Carpenters Intl. Union Loc. 345

CARPENTERS INTL. UNION LOC. 345 Carpenters International Union, Local 345 and The Kroger Company Local 521 , Cement Masons, affiliated with Opera- tive Plasterers and Cement Masons International Association of the United States and Canada, AFL-CIO and The Kroger Company. Cases 26-CC-166 and 26-CC-167 June 25, 1970 DECISION AND ORDER By MEMBERS MCCULLOCH, BROWN, AND JENKINS On February 24, 1970, Trial Examiner Arthur M. Goldberg issued his Decision in the above-entitled proceeding, finding that Respondent had not en- gaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondents filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions,2 and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. ' The General Counsel's exceptions directed to the credibility resolu- tions of the Trial Examiner are without merit The Board will not overrule the Trial Examiner's resolutions as to credibility unless a clear preponde- rance of all relevant evidence convinces us that they are incorrect On the entire record , such a conclusion is not warranted herein Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A 3) 2 Contrary to our dissenting colleague, the removal of Hall's employees from the Kroger job at the request of Kroger because of the picketing did not convert the common situs to a secondary situs For work remained to be performed by Hall 's employees on the Kroger store and at the beginning of July, soon after the pickets departed, Hall's employees returned to MEMBER MCCULLOCH, dissenting in part: 1109 Contrary to my colleagues, I would find that Respondent Cement Masons violated Section 8(b)(4)(i) and (ii)(B ) of the Act. The primary employer, Walker Hall, is engaged in construction and land development. He has an office with four office employees in the Raleigh Plaza Shopping Center. One of the tenants of the shopping center is the charging party, The Kroger Company, operator of retail grocery stores and su- permarkets. At the time of the events in question Hall was building a motel some distance from the shopping center. The Cement Masons which was involved in a labor dispute with Hall picketed the motel. There is no question of the validity of this picketing. Hall was also building an addition to the Kroger store in the shopping center. By June 1, Hall's work on the store addition was 99 percent complete; all that remained to be done was the pouring of concrete, a canopy, and cleanup. Hall estimated that this en- tailed less than 10 days' work. At the same time that Hall was engaged in constructing the addition to the Kroger store, Kroger's own employees and those of its subcontractors were engaged in such in- terior construction on the store premises as in- stalling shelves, fixtures, lights, etc. On June 4, the Cement Masons began picketing three of the four entrances to the shopping center with signs reading: Notice to the Public. Walker Hall Construction Company does not meet the area standards established by the Cement Local Union No. 521. At the request of Kroger, Hall's employees did not return to work on the Kroger addition on June 5 or at any time thereafter during the course of picketing. Kroger notified the Cement Masons of the removal of the Hall employees. On Saturday, June 7, the Cement Masons doubled the number of pickets at the shopping center and increased the number of entrances picketed from three to four- and this despite the fact that Hall's office was closed on Saturday and he had no employees at work on the Kroger addition. The Cement Masons complete the job See , e g , Plumbers Local Union No 307, AFL-CIO (Zimmerman Plumbing and Heating ), 149 NLRB 1361, 1367 In any event, Hall's regular place of business, i e , its office, was located at the shopping center, and it constitutes an integral part of Hall's operation even if no em- ployees in dispute work there See United Steelworkers of America, AFL-CIO ( Auburndale Freezer Corporation), 177 NLRB 791 Further , the Trial Examiner did not find only that the "picketing con- formed to the Moore Dry Dock standards and was therefore lawful," but concluded , in addition , that there was insufficient credible evidence of an unlawful intention to enmesh neutrals Like the Trial Examiner, we see no basis for inferring an unlawful motive from the facts set forth in the dissent 183 NLRB No. 113 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sought to justify the Saturday picketing on the ground that construction offices in the area are usually open Saturday mornings, but it admittedly made no inquiry as to whether Hall's office was open on that day. The picketing at the shopping center ended on June 13. As a result of the picketing, the construction em- ployees of neutral employers, Kroger and its sub- contractors, refused to cross the picket line. The Trial Examiner found that the picketing con- formed to the Moore Dry Dock3 standards and was therefore lawful. I cannot agree. From June 5 to 13, the period of the picketing, the only employees of Hall at work in the shopping center were the four employees in Hall's office. These employees were not the subject of any dispute with Respondents. Hall's construction workers did not customarily re- port to the office. One of the requirements for lawful picketing in common situs situations set forth in Moore Dry Dock is that the picketing must be "limited to places reasonably close to the location of the situs." The situs of the dispute after June 5 was Hall's of- fice. The Cement Masons made no request for per- mission to picket in front of the office so as to avoid or at least abate