Local 130, Brotherhood of Painters, Etc.

876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 130, Brotherhood of Painters, Decorators and Paper- hangers of America, AFL-CIO and Joiner, Inc. Case No. 23-CP-4. February 6, 1962 DECISION AND ORDER On September 25, 1961, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent, the General Counsel, and the Charging Party filed exceptions to the Intermediate Report and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent consistent with its decision herein. The Trial Examiner found that Respondent's picketing at an en- trance gate to a plant where Joiner's employees were performing work, within 12 months of a valid election among employees of Joiner,' violated Section 8(b) (7) (B) of the Act. We agree with this con- elusion for the reasons given below. As more fully appears in his Intermediate Report, the Trial Ex- aminer found that Respondent picketed Joiner simply to force Joiner to raise its wages. Finding this to be the object of the picketing, he considered the Board's original decision in Calumet Contractors 2 to be dispositive of this case and thus concluded that Respondent violated Section 8(b) (7) (B). Subsequent to the issuance of the Intermediate Report, the Board reconsidered and reversed Calumet Contractors.' As we view the facts in the case, we are persuaded that Respondent's picketing had as an object the securing of recognition or bargaining I No exceptions were filed to the Trial Examiner's finding that the election conducted on May 12 , 1961, was a "valid" one within the meaning of Section 8(b) (7) (B) No labor organization has been certified as representative of Joiner 's employees 'International Hod Carrsers, Building and Common Laborers Union of America, Local No 41, AFL-CIO ( Calumet Contractors Association and George DeJong ), 130 NLRB 78 3133 NLRB 512 (Members Rodgers and Leedom dissenting ) In addition to the evi- dence set forth hereinafter , Member Leedom would also rely, as did the Trial Examiner, on the Board 's original decision in the Calumet Contractors case 135 NLRB No. 91. LOCAL 130, BROTHERHOOD OF PAINTERS, ETC. 877 from Joiner.4 The evidence which demonstrates this fact to our satis- faction shows, and we find, that : 1. Over a period of several years prior to the picketing which began on May 25, 1961, Respondent requested Joiner to recognize it as the bargaining representative of its employees and enter into bargaining contracts covering those employees. As recently as the spring of 1961, Respondent requested a contract of Joiner. 2. Respondent's long-established practice with respect to an em- ployer like Joiner whose wages and employment conditions fall below union standards is to picket such employer until he executes its stand- ard collective-bargaining agreement, irrespective of its representative status among the employer's employees. 3. Respondent's picket signs contained this language : C. P. Joiner, Inc., contractor on this job, does not employ members of nor does it have a contract with Painters Local 130 :1 4. On the day picketing commenced, Respondent's picket told the president of Joiner that "We want him [Joiner] to sign a contract and pay the scale and work some of our men"; on the same day, the picket told a Joiner salesman, "Well, we just can't get him to sign up with the Union." Because Respondent's picketing occurred within 12 months of a valid election and, as we have found, had as an object the forcing or requiring of Joiner to recognize or bargain with Respondent as the representative of its employees, we conclude that Respondent had violated Section 8 (b) (7) (B) of the Act. THE REMEDY As recently announced,' the Board has decided that, in Section 8(b) (7) (B) cases, it will normally require a cessation of all recogni-' tion and/or organizational postelection picketing for a period of 12 months from the date the labor organization involved terminates, its picketing activities. In this case, it appears that Respondent is continuing with its 'un- lawful picketing which began soon after the holding of a valid elec- tion conducted by the Board. Consistent with the principles enunci- ated in the Irvins case, we shall order Respondent to cease and desist from its picketing of Joiner, Inc., for objects proscribed by Section 8(b) (7) (B) of the Act and thereafter to abstain from such picketing for a period of 12 months. We, shall also require Respondent to 4 The record does not show, as the Trial Examiner appears to imply, that the parties were in agreement that the sole object of Respondent 's picketing was to force a raise in wages 8 When Respondent's sister local picketed Joiner in April 1961 , its picket signs read: "Painters Local 945 protests substandard wages being paid on this job by Joiner, Inc." 6 Retail Store Employees' Union, Local No. 692, Retail Clerks International Association, AFL-CIO ( Irvins, Inc), 134 NLRB 686. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refrain from engaging in any recognition and/or organizational picketing of Joiner, Inc., where, within the preceding 12 months a valid election shall have been conducted. