hotel &
Casino, 284 NLRB 612, 614 fn. 5 (1987). The
Charging Party's analysis of the picketing ad-
vanced for the first time at this stage of the pro-
ceeding substantially differs from the theory of the
case relied on by the General Counsel and litigated
by the parties. Furthermore, due to the divergence
in proof under the two theories and the failure to
plead or litigate the Charging Party's theory, we
conclude that it was not fully and fairly litigated.4
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
4 By letter dated February 3, 1990, the Charging Party also requested
that its exceptions be considered in light of the Board's recent decision
issued in Cleveland Building Trades Council (Aetos Construction), 297
NLRB No. 47 (Dec. 6, 1989). The Charging Party's reliance on that case
is misplaced in view of the judge's finding, with which we agree, that the
General Counsel has not established that there were no unit employees
on the Holiday Inn jobsite.
Member Devaney agrees with the judge's reliance on J & R Tile, 291
NLRB 1034 (1988), for the propositions for- which it is cited by the
judge, but finds it unnecessary to pass on the result in that case.
Naomi L. Stuart, Esq., for the General Counsel.
Joseph W. Moreland, Esq., of Kansas City, Kansas, for
Respondent
Steven E. Marsh, Esq., of Springfield, Missouri, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me in Springfield, Missouri, on
April 6, 1989, pursuant to a charge filed on April 22,
1987, by Union Interiors, Inc. (UI) against International
Brotherhood of Painters and Allied Trades, AFL, CIO,
Local 203 (the Painters) and a complaint issued on April
25, 1988, and amended on March 30, 1989. The com-
plaint in its final form alleges that in April 1987 the
Painters violated Section 8(b)(7)(C) of the National
Labor Relations Act by picketing to force or require
Ozark Interiors, Inc. (Ozark) to recognize and bargain
with the Painters as the representative of certain of
Ozark's employees, and to force or require Ozark's em-
ployees to accept or select the Painters as their collec-
tive-bargaining representative, without the filing of a
valid representation petition under Section 9(c) within a
reasonable time from the commencement of the picket-
ing.
On the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed
by counsel for the General Counsel (the General Coun-
sel) and the Painters, I make the following
298 NLRB No. 45
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION
The Painters is a labor organization with the meaning
of Section 2(5) of the Act.
Ozark, a Missouri corporation with an office and place
of business in Springfield, Missouri, is engaged in the
construction industry as an interior contractor, specializ-
ing in the installation of metal stud, drywall, and acousti-
cal ceilings. In 1986, Ozark's gross volume of business
exceeded $3 million. During 1986, Ozark purchased
metal studs valued in excess of $100,000 directly from a
supplier in North Carolina. These studs were manufac-
tured in Texas and were shipped by common carrier to
Ozark's jobsites in the Springfield, Missouri area. Ozark's
subcontract with the general contractor on the Holiday
Inn jobsite, where the allegedly unlawful picketing oc-
curred, was approximately $800,000.
I fmd that Ozark is engaged in commerce within the
meaning of the Act, and that assertion of jurisdiction in
this case will effectuate the policies of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
David P. Moulin is Ozark's president, and also has
some kind of function with UI. In mid-December 1984,
he telephoned James W. Alderson, the Painters' business
manager. Moulin gave his name and asked whether one
of "his" employees, Donald Dilley, could perform a
drywall job at the Solid States Circuitry project on a
piecework basis, rather than as an employee. Alderson
replied that according to the Painters' bylaws and its ex-
isting multiemployer contract, to perform such work
Dilley would have to sign the contract, become a con-
tractor, hire at least one journeyman, put up a bond,
show proof of insurance, and meet other requirements.
Moulin said that he did not think Dilley would be able
to become a contractor under those terms. This conver-
sation was Alderson's first contact with Moulin, and Al-
derson had previously had no contacts with UI. In De-
cember 1984, Dilley, a member of the Painters, was on
UI's payroll.
A day or two later, Moulin telephoned Alderson, said
that Moulin had employees working on the Solid States
job, and asked for a contract to sign for UI. Alderson
signed a copy of the Painters' standard bargaining agree-
ment, and sent it to Moulin. On an undisclosed date
thereafter, Alderson went out to that job and told Dilley
(who to Alderson seemed to be the foreman or person in
charge) that "they" had not yet signed the contract, and
that "if we didn't get it pretty shortly, that we were
going to have to pull those guys off the job." Referring
to a similar previous situation on the Cox South Hospital
project, Dilley remarked that "it seemed like everytime
he went to work for a contractor he had problems."
When Alderson telephoned Moulin to find out what had
happened to the contract, Moulin said that he would get
Larry Fry to sign the contract, that it was Fry who took
care of that end of the business. Eventually, the contract
was returned to Alderson. It was signed by "Union Inte-
riors, Inc. by Larry F. Fry, President," and was dated
January 24, 1985. The contract included the following
provisions:
ARTICLE 1. The Employer recognizes and ac-
knowledges that [the Painters] is the exclusive rep-
resentative of all employees, wherever such em-
ployees may be employed, covered by this agree-
ment for the purpose of collective bargaining as
provided by the National Labor Relations Act.
ARTICLE 7. This agreement shall apply to all
present and subsequently acquired operations of the
Employer and to all accretions to the bargaining
unit including but not limited to newly established
or acquired operations.
Alderson testified on direct examination that when he
sent the standard contract to Moulin, the Solid State job-
site was the only jobsite where UI was working, and that
UI's entire work force at that job in the Painters' craft
consisted of Dilley and Ronnie Mauro, both of whom
were members of the Painters and had signed checkoff
authorizations on their applications for union member-
ship. On cross-examination, Alderson testified that the
Solid State jobsite was the first UI site he was aware of,
that UI could have been working on other jobsites, that
he did not fmd out about Ozark's existence until after UI
had signed a Painters contract, and that he did not know
how many jobsites (if any) Ozark was working on at that
time. The record fails to show the ordinary size of the
Painters' craft work force for either firm. Ozark Presi-
dent Moulin testified for the General Counsel, but was
not asked about any of the matters discussed in this para-
graph. Nor was any evidence as to such matters put in
by UI, which filed the charge here and was represented
by counsel at the hearing. Before Fry signed the contract
that Alderson had sent to Moulin, Fry, Moulin, Dilley,
and Mauro had all worked on the Cox project, an all-
union job, where the Painters had had problems getting a
contract signed with an out-of-town contractor.' Coun-
sel for the Painters stated on the record, "Obviously, we
didn't know at the time we entered into the collective
bargaining agreement, that it was a two person bargain-
ing unit, with two union members in it."