the involvement of neutrals such as Kroger. This is a factor to be considered in determining the Cement Masons objective.4 Similarly, the Cement Masons did not comply with another requirement of Moore Dry Dock, that is, "at the time of the picketing the primary employer is engaged in its normal business at the situs."s On Saturday, June 7, Hall's office was closed and he had no employees at work at the Kroger store. The picketing of the shopping center on that day could therefore not have had a lawful impact on Hall, but only on the neutral tenants of the shopping center .6 The excuse for the Saturday picketing, that offices of construction firms are usually open on Saturday, appears to me to be a lame one, particularly since the Cement Masons apparently made no effort to learn whether Hall's office was usually open on Saturday. Finally, the manner in which the Cement Masons conducted its picketing on Saturday con- vinces me that the picketing had an unlawful objec- tive. On that day the Cement Masons increased the number of its pickets from two to four and the shopping center entrances picketed from three to four. No reasonable explanation was offered for the increase in picketing on that day. To me the obvi- ous one is that, as is well known, the busiest day of the week for suburban shopping centers is Satur- day. The maximum impact on the neutral store te- nants could therefore be achieved by picketing on that day. Hence the increase of Saturday picketing. All this supports my conviction that the picketing had an unlawful secondary objective and was there- fore violative of Section 8(b)(4)(i) and (ii)(B) of the Act. I would so find.' 'Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 4 Id at 550, Teamsters Local Union No 408 (Charles S Wood & Co ), 132 NLRB 117,125 ' Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), supra, 549 ' Plumbers Local Union No 519 (H L Robertson & Associates), 171 NLRB No 37, Southeast Idaho Building and Construction Trades Council (Westinghouse Electric Corp ), 164 NLRB 773, 778, Painters District Coun- cil No 38 ( Edgewood Contracting Company), 153 NLRB 797, 800, Sheet Metal Workers ' International Association , Local Union No 3, AFL-CIO (Siebler Heating & Air Conditioning , Inc ), 133 NLRB 650 ' in view of the Trial Examiner' credibility determinations , I would adopt his conclusion that the Respondent Carpenters was not engaged as a union in the picketing and therefore that the complaint should be dismissed as to that labor organization TRIAL EXAMINER'S DECISION ARTHUR M . GOLDBERG , Trial Examiner: Based upon identical charges couched in statutory lan- guage filed on June 6 ,1 by The Kroger Company (herein called Kroger or the Charging Party), the Regional Director for Region 26 on July 10 issued an order consolidating cases , consolidated com- plaint and notice of hearing alleging that Carpen- ters International Union , Local 345 (herein called the Carpenters ), and Local 521 , Cement Masons, affiliated with Operative Plasterers and Cement Masons International Association of the United States and Canada , AFL-CIO (herein called the Cement Masons ), violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended (herein called the Act ). The complaint al- leged that the Respondent Unions and their respec- tive agents acted at all times material herein as agents of one another within the meaning of the Act. Allegedly acting with the objects of forcing or requiring Kroger and other persons to cease doing business with Broadmoor Investment Corporation, the owner of the shopping center where the Kroger facility in question is located, and causing Broad- moor and Walker Hall, an individual proprietorship engaged in various businesses and hereinafter found to constitute a single employer with Broadmoor for the purposes of this proceeding, to recognize and bargain with the Carpenters and Cement Masons although said labor organizations are not the cer- tified representatives of the employees ; the Respon- dent Unions assertedly since June 4 picketed Kroger at the Raleigh Plaza , Broadmoor's shopping center; the Carpenters, by its agent , Wainscott, on June 4 attempted to cause a Carpenters member and employee of Kroger to cease work by warning him of the application of the Carpenters bylaws to work by a member at a jobsite being picketed; the Carpenters, by its agent , Green , on June 5 in a i Unless otherwise noted all dates herein were in 1969 CARPENTERS INTL. UNION LOC. 345 telephone conversation threatened Kroger that to have the pickets removed it should demand that Walker Hall hire union members ; and, that the Ce- ment Masons, by its agent , Davis, in a telephone conversation threatened Kroger that to have the pickets removed it should demand that Walker Hall pay union scale wages . In separate answers the Respondents denied all material allegations of the complaint. The Cement Masons raised as an affirm- ative defense the refusal of the Regional Director to honor Kroger's request to withdraw the instant charges made pursuant to its agreement with the Respondents which ended the picketing on June 13. Upon General Counsel 's motion, Trial Ex- aminer Seff issued an order on August 28 striking this affirmative defense from the Cement Masons answer. The Carpenters July 17 motion to the Regional Director to sever the case against it from that against the Cement Masons was denied by order dated July 23. In his order the Regional Director noted that "the facts and circumstances underlying the allegations in both cases are interrelated" and that "consolidation of the cases for hearing, ruling