United Brotherhood of Carpenters, Local 906

National Labor Relations Board - Board Decisions

Jun 13, 1973

204 N.L.R.B. 138 (N.L.R.B. 1973)

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners, Local
906, AFL-CIO and Blankenship Builders , Inc. Case
28-CP-1 12
June 13, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On February 8, 1973, Administrative Law Judge
David E. Davis issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting briefs,
and Respondent filed an answering brief.
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 only to
the extent consistent herewith.
Blankenship Builders, Inc., herein called the Charg-
ing Party, is engaged in the construction of townhous-
es at various sites in Phoenix, the largest of which is
called the Torre Blanca site. Its employees are unre-
presented. Some of the work on the Torre Blanca site
is done by employees of the Charging Party, including
carpenters, and some is subcontracted.
It is undisputed that Respondent picketed the Torre
Blanca project from late July until November 13,
1972, a period far in excess of the 30 days permitted
by Section 8(b)(7)(C) of the Act, and that no petition
for an election was filed. The Administrative Law
Judge, however, found that the picketing did not have
a recognitional or organizational object but was de-
signed solely to protest the Charging Party's failure to
pay its employees wages and fringe benefits equal to
those paid under union contracts, and therefore did
not violate Section 8(b)(7)(C) of the Act. The General
Counsel and the Charging Party have excepted to this
finding. We find merit in these exceptions.
In a letter dated July 20, the day before the picket-
ing began, and received about July 23, Respondent's
business representative, Hackett, informed the Charg-
ing Party that the picketing would continue until the
Charging Party raised its carpenters' wages to $8.70
' The General Counsel and the Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge 's resolutions
with respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd. 188 F 2d 562 (C A 3). We have carefully
examined the record and find no basis for reversing his findings.
per hour, the total amount of wages and fringe bene-
fits paid by other contractors in the area.' The letter
stated that Respondent did not seek to represent or
organize the carpenters employed by the Charging
Party or to obtain a contract concerning their wages,
hours, or working conditions.
The picketing, which took place on weekdays only,
was at the gate used by employees of the Charging
Party and its suppliers, as well as by any customers
visiting the project. On a number of occasions, deliv-
erymen or employees of subcontractors and suppliers
refused to cross the picket lines. The picket signs stat-
ed only that the Charging Party paid substandard
wages . Any person who asked the pickets any ques-
tions was given a copy of the July 20 letter from
Hackett to the Charging Party and informed that
Hackett would answer any questions.
However, on weekends, when there were no em-
ployees of the Charging Party at the project but far
more customers than during the week, Respondent
took a very different tack. There was no picketing, but
handbills were distributed at the entrance to the park-
ing lot used by customers.' The handbills stated that
the Charging Party was paying less than the union
scale for its carpentry work and added that the
plumbing, sheet metal, and electrical work was also
"non-union" ; that Respondent didn't know the skill
levels or craft standards of the Charging Party's em-
ployees, a clear reference to the fact that they were not
members of Respondent; and that there were other
builders and developers (some of whom the handbill
named) whose homes were "100% union built." Such
language makes it clear, and indeed the Administra-
tive Law Judge found, that the handbilling was de-
signed to inform the public of the nonunion character
of the construction project, as well as of the substan-
dard wages allegedly paid there. The Board has held
that informing the public that an employer does not
employ members of a labor organization indicates an
organizational object, and that stating that an em-
2 In September, in a telephone conversation between Blankenship, the
Charging Party's president , and Hackett , Blankenship asked Hackett wheth-
er he knew what wages the Charging Party was paying. Hackett replied that
he didn't know what the Charging Party was paying , but he knew what it
wasn 't paying He admitted , in response to another question by Blankenship,
that he did not know what other benefits the Charging Party's employees had.
The Board has held that a union's failure to attempt to determine whether
an employer's wages and benefits meet area standards is itself evidence that
the Union is not concerned with enforcement of area standards and that its
true objective is organization or recognition E g., Construction, Shipyard and
General Laborers Local 1207, AFL-CIO, and Building and Construction
Trades Council of Tampa, Florida (Alfred S Austin Construction Company,
Inc), 141 NLRB 283, 284; Local Joint Executive Board, Bartenders and Culi-
nary Workers of Las Vegas and Vicinity (Holiday Inns of America, Inc, d/b/a
Holiday Inn of Las Vegas), 169 NLRB 683, 684.
