Carpenters Local 2361

CARPENTERS LOCAL 2361 313 Carpenters Local Union No. 2361, United Brother- hood of Carpenters and Joiners of America, AFL-CIO and Bill E. Perry, its Agent and Adams Insulation Co., Inc. Orange County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Adams Insulation Co., Inc. Cases 21-CP-522 and 21-CP-523 March 11, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On October 26, 1979, Administrative Law Judge Timothy D. Nelson issued the attached Decision in this proceeding. Thereafter, counsel for the Acting General Counsel and the Charging Party filed ex- ceptions and supporting briefs, and Respondents filed cross-exceptions and a supporting 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, find- ings, and conclusions of the Administrative Law Judge, except to the extent inconsistent herewith, and to adopt his recommended Order. The Administrative Law Judge found that on February 15, 1979, Respondents threatened an em- ployer with recognitional picketing. Finding this, the Administrative Law Judge analyzed the effect under Section 8(b)(7)(C) of the Act of an unretract- ed threat to engage in such picketing. He conclud- ed that a threat of recognitional picketing, though unretracted for more than 30 days, did not consti- tute a violation of Section 8(b)(7)(C), when, as here, the threat is made by a union which could qualify as the certified representative of the unit employees. The Administrative Law Judge there- fore dismissed the complaint in its entirety. The Board has not been called upon to resolve this pre- cise issue in prior cases, and, in view of our deter- mination, infra, that there is no recognitional threat here which would be cognizable under Section 8(b)(7)(C) of the Act, we find it unnecessary here to pass on the Administrative Law Judge's analysis of this issue. Nor will we resolve the issue in this proceeding. For the reason el forth ll his dissellt in Genera Sroici Enmplio),er LUniton Local .No '3 a/tfilad mll Serice EnphvYcn Inrnantioal nt'iolt. .4bfL-CIO (4-] Surltl Srvcl-, t, 224 NLRHB 434, 437 440 (1976). Chairman Faniting %sould adopt the Administrative L.as\ Judge's conclu- sions in this respect; he also concurs in the rationale of the majority herein Since e fiiid here no threat f the kind the Admiistrati e I.as 248 NLRB No. 59 In November 1977, Respondents wrote letters to Classic Development Corporation (Classic), a gen- eral contractor, and to Adams Insulation Co., Inc. (Adams), a nonunion subcontractor, informing them that Respondents intended to picket at a job- site at which Classic had subcontracted work to Adams, and that the intended picketing would be solely "for the purpose of advising the public that [Adams] is not signatory" to a contract "with the Carpenters' Union." 2 Shortly after sending these letters, Respondents picketed the jobsite for 2 days with signs reading: Adams Insulation. Non-Union. Sanctioned Orange County District Counsel of Carpen- ters, AFL-CIO. This picketing caused employees of some contrac- tors other than Adams to leave their jobs. In 1979, Classic contracted with Adams to per- form work on a second phase of the same project. Respondents wrote to Classic on February 15, 1979, again advising it of an intention to engage in informational picketing. The letter said, in pertinent part: This is to advise you that Adams Insulation Company is not signatory to an agreement with the Carpenters Union and we have the right to advertise this fact and inform the public of this by lawful means including infor- mative picket lines. Should we picket Adams Inuslation Company at this jobsite, the picketing will be directed solely to informing the public of the fact that Adams Insulation Company is not signatory to an agreement with the Carpenters Union and will not be directed against your Company or any other employers or employees of any other employer on the jobsite. Such picketing will be conducted strictly in accordance with all applicable laws. Should you believe that any picketing activities over- step the bounds of legality, please advise us immediately so that we may correct the situa- tion. Judge discusses, Member Jenkins does not pass on his legal aalsis of the effect of such threats Contrary to his colleagues. Member Penello specificall) disaosss the Administratise Lass Judge's analysis of the issue referred to abose inas- much as it is contrary to the position Member Penello expressed in Iltter- itatlonal Brotherhood of Electrical WorAers. Local 265 R P & .A Eictric) 236 NLRH 1333. fn 1 (1978), to wshich he continues to adhere Hoxeser. Member Penello) joins his colleagues in finding hat no threat of recogii- tiotal picketing sas made here 2 This represelitalioln as to the purpose of the picketilng coniforins to the second or "publicilt" proviso to Sec 8(h)(7)(C) See fin 4. fi-a. and ALJD at fin 12 CARPENTERS LOCAL 2361 313 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 22, 1979, for 1 day, Respondents pick- eted the project with signs similar to those used in 1977: Adams Insulation. Non-Union. Unfair to Car- penters, Sanctioned by Orange County District Council of Carpenters, AFL-CIO Again, some employees of other subcontractors left their jobs when confronted with the picket signs. There was also evidence that representatives of Re- spondents actively solicited employees of other subcontractors at the site to refuse to work. The sole issue presented in this case is whether, in 1979, Respondents picketed with an object of recognition, within the meaning of Section 8(b)(7)(C) of the Act, for more than 30 days.3 Re- spondents engaged in actual picketing for only I day. Counsel for the Acting General Counsel and the Charging Party contends, however, that Re- spondent violated Section 8(b)(7)(C) because of the legal equivalent of picketing began with the Febru- ary 15 letter. Thus, they argue that the letter con- tained a threat of recognitional picketing which re- mained unretracted for more than 30 days and had the legal effect of actual picketing with a recogni- tional object for such a period. As indicated above, we need not reach the legal equivalency conten- tion. For, the first question is whether there was a threat of such picketing as Section 8(b)(7)(C) limits to 30 days. The Administrative Law Judge found the Febru- ary 15 letter to be a "coded threat to engage in tra- ditional recognitional picketing"-that is, picketing which is restricted in duration by Section 8(b)(7)(C)-based on two preliminary findings: (1) he found that the subsequent, March 22, picketing exceeded the bounds of informational picketing exempted by the "publicity" proviso to Section 8(b)(7)(C); and (2) he also found that, in 1977, Re- spondents had engaged in picketing that exceeded the bounds of the "publicity" proviso after sending a letter of intention to picket solely for publicity. The Administrative Law Judge's findings regarding the 1977 picketing, made only for the purpose of providing a background for the 1979 conduct, were limited essentially to the fact that the picketing re- sulted in employees of other subcontractors leaving their jobs.4 3 The question of whether Respondents' conduct violated Sec 8(b)(4) of the Act is the subject of a separate proceeding. 