Alton-Wood River Building and Construction, Etc.

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Textile Workers Union of America, AFL-CIO-CLC, or in any other labor organization of our employees , by discrimi- nating in regard to hire, tenure of employment, or any term or condition of employment of any of our employees. WE WILL OFFER to Charles C. Crouch immediate and full reinstatement to his former or substantially equivalent position , without prejudice to any seniority or other rights previously enjoyed, and make him whole for any loss of pay suf- fered as a result of the discrimination against him. WE WILL NOT ask any employee to report about the union organizational activities of his coworkers ; threaten to close the plant if a union organizes the employees or wins a Board-conducted election ; or coercively, or otherwise unlawfully, interrogate our employees concerning their union activities or sympathies. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist the above -named Union, or any other labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. BURLINGTON INDUSTRIES, INC., VINTON WEAVING COMPANY PLANT, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any questions concerning this notice or compliance with its provisions. Alton-Wood River Building and Construction Trades Council and Kopp-Evans Construction Company and Local No. 11, Congress of Independent Unions. Case No. 14-CP-31. August 07, 1963 DECISION AND ORDER On March 14, 1963, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. The General Counsel and the Charging Party filed briefs in support of the Intermediate Report. 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 Interme- 144 NLRB No. 31. ALTON-WOOD RIVER BUILDING & CONSTRUCTION, ETC. 261 diate Report and the entire record in the case, including the exceptions and briefs, and hereby adopts the findings and conclusions of the Trial Examiner to the extent consistent with this Decision and Order. This proceeding involves the application of Section 8(b) (7) (A) which, stated broadly, proscribes picketing for the purpose of organ- ization or recognition where there is a lawfully recognized incumbent union and a question concerning representation cannot be raised. The Trial Examiner found, as alleged in the complaint, that the Respond- ent had violated that section by picketing the Company's construction sites on and after May 14, 1962. This conclusion was supported by his findings that the picketing had a recognitional objective, that Local 11, Congress of Independent Unions (CIU) was at times material the lawful representative of the Company's employees, and that Local 11's contract with the Contractors Association, of which the Company was a member, barred raising a question concerning representation at the time of the picketing. We agree with the Trial Examiner that the picketing had a recognitional object; 1 we do not agree, however, that the facts of this case support a conclusion that the Respondent vio- lated Section 8 (b) (7) (A). The relevant facts are as follows : The CIU was certified in 1958 as the bargaining representative of the employees of the employer- members of the Contractors Association.' At that time the Company, a partnership of Messrs. Kopp and Evans, was not a member of the Association and in fact was not in existence; it did not engage in the construction business until 1961. About November 1 of that year Kopp raised the issue of joining the CIU with his two employees, praised its alleged advantages, and asked the employees if they had any objection to joining the CIU or to the Company's joining the Association. One employee stated he was willing to join; the other, that whatever the Company did was all right with him. In late January 1962 a representative of the Respondent in effect requested the Company to recognize an AFL-CIO union. The request was denied. Then on March 20, the Company joined the Contractors Asso- ciation and Kopp testified that his employees thereby were "auto- matically" covered by the existing multiemployer contract between the Association and Local 11. Thereafter on May 1, at the partner's suggestion, the two employees and the partners together joined Local 11. Picketing of the Company projects began on May 14. I In so finding, we do not adopt or rely on the fact that Kopp-Evans was placed on the Southern Illinois Labor Tribune "We Do Not Patronize " list ; nor do we adopt or rely on the Trial Examiner's conclusionary statement that "the unfair labor practice picketing which followed so closely that illegal conduct was also utilized as a pretext to mask the same illegal purpose." ( I.R. footnote 27.) 2 The CIU and not its Local 11 was certified. It is, however , assumed for purposes of this decision that Local 11 was the certified bargaining representative of the association- wide, multiemployer unit. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As noted above, organizational and recognitional picketing by an outside union is proscribed under Section 8 (b) (7) (A) only when there is a lawfully recognized incumbent union and there is a bar- here allegedly the contract between the Association and Local 11-to the raising of a question concerning representation . It is evident, however, from the foregoing recitation of facts, that the Company's employees had not designated the CIU or its Local 11 as their bargain- ing representative before the Company joined the Association on March 20, 1962, and simultaneously became party to the Association contract with the CIU . Indeed, there is no evidence that Local 11 ever approached the employees or attempted to organize them; there is none suggesting that the employees sought out Local 11 or, inde- pendently of their employer's urging and other actions, expressed any interest whatsoever in representation by that Local or its parent. The employees' very act of joining the Union thereafter, in