Construction and General Laborers, No. 304

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Construction and General Laborers, No. 304, AFL- CIO and Paul E. lacono Structural Engineers, Inc. Cases 32-CP 21 and 32-CP 30 September 25. 1979 DECISION AND ORDER BY MEMBERS JENKINS, PENELL.O, AND MURPHY On March 9, 1979, Administrative Law Judge Wil- liam J. Pannier III issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel and the Charging Party filed briefs in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Construction and General Laborers, No. 304, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Administrative Law Judge's recommended Order. DECISION Statement of the Case WILLIAM J. PANNIER III, Administrative Law Judge: This proceeding, the result of charges filed Paul E. lacono Structural Engineers Inc..' herein called lacono, was heard before me in Oakland. California, on August 28 and Octo- ber 2 and 3, 1978.2 The unfair labor practice charge in Case 32-CP-21, alleging violations of Section 8(b)(7)(C) of the National Labor Relations Act. as amended, 29 U.S.C., Sec. 151, et seq., herein called the Act, was filed on April 7, naming both Construction and General Laborers. No. 304, AFL-CIO, herein called Respondent, and Alameda County Building Trades Council, herein called council, as labor or- ganizations against whom the charge was brought. On May 18, the charge in Case 32-CP-30 was filed, naming Respon- The Charging Party's name appears as amended at the hearing. I Unless otherwise stated, all dates occurred in 1978. dent, council, and United Cement. Lime and Gypsum Workers International Union, Cement Masons Union Lo- cal 594. AFL-CIO herein called Cement Masons, as labor organizations against whom the charge was brought. In ad- dition, charges alleging violations of Section 8(b)(4)(B) of the Act were filed in Cases 32 CC 77 and 32 CC-95, on March 6 and May 15 respectively, against Respondent, the Council, and Cement Masons. All of these charges led to issuance of complaints by the Regional Director for Region 32 of the National Labor Relations Board and all were consolidated for hearing. Once the hearing opened, Re- spondent. Council. and Cement Workers agreed to settle all allegations arising from the charges filed in Cases 32 CC 77 and 32 CC-95. Additionally, the Council and Cement Workers agreed to settle their alleged violations of Section 8(b)(7)(C) of the Act. As a result, settlement agreements were approved, with respect to those labor organizations and those allegations, on October 3.1 A motion was then granted to sever Cases 32 CC 77 and 32 C('C95 and those portions of Cases 32 CP 21 and 32 (P 30 pertaining to Council and Cement Workers from the proceeding. The re- sult is that the instant matter now involves only the allega- tion that Respondent violated Section 8(b)(7)((') of the Act by picketing for more than a reasonable time without hav- ing filed a representation petition. All parties have been afforded full opportunity to appear. to introduce evidence, to examine and cross-examine wit- nesses, and to file briefs.4 Based upon the entire record., upon the briefs filed on behalf of the parties, and upon my observation of the demeanor of the witnesses, I make the following: FIN)IN(;S ()F FA( I 1. JURISI)I('I()N At all times material. Paul E. lacono Structural Engi- neers. Inc.. has been a California corporation with offices in Torrance, California, and has engaged in business at var- ious locations in California and Nevada as a general con- tractor in the building and construction industry. During the past year, lacono, in connection with its work in the By Order dated November 30, the Board denied that Charging Party's request for special permission to appeal approval of these settlement agree- ments. 4 Following the filing of briefs, Respondent, by letter showing service of copies on all parties. dircted my attention to certain material appearing in the Quarterly Report of the General Counsel. While the Charging Party late objected to my consideration of this material. the fact is that it appears in a public document, I had already been aware of it from my independent read- ing, and, as will be seen infra, it does not serve to alter the result which I reach in this proceeding. The General Counsel's motion to correct transcript and exhibits received into evidence and to submit late evidence, which has not been opposed, is hereby granted. The transcript is hereby corrected so that page 242, line 1, which reads "Did you ever hire any laborers on the lacono payroll?'