4 Picketing within the "publicity" proviso does not assume the absence of a recognitional object The proviso exempts from the 8(h)(7)(C) re- strictions on recognitional picketing those activities which have, in the statutory language. "the purpose of truthfully advising the public includ- ing consumers) that an employer does not employ members of. or have a contract with, a labor organization " This exemption is forfeited. hosesv- er, if the picketing has the effect of inducing employees of other employ- ers not to work Building and Colrructiol Trades Council of Delaware Accepting these preliminary findings, we think they provide an inadequate basis on which to con- vert the February 15 letter into a threat of recogni- tional picketing. On its face, the letter exhibited not only an intention to limit the picketing according to the "publicity" proviso; it also expressly request- ed the calling to Respondents' attention of any- thing about the picketing which might "overstep the bounds of legality . . . so that we may correct the situation." Taken in isolation, this request could be read as being consistent with an intention to engage in lawful 8(b)(7)(C) picketing, outside the "publicity" proviso, for up to 30 days. However, such an intention is negated by the context in which the request appears, and what remains is a reaffirmation that the picketing will be conducted within the bounds of the proviso. Whatever light the March 22, 1979, picketing might cast on Respondents' intentions on February 15, it can hardly convert this letter, retroactively, into a threat to picket in a manner inconsistent with the proviso. It is immaterial whether or not Respondents had a recognitional object when they "threatened" informational picketing on February 15. 5 Even if Respondents intended, on February 15, contrary to the letter, to "overstep the bounds" of the proviso, the question is whether they threat- ened to do so. Only if the letter could be so con- strued do their intentions become relevant. See In- ternational Brotherhood of Electrical Workers, Local No. 278 (Felix Kelinske d/b/a Kelinske Electric Company), 232 NLRB 1044, 1045, fn. 3 (1977). The question is whether the legal equivalent of recogni- tional picketing continued for more than 30 days- that is, whether Respondents exerted the pro- scribed coercion for a longer period than Congress has permitted. The theory of the affirmative case is that the legal equivalent began with a threat of such picketing. But the coercion of a threat can begin only when it can reasonably be perceived to be a threat. A threat cannot, for this purpose, be created retroactively. It must be determined to have occurred or not based on what is contempo- raneous or past. This brings us to the effect Respondents' 1977 conduct had on the construction to be given their February 15, 1979, letter. The Administrative Law Judge found persuasive the fact that, in 1977, Re- spondents warned of informational picketing but then engaged in picketing which exceeded the bounds of the "publicity" proviso. He thought this made the 1979 letter construable as a threat of the (Peitinaro Construction Co., Inc.) 215 NLRB 624 1974) Thus. the Ad- ministraive Lass Judge's findings as to the 1977 picketing here ,ere suf- ficient to remove the picketing from the "publicity" exemption ' See fn. 4. supra. CARPENTERS LOCAL 2361 315 same pattern of conduct. We start again from the actual content of the letter. This was not a letter that went to the brink of a threat of unlawful con- duct. The avowed threat of "publicity" picketing was followed by what to all intrinsic appearances is a good-faith statement of intention to cooperate promptly to remedy any overstepping. The letter must, of course, be interpreted in the light of all the pertinent surrounding circumstances. Since the letter speaks clearly, however, extrinsic evidence warranting a construction contrary to its stated in- tention must be quite persuasive. We do not think the burden is met by citing Respondents' conduct of some 15 months earlier. The Administrative Law Judge's finding that the 1977 picketing over- stepped the "publicity" proviso did not involve the manner in which the picketing was conducted, but only the fact that it resulted in some employees' re- fusing to work behind the picket signs. This find- ing, thus, tells us nothing about Respondents' inten- tions with regard to complying with the "public- ity" proviso, either in 1977 or in 1979. But let us suppose that it showed an intention in 1977 to engage in traditional recognitional picketing. It is one thing to say that, having once pursued a cer- tain course of conduct, a person might do it again. To rest a finding of unlawful conduct on such a hypothesis, however, requires a determination of whether it is a reasonable prediction or a tenuous speculation. Even where a party has recently threatened an unlawful act, a statement of intention to act within lawful guidelines is not to be inter- preted as a threat to breach those guidelines merely because the statement followed the unlawful threat. See General Drivers, Chauffeurs, and Helpers, Local Union No. 866 (The Stephens Company), 133 NLRB 1393, 1395-96 (1961); District Council of Painters No. 48 and Paint Makers Local Union No. 1232 (Hamilton Materials, Inc.), 144 NLRB 1523, 1524- 25, 1531-32 (1963). Where, as here, a substantial time has elapsed between the background conduct and the statement sought to be construed, the force of the background conduct is further diminished. 