Early during the bargaining relationship between the
Painters and UI, Alderson began to suspect-because
both firms had the same superintendent and all tools and
equipment on UI jobs bore Ozark's name-that UI and
Ozark were not completely separate and autonomous en-
tities. Moreover, when Alderson remarked at a meeting
of business representatives from the various construction
trades that he had signed a contract with a brand new
company, UI, he was told no, that UI was the same
company as Ozark. About the early spring of 1985, the
Painters sent a questionnaire to UI about its relationship
with Ozark. On the basis of UI's refusal ' to respond to
' The Painters' bargaining agreement with UI included an undertaking
to honor checkoff authorizations In January 1986, UI remitted to the
Painters about $13 in dues from Dilley and Mauro for December 1984,
the month before UI's execution of the bargaining agreement. The record
fails to show when, if ever, these sums were deducted from the employ-
ees' wages.
TEAMSTERS LOCAL 203 (UNION INTERIORS) 317
this letter, the Painters filed an 8(a)(5) charge against UI
on August 29, 1985. The Regional Office disagreed with
Alderson that UI and Ozark were a joint employer, a
single employer, or alter egos ; and advised the Painters
that the charge would be dismissed if it were not with-
drawn. The Painters withdrew the charge on October
16, 1985; but by letter dated November 13, 1985, to
Ozark President Moulin, UI President Fry, and Donald
W. Jones (the attorney representing both firms), Alder-
son alleged that UI and Ozark were alter egos of each
other, that both companies were one and the same, and
that the bargaining agreement covered employees of
both firms.
The bargaining agreement executed by UI requires the
employer to make contributions into a training fund and
into a health and welfare fund, based on the number of
hours worked under the bargaining agreement. The
Painters is obligated to furnish the employer with the
audit, which is required by the "Trust Agreement."
Also, "in event of any dispute concerning payment of
wages , the Employer agrees to furnish evidence of
proper payment." In the summer of 1985, because UI re-
fused to permit the Painters to audit UI's books, the
Painters picketed the Bass Pro Shops jobsite. UI eventu-
ally agreed to submit to the audit. The audit, conducted
in late August or early September 1985, showed that
UI's', only expenses were wages and some union fringe
benefits. When the Painters' certified public accountant
asked Ozark President Moulin why, he said that Ozark
only "subbed" labor to UI. Alderson, who had obtained
as to both companies the corporate papers filed with the
State of Missouri, asked to see Ozark's books, but Moulin
refused. Alderson said that he believed he could prove
that Ozark and UI were one and the same company.
Moulin said that Alderson could probably do that, but if
he did, Moulin would simply go out of business and he
and Fry would come back into the business and start all
over, "just like we did before."
Between about November 1985 and the summer of
1986, all the work within the Painters' craft which was
successfully bid by Ozark was performed, with union
employees, by UI, which never bid work itself nor ac-
cepted work or money from any source except Ozark.
In the summer of 1986, Ozark subcontracted some of
its drywall work on the, St. John's Hospital project to J
& S Drywall, which had an agreement with the Painters
but had repudiated it; Alderson testified that he believed
this conduct by J & S rendered its use by Ozark a viola-
tion of the subcontracting clause in the Painters' contract
with UI.2 About the same time , UI and/or Ozark were
engaging in the perceived contractual violation of failing
to post bonds or take out insurance.3 In consequence of
such conduct by J & S, UI and/or Ozark, the Painters
picketed at the St. John's Hospital project about August
2 This contract forbids the subcontracting of work to anyone who is
not "a party to a collective bargaining agreement" with the Painters or
its affiliates
9 the bargaining agreement provides, "[A]ll Employers shall carry
Workman's Compensation, Public Liability and Property Damage All
Employers agree to maintain a bond to cover all deductions and contri-
butions due the Union and any Trust Funds."
13, 1986. The foregoing problems with Ozark and UI at
that site were resolved to Alderson's satisfaction.
The agreement executed by UI in January 1985 pro-
vided that it would expire at the end of March 1987 if,
60 days prior to that date, either party gave notice of an
intent to change or modify the agreement. Such notice
was given to the Painters by UI in a letter signed by Fry
and dated January 10, 1987, and to UI by the Painters in
a letter dated January 20, 1987.4
B. The Commencement of 1987 Negotiations for a
Multiemployer Agreement
On February 24, the Painters met with a three-man
bargaining committee representing a group of local firms
which had been dealing with the Painters on a multiem-
ployer basis . At that meeting , the parties exchanged bar-
gaining proposals . The multiemployer group included
Melvin Painting Company , whose vice president (Sam
Melvin) was on the bargaining committee , but did not in-
clude UI or Ozark.
C. The Painters' Complaints to General Contractor
Dewitt about Nonunion Labor at the Holiday
Inn Project
In March 1987, construction work was being per-
formed for John Q. Hammons Industries at the Holiday
Inn jobsite, with Dewitt and Associates as the general
contractor. Nothing in their contract required Dewitt to
use union labor at the jobsite, and Dewitt had no bar-
gaining agreement with the Painters. Dewitt subcontract-
ed some of the work on that job to Ozark. Nothing in
the Dewitt-Ozark contract required Ozark to use union
labor or limited Ozark's right to subcontract the work.
Ozark subcontracted much, and perhaps all of the work
to other firms. Among these firms were J & S Drywall,
whose work included the taping of sheet rock, and UI.
The record fails to show whether Ozark as such had any
employees on the job. Dewitt had no contract with UI
or J & S Drywall.
On March 19, 1987, several days before the Painters'
second bargaining session with respect to the multiem-
ployer group, a painter on the Holiday Inn job tele-
phoned Alderson that two tapers whom nobody recog-
nized had started work on the: job, and that Alderson
should probably come out and check into the matter. A
little after 2:30 p.m., Alderson came out to the Holiday
Inn jobsite and saw two tapers whom he did not recog-
nize. When he asked them whom they were working for,
they said that they were working for UI. He asked if
they were members of the Painters. When they said no,
he advised them to go to the union office and secure an
application. They said that they would.5
A few minutes later, Alderson overheard one of these
tapers tell the other that they needed to talk about "this
craft" with Jerry Durham, the proprietor of J & S
Drywall. Alderson asked the tapers what Durham had to
' All dates hereafter are 1987 unless otherwise stated.
s The Painters' contract with UI includes a union-shop clause with an
8-day grace period However, as previously noted, the contract was to
expire at the end of March.