May, was in compliance with their employer's expressed wishes and instructions. For, as the Trial Examiner found, the record shows that "when Kopp and Evans joined . . . the Association they told the employees that their contract with the CIU required them all to belong to that union" and that, in conformance therewith, Messrs. Kopp and Evans and their two employees subsequently joined Local 11 together. It is therefore evident that the majority status of Local 11 had not, on March 20, 1962, the date of recognition , been established under Section 9 of the Act . In these circumstances, the Company's act of according recognition to and entering into a contract with Local 113 would, under established precedent, normally constitute a violation of the Act .4 But the instant case involves both an em- ployer and employees engaged in the building and construction industry, thereby bringing into play the provisions of newly enacted Section 8 ( f).1 Subsection ( 1) thereof was expressly enacted to im- 3 We have serious reservations whether the record in fact would support a finding that the contract ever covered the Company 's employees There is no evidence or contention that Local 11 and the Company had any direct dealings resulting in either an oral or written agreement extending the contract to the Company 's employees. Rather, the con- tract is said to have "automatically" become applicable when the Company joined the Association , apparently as the result of such unilateral action by the Company, and apparently without any notice to Local 11 However, as the Board has held , joining an association does not necessarily make an employer a part of an existing association- multieniployer unit ; for insofar as relevant here, a particular employer can become a part of an established multiemployer unit only if the already committed parties agree to the newcomer's inclusion . Shreveport-Bossier Cleaners & Laundries, Inc., 124 NLRB 534, 536, and cases there cited However, all the parties appear to agree that the contract was applicable to the Com- pany's employees on and after March 20, 1962 ; and for purposes of our decision we will assume that it was. 4 See Bernhard-Altmann Teleas Corporation, 122 NLRB 1289 , affil. sub nom . Inter- national Ladies' Garment Workers Union, AFL-CIO, 366 U.S 731; also Mohawk Busi- ness Machines Corporation, 116 NLRB 248. 5Insofar as relevant here, Section 8(f) provides that: It shall not be an unfair labor practice under subsections ( a) and (b) of this sec- tion for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged . . . In the building and construction ALTON-WOOD RIVER BUILDING & CONSTRUCTION, ETC. 263 munize employers in that industry from the strictures of Section 8 (a) of the Act in situations where they recognize and enter into agree- ments with any labor organization whose majority status has not previously been established. Just such a situation exists here. We are thus persuaded, contrary to the implication of our dissenting colleagues, that the Board, even absent affirmative contentions by the parties, should be mindful of the aforementioned relevant con- gressional mandate; indeed, to ignore it here would be to deprive the Charging Party, Kopp-Evans, of its statutory privilege to recog- nize and enter into a collective-bargaining agreement with a union whose majority status was not previously established without com- mitting an unfair labor practice. However, while offering this sub- stantial measure of protection to contractors who act accordingly, Section 8(f) nevertheless provides that any such agreement shall not be a bar to a petition filed under Section 9(c) and therefore shall not bar the raising of a question concerning the representation of the Company's employees. As there is no basis aside from the contract for finding that a bar to a question concerning representation existed at times here material, we conclude, contrary to the Trial Examiner, that the General Coun- sel has failed to establish that the Respondent's picketing of the Company's jobsites on and after May 14, 1962, violated Section 8(b) (7) (A) of the Act. We shall, therefore, dismiss the complaint. [The Board dismissed the complaint.] MEMBERS RODGERS and LEEDOM, dissenting : We would find, as did the Trial Examiner, that the Respondent violated Section 8 (b) (7) (A) of the Act. The majority reach a contrary result because they find that the incumbent union's contract with the Contractors Association was not, under Section 8 (f) , a bar to a raising a question concerning representa- tion among the Company's employees. Alternatively the majority suggests there was no violation because the contract did not in fact cover the Company's employees and thus could not have been a bar with respect to such employees. Neither of these grounds for the majority's decision was, however, raised by any of the parties involved in this proceeding. Indeed there is no reference at any point in the record to Section 8(f). Further, all parties agreed that the bargain- ing agreement was applicable after March 20, 1962, to Kopp-Evans' employees, and the case was litigated on that basis. The majority ,industry with a labor organization of which building and construction employees are members . because (1) the majority status of such labor organization has not been established under the provisions of section 9 of this Act prior to the making of such agreement . Provided, That nothing in this subsection shall set aside the final proviso to section 8 (a) (3) of this Act: Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a peti- tion filed pursuant to section 9(c) or 9(e). 