. will read "Did you ever hire any other laborers on the lacono payrill?" and. further, so that the word "agency" on page 249. line 23 and (on page 251. line 3 is changed to AGC'." In addition. Resp. Exhs a) through d) were rejected and, accordingly, they will be moved to the rejected exhibit file. Finally, the back pages of G.C. Exhs 33(a). (l. and (dr were omitted from the duplicates in the exhibit file, though the entire originals were offered and received. Accordingly, permission is hereby granted for the addition otFduplih- cates of those back pages to the front pages contained in the exhibit file. 245 NLRB No. 59 346 CONSTRUCTION AND GENERAL LABORERS, NO. 304 State of Nevada, has purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Nevada. Therefore. I find that at all times ma- terial, acono has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE I.ABOR ORGANIZATION INVO)I.VI) At all times material, Respondent has been a labor or- ganization with the meaning of Section 2(5) of the Act. 111. ItIh Al.l.t(;EI) UNI:AIR ABOR PRA(TICFES As Respondent correctly set forth in its brief, the ulti- mate issue in the instant case is whether Respondent en- gaged in picketing for a recognitional object and for more than a reasonable period of time without filing a representa- tion petition under Sectin 9(c) of the Act. As discussed be- low, I find that a preponderance of the evidence warrants an affirmative answer to this question and, accordingly. conclude that Respondent did violate Section 8(b)(7)(C) of the Act by picketing at lacono's construction site in Pleas- anton, California, on and after February 24. Although it has been in existence since 1965 and has possessed its own contractor's license, between 1969 and approximately April 1975, lacono operated in partnership with Drewes Construction Company and did not engage in any operations as a contractor, confining its work to design and preparation of architectural engineering drawings. Fol- lowing dissolution of the partnership, however, lacono did enter the contracting field.' As its hiring procedure evolved thereafter. Iacono normally followed the practice of obtain- ing laborers, the target group of employees in the instant case, from Manpower Temporary Services.7 When it did hire its own laborers, it did so only as the need arose and on a project-by-project basis. Thus, lacono's laborers were em- ployed only for the duration of a particular project. So far as the record discloses, only one laborer-Keith Martin, the son-in-law of lacono's sole shareholder and president, Paul E. lacono-ever worked at more than one project for lacono as a laborer. The first two projects on which lacono worked in North- ern California were at Downtown Ford in Sacramento, be- ginning in approximately June 1975, and Neufield Audi- Porsche in Burlingame, started during the following month. In August 1975, lacono's job superintendent at Burlingame The question of the partnership's collective-bargaining relationships is not material in this proceeding. To the extent that an agreement existed. it would not have become binding upon lacono in the post-partnership period, since the evidence does not support the finding that lacono had become an alter ego or "disguised continuance" of the partnership. (Litigation was per- mitted on the nature of acono's operations following dissolution of the part- nership. but not of the extent of the bargaining relationship of the partner- ship.) That is the only basis upon which a prior collective-bargaining agreement would have been binding upon lacono. See discussion Jersev Ju- niors. Inc. 230 NI.RB 329. 333 (1977). In any event, as decribed infra, lacono did then enter into another collective-bargaining agreement to which Respondent was a party and, consequently, consideration of the partner- ship's agreement becomes superfluous. ? Laborers furnished to lacono by Manpower are not part of the unit of laborers whom Respondent contends that it represents in this proceeding. was L. P. Byrne. Early in that month. Byrne was con- fronted with a demand, made by a business agent of a sister local of Respondent. that the concrete pour be stopped be- cause the laborers employed by the subcontractor perfbrm- ing that work were nounion. Byrne refused to stop the work. Subsequent picketing by another labor organization then led Byrne to execute a collective-bargaining agreement with San Mateo Building Trades Council. Respondent's sis- ter local later demanded that Byrne also sign an agreement with it. He complied by executing a memorandum agree- ment which obligated lacono to observe the terms of a mas- ter agreement to which Respondent was a party and which covered the Northern California geographic area.' How- ever, at the time that Byrne executed that agreement, lacono had no laborers working on the Burlingame site. Nor had it employed laborers at that location prior to Byrne's execution of the memorandum agreement. More- over, at the time that Byrne signed the agreement, there was no discussion regarding laborers employed by lacono at other sites. After signing the memorandum agreement. Byrne con- tacted the hiring hall for the two laborers that he hired to work on the Burlingame project: George Estrailian. who worked on August 11 13, 1975, and Joaquin M. Estrada. who worked on September 8 and 9, 1975. Meanwhile. lacono also hired laborers for the Downtown Ford project in Sacramento. Thus, on August 18, 1975, Iacono paid Martin $166.22 for work performed there, although the exact dates of that work are not disclosed by the record. What is disclosed is that Martin then continued working on that project through at least January 1976. Four additional laborers at least worked for lacono at that project during the payroll period ending August 24. A