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 130, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Picketing, or causing to be picketed, Joiner, Inc., with an ob- ject of, forcing or requiring Joiner, Inc., to recognize or bargain col- lectively with it as the representative of its employees, or of forcing or requiring the employees of Joiner, Inc., to select it as their repre- sentative, such picketing not to be engaged in for a period of 12 months following the termination of the picketing found unlawful in the Board's Decision. (b) Picketing or causing to be picketed, Joiner, Inc., for any of the aforementioned objects where, within the preceding 12 months, a valid election under Section 9 (c) of the Act has been conducted which the Respondent did not win. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its business offices and meeting halls, copies of the notice hereto marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be main- tained for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Twenty-third Region signed copies of said notice for posting at Joiner, Inc.'s offices, the Company willing, in places where notices to employees are custom- arily posted. (c) Notify the-Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. 7In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " LOCAL 130, BROTHERHOOD OF PAINTERS, ETC. APPENDIX 879 NOTICE TO ALL MEMBERS OF LOCAL 130, BROTHERI-IOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES OF JOINER, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: IVE WILL cease picketing Joiner, Inc., with an object of forcing or requiring Joiner, Inc., to recognize or bargain collectively with us, or of forcing or requiring the employees of Joiner, Inc., to accept us as their representative, and will abstain thereafter from picketing for such objects for a period of 12 months. WE WILL NOT picket or cause to be picketed Joiner, Inc., where an object thereof is to force or require Joiner, Inc., to recognize or bargain collectively with us, or, to force or require the em- ployees of Joiner, Inc., to accept us as their representative, where a valid election which we did not win has been conducted by the National Labor Relations Board among the employees of Joiner, Inc., within the preceding 12 months. LOCAL 130, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office (650 M & M Building, 1 Main Street, Houston, Texas: Tele- phone Number, CApital 2-7201, Extension 041) if they have any ques- tion concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by Joiner, Inc., herein called Joiner, the General Counsel on June 20, 1961, issued his complaint against Local 130, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, herein called Respondent. The complaint alleges violation of Section 8(b)(7)(B) of the National Labor Relations Act, as amended ( 61 Stat. 136 , 73 Stat. 519). It charges that since about May 31, 1961, Respondent has picketed Joiner at a jobsite with an object of ( a) forcing or requiring Joiner to recognize or bargain with Respondent as the representative of Joiner's employees, and/or (b) forcing or requiring Joiner's employees to accept it as their bargaining representative, although a valid election under Section 9(c) of the Act had been held during a 12-month period prior to May 31, 1961. Upon due notice, Horace A. Ruckel, the duly designated Trial Examiner, con- ducted a hearing at Houston , Texas, on August 10, 1961 . All parties were repre- sented at the hearing and were afforded full opportunity to be heard, to examine and 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cross-examine witnesses, and to introduce evidence bearing on the issues. Counsel stipulated admission in the record relevant parts of the transcript of evidence taken in a related proceeding for a temporary injunction against Respondent in the United States District Court for the Southern District of Texas, on June 29, 1961.1 The parties waived oral argument and have filed briefs. Upon the basis of the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF JOINER Joiner, Inc., is a Texas corporation which has its principal office and place of business in Houston, Texas. It engages in the business of painting and chemical cleaning. During the year 1960, a representative period, Joiner had a direct outflow of materials and supplies in interstate commerce of a value exceeding $50,000 which it shipped to points outside Texas. During the same period Joiner performed serv- ices of a value exceeding $50,000 for other persons, firms, and corporations, each of which had an annual direct flow of goods, wares, and merchandise in interstate commerce of a value exceeding $50,000, which were shipped to them from points outside Texas. During the same period Joiner performed services exceeding $50,000 in value outside Texas. II. THE LABOR ORGANIZATION INVOLVED Local 130, Brotherhood of Painters , Decorators and Paperhangers of America, AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue The Act provides as follows: Section 8(b). It shall be an unfair labor practice for a labor organization or its agents- (7) To picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining repre- sentative, unless such organization is currently certified as the representative of such employees: (B) Where within the preceding twelve months a valid election under Section 9(c) of this Act has been conducted. .. . The issue here is whether the picketing, which Respondent admits did take place within the proscribed period had either of the proscribed objects. The General Counsel contends that it did; Respondent that it did not. B. The facts 1. The picketing The material facts are not in dispute. On April 10, 1961, R. L. Baker, business representative of Local 945 of the Painters, a "sister" of Local 130, telegraphed Joiner the following message: We have information that substandard wages are being paid painters on your Baytown Humble Refining job. Unless you can assure us that this matter will be corrected immediately, we shall resort to economic measures. Assurances were not forthcoming, and on April 11 Local 945 established pickets at the entrance gates to the Humble Oil and Refining Company at Baytown, Texas, who carried picket signs in the following language: Painters Local 945 protests substandard wages being paid on this job by Joiner, Inc. i Clifford W. Potter, Regional Director v. Local 130, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, Civil Action No. 13,688. LOCAL 130, BROTHERHOOD OF PAINTERS, ETC. 881 On April 14, Joiner filed a charge of unfair labor practices alleging a violation of subsection (C) of Section 8(b)(7) of the Act 2 by Local 945, and at the same time filed an employer's petition stating that one or more individuals or labor organizations had presented a claim to be recognized as representatives of Joiner's employees. The Regional Director for the Twenty-third Region of the Board sub- sequently dismissed the charge, but, acting on the petition, conducted an expedited election in a unit consisting of all Joiner's employees including those then at work at the refinery of Humble Oil and at the Houston plant of Sheffield Division of Armco Steel Corporation, to determine whether they wished to be represented by Local 945. Local 945 lost the election.3 However, it continued to picket and on May 19 Joiner filed another unfair labor practice charge against Local 945, this time alleging a violation of Section 8(b)(7)(B) of the Act, the same section on which the instant complaint against Local 130, the Respondent herein, is based. On May 25 a settlement was reached, and Local 945 ceased its picketing and has not resumed it. A week after the withdrawal of Local 945's pickets, Respondent herein, Local 130, on May 31, 1961, placed a picket at the entrance gate of the Sheffield plant, who carried a picket sign bearing this legend: C. P. Joiner, Inc., contractor on this job, does not employ members of nor does it have a contract with Painters Local 130. This picket is not meant to induce any individual employed by any other employer not to pick up, deliver or transport any goods or not to perform any services. It is this picketing by Respondent which forms the subject matter of the complaint in the instant case. At no time did the picketing by Local 945 at the Humble refinery or by the Respondent at the Sheffield plant result in a work stoppage, or in a failure or refusal of any employee to report for work, to pick up or deliver, or to perform any other service. 2. The object of Respondent's picketing C. P. Joiner owns and operates two companies, Joiner, Inc., the Charging Party, and Gulf Coast Painters. The latter company is strictly a painting contractor. The former does both painting, and chemical cleaning. Joiner, Inc., has never had a contract with Respondent or Local 945, and does not employ union painters. Gulf Coast Painters has had several contracts, the last executed in 1959 and expiring in 1960 B. T. Beasley, business representative for Respondent, testified that these contracts did not work out to his satisfaction and that Respondent does not seek and has not sought a contract with Joiner. C. P. Joiner testified, and I find, that about 60 days befoie "any" picketing had occurred he had a conversation with Beasley at a local restaurant during which the latter said: "Joiner, why don't you get in line, come and sign a contract? Let's get right " It is not clear, however, whether this conversation occurred about 60 days prior to the picketing by Local 945 during the first part of April, or before the picketing by Local 130 which began May 31, 1961. Moreover, Joiner was not able to say whether Beasley was suggesting a contract with Joiner, Inc., or with Gulf Coast Painters.4 Respondent's claimed object in posting a picket at the Sheffield plant is set forth in Beasley's testimony: Q. (Mr. ScoTr.) Now, let me ask you this, was the reason that you au- thorized the picketing because Joiner, Inc., was not paying the union scale of wages and was not granting to his employees benefits and other conditions of employment which Local 130 had obtained from other area painting contractors? 