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has thus gone to considerable length to construct a defense for the Respondent which it did not urge, and to decide the case on issues neither explored nor even raised by the parties. The defense which the Respondent did raise was that Local 11, the incumbent, was not lawfully recognized and that there was for that reason no Section 8(b) (7) (A) violation. The Respondent argues, in part, that the Company's recognition of Local 11 was unlawful be- cause a majority of its employees never designated that Union as their representative. The employees had, however, expressly acquiesced in their employer's plan to recognize Local 11; consequently, we do not believe that the subsequent recognition was unlawful simply because the employees did not at the time of recognition affirmatively express a desire for representation by the union. Especially is that so where, as here, there was no coercion or restraint of the employees in any meaningful sense of those terms. The Respondent also contends that recognition of Local 11 was un- lawful because that Union is an employer-dominated or employer- assisted organization. In this regard it relies wholly upon the stipu- lated fact that the approximately 170 members in Local 11 include 20 employers who are also members of the Contractors Association. However, the General Counsel had established a prima facie case for the lawful recognition of Local 11 in showing that the Congress of In- dependent Unions is a duly certified representative for the unit in- volved here, and Local 11 is the active bargaining representative on behalf of the certified CIU for such unit. Moreover, the Board has held that employer membership in a labor organization is not in all circum- stances evidence of employer assistance or domination.6 Consequently, even assuming that the presumption of legality raised by the fact of certification in the circumstances present here might have been rebutted by evidence of employer assistance or domination, we do not believe that the presumption has been rebutted by evidence establishing no more than employer membership in the Union. It follows that there is no basis for finding the recognition of Local 11 to be un]awful.7 As the existing contract, which the parties agreed covered the employees involved, barred the raising of a question concerning rep- resentation, the Respondent's picketing on and after May 14, 1962, was, as found by the Trial Examiner, unlawful. Accordingly, we would adopt the Intermediate Report and Recommended Order. O Nassau and Suffolk Contractors' Association, Inc, 118 NLRB 174, 184 7 We note in this connection that 8 ( a) (2) charges filed by the Respondent , attacking the legality of the recognition of Local 11, were dismissed by the General Counsel. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard by Trial Examiner ALTON-WOOD RIVER BUILDING & CONSTRUCTION, ETC. 265 Eugene E. Dixon at St. Louis, Missouri, on December 17 and 18, 1962, pursuant to due notice with all parties being represented by counsel. The complaint, issued by a representative of the General Counsel for the National Labor Relations Board (herein called the General Counsel and the Board) on November 9, 1962, and based upon charges filed and served by Kopp-Evans Construction Company on June 1, 1962, alleged that the Alton-Wood River Building and Construction Trades Council, herein called the Respondent and sometimes the Council, had engaged in unfair labor practices in violation of Section 8(b) (7) (A) of the Act,' by picketing con- struction projects of the Charging Party with an object of requiring or forcing the Charging Party to recognize or bargain with Respondent and/or to force or require the Charging Party's employees to accept or select Respondent or its affiliated labor organizations as their collective-bargaining representative, notwithstanding that none of said labor organizations was certified as the representative of such employees and notwithstanding further that said Charging Party had lawfully recognized another labor organization of said employees and that a question concerning representation could not appropriately be raised under Section 9(c) of the Act. In its duly filed answer the Respondent denied the commission of any unfair labor practices. In its defense on the merits 2 Respondent alleged that the picketing which took place between May 14 and July 12, 1962, was informational picketing for the purpose of apprising the public that Kopp-Evans Construction Company's wages and working conditions were substandard. Respondent further alleged in its answer that the picketing that took place from July 19 to 26, 1962, was engaged in by Respondent for the purpose of protesting unfair labor practices engaged in by the Charging Party. Upon the entire record in the case 3 and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Kopp-Evans Construction Company is engaged at Bethalto, Illinois, in the building and construction industry. Alton District Independent Contractors and Associates (herein called the Association) is an association of contractors, including Kopp- Evans, engaged in and around Alton, Illinois, in the building and construction industry. This association exists in part for the purpose of representing its members in collective bargaining with labor organizations and it participates in the negotia- tion, execution, and administration of collective-bargainng agreements on behalf of its members with labor organizations. During the 12 months preceding the issuance of the complaint, which period is representative of all times material herein, members of the Association, in the oper- ation of their businesses, receive supplies and materials from outside the State of Illinois valued in excess of $50,000. Kopp-Evans and the Association are and have been at all times material herein engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1 Section 8(b) (7) (A) provides that- (b) It shall be an unfair labor practice for a labor organization or Its agents- ( • k 4 i # n (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 em- ployer 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 representative, un- less such labor organization Is currently certified as the representative of such employees : (A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under section 9(c) of this Act a Other defenses raised by Respondent were that (1) It is not a labor organization within the meaning of the Act, and (2) recognition of the Congress of Independent Unions by Kopp-Evans "was accomplished in violation of the National Labor Relations Act in dero- gation of the desires of the employees of Kopp-Evans" and that said union was an employer dominated and assisted labor organization "lacking bona fides " 3The transcript of the court Injunction hearing was made part of this record by stipula- tion which also provided that I was to rule de novo on all objections and motions made therein I see no reason to disturb any of the judge's rulings. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATIONS As indicated, the Respondent contends that it is not a labor organization within the meaning of the Act? Relying on the testimony of Dennis Chester, executive secretary of the Council,5 Respondent would show that: the Council has no em- ployee membership as such but "is comprised of delegates elected by its 24 autono- mous union affiliates"; 6 it "does not negotiate with employers and does not enter into agreements with employers concerning wages, hours or conditions of em- ployment and it does not adjust employee grievances with employers"; it "attempts to adjust" jurisdictional disputes among its affiliates; its essential functions are to engage "in promotional and educational activity to induce employees to recognize AFL-CIO local unions and to utilize the services of AFL-CIO construction workers and to persuade employers and the public of the advantages resulting from the employment of AFL-CIO building craftsmen." It is the contention of the General Counsel that the constitution and bylaws of the Council as read in the light of certain of its meeting minutes and its conduct herein clearly establish its status as a labor organization (or at least as the agent of its constituent labor organizations) within the meaning of the Act. I agree and so find.? In so doing, I point to no specific provisions in these documents to show the autonomy of the Council, its relationship with and control over its constituent unions, its concern with and authority over wages, hours, and working conditions, and its connection with grievances and recognition as between employee members of its constituent unions and employers. It is my view that the documents should be read and considered in this connection in their entirety. Thus, as the General Counsel contends, they will show the Council as "the organization through which the affiliated crafts function as a unit." Furthermore, the various references in the minutes to the signing of a "Building Trades Agreement" 8 and Chester's at- tempt (as will be shown) to get Kopp-Evans to sign "an agreement with the Build- ing Trades" and his offer of "reduced rates" in connection therewith and the part played by the Council in the picketing in question here (as will appear) all tend to show, as the General Counsel further contends: that the Council has in fact implemented the authority contained in the con- stitution and by laws-and-indicate . [that] the most important function of the Council is to obtain recognition from non-AFL-CIO contractors. Rec- ognition is a sine qua non to negotiation of collective bargaining contracts, and within "the broad term `dealing with' " in Section 2(5) of the Act as interpreted by the Supreme Court in N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203.9 In view of the Board's certification of the Congress of Independent Unions as the bargaining agent of the employees of the Contractors Association,'° I find that 4 Section 2(5) of the Act provides: The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concern- ing grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. iLChester, besides being executive secretary of the Council at all times material, was also business agent of Local 8 of the Bricklayers Union, which was one of the Council's constituent unions Besides his duties as a union official, he also works as an employee at the trade Some of the other delegate members of the Council also work at their respective trades. s It was stipulated that these affiliates are all labor organizations within the meaning of the Act and I so find. P Building & Construction Trades Council of Boston (J J Reddington Electric Service Co ). 119 NLRB 1816; Houston Building and Construction Trades Council (Claude Everett Construction Company), 136 NLRB 321 ; Guild Industries Manufacturing Corp., 131 NLRB 127: of Goebel Brewery Company, et al , 105 NLRB 698, 699 6 Chester testified that if a contractor enters into a "Building Trades Agreement" he sig- nifies that he Will sign a contract with the appropriate affiliated AFL labor organization which has jurisdiction over his type of work. In that case, construing Section 2 (5) (at page 211), the United States Supreme Court said that "Nothing in that Section indicates that the broad term 'dealing with' is to be read as synonymous with the more limited term 'bargaining with.' " in The Congress of Independent Unions was certified in 1958 by the Board as the collective-bargaining agent for the employees of the members of the Contractors Associa- ALTON-WOOD RIVER BUILDING & CONSTRUCTION, ETC. 267 it and its Local 11 also are labor organizations within the meaning of Section 2(5) of the Act.U III. THE UNFAIR LABOR PRACTICES The General Setting and Issues The facts are not complex and are relatively free of dispute. In January 1962, Respondent tried to induce Kopp-Evans, a relative newcomer in the construction industry, to enter into a collective-bargaining agreement with the AFL-CIO build- ing trades. Some weeks thereafter, Kopp-Evans became a member of the