6 Were its 1977 conduct sufficient to discredit any disclaimer however clear, Respondents would for- ever be precluded from alerting persons who might be affected of an intention to engage in "publicity" picketing. The purpose of the Act to limit the scope of labor disputes would not be served by such a result. What other purposes of the Act might be served remain obscure. No imilar cnduct occurred in the inlrim r Repondens I senl a Jleter to another contractor, silatng Ihal i might picket Adams fir publicityl purpscs. in Auguisl 1978 N.i picketing fllk. ssd Having found that no threat occurred that could have started the 8(b)(7)(C) clock running, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON, Administrative Law Judge: These consolidated cases were heard before me in Los Angeles, California, on May 21-22, 1979.1 They involve an alleged violation of Section 8(b)(7)(C) of the National Labor Relations Act, as amended (herein called the Act) on a joint and several basis by the named Respondents. There is the following pertinent procedural history: Adams Insulation Co., Inc. (herein called Adams) filed substantially identical charges with the Regional Direc- tor for Region 21, on March 22-in Case 21-CP-522, against Carpenters Local Union No. 2361, United Broth- erhood of Carpenters and Joiners of America, AFL-CIO (herein called the Local), and Bill E. Perry (Perry), as the Local's agent; and, in Case 21-CP-523, against Orange County District Council of Carpenters and Join- ers of America, AFL-CIO (herein called the Council). On April 20, the Regional Director issued an order con- solidating cases, consolidated complaint, and notice of hearing against all above-named Respondents. The hear- ing date was later ordered advanced by the Regional Di- rector. Respondents' common answer to the consolidated complaint acknowledges due service of the underlying charges and the formal papers establish due service on Respondents of the consolidated complaint and notices of hearing. The Issues Stated generally, the main issue herein is whether the Council's unretracted letter of February 15 announcing an intention possibly to engage in picketing of Adams, to advertise Adams' failure to be a signatory to a collective- bargaining agreement, coupled with I day of picketing of Adams at a common construction site on March 22, amounts to a perfected violation of Section 8(b)(7)(C) of the Act. Subsidiary issues involve questions relating to the character of the March 22 picketing, as well as con- sideration of the significance of a similar pattern of con- duct by the Council 1-1/2 years earlier in 1977. Upon careful consideration of the post-hearing briefs timely filed by all parties, and upon the entire record herein, including my assessment of the witnesses' demea- nor and credibility, I hereby render the following: ' All dales art I 197q. lllies Olher, l.se sptiltiled C A R P E N T E R S L O C A L 2 3 6 1 3 1 5~~~~~~~~~~~ 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION The complaint alleges, and Respondents' answer, as amended at the hearing, admits that, at all times material herein, Adams has been an insulation subcontractor in the building and construction industry in Southern Cali- fornia, operating from principal offices in the city of Santa Ana, and normally makes annual purchases of goods and services directly from points outside the State of California, valued in excess of $50,000. I so find. II. LABOR ORGANIZATION Respondents' answer to the complaint likewise admits that the Local and the Council are each "labor organiza- tions" as defined in Section 2(5) of the Act and that Perry is, and has been at all times material herein, the agent of both the Local and the Council, holding the po- sitions of secretary and business representative for the Council. I so find. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Adams is nonunion. Respondents have been displeased by this fact, and have taken unsuccessful measures to alter this situation since at least 1974.2 In 1977, Adams was the insulation subcontractor on the first phrase of a residential development job for general contractor Clas- sic Development Corporation (herein called Classic) in the city of Orange, California (herein called the Orange project). On November 2, 1977, the Council, through its attorney, notified Classic and Adams by separate letters3 that the Council intended to picket Adams at the Orange project for the purpose of ". . . advertis[ing] to the members of the public that [Adams] is not signatory to an agreement with the Carpenters Union." Those letters contained further disclaimers of any intention to disrupt the work of, or deliveries of supplies to, any contractor, including Adams, working, at the Orange project. On November 10-11, 1977, picketing of Adams at the Orange project occurred with signs which read: Adams Insulation. Non-Union Sanctioned Orange County District Council of Carpenters, AFL-CIO4 Adams' work on that site was not disrupted by the picketing, but other craft employees for other subcon- tractors left their jobs. For reasons discussed infra, no further findings are necessary regarding the location or conduct of the pickets and the related conduct of Perry at the site. Suffice it to state that Adams set up a "re- 2 See. Rodtner and Judith 4da , dh/a A da I lion Comllpanyi, 219 NLRB 211 (1975) GC. Exh 2 and Resp Exh 3. respectively 4 nless otherwise staled findings about the nature of picketling arid related conduct are derived from the testirnonly f Rodnlle Adams, x A hose recall seemed clear, and ails not cotradicted excep h Classic's job su- perintendent Wood. whose recall was poor served gate" system which, at some later point on No- vember 10, 1977, the pickets "honored" for the rest of that day and during picketing on November 11. No unfair labor practice charges were filed about that con- duct. In August 1978, Perry, on behalf of the Council, sent a letter (C.P. Exh. 1) to another general contractor respon- sible for a different job on which Adams was scheduled to work, which contained a message essentially similar to the above-described November 2, 1977, letter. However, no picketing took place on that latter job. No charges were filed in that connection either. B. Events in 1979 The above-described pattern in 1977 on the Orange project was essentially repeated in 1979 when Adams re- ceived a second insulation subcontract from Classic for a second phase of residential construction there. Thus, on February 15, Perry dispatched a letter to Classic (but not, this time, to Adams) advising that the Council be- lieved that it had a right to "advertise" the fact that Adams was not signatory to an agreement with "the Carpenters