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
do with it. They replied that Durham had sent them out
on the job, and had told them what to do and how to
get started. Alderson said, "In other words, you're really
working for Jerry Durham." One of the tapers replied,
"Hey, we just tell what we're told to tell."
At this point, Alderson went to the office of John L.
Bullard, Dewitt's construction superintendent on the
Holiday Inn job. Alderson said that "we" had a "prob-
lem" on the job. Bullard asked what it was. Alderson
.said that two nonunion tapers were on the job. Bullard
said that he did not understand; that Gary Thorpe (the
superintendent for Ozark and UI) had told him 20 or 30
minutes ago that Thorpe had got a couple of his tapers
started; that Bullard had had no idea that "they were rat-
ting the job out" (that is, contracting it out to a non-
union firm); and that if he had known this when Thorpe
was there, Bullard would have expressed strong resent-
ment . Alderson said that he had thought he had this
problem resolved with Dewitt Vice President Ted A.
Smith, when Alderson had put a picket on the St. John's
Hospital job and then left town (see supra sec. II,A).
At Alderson's request and in his presence, Bullard tele-
phoned Smith. Bullard told Smith that Alderson was
"really ticked off" at having found two nonunion tapers
on the project; that Alderson thought he had an agree-
ment with Smith that this kind of work would be done
"right" (that is, by union labor), and that Bullard had
thought the two tapers on the project were UI people
and nobody had given him any warning that the work
was to be "subbed out." Smith told Bullard that Smith
would try to see what he could do about making this
work union work, but that the final decision was up the
subcontractor.6 Bullard asked Smith whether he wanted
to tell Alderson this himself, or whether he wanted Bul-
lard to tell him this. Inferentially, Smith told Bullard to
talk to Alderson. Bullard hung up and told Alderson, in-
accurately, that Smith said to tell Alderson that "he
would get the guys off the job, get the thing straightened
out.7 Then, Alderson returned to the jobsite. Some
Painters members who were working for subcontractors
on the job asked what was going on, and whether they
should leave the jobsite. Alderson said, "No, I think
we've got them straightened out."
On the following day, March 20, the Painters (through
Alderson) filed a charge against "Union Interiors, Inc.
and its alter ego Ozark Interiors, Inc." The charge al-
leged a violation of Section 8(a)(5) by a refusal to apply
the terms of the bargaining agreement to Ozark employ-
ees.8
6 This finding is based on the testimony of Smith , whose memory I be-
lieve to be superior to Bullard's. Bullard testified that Smith said he
would "check into it " Alderson was unable to hear Smith 's side of this
telephone conversation.
7 My findings in the last three sentences are based on Alderson's testi-
mony. For demeanor reasons, I do not accept Smith's denial that he gave
any message to Bullard for Alderson . I attribute Project Superintendent
Bullard's misrepresentation to Alderson about Smith 's statements to a
desire to forestall the Painters from disrupting the project.
8 A few days later, the Painters filed a charge against J & S Drywall
(see infra sec. II ,E). However , I find nothing in any of the Painters'
charges, or elsewhere in the record , to support the assertion in the Paint-
ers' brief at 4 that J & S was alleged to occupy alter ego, joint -employer,
or single-employer status with respect to iA and/or Ozark.
D. Events on the First Working Day Following the
Establishment of a Reserved Gate on the Holiday
Inn Project
The Holiday Inn jobsite has two entrances (the north
gate and the south gate), which are on the same frontage
road but are about 150 feet apart. Between Smith's
Friday, March 20, conversation with Alderson and the
beginning of the workday on Monday, March 23, Smith
arranged for the posting of a sign on the south gate re-
serving it for the use of Ozark and J & S Drywall.
On the morning of Monday, March 28, when driving
by the Holiday Inn job on the way to work, Alderson
noticed a crowd of men in front of the project, and went
over to see what was going on. After observing that a
separate gate had been reserved for Ozark and J & S
Drywall, Alderson noticed Smith standing in the door-
way to the job trailer. Approaching Smith, Alderson said
that he thought they had had an agreement about how to
work out their problems, and "is this how you're going
to help me out, by establishing two gates" and letting
"these non-union people go ahead with the job?" Smith
said that he had telephoned Ozark about who was doing
its taping work, but that he could make no promises or
guarantees and did not feel that he had. Alderson said
that Smith had told him during the March 20 conversa-
tion that the nonunion tapers would be off the job and
would not be back. Smith denied telling Alderson that.
Alderson said that Bullard had told him that. Smith said,
"[W]ell, then, you've got a problem with Bullard." Al-
derson accused Smith of lying and being dishonest.
As Alderson was about to leave the job, he saw the
painting foreman for Melvin Painting Company, a
member of the multiemployer group which was then
dealing with the Painters, pull up, on the apron of the
driveway approach. Alderson walked over to the truck,
whereupon the foreman asked what was going on. Al-
derson said, "Looks like the rats are going to go ahead
and do the taping." The foreman said, "Then we prob-
ably shouldn't go in and work." Alderson said that he
could not tell the foreman that, that whether to work
was up to him, but that Alderson would not work in
there with "them." The foreman'said that Sam Melvin,
who is Melvin Painting's vice president and was a
member of the multiemployer group's bargaining com-
mittee, had said that if there were any problems at the
Holiday Inn jobsite that morning to come on back to the
shop and go to another job. The foreman said, "That's
what we're going to do."9 Melvin Painting's painters had
been scheduled to work that day and the 2 following
days, but they did not do so.
By telephone later that morning, March 23, Sam
Melvin asked Alderson what was going on. When Alder-
son told him, Melvin asked Alderson to meet with Sam
Melvin and Jones (attorney for Ozark and UI) to try to
9 My findings as to the content of this conversation are based on Al-
derson's undenied and uncorroborated testimony. For demeanor reasons,
I am inclined to credit the testimony of Smith, who saw but could not
hear this conversation , that several painters were in the truck , rather than
Alderson's testimony that the truck was occupied only by the foreman
However, this matter is irrelevant to the issues before me.