Con- tractors Association and began operating under the Board-sanctioned collective- bargaining agreement which was in effect between the Association and the Con- gress of Independent Unions, Local No. 11, not a member of Respondent nor affiliated with the AFL-CIO. A month or so later Respondent began picketing Kopp-Evans' construction projects, being careful to indicate that the picketing was purely informational and that it did not have organization or recognition as an object. This picketing continued until the middle of July when Respondent filed unfair labor practice charges against Kopp-Evans. Thereafter, after a hiatus of a few days, Respondent resumed its picketing-this time for the stated reason of publicizing the contractor's alleged unfair labor practices. The General Counsel contends that the overall circumstances of the case, in- cluding certain written and oral statements from various sources, require an infer- ence that notwithstanding Respondent's stated purposes, its picketing was for an object proscribed by Section 8(b)(7)(A) of the Act, and that any claims that Re- spondent was picketing to inform the public of the substandard conditions or con- tractor's unfair labor practices were simply pretexts to mask its real and illegal objects. Respondent maintains that any admissions (if such they be) that the General Counsel relies on are not attributable to Respondent. The Evidence In late January 1962, Chester (on behalf of Respondent) talked to Norman Kopp and his partner, Lawrence Evans, at their jobsite in Bethalto, Illinois, about joining the Union. According to Kopp's testimony, Chester- wanted us to join the Union and in finding out that he was with the AFL, why we-discussed it, he-we told him that we thought it would be to our advantage to belong to the Independent Union. He disagreed with that, that he didn't consider the Independent as much of a union, and that if we-that there would be some definite advantages to belonging to the AFL due to the fact that we would not be limited to residential work, that we could do anything that we wished regardless of the size of the job . He [also] made the statement that if we were interested in joining the AFL that he could get us a good deal at reduced rates. In this conversation Kopp told Chester of his having once belonged to the AFL Pipefitters union and having been unjustly denied job referrals by its business agent. Kopp explained to Chester that this resulted in Kopp's complete dislike and dis- respect for the man; that he would have nothing to do with him in any "way, shape, or form"; and that be would never have an AFL pipefitter on his jobs 12 There is no conflict in the foregoing testimony. In his testimony Chester admitted that he asked Kopp and Evans "about joining the AFL-CIO" and discussed with them the signing of "an agreement with the Building Trades." 13 At the time of this con- versation Kopp-Evans were nonunion contractors. They did not join the Alton District Independent Contractors and Associates and become bound by its collective- bargaining agreement with Local 11, CIU, until the following March. tion. Thereafter Local 11 of the CIII assumed the bargaining duties in connection there- with and has maintained a continuous contractual relationship with the Association since then with the current contract being effective from May 1, 1961, to May 1, 1963 The contract contains a union-shop clause "Respondent's contention that Local 11 of the CIII was employer-dominated and employer-assisted will be disposed of below 12 A statement of like nature made to Chester by Kopp some 31% months later was the basis upon which Respondent filed unfair labor practice charges against Kopp-Evans on July 11, 1962 Their significance will be discussed later. is Neither the Council nor any of its affiliates had been certified as collective-bargaining agent of the employees. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was stipulated that Local 11, CIU, is comprised of a membership of employees of the Alton District Independent Contractors and Associates and also certain en- trepreneurs who hold membership in said contractors organization. It was further stipulated that in July 1962, Local 11, CIU, had about 175 to 180 members about 20 of whom were entrepreneurs and/or employers who were also members of said contractors organization. When Kopp and Evans joined the Association they also joined Local 11 to which they (like their employees) pay dues. This membership entitled them to attend meetings but (unlike their employees) not to vote. Neither of them ever attended any of the meetings. According to Kopp's undenied and credited testimony, before they joined either of the organizations they discussed the matter several times with their employees and it was mutually agreed upon that the CIU was the "union that everyone felt that they wanted to belong to." 14 The record also shows that when Kopp and Evans joined the CIU and the Association they told the employees that their contract with the CIU required them all to belong to that union. Accordingly, they all went to the union hall together for the purpose of joining at what they understood was to be a meeting. The hall was locked but they learned there was a meeting taking place at the office of the president of the Contractors Association. So they went there and got membership cards from Davis, the union representative, signed them, and gave them to Davis. On May 14, 1962, Respondent Council began picketing Kopp-Evans' Bethalto project.15 This picketing continued until July 12, 1962, with signs bearing the legend: NOTICE TO PUBLIC KOPP-EVANS Contractor is undermining wages and working conditions of Building Trades, AFL-CIO Unions in this area. This picketing is informational and does not have organization or recognition as an object. Employees of this and other employers are not requested to refrain from working or