'On one occasion, there was handbilling on a Friday. Otherwise, the
handbilling was limited to weekends because, according to Jones, who was
in charge of the picketing and handbilling , there were few customers at the
project on weekdays The handbilling was still going on at the time of the
hearing
204 NLRB No. 16
UNITED BROTHERHOOD OF CARPENTERS, LOCAL 906 139
ployer does not have a contract with a labor organiza-
tion similarly implies an object of recognition and
bargaining.4 Thus, the language of Respondent's
handbills indicates that its activity on weekends had
these objects.
We cannot, however, agree with the Administrative
Law Judge's conclusion that the picketing on week-
days did not have an organizational 5 or recognitional
object. The picketing and handbilling began at the
same time, took place at the same construction pro-
ject, and were carried out under the direction of the
same individual-Respondent's assistant business
representative, Jones. In these circumstances, it is un-
realistic to view the handbilling on weekends and the
picketing during the week as two separate events, one
with an organizational or recognitional object and the
other with no object except to protest substandard
wages. Rather, we find that both were part of one
continuous course of conduct with the same objects,
that at least one of those objects was organization or
recognition, and, therefore, that Respondent's picket-
ing was for organizational or recognitional purposes.
Accordingly, we conclude that by picketing for such
an object for more than 30 days without filing a peti-
tion for an election, Respondent violated Section
8(b)(7)(C) of the Act 6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Unit-
ed Brotherhood of Carpenters and Joiners, Local 906,
AFL-CIO, its officers, agents, and representatives,
shall:
1. Cease and desist from picketing, or causing to be
picketed, Blankenship Builders, Inc., where an object
thereof is forcing or requiring such employer to recog-
nize or bargain with Respondent as the collective-
bargaining representative of its employees, or forcing
or requiring employees of such employer to accept or
select Respondent as their collective-bargaining rep-
resentative, at a time when Respondent is not certified
as such representative and where such picketing has
been conducted 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 pick-
eting.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business office copies of the attached
notice marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region
28, after being duly signed by the authorized represen-
tative of the Respondent, shall be posted by the Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(b) Furnish the Regional Director for Region 28
signed copies of said notice for posting by Blanken-
ship Builders, Inc., if willing, in places where notices
to employees are customarily posted.
(c) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
C Local Joint Executive Board of Hotel and Restaurant Employees and Bar-
tenders International Union of Long Beach and Orange County, Culinary Alli-
ance Local No 681 (Leonard Smitley and Joseph W. Drown d/b/a Crown
Cafeteria, a Co-partnership), 135 NLRB 1183, 1185.
5 The language on the handbills indicates that Respondent was seeking
organization as well as recognition . Since , as indicated infra, this language
sheds light on the true purpose of the picketing, the fact that no employees
of the Charging Party were present at the time of the handbilling does not
preclude a finding that the picketing , which was directed toward employees
of the Charging Party, had an organizational object
6 We need not decide whether the picketing, which , unlike the handbilling,
was directed toward employees of the Charging Party and its suppliers rather
than toward the public, comes within the second proviso to Sec. 8(b)(7)(C),
which protects picketing to advise the public that an employer is nonunion.
The substantial interruption of deliveries and services caused by the picket-
ing would deprive it of the protection of the proviso, if it were otherwise
applicable
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To MEMBERS AND EMPLOYEES
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
Blankenship Builders, Inc., where an object
thereof is forcing or requiring such employer to
recognize or bargain with us as a collective-bar-
gaining representative, or forcing or requiring
employees of such employer to accept or select us
as their collective-bargaining representative, at a
time when we are not certified as such represen-
tative and where such picketing has been con-
ducted without a petition under Section 9(c) of
the Act being filed within a reasonable period of
time not to exceed 30 days from the commence-
ment of such picketing.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS,
LOCAL 906, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7011 Federal Building, 500 Gold Ave-
nue, S. W., Albuquerque, New Mexico 87101, Tele-
phone 505-843-3508.
DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Administrative Law Judge: This case was
heard by the undersigned on November 21, 1972,1 pursuant
to a charge filed on August 21, amended on August 23, and
again amended on August 31;2 and a complaint issued on
October 6, in which it was alleged that Respondent,3 com-
mencing on July 20, picketed and handbilled Blankenship
Builders, Inc., herein called Blankenship, or caused Blank-
enship to be picketed and handbilled at various construc-
tion sites in the vicinity of Phoenix, Arizona, with an object
to force or require Blankenship to recognize and bargain
with Respondent as the collective-bargaining representative
of Blankenship's employees. It is further alleged that the
handbilling and picketing activity was engaged in without
filing of a valid petition under Section 9(c) of the Act involv-
ing Blankenship's employees within a reasonable time; and
that, thereby, Respondent was in violation of Section
8(b)(7)(C) of the Act. Respondent, in its answer, admitted
certain allegations of the complaint, but denied that it had
engaged in picketing and handbilling proscribed by the Act
or that it had committed any unfair labor practices in viola-
tion of the Act.
I THE BUSINESS OF THE COMPANY
It is admitted and I find that Blankenship is an Arizona
corporation engaged in the construction business in Phoe-
nix, Arizona, and its vicinity, and that during the past 12
months it has purchased and caused to be delivered to its
place of business at Phoenix, Arizona, goods and merchan-
1 Hereafter all dates refer to the calendar year 1972 unless otherwise speci-
fied.
2 Respondent in its answer admitted service of the original charge and the
respective amendments on or about the dates of their filing
United Brotherhood of Carpenters and Joiners, Local 906, AFL-CIO.
dise valued in excess of $50,000 which originate outside the
State of Arizona. Accordingly, it is found that Blankenship
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that it would effectuate
the purposes of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that Respondent is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
At the outset of the hearing, it was stipulated that picket-
ing of Blankenship jobsites commenced about July 20, and
was terminated November 13. Mark Blankenship testified
that he was the president and general manager of Blanken-
ship; that the Company was primarily a builder of condomi-
nium homes and townhouses; and that about July 20,
Blankenship's major subdivision was a project known as
Torre Blanca located at 12th and Belmont in Phoenix.
Blankenship testified that he had talked with John Hackett S
on two occasions: once about the middle of September and
the other about November 4 to 7. On the first occasion,
Blankenship called Hackett at the union hall and told Hack-
ett that obviously there were basic differences between
them; that he then asked Hackett, "Do you have any idea
of how much we pay?" Hackett replied, "No, but I have an
idea of how much you don't pay." Blankenship then asked
Hackett if he knew how much their fringe benefits were and
Hackett replied in the negative. Blankenship concluded his
direct testimony by stating that the Company's office locat-
ed at 1420 East Bethany Home Road, Phoenix, had never
been picketed.
On cross-examination, Blankenship admitted he received
a letter fom Respondent signed by Hackett, about July 23,
and that in the September conversation with Hackett, refer-
ence was made to this letter. The letter reads as follows:
In connection with your various contracts, we are
informed that you are paying your carpenter employ-
ees considerably less than that paid by at least 100
other contractors in this part of the state. We protest.
For your information, these other contractors pay in
wages and fringe benefits to their carpenter employees
the sum of $8.70 per hour. This is the sum established
by collective bargaining agreements between the un-
dersigned local union and these other contractors.
Our picketing will cease when you have satisfactorily
shown in some reasonable manner that you have raised
your employees' wages to not less than the above sum.
In this connection such evidence should be made
known to the undersigned, who is the only person au-
thorized by this union to deal with this matter. Our
picket has no authority other than to picket. Any other
conduct on the part of the picket is prohibited, and we
will put a stop to such other conduct should it occur if
4 Also referred to as Buck Blankenship
5 Respondent 's business representative
UNITED BROTHERHOOD OF CARPENTERS, LOCAL 906
you will but notify us.
You are expressly advised that this union does not
represent, nor does it desire to represent, your carpen-
ter employees. Further, this union neither seeks to or-
ganize your employees nor to obtain any kind of
collective bargaining agreement from you concerning
their wages, hours or working conditions. We simply
intend to protest the fact concerning your failure to pay
as much as said other contractors.
Blankenship conceded that in his conversation with Hack-
ett, he did not inform Hackett what Blankenship was paying
in fringe benefits . Blankenship also admitted that when he
asked Hackett how he figured the fringe benefits , Hackett
told him that if he had anything to discuss to get in touch
with Ward .6 Blankenship said that although he called Ward,
he did not talk with him. It was brought out that Blanken-
ship at that time was represented by an attorney, a Mr.