TEAMSTERS LOCAL 203 (UNION INTERIORS) 319
get something worked out. Alderson said that he would
meet with Sam Melvin, but not with Jones.
That same day, and before 12:20 p.m., Alderson pre-
pared picket signs for the Holiday Inn job. At 12:20 p.m,
Sam Melvin and his father, Walter Melvin, walked into
Alderson's office and presented him, with a summons to
appear before Judge Applequist in the Circuit Court of
Greene County, Missouri, at 1 p.m. that same day. The
Melvins said that they were seeking a temporary re-
straining order and suing the Painters for damages. Al-
derson immediately telephoned the Painters' attorney,
Douglas W. (Mike) Greene III, who said that it was
physically impossible for him to get to the courtroom in
time for the hearing. Then, in order to avoid the issuance
of a restraining order against picketing in connection
with the Painters' disputes with Ozark, UI, and J & S
Drywall, Alderson prepared a "Notice to Employees of
Melvin Painting Co." which was dated March 23 and
stated, inter alia:
On Friday, March 20, 1987 Unfair Labor Prac-
tice charges were filed with the National Labor Re-
lations Board Regional Director in Kansas City,
Kansas against two signatory employers for refusal
to recognize this labor organization as the exclusive
[bargaining] representative of all their employees
within the [bargaining] unit as provided by the Na-
tional Labor Relations Act.
At 12:20 this afternoon Melvin Painting Co.
served notice that it was seeking a Temporary Re-
straining Order from the Greene County Circuit
Court at 1:00 to prevent this local from picketing
the unfair contractors and to force you to continue
working on the Holiday Inn project on North Glen-
stone.
Of course it was impossible to secure legal repre-
sentation or prepare for the hearing on such short
notice.
I will not picket the job for the remainder of this
month. Hopefully, this will prevent Melvin from se-
curing the Restraining Order.
You are directed to report to work as usual for
Melvin Ptg. Co.
Note: The unfair contractors mentioned above
are Ozark Interiors/Union Interiors and Jerry
Durham Drywall.
On the basis of this commitment, the request for a tem-
porary restraining order was denied by Judge Apple-
quist, whose docket sheet states that he would reserve,
for future proceedings, making a decision if the same
issue arose again. Alderson testified that this commitment
caused the Painters to refrain from picketing for the rest
of that month, March 1987.
E. Events Between Melvin Painting's Lawsuit and the
Commencement of Picketing at the Holiday
Inn Project
On March 25, 1987, the Painters filed a charge against
J & S dated March 23, 1987, alleging that since about
November 7, 1986, it had violated Section 8(a)(5) and (1)
of the Act by refusing to recognize the Painters and by
bargaining directly with employees (see supra at fn, 8).
Meanwhile, on March 24 and 27, Alderson again met
with the bargaining committee for the employer associa-
tion. A tentative agreement was reached on March 27, to
be effective on April 1.
Inferentially about March 30, Alderson received a
courtesy copy of a letter to the Regional Office, regard-
ing the charge the Painters had filed against Ozark and
UI on March 20, 1987. This letter, which is dated March
27 and is signed by Attorney Jones on behalf of both
companies, stated, in part:
Union Interiors, Inc., which had a collective bar-
gaining agreement with the [Painters], notified the
[Painters] on January 10, 1987, that it was desiring
to modify or terminate the contract as of its expira-
tion date, and the [Painters] has not requested any
bargaining from the company. By a copy of this
letter to the [Painters], this is to notify the [Painters]
that I will be representing Union Interiors in con-
nection with any bargaining with that company,
and that my client is proposing to discontinue all
fringe benefits as of the expiration of the agreement,
or as of 15 days from the date of this letter, which-
ever is later, unless some other agreement is
reached between now, and that date.
On April 2 and 3, 1987, a Board agent who was inves-
tigating the Painters' charge against Ozark and UI came
down to take affidavits from Alderson and his witnesses.
Alderson told the agent that the Painters planned to
picket Ozark and UI. The Board agent told Alderson to
be very careful about putting up pickets because of the
Board's decision, on February 20, 1987, in John Deklewa
& Sons, 282 NLRB 1375 (1987), enfd. 843 F.2d 770 (3d
Cir. 1988), cert. denied 488 U.S. 889 (1988). The Board
agent said that "basically, you weren't allowed to picket
those contractors to renew that relationship [based ' on a
prehire agreement protected by Section 8(f)] or force
recognition." In addition, the agent gave Alderson a
copy of a memorandum from then General Counsel
Rosemary N. Collyer to "All Regional Directors, Offi-
cers in Charge, and Resident Officers," on the subject of
"Guideline Memorandum Concerning John Deklewa and
Sons." The memorandum stated, in part:
... there is no presumption of majority status after
the expiration of a Section 8(f) contract. Thus,
absent proof of majority status, either party can re-
pudiate the relationship- at that time. Further, the
Board held . . . that the union cannot picket or
strike to reestablish the relationship. The Board's
proscription on picketing presumably refers to Sec-
tion 8(b)(7).7
7 Thus, the Board has implicitly rejected the possible argument
that the picketing is lawful because it is not for initial recognition.
Whitaker Paper Co., 49 NLRB 731 [(1964)]; Frank Wheatley Pump,
150 NLRB 565 [(1964)]. Section 8(b)(7) does not however forbid
strikes, and in Curtis Bros., 362 U.S. 174 [(1964)], the Supreme
Court held that pressure to secure majority recognition is not un-
lawful under Section 8(b)(1)(A).
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
About April 15, Alderson called the Board agent to
ascertain the status of the Painters' March 20 charge
against Ozark and UI. The Board agent said that he felt
as if the Painters had "plenty of evidence" to prove that
the two firms were alter egos, but that this was only his
own opinion and just about every case that was coming
up after Deklewa had to go to the Division of Advice.
The Board agent did not tell Alderson that the Region
was issuing a complaint in that case. Alderson admittedly
knew that the Board agent did not make the final deci-
sion in the case, and that it was submitted to other
people in the Regional hierarchy. Alderson testified that
after this April 15 conversation, "I decided to go ahead
and put up my own picket."