Union," including by "picket lines" calculat- ed "... to inform the public of this .... "5 Rodney Adams, Adams' president, was shown a copy of that letter by one of Classic's representatives. Perry's February 15 letter further disclaimed any in- tention to direct picketing against Classic " . . or any other employers or employees of any other employer on the jobsite." The letter closed with an invitation to Clas- sic to advise the Council should Classic believe that any picketing might "... overstep the bounds of legality On March 22, picketing took place at Perry's direction during a portion of workday at the Orange project. The picket sign read: Adams Insulation. Non-Union Unfair to Carpenters, Sanctioned by Orange County District Council of Carpenters, AFL-CIO Again, Adams' work at the site was not disrupted. Again, although some details are lacking, the record shows that some employees of other contractors at the Orange project left their jobs during the picketing.6 The Orange project contains "model homes" and sales offices maintained by Classic near one entrance to the project. The March 22 picketing was conducted else- GC Exh 3 s Charges arising from the picketing conduct were also filed b Adams under Sec (b)(4)(i) and (ii)(H) of the Act in Cases 21-CC-219 ad 21- CC-2170 A consolidated complaint againsl Respondetls i those cases issued on May 14, setting a hearing thereon for October 21 The' were not ordered collsolidated wilh the instant (bh)(7)(C) cases. notithstalld- ing their common n ll .at ires. for rasonl explaied h\ cotlnselI for the Gcln- eral Counsel To the extet possible. I hc trie d To is oid making find- inags o fact pertlllng tl i ssues which may he decided on a different record hb ai differenlt adnmil rat e I, il ludge in the scheduled 8(b)(41 cisrC CARPENTERS LOCAL 2361 317 where-in general, at points where employees and sup- pliers of contractors entered and left the project. A "reserved" gate system was established between 7 and 9:30 a.m. on the morning of March 22, designating one gate for Adams' employees and suppliers and an- other gate for the other contractors, their employees, and suppliers. At 9:30 a.m., after erecting the reserved gates, Adams approached Perry, who was still picketing at the non-Adams, or "neutral" gate. Adams pointed out the gate systems and asked Perry to "lawfully observe" them. Perry replied that he had placed a call to Respon- dents' attorney and was waiting to hear from him. Adams then left, but as he did so he observed Perry move approximately 70 feet to the south of the neutral gate, that is, referring to General Counsel's Exhibit 4, a site diagram, to a point on Ecoff Street approximately 70 feet south of the neutral gate at Ecoff and Cherry Streets. The "primary" gate for Adams was substantially farther away, being located on Cherry, east of the Bever- ly Drive intersection. (See also Resp. Exh. 1.) The precise conduct of picketing, thereafter, on March 22 is in dispute. Rodney Adams testified that he occa- sionally saw Perry or one or more other pickets patrol at times to points within 20 feet of the neutral gate. Adams' testimony here was somewhat nonspecific since he ac- knowledged that Perry and other individuals who had carried picket signs were not carrying them at all times that he observed them near the neutral gate. Perry testi- fied, however, that he tried to picket away from directly in front of the neutral gate, but nevertheless came as close as 40 feet to it. It is found that after first moving 70 feet south of the neutral gate, Perry (and perhaps other pickets), thereafter, tended to place themselves nearer to the neutral gate. Although the record is confusing, the primary gate was apparently also being picketed during this period. Between 9:30 a.m. and 1:30 p.m., some employees of neutral contractors working on the site left their jobs even though their scheduled work had not been complet- ed. These included carpenters, glass installers, and drywallers. In this regard, Adams credibly stated that about 10:30 a.m. he observed three unnamed "business agents"7 go to a point in the project, which was blocked from his view by a house, and return about 3 minutes later. About 2 or 3 minutes thereafter, two carpenters walked out of the "identical area," got into a pickup truck, and left the project. At some unidentified point during the same period, Adams credibly testified that he saw Perry, another of Respondents' agents named Napo- lis, and a third unnamed individual, grouped near a truck bearing the legend "United Sanitation" which regularly visited the Orange project to clean the portable toilets on the site. The truck was at the point of entering the neu- tral gate, but was stopped. The unnamed person with Perry and Napolis handed the United Sanitation driver a sheet of paper and spoke with him through the window. The truck then drove away from the site, later returning, and entering through the primary gate. t In content, however, it is concluded that they were Respondents' representatives, since Adams as responding to a line of questioning fol- los ing his affirmation that he had seen ". conversations betseen indi- viduals who had been picketing and other persons on the jobsite" Adams was instructed by Classic not to work at the Orange project on Friday, March 23, but, rather to return on Saturday the 24th, to continue his insulation work. This was to permit Adams to work at times when no other contractors were scheduled to be at the project, and to thereby avoid picketing disruptions. No picketing was conducted on that Saturday when Adams worked alone at the Orange project; nor thereafter, when Adams by pre-arrangement, worked at times when other trades were not at the site. Other incidents were also litigated. Undisputed testi- mony from Rodney Adams shows that Perry had a con- versation with Rodney Adams on March 23, which argu- ably suggests that Respondents' March 22 picketing had purposes beyond merely "truthfully advising the public" of Adams' nonunion status. Similarly, there was a con- versation involving Perry and another of the Council's business representatives, Randy Thornhill, and two of Adams' employees, Jack Angove and Michael Williams. The latter conversations took place roughly a week after the March 22 picketing and at a different construction project, where Adams was working as a subcontractor. Those conversations arguably show that Respondents were engaging in "organizing" activity among Adams' employees. No detailed