Hendricks , who had filed the original charge in this case.
Blankenship denied receiving a call from Hendricks in
which he was informed that Ward had told Hendricks about
his call and that Ward had said to Hendricks that Blanken-
ship should talk to him through counsel rather than call him
directly. However, Blankenship conceded that about 2
weeks later, Hendricks did inform him that Ward had been
in contact with him.
William B. Magee , Blankenship 's sales director , testified
that there was picketing at the Torre Blanca jobsite; that it
occurred in the area bordering on lots 2 through 11 (see
G.C. Exh. 2) and at the entrance to the parking area. Magee
identified General Counsel's Exhibit 3 as a brochure hand-
ed out by the "picketers and other people" on weekends.
The "brochure" or handbill read as follows:
NOTICE
BLANKENSHIP BUILDERS , INC USES DIFFERENT CONSTRUCTION
COMPANIES PRESUMABLY ON A BID BASIS TO FURNISH THE DIF-
FERENT KINDS OF SKILLS NEEDED TO BUILD A HOUSE
WE WANT YOUTO KNOW THAT THEY ARE PAYING LESS THAN THE
UNION SCALE FOR THEIR CARPENTRY WORK ALSO THEIR PLUMB-
ING, SHEET-METAL AND ELECTRICAL WORK IS NON-UNION
EVEN IF YOU ARE CONFIDENT THAT THESE NECESSARY SKILLS
HAVE BEEN PROPERLY DEMONSTRATED (WE DON'T ACTUALLY
KNOW THE SKILL LEVELS OR CRAFT STANDARDS OF SUCH EM-
PLOYEES) WE BELIEVE THAT YOU WILL WANT TO DO YOUR HOUSE
BUYING ELSEWHERE
WE ASK YOU NOT TO ENCOURAGE A DEVELOPER WHO COMPETES
IN SUCH A WAY AS TO HURT OR DESTROY THE WAGE AND HOUR
STANDARDS OF UNIONIZED CRAFTSMEN. WORKING PEOPLE NEED
TO HELP ONE ANOTHER RATHER THAN HURT ONE ANOTHER
OTHER BUILDERS AND DEVELOPERS IN THIS AREA OFFER COMPA-
RABLE HOMES AT COMPARABLE PRICES, AND ARE 100% UNION
BUILT
FOR EXAMPLE GO LOOK AT ARIZONA HOMES, JOHN F LONG
HOMES, SUGGS HOMES, SUN AMERICAN HOMES, MASTERCRAFT
HOMES, AND HALLCRAFT HOMES
WE ASK YOUR HELP . PLEASE DON'T BUY BLANKENSHIP HOMES
6 Respondent 's attorney
1G C Exh. I(a).
LOCAL 906
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA
141
Magee stated that he and other Blankenship employees
were given copies of this handbill.
On cross-examination, Magee testified that the area im-
mediately adjacent to No. 2, as marked by him on General
Counsel's Exhibit 2, was a parking area as were lots marked
1, 2, 9, 10, and 11 in tract "B"; that the parking areas were
intended for the convenience of customers; that there were
occasions when there were no pickets,' just someone passing
out handbills; that he saw pickets at No. 2 on some week-
ends; and that on some occasions he saw a picket passing
out handbills at both No. 2 and No. 1.9
Robert J. Oscarson, employed by Blankenship as produc-
tion manager, testified that as a result of the picketing by
Respondent, there occurred about a dozen incidents in
which subcontractors and employees of subcontractors re-
fused to enter Respondent's jobsites to perform their
work.10 As a result, the work had to be rescheduled in some
cases after normal work hours. I1 Oscarson also testified that
he observed pickets at the entrance marked No. 1 and that
the picket sign merely stated that "Blankenship Builders is
paying substandard wages, Glendale Local 906, Carpen-
ters"; that he did not see any pickets at the company office
at 1420 East Bethany Home Road; that on July 23 or 24,
he called Hackett and told him that there was a change in
the gates to Torre Blanca which changed the subcontractor
gate and the Blankenship gate; that about a week later, he
had another telephone conversation with Hackett; that he
asked Hackett how long he would continue the picketing;
that Hackett did not answer; that they discussed having
lunch, and that Hackett finally replied, "Well, what if I take
them off right after we have lunch? Well, I'm just a white
man trying to make a living. I want to work, too."