F. The Allegedly Unlawful Picketing
By March 1987, the exterior walls on the Holiday Inn
project were up; UI had begun to install metal studs and
sheet rock; plumbers, electricians, and masons were
working on the job; and a number of different contrac-
tors and subcontractors were working on the jobsite. As
previously noted, about March 23 Dewitt had posted the
south gate of the project for the use of Ozark and J & S
Drywall. In the morning or early afternoon of April 16,
the Painters began to picket at that gate with a sign,
which read:
Union Interiors, Inc. and its alter ego Ozark Interi-
ors, Inc. has committed unfair labor practices and
violations of Federal Law Painters Local 203 Paint-
ers Local 203 on strike against Union Interiors, Inc.
d/b/a Ozark Interiors, Inc.
At or about 4 p.m. that day, and after being advised that
the picket sign referred to UI, Dewitt added UI's name
to the south gate designation.
After the end of the workday, on April 16, Dewitt
transferred the Ozark-UI-J & S posting to the north
gate.10 The Painters was not notified of this change. At
or about 7:30 a.m. on Friday, April 17, the Painters set
up a picket in front of each of the two gates. One of the
picket signs named Ozark and UI, and the other named J
& S Drywall." l Upon seeing the picket signs, a majority
of the people on the job walked off the job. Dewitt Vice
President Smith asked Alderson why both gates were
being picketed when "we had one designated for him."
Alderson said that some Ozark and J & S people had
used the south' (neutral) gate. Smith asked whether Al-
derson would "recognize the neutral gate" if Smith re-
quired these people to leave the jobsite and return
through the north gate. Alderson agreed. After Smith
had finished performing this undertaking about 9:30 a.m.,
Alderson took the pickets off the neutral gate . Thereaf-
ter, some of the people who had walked off the job re-
turned to the job; the rest of them had "just disap-
10 This was done because most of the workers were to use a neutral
gate, the road to the south gate had been paved , and Dewitt wanted to
restrict traffic on the northgate road, which was gravel and had been
sprayed with a primer coat late on April 16.
11 My finding that one sign named J & S is based on the testimony of
Alderson, whose memory as to this matter impressed me as superior to
Smith's Smith testified that both signs named Ozark and UI
peared." Smith testified without objection or limitation
that about 10:30 a.m., a Dewitt foreman told him that all
the carpenters employed by Dewitt and UI had left the
job.
On the next scheduled workday-Monday, April 20-
the Painters picketed the posted gate with one sign
naming Ozark and UI, and another naming J & S. All
the employees on the job went to work, except for UI's
carpenters. When Smith asked UI Carpenter Foreman
Bob Gardner why the UI carpenters were not going to
work, he replied that they no longer wanted to work for
UI and were not going to go in across a picket line.
After unsuccessfully trying to induce Gardner to try to
persuade the UI carpenters to work, Smith called UI
President Fry, and told him that he had to get some
people out there, that Smith had to get this project
going. Fry said that if he could not get Gardner and his
people to work Fry probably did not have any carpen-
ters that he could put on the job. Then, Smith tele-
phoned Ozark President Moulin and said that if he did
not put some carpenters on the job Smith was going to
have to take his contract away. When Moulin said that
he had no carpenters whom he could put on the job,
Smith told him that Ozark's contract for, the sheet rock
and metal stud work (the work that UI's carpenters had
been performing) was canceled. Smith then asked Gard-
ner and his crew to come to work on the Holiday Inn
job for SDS Builders, a unionized Dewitt subcontractor.
Some of them accepted this arrangement, and some of
them did not.
On April 21, 1987, Jones, as attorney for UI, submitted
to the Painters a contract proposal, which provided that
"the relationship which existed under a prehire agree-
ment between [UI and the Painters] which expired
March 31, 1987, is hereby renewed and extended... .
This agreement shall not extend to or cover any employ-
ees who are employed as ceiling men, metal stud men
[or] drywall men . . . it being agreed that the ceiling
men and metal stud men and drywall workers fall within
the jurisdiction of the Carpenters' Union. Likewise ex-
cluded from this agreement are any employees who are
employed by any corporation other than',? UI. UI's pro-
posal further stated:
4. It is hereby agreed that every place where the
attached agreement refers to the "Employer," shall
refer to, for purposes of this agreement between
these Parties, Union Interiors, Inc., and no other
corporation or entity.
5. It is agreed that all disputes and controversies
between these parties have been forever settled and
set at rest, and that there will be no claim or pro-
ceeding instituted or proceeded with by the [Paint-
ers] against the Employer or by the Employer
against the [Painters], and that each party will
promptly dismiss with prejudice any claim, charge,
or lawsuit which has been instituted against the
other. It is further agreed that the [Painters] will
dismiss any claims wherein it has alleged that any
other organization, corporation or entity is an alter
ego of the present Employer.
TEAMSTERS LOCAL 203 (UNION INTERIORS) 321
Later that same day, a conference was held at Jones'
office. Present were Jones, UI President Fry, Ozark
President Moulin, Painters Business Agent Alderson, and
Painters Attorney Greene. After Jones had presented his
written proposal to Alderson and Greene, the three men
went through it. Jones said that in order to enter into an
agreement with UI, the Painters. would have to stipulate,
in effect, that UI and Ozark were separate employers.
Alderson said that he would not sign any contract with
UI "unless he signs it," pointing at Ozark President
Moulin. Jones said that the only reason Moulin was there
was that his presence had been requested by Alderson,
and that Moullin was there, not as representative for ne-
gotiations, but "just strictly as an observer."
UI's proposal included a "red-lining" provision, which
permitted UI to complete all jobs publicly bid before
April 1, 1987, at the April 1, 1986 scale of wages and
benefits. When the Painters expressed at least tentative
agreement, Jones asked UI President Fry what jobs he
wanted "red-lined" other than a high-rise project speci-
fied in UI's proposal. Fry replied, "The Holiday Inn
job." Jones said, "No, no. That's not your job." Alder-
son remarked, "Yeah, it's kind of hard for us to keep
them straight too." Greene said that he would look over
UI's proposal and "get back with them."