findings are entered regarding those incidents because they either may be taken as cu- mulative evidence that Respondents' March 22 picketing was organizational or recognitional in character, or they have more direct relevance to the yet-to-be-litigated 8(b)(4)(B) proceedings IV. ANALYSIS AND CONCLUSIONS Section 8(b)(7)(C) of the Act outlaws recognitional or organizational picketing by an uncertified union without an election petition having been filed ". . . within a rea- sonable period of time not to exceed thirty days from the commencement of such picketing." Normally, under the construing cases, this means that recognitional' ° picket- ing may take place for up to 30 days without violating Section 8(b)(7)(C), even absent the filing of a petition." It is plain that picketing within the 6 months prior to the instant charge took place on only one date, March 22. Thus, even assuming that Respondents' picketing was the type of recognitional picketing proscribed by Section 8(b)(7)(C), and was not, as Respondents contend, pro- It is ultimately concluded that the major premise underlying the 8(b)(7)(C) complaint is untenable even if the March 22 picketing was or- ganizational or recognitional in character. In any case. it may be conclud- ed. without reference to the additional incidents, that the March 22 pick- eling was recognitional or organizational and vwas not of the protected. "second proviso" species (see "Discussion and Analysis." infra) 9 See fn 6. supra. ' "Recognitional" is the term used hereafter to indicate picketing for either recognitional or organizational purposes i See. e g. Ventura County District Coiicil of Carpenters. LUnited Brotherhood of Carpenters and Joiners of .lmerica, AFL-CIO (Compositor Constructionl 242 NLRB No 155 (1979). and cases cited in ALJD. fn 10 Compare cases, unlike herein. shere picketing for less than 30 days is held to be unreasonably lengthy due o special factors. such as violence on the picket line See. eg.. Disirtc 65. Retail. Wholesale d Departlneui Store Union. 4FL-C0I (Eastern Ca,,meru & Photo Shop Corp.). 141 NLRB 991 (1963) CARPENTERS LOCAL 2361 317 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tected "second proviso" picketing,' it is quite obvious that the General Counsel's complaint assumes some theory which takes into account more time than the 1 day on which picketing occurred. The General Counsel advances several alternative the- ories, themselves requiring acceptance of subsidiary con- tentions, to support the claim that Respondents' conduct in 1979 violated Section 8(b)(7)(C). In the most brief out- line, the major alternative claims are as follows: A. Theory I I. When a threat to enage in recognitional picketing continues unretracted for more than 30 days, a perfected violation of Section 8(b)(7)(C) is made out. 2. Respondent's February 15 letter, considered against the above-described 1977 background, was a "threat" to engage in recognitional picketing, notwithstanding its stated intention to engage in protected "second proviso" picketing. 3. Therefore, the February 15 "threat," having contin- ued unretracted for more than 30 days, violated Section 8(b)(7)(C). B. Theory II 1. (The same "major premise" set forth above as"A".) 2. Assuming that the 1977 background did not taint the February 15 letter ab initio, as soon as it became clear by the conduct of Respondents' March 22 picketing that the picketing was for recognitional purposes, this fact requires the conclusion that the February 15 letter was "really" a coded threat to engage in recognitional picketing. 13 3. Therefore, the February 15 "threat," having contin- ued unretracted for more than 30 days, violated Section 8(b)(7)(C). Thus, under either of the above theories, it is also nec- essary to accept the conclusion that the picketing which actually took place (in 1977, or in 1979, or during both periods, depending on the theory) was of a recognitional character. For, only if one has drawn that conclusion 2 Referring to the second proviso to Sec 8(b)(7)(C), a concession to constitutional concerns under the first amendment, which exempts from the general ban against unreasonably lengthy recognitional picketing, picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ mem- bers of, or have a contract with, a labor organiation . . That ex- emption is circumscribed, however, by the further qualification that such picketing must not hase " an effect . [ofl inducing] any individual employed by any other person not to pick up. deliver or transport any goods or not to perform any services" (The "effects" qualification to the second proviso.) Picketing pursuant to the second proviso is not in- consistent with a recognitional object-indeed, it almost certainly denotes such aii object-but. so long as the second proviso tests are satisfied it may be conducted indefinitely without violating the proscriptions of Sec 8(b)(7)(C) See, e g. Local Union 429. International Brotherhood of Electri- cal Workers, AFL CIO (Sarl .11M Meloson d b/a Sam Melson. General Con- tractor), 138 NLRB 460, 461 (1962), and cases cited la Admittedly. Theory 1 1 might also invite reference to the 1977 back- ground in order toi determine the "real" purpose or intention underlying the February 15 letter Under Theory 1, however, the 1977 background is argued as sufficient by itself to impute to the February 15 letter a inten- tion. notwithstanding its terms, to engage in recognitional picketing Theory II differs from Theory i. therefore. only in that it allows for the possibility that it might he necessary to wa it until post-February 15 pick- eting actually took place in order to divine the "real" intention underly- ing the issuance of the February 15 letter would one have even a threshold basis for treating the seemingly innocuously worded February 15 letter as a coded "threat" to engage in picketing for a recognitional purpose. And only on reaching that conclusion about the "true" meaning of the February 15 letter would there be a case warranting consideration of the validity of the major premise common to the General Counsel's alterna- tive theories. 