On cross-examination, Oscarson testified that picketing
began in the area marked No. 1. Thereafter, Blankenship
established an entrance for subcontractors at No. 1 and an
entrance for Blankenship at gate No. 3; that Hackett was
notified of this by telegram;12 that following the telegram,
the pickets were removed from gate No. 1 and placed at gate
No. 3; that on July 28, he sent another telegram 13 informing
Hackett that the Blankenship entrance had been changed to
gate No. I and the subcontractor entrance to gate No. 3;
that as a result the pickets then returned to gate No. 1; that
from the time of the second telegram to the present, gate
No. 1 has been the entrance for employees of Blankenship
and the suppliers of Blankenship; and that gate No. 1 is
likewise the place where customers come through to see
Blankenship houses.
8 He defined a picket as one who carried a placard on a stick Reference
to a picket in this decision will have the same meaning
Magee placed the number I in a circle on G C Exh 2 and defined it
as the corner of 12th and Belmont
10 Counsel entered into a stipulation that this was the tenor of Oscarson's
testimony
11 Presumably , at a time when there were no pickets.
12 Resp Exh 2
13 Resp Exh 3
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jerry Wells, a salesman in the employ of Blankenship,
stated that in August and September, as he drove through
gate No. 1, he saw two pickets walking across the entrance;
that he continued to the parking lot at No. 2 and pulled into
the "gazebo" 14 area where the Blankenship sales office was
located; and that he saw General Counsel's Exhibit 3 on
several occasions and saw them handed to prospective buy-
ers.
On cross-examination Wells testified that on a specific
occasion, probably Sunday, August 6, the person handbill-
ing at area No. 2 did not have a picket sign ; that he saw the
handbills during the week and on Sundays; that construc-
tion employees worked Monday through Friday, occasion-
ally on a Saturday; and that prospective buyers were more
numerous on Saturday and Sunday.
Jeffrey Jones, a carpenter employed by Blankenship, tes-
tified that he talked with one of Respondent's pickets at the
jobsite of Scott Builders the day before pickets appeared at
Blankenship.15
Roy M. Jones, called as a witness by Respondent, testi-
fied that he was an assistant business representative in the
employ of Respondent; that his immediate superior was
John Hackett; that he had the responsibility for the han-
dling of the pickets and handbillers at the Torre Blanca
project; that on the first day of picketing, July 21, the pick-
ets walked on 12th Street from gate No. 1 to gate No. 3; that
July 21 was a Friday and there was no picketing on July 22
or 23; that on Monday, July 24, he noticed that gate No. 3
had been posted for Blankenship and he placed his picket
at that gate; that picketing in that area continued until July
28 as he saw that the posting had been changed so that gate
No. 1 was now posted for Blankenship; that he thereafter
caused picketing at gate No. 1 only; that at no time was the
No. 2 area picketed; that the picket signs were "one foot by
18 inches, white faced with black letters except the writing
of the company's name and the Local's name which was put
in with felt pen" ; that the sign was on a stick 36 by 1-1/2
by 1/4 inches; and that the legend on the sign was as fol-
lows: "Notice to the public, Blankenship Builders, Incorpo-
rated, paying substandard wages. Carpenters Local No.
906." Jones further testified that from the time picketing
started, he would arrive at the jobsite about 5 a.m.; that he
would observe Blankenship carpenter employees enter the
project; that his pickets would arrive about 6 a.m. and he
would instruct them how to conduct themselves; that, if
they were asked questions, they were to hand the questioner
a copy of Respondent's Exhibit 1; that no picketing was
conducted on days other than Monday through Friday; that
handbilling was conducted only on Saturday and Sunday
from 12 until 4 p.m.; that handbillers were placed at the area
14 Gazebo was defined by Magee as a circular covered building that is part
of the recreation area for the project
15 The actual conversation , upon objection of Respondent's counsel, was
excluded by the undersigned The General Counsel thereupon made the
following offer of proof:
Mr. Deeny. Your Honor, if the witness were allowed to testify about
the conversation , he would testify that the picket told him that Blanken-
ship was getting too big, that they were going to start picketing Blanken-
ship They were going to use the asserted reason of substandard wages
and that Blankenship had too much stuff around town going up. And
that he thought Blankenship would go union
marked No. 2 from July 27; and that previous to that time,
they were at location No. 1 on Saturday and Sunday; that
no handbillers carried a picket sign.