By letter to Jones dated April 22, 1987, Greene reject-
ed UI's proposal on the ground that UI and Ozark were
alter egos, and
it really would not serve any purpose for us to
agree to a'contract with one company and not the
other . . . we have run into that situation in the
past where a local union signs an agreement with
one contractor only to find that jobs are bid and
worked under the name of another alleged contrac-
tor, which is really the alter-ego of the signatory
contractor. We want to avoid that situation here.
The Painters picketed the posted gate with a sign
naming Ozark and UI on April 21, and naming J & S
Drywall on April 22. About April 22, Sam Melvin,
Melvin Painting Company's vice president, told Alder-
son that Dewitt wanted Melvin Painting to start work
the following Monday, April 27. Melvin said that, not-
withstanding the separate entrances, his employees
would not go to work as long as the pickets were on the
job, and "he would not force them." Melvin asked Al-
derson to remove the pickets. Alderson did so. The
Painters engaged in no further picketing at the Holiday
Inn jobsite. However, on various dates between January
and March 1988, the Painters picketed Ozark and/or UI
at three separate jobsites. Eight or ten charges filed
against the Painters by UI and/or Ozark, alleging this
picketing to be unlawful, were all dismissed by the Gen-
eral Counsel.
The pleadings establish that the Painters is not current-
ly certified by the Board as the collective-bargaining rep-
resentative of any of Ozark's employees. The parties stip-
ulated that at no material time did the Painters file a peti-
tion for an election among Ozark's employees. The par-
ties further stipulated that this case can be decided on
the assumption, for purposes of this decision only, that
Ozark and UI are a single employer and alter egos of
each other.
G. The Disposition of the Painters' Charges Against
J & S Drywall Ozark, and UI
As previously noted, on March 25, 1987, the Painters
filed a charge against J,& S Drywall. On the basis of this
charge, a complaint was issued on September 18, 1987,
alleging that J & S had violated Section 8(a)(5) and (1)
of the Act by failing to honor a collective-bargaining
agreement with the Painters. A decision substantially sus-
taining that complaint was issued by Administrative Law
Judge William A. Pope III on March 1, 1989. At the
time that I signed the instant decision, the case against J
& S Drywall was still pending before the Board on ex-
ceptions filed by J & S Drywall and the General Coun-
sel.
Pursuant to, inter alia, the charge filed by the Painters
against Ozark and UI on March 20, 1987, a complaint
was issued on April 28, 1988, which alleged, inter alia,
that UI and Ozark constituted "a single integrated busi-
ness enterprise and a single employer within the meaning
of the Act and/or a joint employer of their employees."
In addition, the complaint alleged that until the end of
March 1987 the Painters was the statutory bargaining
representative, "by virtue of Section 9(a) of the Act," of
a unit which consisted of employees of both firms; and
that UI and Ozark had violated Section 8(a)(1) and (5) of
the Act by failing and refusing to apply to all such em-
ployees the terms and conditions of the bargaining agree-
ment which expired on that date. On June 30, 1988, UI
and Ozark entered into two identical but separate settle-
ment agreements with the General Counsel. Each of
these agreements included an undertaking by the signato-
ry corporation,
WE WILL NOT, during the term of a collective-
bargaining agreement, fail and refuse to bargain col-
lectively and in good faith with [the Painters] as the
exclusive bargaining representative of our employ-
ees covered by the agreement .... WE WILL
make our employees whole for any losses they may
have suffered as a result of our failure to adhere to
the contract with the [Painters] until it expired on
31 March, 1987.
Further, each agreement included an undertaking to pay
backpay to and make fringe benefit payments on behalf
of the same three employees in exactly the same
amounts. Each agreement also provided, "By signing this
agreement, the Charged Party does not admit that it has
violated the National Labor Relations Act in any
manner." The Painters refused to enter into these agree-
ments, and appealed them to the Board, which denied
the appeal about October 1988.12
12 The settlement agreements both provide that they do not remedy
the allegations contained in Case 17-CA-13358, which was initiated by a
charge filed by the Laborers. In this case, a complaint issued which ap-
parently alleged that Ozark and UI are joint or single employers in Feb-
ruary 1989, this complaint was withdrawn and the charge was dismissed
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
H. Analysis and Conclusions
Section 8(b)(7)(C) of the Act forbids a union
. .. to picket or cause to be picketed . . . any em-
ployer where an object thereof is forcing or requir-
ing an employer to recognize or bargain with a
labor organization as the representative of his em-
ployees, or forcing or requiring the employees of an
employer to accept or select such labor organiza-
tion as their collective-bargaining representative,
unless such labor organization is currently certified
as the representative of such employees:
(C) where such picketing has been conducted
without a petition under section 9(c) being filed
within a reasonable period of time not to exceed
thirty days from the commencement of such picket-
ing . . .
Section 8(b)(7)(C) is violated if a union without a cur-
rent certification pickets with an object specified in that
section, even though this is not the only object. Retail
Clerks Local 345 (Gem of Syracuse), 145 NLRB 1168,
1172 (1964).
Initially, I agree with the General Counsel that an
object of the Painters' picketing was to force or require
recognition and bargaining with respect to employees on
Ozark's payroll. Thus, by letter to UI Attorney Jones
dated April 22, 1987, 8 days after the picketing began,
Painters Attorney Greene rejected UI's contract propos-
al, which by its terms excluded employees on Ozark's
payroll, on the ground that "it really would not serve
any purpose for us to agree to a contract with one com-
pany and not the other." Similarly, when negotiating
with respect to that contract proposal on the preceding
day, April 21, Painters Business Agent Alderson stated
to the president of and the attorney for UI that Alderson
would not sign any contract with UI unless it was also
signed by Ozark President Moulin, who was present
during these negotiations at Alderson's request.13 Fur-
ther, the picket signs by their terms alleged "unfair labor
practices and violations of Federal Law" by Ozark, as
well as UI; and the notices prepared by Alderson in con-
nection with the lawsuit by Melvin Painters show that
Alderson regarded the Painters' pending 8(a)(5) charge
against Ozark and UI as encompassing their "refusal to
recognize [the Painters] as the exclusive [bargaining] rep-
resentative of all their employees within the [bargaining]
unit as provided by the National Labor Relations Act."