fifth laborer. Frank Rodriguez, worked there during the payroll period ending September 8. None of these laborers was obtained from a hiring hall operated by Respondent or by any of its sister locals. So far as the record discloses, none of them was a member of any labor organization nor had any of them designated any labor organization as his representative. Iacono did not apply the collective-bargaining agreement to the laborers employed in Sacramento. Between the summer of 1975 and the spring of 1978, lacono worked on approximately 20 projects in Northern California, the geographic area embraced by the Master Agreement. During that period, aside from the Burlingame project, lacono made contributions to benefit trust funds. consistent with the agreement signed by Byrne, for laborers working on only one of these projects: one in Redding, California, which lasted from early 1976 until August of that year.' In mid-November 1977, lacono commenced constructing three warehouse buildings, each on a separate I Although they proceed on the basis of different theories which lead them to conclude that different collective-bargaining agreements are applicable, the General Counsel and Respondent do agree that lacono and Respondent were parties to a collective-hargaining agreement during the time of the picketing at Pleasanton Agreement on this point suffices for analysis of the issues presented in the instant case. Accordingly. I make no determination regarding whether the General Counsel or Respondent are correct as to the appropriate agreement applicable to lacono. 9 While lacono uses laborers obtained from Manpower. the record does disclose at least one project other than those at Burlingame. Sacramento, and Pleasanton for shich lacono did hire laborers 347 DECISIONS OF NATIONAL LABOR RELATIONS BOAR[) lot at the Johnson Industrial Tract in Pleasanton. Califor- nia. Prior to January, no laborers were employed by lacono at that site. In February, lacono hired its first two laborers, from local sources, to work on the project. Thereafter, a total of four laborers worked there, though not all at the same time and none of them for the duration of the project. None had even worked for lacono previously. On January 26, Doug Whitt, Respondent's president,' ° approached Robert Wallard, lacono's project superinten- dent at the Pleasanton site. Upon ascertaining from Wal- lard that the employees working there, none of whom was lacono's laborer at that time, were nonuion, Whitt threat- ened to have the job shut down and also threatened, that other unionized employers, such as the telephone company. would not provide services to lacono. On February 22, Whitt returned to the project, gave Wallard a collective- bargaining agreement," and directed Wallard to have it signed and returned to him (Whitt) on the following day. On the morning of February 24, Whitt, who was then wear- ing a banner bearing the legend "AFL-CIO" and "Picket" across the front, asked if Wallard would sign the agreement. When Wallard responded that he could not do so, Whitt retorted "that he was going to take care of this one way or the other" and picketing commenced at the site. Picketing continued at the site until May 12. However, there were changes in the picket sign legends. Thus, until late March or early April, the legends on the signs read "Paul lacono Construction, Unfair Labor Practice, Labor- ers Local 304." Thereafter, the signs read: "Unfair Labor Practice, Building & Construction Trades Council, Ala- meda County." On May 12, a single picket was stationed by two of the lots with a sign bearing the legend "Dicochea Concrete, Unfair Labor Practice Against Cement Masons Local 594." Although Respondent argues that it was not responsible for all of this picketing, a preponderance of the evidence supports the conclusion that the name changes on the picket signs were no more than subterfuges designed to cloak Respondent's role as the party responsible for the conduct. First, there is no evidence that any labor organization other than Respondent had an independent dispute with '°The parties stipulated "with respect to the particular job at the particu- lar location specified in this complaint, [Whittl was at the time of any con- duct attributed to him at the jobsite the president of [Respondent]." How- ever, asserting that Whitt "has only got the authority to chair meetings." Respondent declined to stipulate that, in that capacity. Whitt had been an agent of Respondent at all times material. No evidence was presented by Respondent to support the assertion that its president had such limited au- thority. Whitt played a prominent role in the picketing that transpired at the Pleasanton site. Respondent never disavowed his conduct nor did it disavow that of the pickets at that location, even though the picketing continued for a substantial period of time and gave rise to unfair labor practice charges. In short, there is no evidence to rebut the inference, based upon Whitt's office, that he possessed authority to engage in the conduct on behalf of Respon- dent which transpired in the instant case. See District 50, United Mine Work- ers of Anerica, et