On cross-examination Jones stated he visited the project
about every 2 to 2-1/2 hours and talked with his people; that
there were about eight other jobsites where pickets were
placed and visiting these projects kept him busy for a full
day; that the Torre Blanca project had no more than two
pickets and occasionally only one; and that handbilling is
currently continuing at the Torre Blanca project at location
No. 2 with the same handbill.
Hackett testified that he was the business representative
of Respondent and that he sent the letter dated July 20 16
to Blankenship; that the handbill distributed at the Torre
Blanca project was drawn up pursuant to legal advice and
was used to handbill Blankenship's sales office notifying the
public of the substandard wages; that prior to sending the
July 20 letter to Blankenship, he did make an effort to
ascertain what Blankenship was paying carpenters; that af-
ter the picketing commenced, he received two telephone
calls from Oscarson; that one of those calls concerned the
change of gates ; that he told Oscarson that he would consult
his attorney; that the second call from Oscarson concerned
picketing at a project at which no Blankenship carpenters
were employed; that he told Oscarson that he would remove
the pickets; that Oscarson asked him how long the pickets
would be on the Torre Blanca project; that he told Oscarson
he didn't know, but that it was up to him; that he added the
letter sent to Blankenship on July 20, listed the conditions
that were required; that he talked on the telephone with
Buck Blankenship in September; that Blankenship called
and told him that two of the projects which were being
picketed were not his projects or employees; that he told
Blankenship if they were not his, the pickets would be re-
moved and they were removed; Blankenship then said that
he was tired of having Torre Blanca picketed; that Hackett
replied that Blankenship had a copy of the letter and all that
he expected was contained in that letter; Blankenship then
asked if he (Hackett) knew what wages he was paying and
Hackett replied that he did not know what he was paying,
but did know what he was not paying; that he also told
Blankenship he did not know what his fringe benefits were;
that Blankenship asked him what were the union benefits
and Hackett told him, "30 cents in health and welfare and
65 cents in pension" ; that he then told Blankenship that if
he had any more questions, he could contact his attorney;
and that Blankenship did not at any time tell him what
wages he was paying his journeymen carpenters or what
fringe benefit contributions he was making.
On cross-examination, Hackett stated that if Blankenship
paid journeymen $7.75 per hour, 30 cents into health and
welfare and 65 cents into pension funds, he would be paying
scale , and there would be no necessity to picket him. At the
conclusion of the testimonial accounts, it was stipulated by
the parties that 60 to 70 persons have been employed by
Respondent as pickets and of those employees, one or two
were former Blankenship employees.
16 Resp. Exh I
UNITED BROTHERHOOD OF CARPENTERS , LOCAL 906 143
B. Analysis and Conclusions
Before entering into a discussion of the merits of the
various legal arguments presented by the General Counsel
and Respondent, it seems necessary to make a factual deter-
mination as to actually what transpired in regard to hand-
billing and picketing . As I was impressed with the
demeanor , the precise testimony , and the forthrightness of
Roy Jones , Respondent's assistant business representative,
I extend full credit to his testimonial account in which he
described the handbilling and picketing . I, therefore, adopt
his account as to the locations of the handbilling and picket-
ing, the manner in which handbilling and picketing was
conducted, the times when handbilling and picketing were
conducted and by whom the handbilling and picketing was
conducted. I do not credit testimony of any other witnesses
particularly Magee , Oscarson , and Wells with regard to
their testimony concerning the handbilling and picketing
where it is contrary to the testimony of Roy Jones.