and decision by one Trial Examiner would avoid unnecessary costs and repetition of evidence." This motion was renewed by the Respondents at the opening of the hearing herein and again denied. However, Respondents were granted leave to renew that portion of their motion praying for severance of the cases for purpose of decision . The parties were advised that I would rule on such motion after full consideration of the record and such arguments on the motion as would be presented in the briefs of the parties and in their responses to an order to show cause which would issue before I made my ruling . Said order to show cause issued on January 22, 1970 . General Counsel and the Respondents filed timely responses to said show cause order. In his response General Counsel sets forth the reasons for denying the motion to sever cited by the Re- gional Director in his order denying the original motion . The Unions each claimed prejudice and denial of due process by the conduct of the cases against them in a consolidated proceeding, con- cluding with a prayer that "the alleged charges against the Carpenters Union be hence dismissed. The dismissal of the charge against the Carpenters would , in the opinion of counsel for the Respon- dent Masons , also be an additional and further reason for the dismissal of the complaint against the Cement Masons Local 521." After giving due con- sideration to the arguments advanced by General Counsel and the Respondents both in their briefs and the responses to the show cause order, I con- clude that no good reason has been advanced to sever these cases for the purpose of decision and for the reasons cited by the Regional Director again deny the motion to sever. All parties participated in the hearing in Mem- phis, Tennessee , on September 9, 10, and 11, 1969, and were afforded full opportunity to be heard, to introduce evidence, to examine and cross -examine witnesses, and to present oral argument . Respon- dents ' motion to dismiss the consolidated complaint is disposed of in accordance with my findings below . Oral argument was waived and briefs were filed by General Counsel and the Respondent Unions. Based upon the entire record in the case, my readings of the briefs , and from my observation of the witnesses and their demeanor, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS The complaint alleged , the answers admitted, and I find that Walker Hall, an individual proprietor- ship , maintains his principal office and place of business at the Raleigh Plaza , Raleigh , Tennessee, where he is engaged in various businesses. In the course and conduct of his business operations, Walker Hall annually purchases and receives goods and materials valued in excess of $50 ,000 directly from points outside the State of Tennessee. At all times material herein , Walker Hall has had under construction a motel located at Macon Road and Interstate 40, near Memphis , Tennessee , which is to be known as the Welcome Inn Motel. I find that Walker Hall is and has been at all times material herein a person engaged in com- merce or in an industry affecting commerce within the meaning of Section 8(b)(4)(B ) of the Act and is an employer engaged in commerce and in an in- dustry affecting commerce within the meaning of Section 2 (6) and ( 7) of the Act and meets the Board's standards for assertion of its jurisdiction. The complaint alleged , the answers admitted, and I find that Broadmoor Investment Corporation (herein called Broadmoor ), maintains its office and place of business at the Raleigh Plaza , Raleigh, Tennessee , where it is engaged in the management and maintenance of the Raleigh Plaza . Broadmoor, in the course of its business , collects annually from tenants of the Raleigh Plaza gross rentals in excess of $100 ,000 of which in excess of $25,000 is derived from tenants who meet the Board 's stan- dards for assertion of its jurisdiction. I find that Broadmoor is and has been at all times material herein a person engaged in commerce or in an industry affecting commerce within the mean- ing of Section 8(b)(4)(B ) of the Act. The complaint alleged certain jurisdictional facts concerning Kroger's operations . The answers, while acknowledging that Kroger has a retail grocery business at the Raleigh Plaza Shopping Center, pled insufficient information to either affirm or deny the jurisdictional averments of the complaint as to Kroger . General Counsel adduced no evidence to support these allegations of the complaint . Further, the answers admitted the conclusionary allegation that Kroger is an employer and a person engaged in 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commerce or in an industry affecting commerce within the meaning of the Act. I find insufficient basis in the record to support a finding that Kroger meets the Board's standards for assertion of its ju- risdiction. However, during the entire time of the events herein there existed a dispute between the Cement Masons and Walker Hall concerning Hall's failure to compensate his employees at the level established by the Cement Masons. I find that it would effectuate the purposes of the Act for the Board to assert jurisdiction over all the events and persons herein. The actions of the Cement Masons against Walker Hall affected the operations of Kroger and the business of Walker Hall which, standing alone, meet the jurisdictional require- ments. Cf. Commission House Drivers, Helpers, and Employees Local No. 400. I.B.T. (Euclid Foods, Inc.), 118 NLRB 130. Walker Hall is president of Broadmoor. He and his brother are the sole owners of Broadmoor, Walker