al. (Tungsten Mining Corporation), 106 NLRB 903, 907 (1953). Therefore, I find that at all times material Whitt was an agent of Respondent. " The agreement handed to Wallard was the 1977 1980 Laborers' Master Agreement between the Associated General Contractors of California and Northern California District Council of Laborers. It is this agreement to which Respondent contends that lacono is currently bound by virtue of the terms of the memorandum agreement signed by Byrne. See fn. 8, supru. any employer, including lacono, working at the Johnson Industrial Tract. In its brief, Respondent hypothesized a manner in which the council could have had a dispute with lacono. But it presented no evidence to support its specula- tion. Similarly, while Dicochea Construction Company has never been a party to a collective-bargaining agreement, its work at the Pleasanton site had been completed almost a month prior to the appearance of the picket sign bearing its name. Moreover, it had never been contacted by any ce- ment masons' representative regarding representation of its employees nor concerning a collective-bargaining agree- ment with Cement Masons. Therefore, the only evidence of a dispute at the Pleasanton site was that pertaining to the one between Respondent and lacono. Second, picketing at the site commenced immediately af- ter Wallard had declined Whitt's request for a signed agree- ment. That lacono had remained the target of the picketing throughout is shown by the fact that in mid-April, after the council's name had supplanted that of Respondent on the picket signs, pickets told Wallard that the picketing would cease "[o]nce you sign the agreement, that's all it takes." Moreover, the Dicochea picket sign that appeared in May was located at an entrance reserved for employees, custom- ers, and suppliers of lacono, rather than at an entrance reserved for subcontractors, as might be expected Dico- chea, rather than lacono, were the true object of that pick- eting. Consequently, the words and conduct of the pickets as well as the timing of commencement of the picketing in relation to Whitt's demand for a signed agreement tend to support the conclusion that Respondent remained the party responsible for picketing. Third. Whitt, Respondent's president, continued to be present with the pickets at the site. Thus, he transported pickets to the Johnson Industrial Tract. He appeared there daily during the first month of the picketing. Thereafter, he came to the site at least once a week. The same individuals picketed during the first 30 to 40 days of picketing. They were supplanted by a second crew who continued the pick- eting. It was one of the latter group who was observed in- structing the picket with the Dicochea sign. Consequently, there was a continuity of personnel at the site during the course of the picketing. Fourth. for the duration of the picketing, pickets wore banners identical to that which Whitt had been wearing, described surpa, on February 24. Further, the same hand- bills were distributed by pickets between February 24 and cessation of the picketing in May. Consequently, there was an identity of conduct for the duration of the picketing. In these circumstances, a preponderance of the evidence supports the conclusion that notwithstanding the name changes on the picket signs and the participation of other labor organizations in the picketing, it was Respondent who was, at root, responsible for the picketing at the Johnson Industrial Tract from February 24 to mid-May. So far as the record discloses, the only dispute was the one which arose when Wallard declined Whitt's demand that lacono execute the 1977--1980 master agreement. Only Respondent stood to benefit should the economic pressure created by the picketing succeed in compelling lacono to execute that agreement. 348 CONSTRUCTION AND GENERAL LABORERS, NO. 304 IV. ANALYSIS The principal argument made by Respondent is that the object of its picketing has not been to obtain recognition. Rather, argues Respondent, the object of its picketing has been to protest lacono's unfair labor practices, primarily, Iacono's failure to apply the collective-bargaining agree- ment to laborers working at the Johnson Industrial Tract. The General Counsel does not dispute the fact that lacono was a party to a collective-bargaining agreement during the time of the picketing. Consequently, Respondent's argu- ment, as a general proposition, is not without merit, inas- much as "Section 8(b)(7)(C) is not to be literally applied so as, for example, to reach picketing by a recognized union to secure compliance with an existing contract .... " Bay Counties District Council of Carpenters, AFL-CIO, et al. (Wilbur F. Disney, d/b/a Disney Roofing and Material Com- pany, et al.), 154 NLRB 1598, 1605 (1965). Yet, in the instant case, the collective-bargaining agree- ment was executed by Byrne at a time when no laborers had ever been employed by lacono at the Burlingame site. It was a prehire agreement. Ordinarily, execution of such an agreement would be an unfair labor practice. However, where, as here, the agreement arises in the building and construction