performing services.is On May 15, 1962, Kopp telephoned Chester and asked him about the picketing. Kopp said to Chester, I would like to talk about it. He ;wanted to know what there was to talk about. I said well, I would like to get the pickets removed and he said he didn't know if he could do this . . . well, I told him that we belonged to a union which was the Independent Union, that we had a charter in Washington, we were recognized, he then also made the statement he didn't consider that much of a union, and that we were unorganized, and also the fact that we were running down work- ing conditions and wages of the area. A few days after this conversation Kopp had another conversation with Chester over coffee at a cafe near the site of the Kopp-Evans job where Chester had been 14 The two employees involved, Raymond Besaw and John Hartley, corroborated Kopp that the matter had been discussed between them and that they had indicated their will- ingness to join the CIU. 15 It appears from Chester's testimony that the executive board of the Council authorized the picketing and instructed Chester to get legal advice as to the wording to be used on the picket signs Chester himself walked the picket line 16 In the Federal district court hearing Chester was examined under Rule 43-B as follows: Q Do you [the Council] ever try to determine whether area wage standards are being observed? A No, no Q. At the time [of the January conversations with Kopp and Evans] did you dis- cuss with them the wages of their employees A No, I didn't. * * * * * * * Q. You . . . have no idea of what Kopp-Evans pays at all? A I do not. Q Now, to your knowledge has the Executive Council received any reports of any kind concerning the working conditions or wages of Kopp-Evans? A. Not to my knowledge. ALTON-WOOD RIVER BUILDING & CONSTRUCTION , ETC. 269 picketing. According to Kopp's testimony, he asked Chester to "straighten out a couple of things for [him] about the picketing." Chester told Kopp he did not know "what there was he could talk about," but said that Kopp was "unorganized." When Kopp said he had a contract with a union, Chester replied that he was not asking Kopp "to join his union." Chester admitted having invited Kopp to have coffee with him on this occasion 17 but denied that any mention was made of the picketing. In view of Kopp' s concern about the picketing and the length of the conversation between the two men, I find it difficult to believe that Kopp would not have brought up the matter. While both witnesses equivocated to some extent and on occasion impressed me as being not completely forthright, in this instance I credit Kopp. The minutes of a May 15, 1962, meeting of the Council indicate the following action: The secretary reported that Kopp-Evans contactors have started a commercial job in Bethalto, and that that job has an informational picket line. A motion was made that Kopp-Evans job be 100 percent A.F.L.-C.I.O. or no craft work on the job. Motion carried. On the day the picketing commenced or a day or two thereafter, William Cope- land, a cabinetmaker who had a contract with the Carpenters District Council of Madison County,18 testified credibly and without denial that he talked to George Meyers, the business agent of that organization and a delegate to the Respondent Council, about the reason for the picketing of Kopp-Evans. Copeland, who fre- quently does cabinet work for Kopp-Evans, expressed concern lest Kopp-Evans cease using AFL subcontractors like himself. Meyers told him, . I don't know what your position is on this, Bud, but he says those guys, we've got to straighten those guys out, their working conditions are bad, their wages are low, and it was up to us to straighten them out. So I don't know why he blasted at me, I only asked this question so I asked him, I said I want to find out an answer, he told me that for me to not cross the line, not to work with them, he knew that I had been working with them, and he had let it go on, that-but they thought they may have to put a stop to it, because they weren't in favor of it, and . yes, he told me that, I was telling him that if he eliminated me and probably others but me, he would be eliminating AFL workers off the job rather than to bring more on, he was eliminating some AFL workers, and he said we want all or nothing ... . The next morning, according to Copeland's further testimony, he made a similar inquiry of Kenneth Ostendorf, secretary-treasurer of the Carpenters District Council, who stated that Kopp-Evans was "no good" and that "no good" meant nonunion. In his testimony Ostendorf denied ever having had such a discussion with Copeland. Copeland described in detail the circumstances of this call, explaining that it was made from his kitchen about 7:30 in the morning in the presence of his wife. Mrs. Copeland testified in credible corroboration of her husband. From my observation of the witnesses as they testified and from the uncertainty and contradictions else- where in Ostendorf's testimony as compared with the mutually corroborated and forthright testimony of the Copelands, I credit the latter. According to Kopp's undenied and credited testimony, during the last week in May or the first week in June, he talked to one of the pickets, a pipefitter named Corbine, as follows: I asked him about the picketing, his reply was if you get right, perhaps you wouldn't have this trouble. I asked him what he meant by getting right and he said join the union. I said that I belonged to a union, and he took that as a joke, and smiled and walked away. It was stipulated: 1. That in the 1962 issues of the Southern Illinois Labor Tribune dated April 12, May 10, May 31, June 21, June 28, July 5, July 12, July 19, August 2, and October 5, the Alton-Wood River Area Federation of Labor carried its official council and union notices and that the "We Do Not Patronize" list for the Alton-Wood River Building Trades Council had Kopp-Evans listed. 