Hall holding a 75-percent interest. Walker Hall pays the rent on the office at Raleigh Plaza which office is shared by Broadmoor as well as several other companies in which Hall has an in- terest. Until the weekend preceding the hearing herein there was a sign on the office door reading, "Office of Walker Hall Investments." There are four employees in the office on Walker Hall's payroll who prepare his and Broadmoor's payrolls. The same accountant prepares Hall's and Broad- moor's reports. While the agreement providing for construction of an addition to the Kroger store at Raleigh Plaza was entered into by Kroger and Broadmoor, Walker Hall negotiated and signed all contracts including those with the subcontractors employed in the construction. In performing the work on the Kroger addition not contracted out, Hall utilized his own permanent crew which was used as well at the motel. While working at the motel the men were on Hall's payroll and when shifted to the Kroger addition they went on Broad- moor's payroll. Robert Pafford was employed as job superintendent on both the motel and Kroger addi- tion. Walker Hall supervised both jobs, his compen- sation for the Kroger addition being the difference between the contract price agreed to by Broadmoor and Kroger and the cost of construction. In his brief General Counsel states, "It is not contended by Counsel for the General Counsel that Broadmoor and Walker Hall are separate individual entities. ..." I find that for the purposes of this proceeding Walker Hall and Broadmoor are a single employer within the meaning of the Act. B & B Industries, Inc., 162 NLRB 832. H. THE LABOR ORGANIZATIONS INVOLVED Carpenters International Union, Local 345, and Local 521, Cement Masons , affiliated with Opera- tive Plasterers and Cement Masons International Association of the United States and Canada, AFL-CIO, are and have been at all times material herein labor organizations within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. The motel is picketed and Walker Hall contacts the Carpenters On or about March 1, the Cement Masons, whose members had at one time worked for Walker Hall, placed a picket at his motel jobsite. The picket carried a notice to the public advising that Walker Hall did not meet the Cement Masons area standards. Cordis Davis, the Cement Masons busi- ness agent, did not contact Walker Hall before placing the picket at the motel and to the time of the hearing herein had never spoken to Hall. At or about the same time as the picket was placed at the motel Asa Terhune, a local plumbing contractor, suggested to Walker Hall that he meet with Winford Green, business manager of the Car- penters. Hall testified that he called Green's office and after some calling back and forth Green and Hall met in the latter's office at the Raleigh Plaza.2 At the time of this meeting there were no carpen- ters working at the motel jobsite nor was there an agreement for the Carpenters to furnish workers to Hall. Green asked if Hall could use union carpen- ters on the motel and Hall explained that he em- ployed his own crew year round, that he could not change his manner of operation, and was not able to use union carpenters. Hall testified that the con- versation was limited to the possibility of his using union carpenters. After Hall explained his feeling that he owed a responsibility to the men who stayed with him throughout the year, the matter was dropped. Since this conversation with Green, Hall has had no further contact with any union official. 2. The Raleigh Plaza Shopping Center Although encompassing a much larger area held for future expansion, the Raleigh Plaza Shopping Center, as presently developed, consists of a wedge- shaped area, fronting on Austin Peay Highway. Standing at the entrance on Austin Peay Highway (designated as entrance 3 during the hearing) fac- ing the Raleigh Plaza, one sees, across a large paved undivided parking area, the two main large buildings of the shopping center which are divided by an arcade leading to the rear of the buildings. This arcade is approximately 270 feet on a direct line from entrance 3. From this same spot at en- trance 3, entrance 4, also on Austin Peay Highway, is approximately 400 feet to the right. The Kroger ' Green testified that Terhune made the first in the series of calls which led to the meeting There is no conflict however on the fact that Hall, and not Green , asked for the meeting CARPENTERS INTL. UNION LOC. 345 1113 store is located at the left end of the shopping center buildings as one faces them from entrance 3. The addition to the Kroger store was built to the left of the existing structure. In the same shopping -center building with Kroger are a large Walgreen store and several smaller establishments. The other building houses a Kress store, Shainberg depart- ment store, several smaller retail establishments, and Walker Hall's office. From entrance 3 the shopping center property runs some 360 feet to the left along Austin Peay Highway, at which point the property line curves up along Jones Road for approximately 550 feet to Powers Avenue. About 240 feet up from the inter- section of Jones Road and Austin Peay Highway is entrance 2. The Kroger store is about 150 feet on a straight line from entrance 2. At the point where Jones Road intersects Powers Avenue the property line makes a right turn and continues up Powers Avenue. Entrance 1 is approx- imately 200 feet from this intersection. From en- trance 1 one can proceed along blacktop paving directly to the rear of the shopping center buildings to Walker Hall's office, which