industry, Section 8(f) of the Act immunizes the parties from liability insofar as the agreement is ex- ecuted "with an unassisted labor organization whose major- ity status has not previously been established under the pro- visions of Section 9 of the Act." R. J. Smith Construction Co., Inc., 191 NLRB 693, 694 (1971). But this does not end the matter, for Section 8(f) "expressly permits the testing of the signatory union's majority status at any time after em- ployees have been hired .... " Id. Thus, "the company does not violate Section 8(a)(5) and (d) of the Act by refusing to continue the bargaining relationship established and by unilaterally changing terms and conditions of employment set forth in the contract." Local Union No. 103, Interna- tional Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Higdon Contracting Company, Inc.), 216 NLRB 45, 46 (1975), enforcement denied 535 F.2d 87 (D.C. Cir. 1976), reversed and enf. 434 U.S. 335 (1978). Similarly, "§8(f) does not purport to authorize picketing to enforce pre-hire agreements where the union has not achieved majority support." N.L.R.B. v. Local Union No. 102, International Association of Bridge, Structural and Or- namental Iron Workers, AFL-CIO, et al., 434 U.S. 335, 346 (1978). Of course, if, following execution of a prehire agreement in the building and construction industry, the union attains majority status, it then becomes the representative of the employees covered by that agreement with the meaning of Section 9 of the Act. The employer would then no longer be free to refuse to honor the terms of that agreement and its failure to do so would violate Section 8(a)5) of the Act. However, "the mere fact that the Union might indeed have represented a majority of the employees at . . . previous jobsites is of no consequence inasmuch as the Union must demonstrate its majority at each new jobsite in order to invoke the provisions of Section 8(a)(5) of the Act ... ." (Footnote omitted.) Dee Cee Floor Covering, Inc. and its Alter Ego and/or Successor, Dagin-Akrab Floor Covering, Inc., 232 NLRB 421, 422 (1977). "The employer's duty to bargain and honor the contract is contingent on the union attaining majority support at the various construction sites." N.L. R.B. v. Local Union No. 13, Iron Workers, supra, 434 U.S. at 345. In the instant case, there has been no showing that Re- spondent represented even one, much less a majority, of the laborers employed by lacono at the Johnson Industrial Tract. Moreover, as found above, lacono did not follow a practice of resorting to a core of laborers which it rehired at each of its projects or which it transferred from project to project. Cf. Haberman Construction Company, 236 NLRB 79, 80 (1978). Rather, it hired its laborers on a project-by- project basis. With the exception of Martin, who was no longer employed as a laborer by Respondent at commence- ment of the Pleasanton project, there is no evidence that any laborers who had worked for lacono at one project had ever worked for it at another project. In fact, the laborers employed by lacono at Pleasanton had been hired locally and none of them had ever worked previously for lacono. In these circumstances, it cannot be found that Respon- dent ever enjoyed the support of a majority of the laborers employed by lacono at Pleasanton. Yet, since the agree- ment executed by Byrne had been a prehire agreement, such a showing must be made for Respondent to become the representative of the employees working there. Dee Cee Floor Covering, Inc., supra. Absent, that showing, the fact that the agreement executed by Byrne contained a union- security clause and a hiring hall provision is of no aid to Respondent, for the fact that it never attained majority sup- port at Pleasanton means that lacono was free to refuse "to continue the bargaining relationship established and [to unilaterally change] terms and conditions of employment set forth in the contract." Local Union No. 103, Iron Work- ers, supra, 216 NLRB at 46. Consequently, in the circum- stances, the union-security clause and the hiring hall provi- sions occupy the same position as other provisions of the agreement which lacono was free to ignore in employing laborers at the Johnson Industrial Tract. Indeed, even if it were not necessary for Respondent to establish majority support at the Pleasanton project, it could still not be said that it was entitled to recognition as the representative of the laborers working there in the con- text of the facts presented by the instant case. At the time that Byrne executed the agreement in August 1975, lacono also had a project in progress at Sacramento and intended to continue working in Northern California. However, as set forth in section III, supra, no party made any mention of projects at locations other than Burlingame when the agree- ment was executed. Further, so far as the record discloses, at no point thereafter did Respondent or its sister locals make any efforts to apply the agreement to other projects on which lacono worked prior to the Pleasanton project, though laborers had been hired by lacono at other sites within the geographic area convered by the agreement. The