14 For reasons discussed hereafter, I do not find the major premise relied upon by the General Counsel to be legally well founded and, accordingly, it is unnecessary to determine whether or not the picketing in 1979 (and, for similar reasons, the picketing in 1977) was recogni- tional in character. Were it necessary to determine this question, however, I would have no hesitancy in con- cluding that the picketing on March 22 was recogni- tional, and that it was not of the type protected by the second proviso. Rather, the picketing was conducted in such a manner as to "signal" to organized labor that there was a dispute in progress. Such activity is inconsis- tent with the type of picketing which the second proviso protects. Local 3, International Brotherhood of Electrical Workers AFL-CIO (Jack Picoult), 144 NLRB 5, 8 (1963), enfd. 399 F.2d 600 (2d Cir. 1964).'5 The presence of pickets at or near gate areas reserved for the unionized subcontractors on the Orange project, coupled with the absence of picketing when Adams was working there alone, clearly indicates such a "signal" purpose. So too does the fact that Respondents' representatives engaged in conversations with the United Sanitation driver who then left the site and, as I infer, with the carpenters who left the site shortly after the three union agents were seen walking to an area where those carpenters had been working. Considering as well that the picketing was never conducted at times and places where the "public" might be found (such as at the "model home" and sales offices located at an entrance to the project well away from the entrance used by the unionized tradespeople), it seems quite clear that the picketing was not solely, if at all, for the purpose of "truthfully advising the public" that Adams was nonunion. " The General Counsel asserts a "fall back" position, in addition to the above-noted theories. That is. that even if the March 22 picketing swere treated as being of the second proviso type, it was not protected thereby. because i occasioned the "effects" w hich remove that proviso's protection But this is simply a variation on one of the two major alterna- tive theories urged, and likewise requires acceptance of the major prem- ise common to them. Thus, assuming that the March 22 picketing were of the "second proviso" type. but, because of its "effects." it thereby lost that proviso's protection, it would then be treated simply as "normal" re- cognitional picketing. itself permissible under the statute for a reasonable period of time not to exceed 30 days. Since the picketing herein only oc- curred on I day, it would be just as lawful as picketing for da s with an undisguised recognitional object Therefore, the illegality in the situation, if an),. would not lie in the fact of I day of picketing for such a purpose, but, rather, would derive from the fact that ai unretracted "threal" to engage in such picketing had continued for more than 30 days Thus, ac- ceptance of the General Counsel's major premise discussed above is again required to find merit to even this "fall back" position See also Hoisting and Portable Enginreers . L ocal Union 101, affiliated iith he Interriationa LUnioin Operating Engireers AFL-CIO (Sherwood Conslrtrction Compne. Incr.), 140 NLRB 1175. 1179 (1963) iuramersr Local U'n'ion r o. 5. a/,' Iriternational Brotherhood of Teamsers, Chauf- fears. Warehousemenr & Helpers. hind (Barbe r Brlthers Cotracing Co.. Inc, 171 NLRB 30. 32 (1968). -- - - ^ - CARPENTERS LOCAL 2361 319 Accordingly, I am prepared to accept that Respon- dents' March 22 picketing was for recognitional pur- poses. Moreover, especially in the light of the 1977 pat- tern of picketing conduct which was similarly preceded by a letter announcing an intention merely to engage in protected "second proviso" picketing, I am prepared to interpret the February 15 letter as essentially being a coded threat to engage in traditional recognitional pick- eting, notwithstanding its invocation of a "second provi- so" purpose. Thus, were I to find the General Counsel's major premise legally acceptable, i.e., that an unretracted announcement of an intention to engage in recognitional picketing violates Section 8(b)(7)(C) after 30 days has passed, I would be compelled on this record to sustain the General Counsel's complaint. As the basis for his major premise, the General Coun- sel relies on General Service Employees Union Local No. 73, affiliated with Service Employees International Union, AFL-CIO (A-I Security Service Co., et al.), 224 NLRB 434 (1976), enfd. 578 F.2d 361 (D.C. Cir 1978). In A-i, the Board (then Chairman Murphy and then Member Fanning dissenting)'l held that ". . . Section 8(b)(7)(C) of the Act proscribes a threat to picket where the union cannot be certified as collective bargaining representa- tives because it admits into membership both guards and nonguards." Id. at 434. Briefly, the pertinent facts in A-I, were that the union seeking to represent a unit of the employer's guards was disqualified under Section 9(b)(3) of the Act from obtain- ing certification in such a unit because it admitted non- guards to membership. That union had threatened to picket in support of what was found to be a recogni- tional purpose, and that threat continued unretracted for more than 30 days. No picketing ever ensued, however. The Board majority, using language that is the underpin- ning of the General Counsel's major premise herein, stated: A threat continues in effect unless it is retracted. Thus, a threat to picket for a proscribed object is operative until such time as the union clearly indi- cates that it no longer intends to pursue the threat- ened picketing. ingly, the majority reasoned, had that union picketed for recognitional purposes ". . . for whatever duration . . ." such picketing would have violated Section 8(b)(7)(C).l7 Under those peculiar circumstances, therefore, i.e., where the union might otherwise be able to obtain by threats that which it could not lawfully obtain by even the briefest picketing, the Board majority felt compelled to treat an unretracted "threat" to picket for a pro- scribed object the same as picketing for a proscribed object. i s If this analysis of A-i is correct, then it does not auto- matically follow from A-i alone that a threat to picket for recognitional purposes made by a union which is ca- pable of obtaining certification in the unit sought be- comes unlawful if it continues unretracted for more than 30 days. This is because, unlike the A-i situation, such actual picketing for no longer than a reasonable time not to exceed 30 days would be unlawful when engaged in by a union capable of receiving certification. And, in this regard, it ought to be borne in mind that while a recog- nitional objective is sometimes referred to as a "pro- scribed" objective, it is not really that "object" which is proscribed when held by a union capable of receiving certification, but, rather, it is the means by which that objective is attempted to be secured (i.e., by unreasonbly lengthy picketing) which is proscribed by Section 8(b)(7)(C). 