is located in the building separated by the arcade from that housing the Kroger store. Hall's office is some 400 feet from the Kroger store. As one faces these buildings from Austin Peay Highway (at entrance 3), the area to the right of the Walker Hall office (across the width of the shopping center from entrance I on Powers Avenue) is unpaved and there is no access through that area to the office. Thus, one can go directly from entrance 3 on Austin Peay Highway, across a parking area for 300 cars, to the arcade which leads to the rear of the buildings and the Walker Hall office. From en- trance 2 on Jones Road one can go around the Kroger store to the rear of the buildings and on blacktop reach the office. Or, one can proceed directly to the rear of the buildings and to the office from entrance I on Powers Avenue along blacktop. There is a large sign in the arcade between the buildings which announces, among other things, the location of the Walker Hall office with an arrow pointing in its direction. Behind the shopping center buildings, in the un- developed and unpaved area, are a number of sheds. One is used to store equipment used by Broadmoor's maintenance man in his work around the shopping center. Hall testified that another shed "might" have his name on it. Although this area is not used for storage of materials, Walker Hall has some usable scrap there, including a small quantity of bricks. 3. The addition to the Kroger Store In September 1968 Kroger and Broadmoor ex- ecuted a modification of their existing lease agree- ment providing that Broadmoor construct an addi- tion to the existing Kroger store at the Raleigh Plaza. Work began shortly thereafter. As heretofore noted this agreement was signed for Broadmoor by Walker Hall as president. Walker Hall supervised construction of the addition, using his permanent crew who went onto Broadmoor's payroll while working at Raleigh Plaza. Walker Hall's men did the carpentry work, poured cement, and did the cleanup and common labor tasks. Steel erection, sheetrock installation, plumbing and wiring were contracted out. The panels and footings had been poured for the Kroger addition by the time the weather turned bad at which time Walker Hall's men returned to their work at the motel, reverting to Walker Hall's payroll. Work on the Kroger addi- tion was suspended because at that point the exist- ing store side had to be opened, exposing customers and inventory to the winter weather. With the return of better weather work resumed on the Kroger addition. While at the Raleigh Plaza Walker Hall's con- struction crew worked from 8 a.m. to 4:30 p.m., Monday through Friday. Material for use in construction of the addition was stored on the Jones Road-Powers Avenue side of the existing building, close to the job. Vehicles and persons involved in the construction could enter the Raleigh Plaza through any of the en- trances and no signs were posted designating one or more of the entrances for their use. Broadmoor paid for all of the materials used in erecting the addition but the order for the heating plant was placed by Kroger for Broadmoor. By June 1 Walker Hall's work on the Kroger ad- dition was 99 percent completed. All that remained to be done was the pouring of a concrete canopy and cleanup. Hall estimated that this entailed less than 10 days' work. At the same time the interior of the Kroger store was disrupted as Kroger employees, including car- penters, and electrical contractors installed shelves, fixtures, lights, and other equipment in the addition and preexisiting structure. The entire store was af- fected by this work. B. "Since on or about June 4, 1969, and continuing to date, Respondent Cement Masons and Respondent Carpenters have picketed, or caused to be picketed, or threatened to picket, or caused to be picketed, the facilities of Kroger located in the Raleigh Plaza at Raleigh, Tennessee. "3 1. The decision to picket the Raleigh Plaza Cordis Davis, the Cement Masons business agent, testified that he decided to place pickets at the Raleigh Plaza about June 1 when he learned that Walker Hall's office was located there. On June 4 ' The facts as developed at the hearing are presented herein under headings of the complaint allegations to which they pertain The language quoted above constitutes par 12 of the consolidated complaint 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis took two pickets to the Raleigh Plaza, placing them, he stated, as close to the Walker Hall office as possible. On June 4 the pickets were stationed at entrances 2 and 3, the Jones Road entrance and that on Austin Peay Highway facing the arcade between the two shopping center buildings. Davis testified that he first learned of the construction at the Raleigh Plaza on June 4 when he arrived with the pickets. Davis ordered the pickets to patrol from 8 a.m. until 4 p.m., as long as Hall's people were present. The picket was to be on duty Monday through Friday and on Saturday if the office was open that day. Davis testified that in conversations at the motel with Hall employees he had ascertained that Hall did not meet the Cement Masons area standards and because of this he placed the pickets at the Raleigh Plaza. 