agreement was observed with respect to the laborers who had worked at Redding in 1976. However, that does not appear to have been the result of an indepedent deci- sion by lacono to apply the agreement to that site. Rather, the laborers who worked on that project had been hired because they were friends of the project superintendent. Be- 349 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause they happened also to be union members, union-level wage rates and benefits were provided for them consistent with Iacono's normal practice." Consequently, the fact that union employment terms had been observed at Redding resulted from the happenstance that the laborers hired were union members, rather than from any contractual obliga- tion on lacono's part. Further, Respondent's own intitial overtures at Pleasanton, in January and February, were not predicated on an already existing contractual relationship. Rather than demand that Wallard observe the terms of an agreement to which lacono was already bound, as might be expected had Respondent then believed that lacono was a party to an areawide agreement, Whitt demanded that Wallard execute a new agreement. These circumstances-particularly the initial concern only with the Burlingame project, the failure to display any interest in the agreement's applicability to other projects on which lacono was working during the over 2-year interval between execution by Byrne and commencement of work at Pleasanton, and Whitt's demand that lacono execute rather than honor an agreement for the Pleasanton site-all tend to support the conclusion that Respondent itself had viewed the agreement signed by Byrne as "a project rather than a term agreement." N.L.R.B. v. The Irvin-McKelvey Co., 475 F.2d 1265, 1270 (3d Cir. 1973). Only upon encountering project did Respondent then resurrect the agreement signed by Byrne and brandish it as a shield for its picketing. Even if the agreement signed by Byrne had been in- tended to be areawide in scope, it would still be difficult to conclude that majority status had ever been attained. The only union members ever employed by lacono had been Estrailian, on August 11-13, 1975, and Estrada, on Septem- ber 8 and 9, 1975, at Burlingame, and the laborers em- ployed on the Redding project from January to August 1976. While this establishes majority status for these two sites, Respondent cannot have the matter both ways. That is, it cannot claim areawide recognition, but then ignore the concurrent situation at sites within the area on which em- ployees other than union members were working. No evi- dence was presented by Respondent to show that during the course of the Redding project, the laborers employed there had constituted a majority of all laborers employed by lacono within the Northern California geographic area. The record discloses that Iacono had engaged in a number of other projects in Northern California between 1975 and 1978. It further shows that lacono had hired its own labor- ers on at least some of these projects, as it had at Burlin- game and Redding. Accordingly, a determination of major- ity status would need to take into account the possible existence of laborers working at other sites during the pro- gress of the Redding project. Yet, Respondent-which, af- ter all, bears the burden of showing that majority status had been attained following execution of the prehire agree- ment-simply failed to show that during the January to August 1976 period, the laborers employed at Redding had constituted a majority of all laborers employed by lacono in Northern California. 12 The superintendent is free to select the laborers to be hired. He can hire union, rather than nonunion, personnel whenever they are competitive and can perform the work. Similarly, it is not possible to conclude on the basis of the record that Respondent enjoyed majority support among all laborers working at Burlingame and Sacramento during August and September, 1975. Estrailian worked at Burlin- game on August 11 through 13 of the year. On August 18, 1975, Martin, who was then working as a laborer on lacono's Downtown Ford project, was paid $166.22. While there is no evidence as to the precise workdays for which that money was paid to Martin, presumably it was paid to Martin, presumably it was paid for work performed during the prior week-when Estrailian had been working at Bur- lingame. Thereafter, Martin continued to work at the Sac- ramento project and, accordingly, would be included in the unit during the period that Estrada worked at Burlingame. Consequently, it cannot be said, with any degree of cer- tainty, that majority status had been attained at other than the Burlingame site during August and September 1975. For, setting aside consideration of the other laborers who worked at Sacramento during those 2 months, the presence of Martin at the Sacramento project precludes a finding that a majority of the laborers working on the Burlingame and Sacramento sites had ever been union members or had desired representation. In sum, Respondent has failed to show that it had repre- sented any of the laborers who worked at Pleasanton for lacono. The