2 Subsection (C) adds to the proscriptions of 8(h) (7), quoted above, and forbids picket- ing "without a petition under section 9(c), being filed within a reasonable period of time not to exceed thirty days from the coinmencement of such picketing " s\o labor organization has been certified as the representative of Joiner's employees * The only other evidence in the record bearing on the object of the picketing is the testimony of H B Bowersox, salesman for Joiner, who on the first day of the picket,ng was delegated by Joiner to strike up a conversation with the picket He asked the picket what was "wrong" with Joiner, and the picket said, "Well, we just can't got hint to sign 'up with the union." 634449-62-vol 135-57 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Well, actually our purpose of picketing was for the prevailing wage scale and to bring him up with our other people which we do have bargaining agreements with that work and do employ our people and do pay our wage scale. * * * * * * * Q. . . . Had you made, before you established the picket, did you make any effort to personally get Mr . Joiner, himself, to pay his people union wages and these other fringe benefits? A. No, sir. Q. You did not? A. No, sir. Q. Now, in establishing the picket line out at Sheffield, was it your purpose to let everyone know, including Joiner employees, that Joiner was not paying the union scale and giving the union benefits? ... . A. I think that was one of the ideas, yes, sir. * * * * * * * Q. What were any of the other ideas that you had in mind also? A. Well, sir, we put it up for the purpose, as I said, to bring the wages up. There are other contractors that are doing work in that plant which do pay our wages and benefits, where our people can't figure against a dollar an hour where our people might be paying three and a half.5 Q. If Joiner, Inc., were willing to agree with the union to pay the prevailing wage scale and give the other benefits which the union has negotiated with other contractors to its employees, would you pull the pickets our there? A. No, sir. * * * * * * Q. Why not? A. Because we don't want an agreement with him. * * * * * * * Q. If he would orally agree to pay the union scale and the other fringe bene- fits, would you pull the pickets? A. Yes, I think we could pull them. C. P. Joiner's opinion as to the object of the picketing was given as follows: Q. You are sure that the picketing would cease at Sheffield Steel, if you were to pay the prevailing wage to the painters employed out there? A. Yes, sir, I think it would from the information that I have had. C. Concluding findings Respondent is not the certified representative of Joiner's employees. A valid election was held under Section 9(c) of the Act within 12 months preceding May 31 when Respondent began picketing Joiner at the Sheffield jobsite . The sole question presented here is whether this picketing had for one of its objects either of the two objects forbidden by Section 8(b)(7)-recognition or a collective-bargaining relationship. There is no substantial evidence in this record that Respondent has ever requested Joiner to recognize or bargain with Respondent as the representative of Joiner's employees. There is no evidence that it has ever, against the background of the picketing, solicited the membership of Joiner's employees.. Beasley's testimony that Local 130 would not enter into a contract even if Joiner paid the union wage scale may be taken with some degree of skepticism; nonetheless it is clear that the procurement of such a contract was not an immediate object of the picketing. The parties are in agreement 6 that Respondent's object was to induce Joiner, Inc., to raise c For example: Joiner paid an hourly wage of $1.75 for a spray man and $2 25 for a brush man. The union scale was $3.78 and $3.46 , respectively. 6 The following colloquy between the General Counsel and counsel for Respondent is cited: Mr. MITCHELL : I see. Your theory , then, is that we are trying to get Mr. Joiner to sign another contract (a reference to the former contracts with Gulf Coast Painters) with the Local Union? Mr. ScoTT: No. My theory is that the union is attempting to get Mr . Joiner in line with the union scale and other conditions of employment not only with respect to Gulf Coast Painters, Inc., but Joiner, Inc., as well. LOCAL 130, BROTHERHOOD OF PAINTERS, ETC. 883 the wages paid its employees to the level of the wages paid by those employers with whom Respondent does have bargaining agreements. Respondent in its brief cites various cases ° in support of his contention that, although an explicitly recognized or contractually formalized bargaining relationship with an employer may be the ultimate purpose of a picketin6* union; this is to be distinguished from picketing for such a relationship as an immediate , or reasonably immediate, objective. The former is not objectionable. The latter is prohibited by Section 8 (b)(7) within a year. after a valid election . Hence, the argument goes, if it is found that the objective of the picketing here was solely to bring about an increase in the wages paid. Joiner 's employees so as to protect the competitive position of those employers who are under contract with Local 130 (to