2. The events of June 4 The pickets were first observed by people work- ing in and about the Kroger store at or about 8:15 a.m. on June 4. Walker Hall's attention was called to the picketing by his superintendent. Hall ob- served that the picket was the same man he had seen picketing at the motel. Verlon Parks, manager of the Kroger Raleigh Plaza store, was told of the picketing at 8:15 a.m. by one of the carpenters working for Kroger in the store. Parks noted that the pickets were stationed at the entrances on Jones Road and Austin Peay Highway. Warren "Buck" Coleman, Kroger's foreman on the store remodeling and a member of the Carpenters, told Parks that the picketing was directed against Walker Hall and Parks transmitted this information to Fred Gruel, Kroger's engineer. Parks testified that on June 4 the bread rack in the store was lying in the middle of the floor, two electricians and two refrigeration men were work- ing on the frozen food cases in the rear of the store and three carpenters, Walker Hall employees, were erecting a framework to support cement in the front of the store. Three carpenters, Coleman, Baty, and Hardy, were working for Kroger in the store. Baty and Hardy left shortly after noon and Coleman worked out the day. The refrigeration men were Kroger employees and the electricians were employed by contractors engaged by Kroger. The electricians worked out the day. The Walker Hall employees left at 4:30 p.m., their regularly scheduled time. Winford Green, the Carpenters business manager, testified that during the morning of June 4 he received a telephone call from Baty, Carpen- ters steward employed by Kroger, who told Green there was a picket line at the shopping center and " The parties stipulated that the picket sign read "Notice to the Public Walker Hall Construction Company does not meet the area standards established by the Cement Local Union No 521 " 5 A separate paragraph of the complaint alleges that in this conversation Wainscott attempted to cause Coleman to cease working for Kroger by asked what the picketing was about. Green testified that he advised Baty he did not know there was a picket or why it was there and that because he was tied up at a meeting that morning he would send James Wainscott, the Carpenters assistant business agent, out to the Raleigh Plaza to find out whose picket it was and what the picketing was about. Wainscott later reported to Green that it was a Ce- ment Masons picket directed against Walker Hall. Green told Wainscott that he could not tell the car- penters employed by Kroger that they were to work or not to work. Wainscott testified that when he arrived at the Raleigh Plaza he approached one of the pickets, read the sign ,4 and asked the picket what it was all about. The picket pointed to his placard and told Wainscott to read the sign . Wainscott noted that there were two pickets but he only approached one. Coleman then joined Wainscott at the picket line. Wainscott testified that Coleman was very upset. Coleman testified that he asked Wainscott what the trouble was and Wainscott replied that they were picketing Walker Hall. Coleman stated that he told Wainscott he could have come up and notified Coleman when he put the picket up, that now the men were working behind a picket line. To this, Coleman testified, Wainscott replied that he did not know Coleman was working at the store. Coleman stated his feeling that it was not fair to place the pickets and not notify the men. ". . . that is about all that was said," Coleman testified. Wainscott testified that he told Coleman it was not a Carpen- ters picket, that the picket line had been established by the Cement Masons. Wainscott told Coleman to read the picket signs . Further, Wain- scott testified, Coleman asked him what Coleman should do. To this Wainscott replied that Coleman should "use your own prerogative. You can work or you don't work what ever you want to do. I won't tell you what to do."5 T. H. Hardy, a member of the Carpenters for 13 years, started his day at the Kroger store at 8 a.m. At or about 9 a.m. Hardy was told of the picket line by a Kroger store employee. Although told by Baty that the latter had called the Carpenters office for information, Hardy, on his own, packed his tools and prepared to leave. No mention was made of whose picket was at the shopping center, but as Hardy testified, as long as it was a union picket line he would not work. General Counsel insisted on knowing why Hardy left work on June 4, asking: Q. I want to know specifically what was your reason for leaving the Kroger job on the morning of June 4, 1969. A. I don't work behind no picket. Hardy left the Kroger job and proceeded to the Carpenters office where he waited until Green ar- warning Coleman of the Carpenters bylaws and constitution concerning work by a member at a jobsite being picketed The testimony concerning this alleged incident is stated below under the heading of that complaint paragraph CARPENTERS INTL. UNION LOC. 345 rived at 4 p.m. Hardy asked Green what the picket- ing was about and Green replied that he knew nothing about it. Hardy then asked when Green thought the situation would be settled and Green again answered that he did not know because he had nothing to do with the picketing. Coleman remained on the job at Kroger. He claimed to have had a second conversation with Wainscott on June 4 at the picket line at or about 3 or 3:30 p.m. with Cordis Davis, the Cement Masons business agent, present. Coleman testified that he asked Wainscott if he had any news about the picketing and that Wainscott replied that all he knew was that the pickets would remain. Wainscott denied returning to the Raleigh Plaza at any time after his visit there the morning of June 4. Davis testified that he visited the picket line during the af- ternoon of June 4 but denied seeing either Wain- scott or Coleman that day.6 Coleman called the Carpenters office at closing time, 5 p.m., and spoke to Green. In reply