Decision in this case evolves around the statutory provi-
sion of Section 8(b)(7)(C), which reads as follows;
(b) It shall be an unfair labor practice for a labor
organization or its agents-
(7) to picket or cause to be picketed , or threaten
to picket or cause to be picketed , any employer
where an object thereof is forcing or requiring an
employer to recognize or bargain with a labor orga-
nization as the representative of his employees, or
forcing or requiring the employees of an employer to
accept or select such labor organization as their col-
lective bargaining representative , unless such labor
organization is currently certified as the representa-
tive of such employees:
(C) where such picketing has been conducted
without a petition under section 9(c) being filed with-
in a reasonable period of time not to exceed thirty
days from the commencement of such picketing:
Provided, That when such a petition has been filed
the Board shall forthwith , without regard to the pro-
visions of section 9(c)(1) or the absence of a showing
of a substantial interest on the part of the labor
organization , direct an election in such unit as the
Board finds to be appropriate and shall certify the
results thereof : Provided further, That nothing in this
subparagraph (C) shall be construed to prohibit any
picketing or other publicity for the purpose of truth-
fully advising the public (including consumers) that
an employer does not employ members of , or have
a contract with , a labor organization , unless an effect
of such picketing is to induce any individual em-
ployed by any other person in the course of his em-
ployment , not tp, pick up , deliver or transport any
goods or not to perform any services.
Nothing in this paragraph (7) shall be construed to
permit any act which would otherwise be an unfair
labor practice under this section 8(b).
The burden of proof resting upon the General Counsel in
cases where violations of the Act are alleged must be estab-
lished by him by a preponderance of the credible evidence.
In order to prevail herein , this preponderance must be es-
tablished by the General Counsel in the proof of each ele-
ment which constitutes the alleged violation . Initially, the
evidence must establish that the picketing conducted by
Respondent herein had a recognitional or organizational
objective . The General Counsel with regard to this aspect
argues that : "The nature of the picketing and handbilling
conducted by Respondent meshes Respondent 's substan-
dard claim with an appeal to working people to not buy
nonunion homes and with its overall organizational objec-
tives." I am somewhat puzzled as to the meaning of this
argument . I recognize that as an empirical fact Respondent
Union , like other labor organizations , is interested and has
as its ultimate objective the organization of all employees
especially those peculiar to the carpenter craft . I cannot,
however, conclude that Respondent by merely picketing
and handbilling with a claim that an employer is paying
substandard wages and simultaneously appealing to work-
ing people to refrain from purchasing the employer's non-
union product is thereby engaging in picketing and
handbilling for a recognitional or organizational objective.
I, therefore, reject the General Counsel 's argument on the
foregoing basis.
The General Counsel also argues that the absence of
picketing at Blankenship 's general offices is a significant
factor in the determination whether the picketing had an
organizational or recognitional objective. He does not point
out its significance and I find none . The evidence shows that
handbilling occurred at location No. 2 on Saturdays and
Sundays . This location is the entrance to Blankenship's
sales office at the Torre Blanca project . Picketing also oc-
curred at gate No . 1 which was not only the entrance for
Blankenship employees , but also for prospective home buy-
ers and Blankenship suppliers . These factors are far more
significant. The General Counsel further argues that it is
significant that some of the pickets were former Blanken-
ship employees . I do not agree . Jones credibly testified that
of the 70 persons employed as handbillers or pickets one or
two may have been former Blankenship employees. What-
ever significance a substantial number of former Blanken-
ship employees used as pickets would have had is
completely lost when it is found , as I do, that only one or
two former Blankenship employees of a total of 70 persons
participated in the picketing and handbilling . I regard the
incidence of their former employment as a mere coinci-
dence and not worthy of consideration.
The General Counsel mentions that Hackett remarked to
Oscarson, "I'm a white man and I 'm trying to make a living,
I want to work, too." Again I am puzzled why this is men-
tioned as the General Counsel bases no argument on this
remark . I regard the remark as impossible of interpretation
as it is completely ambiguous . Even the reference to the
color of skin hardly warrants any sort of conclusion.
Continuing with the analysis of the General Counsel's
brief, I find that he argues that conduct herein is proscribed
because it seeks to establish a continuing relationship with
an employer with regard to terms and conditions of employ-
ment . I conclude that the picketing and Respondent's con-
duct did not seek to establish such a "continuing"
relationship . As Hackett stated in his letter of June 20 and
on the witness stand, all that was required of Blankenship
in order to cause the picketing to cease was to pay the
carpenters in his employ the wages and fringe benefits pre-
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vailing in the area by approximately 100 unionized employ-
ers. The General Counsel , referring to this portion of
Hackett's testimony , argues that his attempt to "allocate"
different sums for benefits as provided in the contracts indi-
cates that Respondent's true purpose was not to publicize
the substandard nature of the dispute , but rather it was
undertaking to bargain for Blankenship 's employees and
thereby demonstrated a recognitional object . With this lat-
ter argument, I find myself in agreement to a limited extent.