9 Thus, unlike the A-i situation, a "threat" by a union capable of receiving certification to picket for re- cognitional objectives is not necessarily a threat to do something which the statute proscribes. Accordingly, there is a distinguishing gap between the "uncertifiable union" situation in A-i and the "certifiable union" situation posed herein. And I would not uncriti- cally apply the "unretracted threat" doctrine from A-I to the instant situation, absent some solid bridge of addition- al authority over that gap. The General Counsel relies on the Board's decision in Laborers International Union of North America, Local Union No. 652, AFL-CIO (Richard Sewell, Inc.), 238 NLRB No. 140 (1978), as just such a bridge, since it in- volved, as here, a "certifiable" union. In Sewell, supra, the Board panel of Chairman Fanning and Members Jen- kins and Murphy affirmed 20 Administrative Law Judge Richard J. Boyce in finding that the union involved therein had violated Sections 8(b)(4)(i) and (ii)(B) and 4-1. supra at 436 ' Hence the following related sentences in the majorit, opinion ap- pearing al .--1. sipra at 436: Only i the [alutuory] language means hat u e hae set forth. wsill Section (bl(7)(C) accomplish the congressional objecmtie Onls finding that both picketing and the threat to picket sere the same proscribed object will meet with the siatutor5 language and the congressional intent expressed therein Se,. generails. l, crlationol/ oid Carrtr, Butldg aid (.,,,,, ,. l.a- h, cr I /' 4temrwa. Local 840) 4- L- CIO (C 4 Bh,im (,i;ruc;tott Co, I35 NlRB 1153, 1154 (1962) 2 Ch iltanr Fanning and Member Niurph:. speclficallN noted the pro fiorma characler of their affirmance of the finding of the X(h)(7)(C) x Iola- lionI homicser, citing the fact thai no eceptilnlls had been tiIken to the firliltig f the Adniistrate Las Judge i this regard. led further itilig their os] i diis ts in -I . iuprl Sd,(/' mifr;), fn I * * * * *s . . . with threats to picket, the applicable [reason- able period of time not to exceed 30 days] runs from the date the threat is made until the date it is retracted. [Id. at 436, fn. 8.] Were .4-1, the only source for the General Counsel's major premise herein, however, I would not view that case as dispositive of the instant one. It was of critical significance to the Board majority in A-I, that the union which threatened recognitional picketing was statutorily disqualified from obtaining representation rights for the unit of guards in which it sought recognition. Accord- in The dissenters expressl disagreed swith a construction of Sec 8(h)(7) and its subpart (C) '4hich treated unreiracted threats the same as picketing I hen Chairman Murph? cm Oltuided. iiiir u/i. that this ould make the prnoseripnpins of S. g(hb It(C) more seerc as to speech than as tiio. tail eciomiic actil " Id at 47. fr 12 CARPENTERS LOCAL 2361 319 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(b)(7)(C) by conduct which included a threat by the union to picket for recognitional purposes, coupled with actual picketing for that purpose for approximately 20 days. In pertinent part, and relying solely on the "unre- tracted threat" doctrine derived from A-l,supra, Admin- istrative Law Judge Boyce reasoned as follows: Regarding Section 8(b)(7)(C), a violation vested with the lapse of over 30 days following [the union's] November 11 threat to shut the project down if Pelayo failed to appear at the hall on the 15th to discuss signing a contract. For, without an election petition being filed, Respondent not only failed ever to retract that threat, which had a mani- fest recognitional object, but reaffirmed it on No- vember 15 when Hernandez declared that Pelayo had no intention of signing and that the project therefore would be picketed or shut down, and acted consistently with both threats by picketing Pelayo from December 7 to 27. [Sewell. supra at ALJD.] Sewell is not binding precedent on the point at issue, however, since a majority of the Board panel affirming Administrative Law Judge Boyce on this point did so pro forma, in the absence of exceptions, and expressly noting their continuing disagreemnt with the "unretract- ed threat" concept which was articulated in A-i (see fn. 19, supra). And, while Administrative Law Judge Boyce's reasoning, which favors the General Counsel's theory herein, should not be disregarded in my analysis of the instant case, neither am I bound to adhere to it, where the Board has not expressly affirmed it on its merits. As noted above, contrary to Administrative Law Judge Boyce in Sewell, supra, I believe that the distinc- tions between the A-I "uncertifiable union" situation and the "certifiable union" situation posed herein are critical and dispositive. Thus, even interpreting the February 15 letter herein as a coded announcement of Respondents' intention to engage in recognitional picketing, such an announcement is not, per se, a"threat" to do something which is unlawful. For such an announcement to trigger the application of the A-I "unretracted threat" doctrine, it would have to be susceptible of being interpreted as a statement of an intention to do something which Section 8(b)(7)(C) outlaws,2l and not merely as stating an inten- tion to do something which is lawful provided it is not continued beyond a reasonable time. The February 15 letter is, at best, an example of the latter. Moreover, to apply the "unretracted threat" doctrine to a certifiable union's statement of intention to engage in recognitional picketing would lead to seemingly incon- gruous and undesirable consequences in the labor rela- tions arena-consequences which it is doubtful were within the contemplation of Congress in enacting Section 21 For example, if a certifiable union vere to tell an employer that it intended to picket the employer for more than 30 days to obtain recogni- tion, and did not in tend to file a petition during that period, this would arguably constitute something roughly parallel to the threat found viola- tive in A, siupru. And even then, under the ;4-1 reasoning. more than 30 days would have to elapse before the union's statement would constitutl e a violation of Sec 8(b)(7)(C). 