Additional evidence that the picketing protested nonrec-
ognition with respect to employees on Ozark's payroll,
as well as its alleged failure to honor the contract which
expired at the end of March 1987, is the fact that the
picketing began more than 2 weeks after the contract ex-
pired, and that the Painters refused to enter into, and ap-
pealed, a settlement of its charges against UI and Ozark
even though the settlement apparently remedied Ozark's
alleged dishonoring .of the agreement. I do not agree
with the Painters that the existence of a recognitional
object as to Ozark is precluded by the fact that the
Painters was being 'recognized as the representative of
the employees of UI, with respect to which Ozark occu-
pied putative single-employer status. Such status would
not necessarily render binding on Ozark an agreement
between the Painters and UI, particularly where (as UI
proposed here) the agreement by its terms excluded
Ozark. Peter Kiewit Sons' Co., 231 NLRB 76 (1977), affd.
595 F.2d 844 (D.C. Cir. 1979); A-1 Fire Protection, 250
NLRB 217 (1980);14 B & B Industries, 162 NLRB 832
(1967); Malcolm Boring Co., 259 NLRB 597, 606-608
(1981); Edenwald Construction Co., 294 NLRB 297
(1989). That the Painters' agreement to UI's contract
proposal would exclude employees on Ozark's payroll
from contract coverage was recognized by Painters At-
torney Greene and Painters Business Representative Al-
derson, as well as by UI Attorney Jones.
Ozark as such has never signed a contract with the
Painters. However, the Painters contends that its picket-
ing did not have an object specified in Section 8(b)(7)(C),
on the ground that because UI and Ozark are to be con-
sidered as a single employer and/or alter egos for pur-
poses of this proceeding, UI's action in contracting with
the Painters as the representative of the contract unit
was the legal equivalent of such action by Ozark that,
therefore, the execution of that contract constituted rec-
ognition of the Painters with respect to employees on
Ozark's payroll; and that, accordingly, the picketing did
not have an object of compelling initial recognition with
respect to such employees. However, the cases on which
the Painters appears to rely15 involved picketing con-
comitant to a strike which was called by the incumbent
9(a) representative of the employees, all of whom had
joined the strike before the employer withdrew recogni-
tion from the picketing Union on the basis of an alleged
but unproven loss of majority. Under these circum-
stances , to find the continued picketing violative of Sec-
tion 8(b)(7)(C) would disregard the legislative history,
which indicates that this provision was not intended to
impair or affect the right of organized workers to go on
strike for better wages and working conditions and to
picket in connection with such a strike. See Hassett Stor-
age Warehouse, 287 NLRB 735 (1987). In the instant
case, as to the employees on Ozark's payroll the Painters
was not shown to be the 9(a) representative either before
or after the effective period of the bargaining agreement
formally executed by UI, that agreement constitutes the
only real basis for the Painters' claim that it was ever
recognized with respect to such employees, and the
agreement expired before the picketing began. Cf. Labor-
ers Local 98 (Fisher Construction), 296 NLRB 1332
(1989).
is It is true that April 21, 1987, was the last day on which the Painters
picketed the Holiday Inn project with a sign naming Ozark. However,
Alderson testified that he decided to remove the pickets in order to
enable a Painter-organized subcontractor , Melvin Painters-to complete
its work on the project.
14 Remanded on other grounds 676 F 2d 826 (D.C Cir 1982), decision
on remand 273 NLRB 964 (1984), enfd. 789 F.2d 9 (D.C Cir. 1986).
15 Warehouse Employees Local 570 (Whitaker Paper), 149 NLRB 731
(1964); Machinists Local 790 (Frank Wheatley Pump), 150 NLRB 565
(1964).
TEAMSTERS LOCAL 203 (UNION INTERIORS) 323
The Painters seems to contend that the March 30 expi-
ration of this agreement did not render violative of Sec-
tion 8(b)(7)(C) the picketing which began on April 16,
on the ground that the putative "withdrawal" of recogni-
tion (which "withdrawal" occurred no later than the
contractual. expiration date) with respect to employees
on Ozark's payroll violated Section 8(a)(5) and the Gen-
eral Counsel erred in failing to issue a complaint so alleg-
ing, on the basis of the Painters' charge against UI and
Ozark.16 As to any postcontract recognition duty re-
garding employees on Ozark's payroll, the Painters ap-
pears to rely solely on a presumption of majority alleg-
edly created by the expired contract, and seems tacitly to
concede that no such presumption would arise if the le-
gality of that contract depended on Section 8(f). See
Deklewa, supra, 282 NLRB at 1386. However, the Paint-
ers contends that the expired contract was entered into
pursuant to Section 9(a) of the Act. As to this conten-
tion, the burden of proof rests on the Painters. Deklewa,
supra, 1385 fn, 411; J & R Tile, 291 NLRB 1034 (1988);
Brannan Sand & Gravel Co., 289 NLRB 977, 984 (1988);
Fisher Construction, supra, 296 NLRB 1332, 1334 fn. 4. 1
find that the Painters has failed to discharge this burden.
There is no evidence that the Painters' efforts to get the
contract signed were accompanied by any claim that the
Painters was the employees' representative under Section
9(a), or that anyone ever so stated on behalf of UI or
Ozark before the contract was signed, or even afterward.
Further, there is no evidence that any efforts to ascertain
whether the Painters was the majority representative
were made by the Painters (which when signing the con-
tract was unaware of Ozark's existence) or by anyone on
behalf of either Ozark or UI. Finally, the Painters has
failed to show how many bargaining unit employees
were in the the employ of UI and Ozark at the time the
contract was entered into, whether this was a representa-
tive number, and whether a majority of them wanted to
be represented by the Painters. See J & R, supra. Ac-
cordingly, I conclude that the Painters has failed to
show that the postcontract refusal to bargain with re-
spect to Ozark violated Section 8(a)(5) of the Act.
Because there is no evidence that the Painters' efforts
to bind Ozark to an agreement were ever accompanied
by any claim that the Painters represented a majority of
or was the 9(a) representative of any relevant unit, any
agreement between the Painters and Ozark would have
been valid only under Section 8(f), and not under Sec-
tion 9(a). J & R' Tile, supra. The parties do not appear to
dispute that picketing for such an agreement would con-
stitute picketing with an object of forcing or requiring
recognition or bargaining with the Painters as the repre-
sentative of Ozark's employees. Fisher Construction,
supra, Operating Engineers Local 542 (R S. Noonan), 142
NLRB 1132 (1963), enfd. 331 F.2d 99 (3d Cir. 1964),
cert. denied 379 U. S. 889 (1964); see also NLRB v. Iron
Workers Local 103, 434 U.S. 335, 341 (1978). Moreover,
the Painters has never been certified as the representative
16 Cf. Hod Carriers Local 840 (Bhnne Constructwn), 135 NLRB 1153,
1163, 1167 (1962); Hotel & Restaurant Employees Local 274 (Warwick Ca-
terers), 269 NLRB 482 (1984).
of any relevant employees, and a representation petition
was not filed at any relevant time.