While I do not believe , as the General Counsel asserts, that
Respondent was insincere in its effort to publicize the dispa-
rate wages,'7 however, it is clear that a condition for remov-
al of the pickets was payment to Blankenship 's carpenters
wages and fringe benefits equal to that paid under union
contracts . In effect, by asserting this as a condition for
removal of the pickets, Respondent was seeking to engage
Blankenship in bargaining on behalf of Blankenship's em-
ployees . The question arises whether the foregoing conclu-
sion establishes sufficient cause to warrant a holding that
the picketing had a recognitional or organizational objec-
tive . I find that such a holding is unwarranted because it is
inherent that any demand that an employer pay increased
wages to meet area standards has the connotation and the
nuance that the demanding union is , in effect , attempting
to bargain for the employer 's employees . Such an interpre-
tation would outlaw all area standards and substandard
wage picketing . Neither the Board nor the Courts have so
held.'
The essential distinction between the facts in this case
and those in Retail Clerks International Association, Local
Union No. 899, AFL-CIO, et al.,` provides a decisive factor
for the determination whether the picketing in this case had
an organizational or recognitional objective . In the Retail
Clerks case , the union representative met with the employer
and presented the current union contract after deleting
some of the union conditions contained therein . However,
many key conditions were not physically stricken. Adminis-
trative Law Judge Louis S. Penfield , in a decision approved
by the Board, found that the union representative did not
state with precision the limits of applicability of the clauses
not physically stricken . This factor led Administrative Law
Judge Penfield to the conclusion that the union was, in fact,
demanding more than was needed to protect the union's
interest in the maintenance of area standards . In the instant
case , Hackett, in his letter dated July 20, specifically estab-
lished the limits of the Union's demands , amounting to
17 Although there is no evidence as to whether Blankenship 's wage scale
for carpenters was below the union scale , I believe I am warranted in assum-
mg that it was . It is hardly conceivable that the contrary was true. The
General Counsel surely would have introduced this evidence and made this
a major point in his argument if in fact Blankenship was paying wages equal
to the union scale
13 Steamfitters Local Union No. 614 (Trumbo Welding and Fabricating Com-
pany), 199 NLRB No. 158 ; Boilermakers Local Lodge 193 (United Engineers
& Constructors, Inc.), 191 NLRB 608; Houston Budding & Construction Trades
Council (Claude Everett Construction Company), 136 NLRB 321
19 166 NLRB 818.
$8.70 for wages and fringe benefits . No other demands were
ever made. In making this specific demand , I find that the
Union was merely asserting its "legitimate interest apart
from organization or recognition that employers meet pre-
vailing wage scales and employee benefits .... " 20
The evidence shows that on a dozen occasions employees
of subcontractors refused to enter upon the jobsite to en-
gage in their function because of the picketing . No evidence,
however, was presented that there was any interference or
refusal to deliver goods , wares , and merchandise.
As indicated above, I find that the picketing by the Union
did not have a recognitional or organizational objective. I
shall, therefore, recommend dismissal of the allegation with
regard to this aspect of the case.
As I have credited Assistant Business Representative
Jones' version of the manner in which the handbilling was
conducted , I find that the handbilling which has continued
to date 21 was designed and carried on for the purpose of
advertising to the public the substandard wages and nonun-
ion character of the construction project . I find that the acts,
therefore, constituted a legitimate appeal to consumers to
engage in a consumer boycott that is not violative of the
Act. I shall, therefore , recommend dismissal of this case in
its entirety.
Upon the basis of the foregoing findings of fact, and upon
the entire record in this proceeding , I make the following:
CONCLUSIONS OF LAW
1. Blankenship Builders, Inc ., is, and has been at all times
material herein , an employer within the meaning of Section
2(2) of the Act and engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union, United Brotherhood of Carpenters and
Joiners , Local 906, AFL-CIO, is, and has been at all times
material herein , a labor organization within the meaning of
Section 2(5) of the Act.
3. As found above, Respondent Union has not violated
Section 8(b)(7)(C) by any of the acts alleged in the com-
plaint.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:22
ORDER
The complaint is hereby dismissed in its entirety.
20 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.
21 It was stipulated that picketing ceased on November 13.
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National LaboPRelations 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.