to Coleman's query about the picketing Green ex- plained that it was a Cement Masons picket against Walker Hall. Coleman testified that he asked Green how long the picket would be at the Raleigh Plaza and that Green answered "until we get that job straightened out." Coleman stated that he again ex- pressed his displeasure at the picket line being established without his having been given advance notice. Green testified that Coleman said he could not understand why a picket had been placed against Kroger and Green explained the picket was not against Kroger and that Coleman was free to return to work or not as he saw fit. In reply to Coleman's complaint that he had been caught be- hind the picket, Green testified that he told Coleman he had not known about the picketing be- fore the call from the Carpenters steward employed by Kroger and his dispatch of Wainscott to the Raleigh Plaza to ascertain the facts. 3. The events of June 5 The Walker Hall crew did not return to work on the Kroger addition on June 5. Walker Hall testified that he received a call from Gruel, Kroger's engineer, asking Hall to take his men off the job. Hall returned his crew to the motel where they reverted to Walker Hall's payroll. Coleman did not report to Kroger at Raleigh Plaza on June 5, explaining, "I do not cross nobody's picket line." Instead Coleman worked at the Kroger shop where fixtures and other materials are prepared for installation in the stores. One of the electrical contractor's employees re- ported for work at the store but after the pickets appeared and the electrician had called his superi- ors he told Store Manager Parks that he had to leave. As hereinafter demonstrated Coleman was a confused witness Wain- scott and Davis were credible witnesses who gave no reason to discredit 1115 Gruel visited the store on June 5 in an effort to restore order so that customer traffic could be han- dled. Gruel asked the pickets what union they be- longed to, and was told by one that he was a member of the Cement Masons and by the other the Carpenters. Gruel asked if the picket had seen Green. The picket replied that he had not but that he expected Green to be out that morning. Gruel told the picket he wished to see Green when he ar- rived. Though Gruel was at the Raleigh Plaza some 5 hours he did not see Green that day. Green testified that he again spoke to Coleman on June 5, explaining that there was no Carpenters picket line and Coleman could work or not as he saw fit, Green would not tell him what to do. Coleman testified that he asked Green when the situation would be straightened out and Green replied that he had no information. 4. The events of Saturday, June 7 The Kroger store is open from 8:30 a.m. until 9 p.m., Monday through Saturday and from 10 a.m. until 7 p.m. on Sunday. On Saturday, June 7, there were four pickets at the Raleigh Plaza, at entrances 1, 2, 3, and 4, the two on Austin Peay Highway and on Jones Road and Powers Avenue. The pickets left at 1 p.m. Davis testified without contradiction that con- struction company offices are usually open Satur- day mornings but that he had made no inquiry as to whether Hall's office was open on that day. 5. The Kroger truck incident Verlon Parks, manager of the Kroger store at the Raleigh Plaza, testified that at or about 9 a.m. on Saturday, June 7, he observed a Kroger truck, bear- ing the legend "Kroger-Live Better For Less," proceed along Austin Peay Highway, turn onto Jones Road to entrance 2, where it stopped. Parks testified he did not know why the truck stopped in the entrance . As the truck turned into entrance 2 the picket there was walking across the entrance. Kroger trucks normally enter the shopping center at entrance 2 on Jones Road. From his vantage point 150 feet from the en- trance, Parks testified , he observed the picket speak to the truckdriver . Parks claimed to have seen the picket's mouth moving. The store manager could not see if the driver spoke . At that point the truck was headed toward the store from where Parks observed the incident. Shortly thereafter the truck backed out of entrance 2, the driver parked on the side of the road and went across the street to a service station . At or about 10 a.m., the truck drove into the Raleigh Plaza. The driver of the Kroger truck was not called as a witness. their testimony on this point I do not credit Coleman 's account of a second conversation with Wainscott on June 4 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The pickets As noted, when Fred Gruel, Kroger's engineer, questioned the pickets at the Raleigh Plaza on June 5 he learned that one was a member of the Cement Masons and the other of the Carpenters. Cordes Davis, Cement Masons business agent, testified that at the motel some of the pickets were members of the Cement Masons and some be- longed to other unions. For the picketing at Raleigh Plaza, among other pickets, Davis utilized the ser- vices of a Carpenters member, Johnson. Davis testified that he was acquainted with Johnson and sought him out for picket duty. All pickets used at the Raleigh Plaza were paid and all received the same rate of compensation. The Respondents called a number of business agents from the Memphis area who testified as to the practice followed in securing pickets.7 M. R. Fethey, business representative of Painters Local Union 49 for 23 years prior to his retirement on January 1, testified that his policy was to use mem- bers of his own union as pickets whenever possible. However, Fethey testified, if "no members [were] available there was always some one loafing on the back porch of the labor temple I could go down and get one of them to work the picket line. Some- times it would be iron workers or different crafts." Frank Long, business representative of the Elec- trical Workers Union Number 474, testified to the same effect. Gruel testified that when he informed Stanley C. Hungerford, vice president of the Memphis division of Kroger, that one of the two pickets was a Car- penters member, Hungerford replied, "He does not have to be a member of the striking local or the picketing local. He can be hired." 