However, the Painters contends that its picketing did
not violate Section 8(b)(7)(C) because that section pro-
scribes picketing "without a petition under Section 9(c)
being filed within a reasonable period of time not to
exceed 30 days from the commencement of such picket-
ing"; the Painters picketed only about 6 days with re-
spect to Ozark; and this period without the filing of a pe-
tition was insufficient to show that no petition was filed
"within a reasonable period of time not to exceed 30
days." The General Counsel argues that no period of
picketing constitutes a "reasonable time," within the
meaning of Section 8(b)(7)(C), where, as here, the picket-
ing seeks recognition under Section 8(f). As to this issue,
the Painters' position is squarely supported by Laborers
Local 1184 (NVE Constructors), 296 NLRB 1325 (1989),
which was decided after the filing of the briefs here. The
Board there unanimously held that "it is not unlawful for
a union to picket an employer for recognition within the
reasonable time limitations set forth in Section 8(b)(7)(C),
even where an object of that picketing is 8(f) recognition
. .. we find lawful in the construction industry peaceful
recognitional and organizational picketing that is lawful
in other industries." Accord Fisher Construction, supra,
296 NLRB 1332; see also Los Angeles Building Trades
Council (Donald Schriver), 239 NLRB 264, 269 (1978),
enfd. 635 F.2d 859 (D.C. Cir. 1980), cert. denied 451
U.S. 976 (1981); Laborers Local 1290 (Walters Founda-
tions), 203 NLRB 397, 401 (1973).1" NVE does state (at
1327) that "a construction industry union may not picket
for recognition in a unit having no employees (in other
words, picketing for a literal `prehire' contract)." How-
ever, I conclude that the burden of showing the absence
of unit employees rests on the General Counsel, both be-
cause he normally bears the risk of nonpersuasion and
because, in' 8(b)(7)(C) cases, he likely has better access
than does a respondent union to evidence regarding the
work force of the employer in question. Further, I find
that the General Counsel has failed to show that neither
Ozark nor UI employed employees in the Painters' craft
when the Painters began picketing at the Holiday Inn
jobsite in an effort to obtain a contract which covered
UI and Ozark employees in a single unit. Indeed, it is
more probable than not that such employees were in fact
so employed at that time. Thus, employees in that craft
were on UI's payroll between 'December ,1984 and the
17 Cf NLRB v. Hod Carriers Local 1140, 285 F2d 397, 403 (8th Cir
1960), cert. denied 366 U S 903 (1961); this was a secondary-boycott case
where the Court expressly declined to determine the union's rights as
against the primary employer, from which the union was attempting to
secure a bargaining agreement protected by Sec 8(1). I am aware shat the
instant case arises in the Eighth Circuit, and that any subsequent judicial
review will probably (although not assuredly) take place in that circuit.
See J.P. Stevens & Co. v NLRB, 388 F 2d 892 (4th Cir 1967). However,
it is my "duty to apply established Board precedent which the Board or
the Supreme Court has not reversed. Only by such recognition of the
legal authority of Board precedent, will a uniform and orderly adminis-
tration of a national act, such as the National labor Relations Act, be
achieved" Iowa Beef Packers, 144 NLRB 615, 616 (1963), modified 331
F.2d 176 (8th Cir 1964) Accord. Ford Motor Ca. (Chicago Stamping
Plant), 230 NLRB 716, 717-718 (1977), enfd. 571 F 2d 998 (7th Cir
1978), affd. 441 U.S. 448 (1979)
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
summer of 1986; two Painters' craft employees (tapers)
who were working on the Holiday Inn job advised Al-
derson (although perhaps inaccurately) on March 19,
1987, that they were employed by UI; and during the ne-
gotiations on April 21,1987, the last day of the picketing,
UI stated, in effect, that it anticipated using employees in
the Painters' craft on that job. Cf. Operating Engineers
Local 181 (Steel Fab), 292 NLRB 354 (1989). Moreover,
it would have been difficult for either Ozark (a drywall
and plastering contractor) or UI (a metal and stud fram-
ing and acoustical ceiling contractor) to conduct business
without the services covered by the Painters' bargaining
agreement, which expired at the end of March 1987
(which agreement covered tapers, spraymen, pressure
roller operators, and wallcovering installers) or even the
services covered by UI's April 21, 1987 proposal to the
Painters, which covered tapers.
The General Counsel's Brief at 10 admits that "picket-
ing in support of Section 9 recognition can usually con-
tinue" for 30 days; and the General Counsel declined on
the record to contend that if (as I have found) the pick-
eting was lawful at its inception, the 6-day period of the
Painters' picketing exceeded a "reasonable period of
time" within the meaning of Section 8(b)(7)(C). I find
that the duration of the picketing was reasonable. Walters
Foundations, supra, 203 NLRB at 401; Fisher Construc-
tion, supra, 296 NLRB 1332; NVE, supra, 296 NLRB
1325.
For the foregoing reasons, I find that the Painters did
not violate Section 8(b)(7)(C) of the Act by picketing
with an object of forcing or requiring Ozark to recog-
nize or bargain with the Painters as the representative of
Ozark's employees and forcing or requiring Ozark's em-
ployees to accept or select the Painters as their collec-
tive-bargaining representative.
CONCLUSIONS OF LAW
1. The Painters is a labor organization within the
meaning of Section 2(5) of the Act.
2. Ozark is an employer engaged in commerce within
the meaning of the Act.
3. The Painters has not violated Section 8(b)(7)(C) of
the Act by picketing with an object of forcing or requir-
ing Ozark to recognize and bargain with it as the repre-
sentative of certain of Ozark's employees and forcing or
requiring Ozark's employees to accept or select the
Painters as their collective-bargaining representative.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed18
ORDER
The complaint is dismissed in its entirety.
18 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.