8(b)(7)(C). Thus, if the General Counsel's major premise applies herein, it follows that a union which has an- nounced an intention to engage in recognitional picketing violates Section 8(b)(7)(C) as soon as 30 days has elapsed without the filing of a representation petition, even if no picketing actually occurs. By contrast, a union which ac- tually pickets for up to 30 days with such an object, nor- mally will not be found to have violated Section 8(b)(7)(C). This result alone seems anomalous and beyond Con- gress' contemplation since it suggests that up to 30 days of actual picketing is somehow less extortionate than a mere announcement of an intention to do so which con- tinues unretracted for 31 days.22 I would not lightly at- tribute to Congress the view that 30 days of actual pick- eting carries with it less potential for mischief than does the mere passage of 31 days after receipt from a certifi- able union of a stated intention to picket for recognition. The facts of this case alone demonstrate the difficulty of accepting such a view. Respondents' February 15 letter had absolutley no indentifiable effect on the ability of Adams and other contractors on the Orange project to perform their normal work. The only discernible effect of the February 15 letter was to give those con- tractors some advance warning that picketing might occur at the project, thus enabling them to prepare them- selves against such an eventuality by readying reserve gate signs and by making standby scheduling arrange- ments calculated to minimize the effects should picketing actually occur. Contrasted with these seemingly desirable effects of the issuance of an advance warning by Respon- dents, 23 the actual picketing on only I day had demon- strably disruptive effects on the performance of sched- uled work. Viewed in a slightly different way, if the General Counsel's "unretracted threat" theory is correct as ap- plied to this type of case, it seems certain that certifiable unions contemplating a recognitional picketing campaign against an employer will simply abandon the use of ad- vance warnings and will tend to resort to surprise picket- ing appearances on jobsites, with predictably more dis- ruptive consequences to the targeted employer and others working in proximity to him, than if some ad- vance warning had been received. Again, if a certifiable union may picket for recognition for up to 30 days with- out running afoul of Section 8(b)(7)(C), but the same union will violate Section 8(b)(7)(C) 31 days after making an unretracted statement of intention to picket for recognitional purposes (and without ever picketing), unions will tend to renounce the latter activity and to embrace the former. 22 Although invited at the hearing to comment on this seemingly anomalous result, and to disabuse me of this viewr by citation to legisla. tive history or otherwise. neither the General Counsel nor the Charging Party has addressed the question in their othervwise extensive post-trial briefs 23 These observations should not be read as condoninig ir encouraging the use of disingenuous. self-serving. or misleading -"%arning" letters by unions whose true purpose is to conduct a recoglintionllal picketing cam- paign Rather. the point is that such letters. hosever self-serving or mis- leading as it the true purpose harbored by the union. at least permit the targeted employer and others wsho may be affected by picketing to take precautions to minimize the impact of any actual picketing v.hich may fiolloxk CARPENTERS LOCAL 2361 321 Nothing has been called to my attention which sug- gests that Congress, through Section 8(b)(7)(C), intended to encourage "surprise" or "ambush" picketing cam- paigns and to discourage the use of prior warnings. Yet, this is a predictable consequence of adopting and apply- ing to this type of case the major premise relied upon by the General Counsel. Accordingly, I conclude that Section 8(b)(7)(C) does not make it unlawful for a certifiable union to issue and "continue" for more than 30 days a statement of inten- tion to picket an employer for recognition. Since a con- trary theory is at the heart of the complaint herein, it is recommended that the complaint be dismissed. 2 4 24 An, other contentionls contrar to this recommended result are like- wise rejected In this regard. I have in mind another "fall-hack" theory briefly argued at the close of the General Counsel's brief, to it: that the I day of picketing in 1979 should be treated as a mere continuation of the 2 days of picketing in 1977. and, accordingly. the intervening 1-1/2 years should be treated as a period of constructive" picketing which exceeded the 30-dav "grace period" allouwed for in Sec 8(b)(7)(C) The cases relied on by the General Counsel in this regard each involve "intermiltent" picketing during a relatisely brief period (albeit more than 30 days) hut 'swhere the days of actual picketing totaled ferrer than 30 days (See. e g Internarioina/ L nlion of Operatinlg Engllieeri. Local 4. ei al (Seward Co,1- struciron Crnmpan, Ilc, 193 NLRB 632 (1971). and case cited at fn. I As the General Counsel concedes, hoa ever, the Board has niever applied the intermittent picketing doitrine so as to find iolatixe of Sec 8(b)(7)(C) only 3 days of actual recognitional picketing over a -1/2->ear period Especiall shere, as here. Respondellts lay dormant for 1-1/2 years before emerging to pickel Adams on I da!. I find the General Counsel's theorY in this regard to he siihouli merit CONCLUSIONS OF LAW 1. Adams is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Local and the Council are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act, and William Perry has, at all times material herein, acted as agent for each of them. 3. Those Respondents did not, singly or collectively, violate Section 8(b)(7)(C) of the Act by allowing the statements contained in their February 15, 1979, letter to continue unretracted for more than 30 days, even if those statements be construed as reflecting an intention to engage in recognitional picketing against Adams. 4. Respondents' 2 days of picketing against Adams in 1977, coupled with I day of picketing against Adams in 1979, did not violate Section 8(b)(7)(C) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue this recommend- ed: ORDER 2 5 The complaint is dismissed in its entirety. 25 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations. he adopted b} the Board and become is findings. conclusions. and Order. and all objections thereto shall he deemed raived for all purposes CARPENTERS LOCAL 2361 321