record leaves considerable doubt that the agreement executed by Byrne had been intended by any of the parties at the time to be applicable to sites other than the one at Burlingame. While union members were em- ployed at two sites, there has not been an adequate showing that they constituted a majority of the laborers concur- rently working at other Iacono projects in Northern Cali- fornia, the area covered by the agreement. However, Respondent urges that even were it not entitled to rely upon the agreement executed by Byrne as a defense to its picketing at Plesanton, it believed that lacono had engaged in unfair labor practices, filed an unfair labor prac- tice charge 3 based upon that belief, and did not engage in picketing for more than 30 days after being notified on April 20 that the charge had been dismissed. This argu- ment, however, ignores several factors. First, the fact that objects other than recognition also exist for picketing does not preclude a finding that Section 8(b)(7) of the Act has been violated. So long as recognition is at least an object of the picketing, the requirement of Section 8(b)(7) that there be an object of recognition or bargaining is satisfied. See Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 229, AFL CIO (Jensen Meat Company, Inc.), 237 NLRB 650, 651 652 (1978). Second, a collective-bargaining agreement is the culmina- tion of the bargaining process and that process, in turn, is based upon recognition. Accordingly, implicit in Respon- dent's demand that lacono apply the terms of the agree- ment, as well as in Whitt's demand that lacono execute a new agreement, is the demand that Iacono should recognize Respondent as the representative of the laborers working '] The unfair labor practice charge filed by Respondent, Case 32 CA-777, alleged violations of Sec. 8(aX I). (3), and (5) of the Act. It was dismissed by letter dated April 19, with the return receipt for the copy of the letter re- ceived by Respondent's counsel's office beanng the date April 20. 150 CONSTRUCTION AND GENERAL LABORERS, NO. 304 there. Consequently, to simply assert that Iacono was com- mitting an unfair labor practice by not doing so is not the entire answer. For, "the objective of enforcing the . . . al- leged bargaining obligation is inseparable from the objec- tive of protesting the alleged unfair labor practices ... ." Retail Clerks Union Local 1557 (Giant Foods of Chatta- nooga, Inc.), 217 NLRB 4, 10 (1975). At least an object of Respondent's picketing was to protest, in its opinion, lacono's unfair labor practice of failing to apply the agree- ment to the laborers working at Pleasanton project and, concomitantly, lacono's failure to recognize Respondent as their representative. Third, the fact that an employer may commit unfair la- bor practices does not eliminate the need for a petition to be filed whenever recognitional picketing is conducted. "It seems fair to say that Congress was unwilling to write an exemption into Section 8(b)(7XC) dispensing with the ne- cessity for filing a representation petition whenever em- ployer unfair labor practices were alleged." International Hod Carriers' Building and Common Laborers' Union of America, Local 840, AFL-CIO (Charles A. Blinne, d/bla C. A. Blinne Construction Company), 135 NLRB 1153, 1164-65 (1962). Consequently, whether or not lacono vio- lated the Act in its hiring practices at the Johnson Indus- trial Tract would not serve as a defense to Respondent's picketing." Of course, Respondent's unfair labor practice charge also alleged a violation of Section 8(a)(5) of the Act. Unlike a representation petition, which presupposes the existence of a question concerning representation, a charge alleging that Section 8(a)(5) of the Act has been violated "presupposes that no such question exists and that the employer is wrong- fully refusing to recognize or bargain with a statutory bar- gaining representative." Id. at 1166, footnote 24. However, failure to file a petition is excused only "where a union strikes and pickets against an employer's unlawful refusal to recognize it and meritorious 8(a)(5) charges have been filed." Arthur F. Derse, Sr., President, and Wilder Mfg. Co., Inc., 185 NLRB 175, 177 (1970).] "[W]hat is determinative is whether or not a complaint has issued to give rise to a determination that there were unfair labor practices." Re- tail Clerks Union Local 1557, supra. Here, Respondent's charge was dismissed by the Regional Dirctor. "[T]he dis- position of unfair labor practice charges and the issuance of complaints are matters vested by Section 3(d) of the Act within the exclusive province of the General Counsel and the Board may not review or reexamine the administrative determinations made by him in this area." (Footnote omitted.) Service Employees' International Union, Local No. 227, AFL-CIO (Children's Rehabilitation Center, Inc.), 211 NLRB 982 (1974). Accordingly, the fact that Respondent's unfair labor practice charge included an alleged violation of Section 8(aX5) of the Act does not serve to allow it to picket 1' It is noteworthy that the Board reached the conclusion that it did in Dee Cee Flooring, sLra, regarding