the resulting benefit of that organization's members), and not for the purpose of forcing Joiner to recog- nize or bargain with it, or to force its employees to accept the Union as their bargain- ing representative, the case should be dismissed. But it is not necessary to'a finding of violation of Section 8(b) (7) to decide-whether. the picketing has a short as contrasted with a long range objective . The Board has, decided in Calumet Contractors 8 that picketing within 12 months following an election for the very objective which Respondent says is its object here, is a violation of the Act. The Board said in that case: In connection with the question of Respondent's object in so picketing, the Respondent asserts that since its picketing was solely for the purpose of inform- ing the public that DeJong and the Association were not meeting prevailing rates of pay and, conditions; and that it did not want, nor did it ever request, recognition or bargaining from either DeJong or the Association, it did not have an objective proscribed by Section 8(b)(4)(C) of the Act. In support of this assertion, Respondent contends that the proscribed object-recognition or bar- gaining-of Section 8(b) (4) (C) has, reference to an appropriate bargaining unit; that the certified unit herein is inappropriate, a position consistently taken by Respondent; and that Respondent has no interest in representing employees, in such a unit. We cannot accept this contention. While, clearly, no express demand for recognition or bargaining was made, it is equally clear that one of the objects of Respondent's picketing was to force DeJong and the Association to meet the "prevailing rate of pay and conditions" for the area. It is well established that a Union's picketing for prevailing rates: of pay and conditions of employment constitutes an attempt to obtain condi- tions and concessions normally resulting from collective bargaining, and con- stitutes an attempt by the union to force itself on employees as their bargaining agent. Respondent's disclaimer of interest in the bargaining unit, indeed its. affirmative statement that it would never bargain in such a unit, is, therefore, in the circumstances here present an inadequate defense; for despite Respond- ent's disclaimer the picketing necessarily had as its ultimate end the substitution of Respondent for the . . . the certified bargaining agent. It is immaterial, moreover, that Respondent may have had other objects since recognition or bargaining need not be the sole object of the picketing to be violative of Section 8(b) (4) (C). It is sufficient if an object of the, picketing be one proscribed by Section 8(b) (4) of the Act. The case at bar is distinguishable from Radio Broadcast Technicians, etc. (,WKRG- TV, Inc.), 123 NLRB 507, an 8(b)(1)(A) case which the Board cited and dis- tinguished in Calumet .9 'John A. Penello, Reg Dir v. Retail Store Employees Local No. 692, et or. (Irvin8, Inc ), 188 F. Supp. 192 (D.C. Md.) ; William J. Covers, Acting Reg Dir v. Teamster8' "General" Local Union No. 200, International Brotherhood of Teamsters, etc (Bachman Furniture), 188 F. Supp. 184 (D.C. E. Wis. ) ; Robert B. Greene v. International Typo- graphical Union and Local 285, et at. (Chariton Press , Inc), 186 F. Supp. 630 (DC. Conn) ; Ivan C. McLeod v. Chefs, Cooks„ eta, Local 89, Hotel and Restaurant Employees Union, AFL-CIO ( Stork Restaurant ), 280 F. 2d 760 (C.A. 2). 8International Hod Carriers, Building and Common Laborers Union of America, Local No 41, AFL-CIO (Calumet Contractors Association and George DeJong), 130 NLRB 78. Although this case arose under Section 8(b) (4) (C ) of the Act, the Board had- before It- the , identical language with, respect to, the- object proscribed ' which appears in Sec- tion 8(b) (7). 8 There, unlike here , the union was not seeking, to Impose, rates of pay and conditions of employment upon the, employer or its ' employees. There the union's effort was directed toward preserving relations with other employers whose employees it represented. More: over, it advertised this objective to the public and directly to advertisers. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel, in his brief, reasons that "-if picketing compels an em- ployer to agree to pay the wages and grant other favorable conditions of employ- ment, he has for all practical purposes entered into an agreement with respect to terms and conditions of employment with the union and thus accords to the union recognition as the relesentative for the employees ." [Emphasis supplied J Perhaps so. But the argument of counsel overlooks the testimony of Beasley that no agreement was sought from Joiner, as well as C. P. Joiner's testimony that his understanding of the situation was that if he raised wages (without an agreement to do so) the picket would be removed. There is no evidence of substance that an agreement was ever sought Beasley's statement, quoted above, that he thought he could remove the picket if Joiner "orally agreed" to pay the union scale, was in re- sponse to counsel's question embodying this language and is not consistent with the rest of his