17 According to Chester the conversation lasted quite some time-enough for him to have consumed several cups of coffee. 11 Bethalto is 4n the geographical jurisdiction of the District Council which is one of the constituent members of Respondent 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. That in the same newspapers on the same pages and in the same issues there appeared the following paragraphs: Organized labor has in its power a strong means of combating "unfair" labor tactics of anti-union employers. This weapon is the official "We Do Not Patron- ize" list of Southern Illinois area labor councils. No firms or products are placed on "We Do Not Patronize" list until every effort is made to peaceably negotiate union agreements. It is as important to organized labor to patronize only firms operating under union agreements as it is to purchase only products carrying the union label and to purchase union services. Don't be ashamed that it is a union earned dollar that you are spending. Advertise the fact and patronize only friends and products that uphold union standards by recognizing and abiding by union principals. 3. That on the same pages and same issues of the Southern Illinois Labor Tribune appeared the following: Attention union councils: Organizations that desire to have the We Do Not Patronize list of their area published should mail in such lists to the Labor Tribune. 4. That that is the language which appears in a heading above and alongside the "We Do Not Patronize" list which were sent in by various organizations. 5. That the Southern Illinois Labor Tribune carried the following banner in heavy print on each of the above issues: "An official weekly trade union newspaper voicing the interest of the American Federation of Labor and Congress of Industrial Or- ganizations endorsed by many area labor councils and unions, including"-and among those named as being included is the Alton-Wood River Area Building and Construction Trades Council. On July 13, 1962, Respondent served Kopp-Evans with a copy of unfair labor practice charges it had filed against that firm (Case No. 14-CA-2833) 19 and in- formed Kopp-Evans of the withdrawal of the information picketing adding "that in the future the AFL-CIO Building Trades Council would picket to protest the unfair labor practices of Kopp-Evans." Thereafter (from July 19 to 26 when en- joined by the court), Respondent again picketed Kopp-Evans' work, this time with picket signs bearing the following legend: NOTICE TO PUBLIC Kopp-Evans Construction Company has threatened to discriminate against em- ployees and applicants for employment by reason of their membership in AFL-CIO unions in violation of the NLRA. Employees of other employers are not requested to refrain from working or performing services . This in- formational picketing does not have organization or bargaining as an object Conclusions It is clear that picketing to force or require recognition or bargaining where an employer has lawfully recognized another labor organization and a question con- cerning representation may not appropriately be raised under Section 9(c) 20 is an unfair labor practice 21 The Board has also held that there is no presumption that an original organizational object continues after such an object is repudiated and denied "where there is no substantial independent evidence to support such a presumption." Local 344 Retail Clerks International Association (Alton Myers Brothers, Inc.), 136 NLRB 1270. I believe that there is enough "substantial independent evidence" here to support the presumption that Respondent never relinquished its original purpose as revealed by Chester to Kopp-Evans in January to be recognized as the bargaining agent of 19 That case was heard by me on December 18 and 19, 1962 The complaint alleged the making of Section 8(a) (1) threats to employees by Kopp on January 25 and May 15, 1962 In my Intermediate Report Issued February 14, 1963, I found in substance that although the threats were made, they were made only to Chester, and notwithstanding that he occa- sionally works at his trade, it was my conclusion that under Board precedent and the circumstances as reflected in the record as a whole they did not violate the Act. Accord- ingly, I recommended dismissal of the complaint. 20Pucifie Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990. u Section 8(b) (7) (A) ; Janel Sales Corporation, 136 NLRB 1564; Sitrue, Incorporated, 129 NLRB 1459. ALTON-WOOD RIVER BUILDING & CONSTRUCTION, ETC. 271 that Company's employees. In reaching this conclusion I rely on the record as a whole and the inter-relation of various aspects of the evidence with particular emphasis on the following: 1. Chester's reference to Kopp in their May 15 telephone conversation as being "unorganized." 2. The motion in the May 15 meeting of the Council that "Kopp-Evans be 100 percent AFL-CIO . . 3. Chester's comment to Kopp about the latter's being "unorganized" during their conversation over coffee. 4. Meyers' comments to Copeland about the necessity to "straighten" out Kopp- Evans and the Council's desire to have "all or nothing." 22 5. The picket Corbine's comment to Kopp that the way to avoid his picketing problems was to "get right," to join [i.e. to recognize] the union." 23 6. The inclusion of Kopp-Evans on the Southern Illinois Labor Tribune "We Do Not Patronize" list 24 and the explanation therein that no firm is placed on that list "until every effort is made to peaceably negotiate union agreements." [Em- phasis supplied.] 