the need to demonstrate majonty at each new jobsite and dismissing the allegation that Section 8(aX5) had been violated, despite the added finding there that the employer had "violated Section 8(aX3) of the Act by conditioning employment . .. upon employees with- drawing from the Union." Id at 5. for that length of time without filing a petition where that charge has been dismissed. Beyond this, Respondent's defense that the duration of its picketing should only be computed from the date of re- ceipt of the Regional Director's dismissal letter is simply untenable. As found above, the picketing for which Re- spondent was responsible continued thereafter until mid- May. Only apparently as a result of proceeding instituted under Section 10(l) of the Act was the picketing finally brought to a halt. Moreover, Respondent did not file a rep- resentation petition after April 20. In short, Respondent has failed to show any, basis for a defense of a good faith effort to comply with the Act in conducting its picketing at the Johnson Industrial Tract. Therefore, I find that Respondent picketed at Iacono's Pleasanton site with an object of forcing or requiring Iacono to recognize or bargain with it as the representative of the laborers employed there by lacono and with an ob- ject of forcing or requiring those laborers to accept or select Respondent as their collective-bargaining representative. Futher, I find that Respondent engaged in this activity for a period exceeding 30 days and that at no point was a repre- sentation petition filed. Accordingly, I find that by its con- duct, Respondent violated Section 8(b)(7)(C) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The conduct of Respondent, set forth above, occurring in connection with the operations of lacono set forth in sec- tion I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead, and has led, to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Paul E. acono Structural Engineer, Inc., is an em- ployer within the meaning of Section 2(2) and 8(b)(7) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Construction and General Laborers, No. 304. AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing Paul E. Iacono Structural Engineer, Inc.'s Pleasanton, California. project, at the Johnson Indus- trial Tract, from February 24-May 12, 1978, with an object of forcing or requiring Iacono to recognize and bargain with it as the collective-bargaining representative of labor- ers employed by lacono, or forcing or requiring those labor- ers to accept and select it as their collective-bargaining rep- resentative, without being certified as the collective- bargaining representative of those employees and without filing a petition under Section 9(c) of the Act within a rea- sonable period of time. Construction and General Laborers, No. 304, AFL CIO, engaged in unfair labor pactices within the meaning of Section 8(b)(7)(C) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 351 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Construction and General Laborers, No. 304, AFL-CIO, has engaged in unfair labor practices in violation of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the forgoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER'5 The Respondent, Construction and General Laborers, No. 304, AFL-CIO, its officers, agents and representatives, shall: 1. Cease and desist from picketing or causing to be picketed, or threatening to picket or cause to be picketed, Paul E. lacono Structural Engineers, Inc., where an object thereof is forcing or requiring said employer to recognize or bargain with it as the representative of its employees in violation of Section 8(b)(7)(C) of the Act. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."' 6 Copies of said notice, on forms provided by the Regional Director for Re- "5 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 16 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." gion 32, after being duly signed by the authorized repre- sentative of Construction and General Laborers, No. 304, AFL-CIO, shall be posted by it 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 it to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 32, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present their evidence, it has been decided that we violated the law by picketing or causing to be picketed, or threaten- ing to picket or causing to be picketed, Paul E. lacono Structural Engineer, Inc., where an object thereof was to force or require the said Employer to recognize or bargain with us as the representative of its employees in violation of Section 8(b)(7)(C) of the National Labor Relations Act. We have been ordered to post this notice. We intended to carry out the Order of the Board and abide by the following: WE WILL NOT under conditions prohibited by Sec- tion 8(bX7XC) of the Act, picket or cause to be picketed, or threaten to picket or cause to be picketed, Paul E. lacono Structural Engineer, Inc., where an ob- ject thereof is to force or require the said Employer to recognize or bargain with us as the representative of its employees. CONSTRUCTION AND GENERAL LABORERS, No. 304, AFL-CIO 352