testimony that he would not enter into an agreement with Joiner because of his previous and unfavorable expeiience with Joiner's observance of contracts. It is my belief, and I find, that Respondent did not seek an agreement with Joiner written or oral, within any immediate period, but sought by means of picketing to force Joiner to raise wages unilaterally. It is not disputable that a raise in wages is normally an end sought by collective bargaining, as the General Counsel points out. But this is not the only way in which that end may be attained If it is sought to be attained by forced unilateral action, as here, is this collective bargaining? If it is so attained, does this amount to recognition of the union as the collective-bargaining agent? As I have found above, no other union was certified to represent employees of Joiner when Respondent established its picket at the Sheffield plant, nor had Re- spondent intervened in the representative's case preceding the election In these respects the situation was different from that existing in the Calumet case. Nor was there any interruption of work at Sheffield, or any failure to pick up and deliver or to perform other services. In this respect the instant case differs from other cases, including the WKRG-TV case, cited above, which the Board distinguished from Calumet and dismissed Indeed, one or both of these elements are present in all the cases on the point which have come to my attention.i° In these cases the union had either sought to supplant a certified union, resorted to picketing after it had lost an election, endeavored to recapture a bargaining representation it previously had, or had caused an interruption in work, strong evidence that the Union in question, in spite of its protestations to the contrary, was seeking recognition as a collective- bargaining agent. In spite of these points of difference, if not of distinction, the language of the Calumet case is so inclusive as to apply to the facts in the case at bar. I am bound to consider it as controlling my decision. I conclude, therefore, that by picketing Joiner to force Joiner to pay the prevailing wage rates, Respondent committed an unfair labor practice within the meaning of Section 8(b)(7)(B) of he Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Local 130, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, set forth in section III, above, occurring in connection with the operations of Joiner, Inc., described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Joiner, Inc., a Texas corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 10lncluding Houston Building and Construction Trades Council ( Claude Everett Con- struction Company), Case No. 23-CP-2, in which Trial Examiner Scharnikow issued his Intermediate Report dated July 21, 1961 (136 NLRB No 28). This Is a Section 8(b) (7) (C) case in which Trial Examiner Scharnikow, relying on Calumet, finds a violation of the Act. DOBBS HOUSES, INC. 885 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent committed unfair labor practices within the meaning of Section 8(b) (7) (B) of the Act by picketing Joiner, Inc., since May 31, 1961, with an object of forcing or requiring Joiner, Inc., to recognize or bargain with Respondent as the representative of its employees, and forcing or requiring the employees of Joiner, Inc., to accept or select it as their collective-bargaining representative, although Respondent was not then certified as the representative of Joiner, Inc.'s employees. 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Dobbs Houses, Inc. and Hotel and Restaurant and Bartenders Union, Local 886, AFL-CIO. Case No. 10-CA-4684. February 7, 1962 DECISION AND ORDER On August 22, 1961, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the said complaint be dismissed, ,as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions and a supporting brief. The Respondent filed a brief in support of the findings made in the Inter- mediate Report but excepted to the Trial Examiner's failure to make certain additional findings. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and finds merit in the exceptions of the General Counsel. Accord- ingly, the Board adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, only insofar as they are consistent with the decision herein. The complaint alleged that the Respondent unlawfully discharged 16 waitress-employees because they had engaged in a concerted walk- out or strike for their "mutual aid and protection" within the meaning of the quoted terms as used in Section 7 of the Act. The Trial Ex- aminer dismissed the complaint on finding that: (a) the preponder- ance of the evidence failed to establish that the strike was motivated by any reason other than the discharge (or what the employees assumed to be the discharge) of a supervisor, Assistant Manager Cooper; i and ' It is not clear that Cooper was in fact discharged ; however, the employees and Cooper so assumed as of times here relevant. It is the employees' assumption-rather than the fact of discharge-to which we hereafter refer in using the terms "discharge" of Cooper. 135 NLRB No. 86.