25 All these things show such a preoccupation on the part of Respondent's repre- sentatives with the concept of "organization" in connection with their attitude regarding Kopp-Evans that it would be difficult not to find that organization as an immediate object played a significant part in Respondent's picketing of that firm 2e In addition to the foregoing there is one other facet of the evidence that further supports the conclusion that at least as pertains to Respondent's first picketing-the so-called "standards" picketing-it was voiced by Respondent simply as a pretext to cover its illegal objective. That evidence involves Chester's denial of any knowl- edge on his part or that of the Council regarding the wages or working conditions of Kopp-Evans. If such was the fact a claim that the picketing was in protest of and to publicize Kopp-Evans standards becomes somewhat tenuous For these reasons I find that Respondent's original purpose of recognition, not- withstanding its denial thereof, continued as its main objective when it was engaged in the so-called standards picketing. Having so found, I further find that the unfair labor practice picketing which followed so closely that illegal conduct was also utilized as a pretext to mask the same illegal purpose.27 A word or two about the defenses raised by Respondent. Its contention that it is not a labor organization has been disposed of. In addition, it claims (1) that Local 11, CIU, was an employer-assisted and -dominated union and not lawfully recognized, and (2) that Kopp-Evans coerced its employees into joining Local 11. In connection with (1) above, the evidence shows that Respondent filed 8(a)(1), (2), and (3) charges against the Contractors Association and its employer members on July 27, 1962, which charges were investigated by the Fourteenth Regional Office and dismissed on November 6, 1962. The time for appeal on this dismissal expired with no appeal having been taken. Whether or not the action of the Regional Office on Respondent's charges disposes of this defense and whether or not (in the face of 22 Meyers' position as a delegate to the Council certainly makes his statement binding on the Council 23 Maxam Buffalo, Inc, d/b/a Mavam, Inc., 140 NLRB 1258; Superior Derrick Corp. v. NLRB, 273 F 2d 891 (C.A. 5). 24 Its description as "an official weekly trade union newspaper" endorsed by the Respond- ent Council clearly makes Respondent responsible for any admissions therein 25 The use of the word "peaceably" here in my opinion leads only to one Inference, namely that if peaceful methods are not successful in getting union recognition and agree- ments, then more militant methods, picketing for instance, may be used to achieve the same objective 20 If Respondent had more than one objective in its picketing it could not be considered lawful as long as any one of its objectives is proscribed by the Act N.L.R B. v. Denver Building and Construction Trades Council (Gould & Preisner), 341 U.S 675, 689, Inter- national Brotherhood of Electrical Workers, Local 501 v. N L R B (Samuel Langer), 341 U S 694, 700; Local 346, International Leather Goods Union v Raymond J Compton (Baronet of Puerto Rico), 292 F. 2d 313 (CA. 1). '7 In making this finding I am not influenced by my recommended dismissal of the un- fair labor practice charges against Kopp-Evans and assume for purposes herein that they are "meritorious" within the meaning of International Hod Carriers etc, Local 840 (C. A. Blinne), 135 NLRB 1153, notwithstanding my recommendation I also disagree with Respondent's apparent contention that under that case "an 8(b)(7) charge cannot bar unfair labor practice picketing" and that it was entitled under the circumstances here to picket in protest of Kopp-Evans' unfair labor practices. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board's certification of the CIU) I should have granted the General Counsel's motion to strike that portion of the answer raising that defense is unnecessary to decide since I would not find assistance or domination of Local 11 and the CIU on the facts in this record . Nassau & Suffolk Contractors Association, 118 NLRB 174. Nor would I find on the facts herein that Kopp-Evans' employees were coerced into joining the CIU Union. Respondent also makes the contention in substance that the handling of the various charges herein by the Regional Office was unfair and prejudicial to its rights and reflected "at least on the part of certain individuals in the General Counsel's office, a hostility to legitimate, lawful conduct by labor organizations." If such be the case, this is not the proper place to dispose of it. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent 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 of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it is recommended 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, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Alton District Independent Contractors and Associates and Kopp-Evans Con- struction Company are employers within the meaning of Section 2(2) of the Act. 2. Alton-Wood River Building and Construction Trades Council, and Local No. 11, Congress of Independent Unions, are labor organizations within the meaning of Section 2(5) of the Act. 3. By picketing Kopp-Evans' construction projects when Kopp -Evans had law- fully recognized another labor organization and a question concerning representation could not appropriately be raised under Section 9(c) of the Act with an object of such picketing being to force or require Kopp-Evans to recognize and bargain with it as the representative of Kopp-Evans' employees , Respondent has engaged in un- fair labor practices within the meaning of Section 8(b) (7) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.] Burlington Industries, Inc., Vinton Weaving Company Plant and Textile Workers Union of America, AFL-CIO. Cases Nos. 5-CA-2255 and 5-CA-2295. August 27, 1963 DECISION AND ORDER On April 10, 1963, Trial Examiner Thomas A. Ricci issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices violative of Section 8 (a) (1) and (3) of the Act, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices violative of Section 8(a) (3) and (4) of 144 NLRB No. 38.