7. The events of June 13 The picketing at the Raleigh Plaza ended on Friday, June 13. Store Manager Parks testified that at or about 3 p.m. that day he received a telephone call from Kroger Engineer Gruel who asked Parks to bring one of the pickets to the phone to receive a call from "the lawyer for the Local." Parks brought a picket to the phone but no such call came through. After some 30 minutes the picket said he would call Green to see if the Carpenters business representa- tive knew anything about such a telephone call. Both the picket and Parks spoke to Green who de- nied knowledge of the matter but said he would at- tempt to reach the attorney. The picket returned to his station. Green testified that at or about 4 p.m. he received a call from Attorney Jacobs in Atlanta who advised Green that he had made an arrange- ment with Kroger's attorneys for the picketing to ' Only two of these business agents were permitted to testify following my ruling that further testimony along this line would be cumulative end and Kroger to dismiss the $50,000 damage ac- tions it had brought against the Cement Masons and Carpenters and to withdraw the charges it had filed with the Board. Jacobs said he had been una- ble to reach Davis to withdraw the pickets and asked Green to contact one of the pickets and ask that the picketing end until Jacobs could speak to Davis. Green first tried to contact Davis and when unable to do so called the store, asked a store em- ployee to bring a picket to the phone, and relayed Jacobs' message to the picket. As it was now close to the time the pickets ended their daily patrolling the picket said they would come to the Carpenters office where Green could tell them what had trans- pired. One picket said they would check with Davis to see what he had to say. Green testified that prior to June 13 he had been in contact with Jacobs con- cerning Kroger's lawsuit. Davis, who had also been in touch with Jacobs concerning Kroger's lawsuit and charges, learned of the arrangement to dismiss the court action and Board charges after the picketing had ended. A picket advised Davis that Green had given them word to end their activities and in a subsequent conversation with Jacobs learned of the arrange- ment with Kroger. C. "Respondent Carpenters, by its agent, J.J. Wainscott, on or about June 4, 1969, at the Raleigh Plaza, attempted to cause an employee of Kroger and a member of Respondent Carpenters to cease work by warning him of Respondent Carpenters by-laws and constitution concerning work by a member at a jobsite being picketed."8 In his direct testimony Warren "Buck" Coleman, the Kroger employee and Carpenters member al- legedly warned by Wainscott, first testified that in his conversation with the Carpenters agent in the morning of June 4, Coleman asked Wainscott what the trouble was, Wainscott replied they were picketing Walker Hall. Coleman then complained that Wainscott could have come up and notified Coleman before the picketing began and Wainscott answered that he didn't know that Coleman "was up there." Coleman then expressed his feeling that it was not fair for "the Union boys" to put the picket up and not notify the men. Coleman con- cluded this testimony by stating, "And that is about all that was said." In response to a question as to whether Wain- scott said anything further, Wainscott stated, "No, that was all that was said about the pickets in that conversation." General Counsel then asked, "Did he tell you to remember anything?" After objections and col- loquy by counsel, Coleman was shown his prehear- ing affidavit and asked by General Counsel to read 8 Par 13 of the consolidated complaint CARPENTERS INTL. UNION LOC. 345 1117 the second full paragraph on page 2 of that docu- ment. General Counsel then asked Coleman: Q. Do you recall anything further of that conversation with Mr. Wainscott on June 4? A. Yes. I asked him about us working up there and he said just remember your bylaws. So, I knew what they were without him telling me. General Counsel then asked Coleman if he knew what was in the bylaws and to explain. Coleman an- swered: Well, I do not know whether it is in the book or not where you can 't cross a picket line. But I always felt when you join the union you al- ways honor the picket line regardless of what craft it was. On cross-examination Coleman admitted there was nothing in the bylaws about crossing a picket line but he stated, "I have always been taught ever since I joined the Union what would be the use of having a picket line if you had some people who would cross it." Coleman then reiterated his testimony that when he asked Wainscott how the picketing of Walker Hall would affect him, Wain- scott replied, "Just remember your bylaws." At this point Coleman was asked by Respon- dents' counsel to read the eighth paragraph on the first page of his affidavit. Paragraph 8 on page 1 of Coleman's affidavit reads: The assistant business agent Wainscott did not say anything to me about the union bylaws and constitution. The second full paragraph on page 2 of the docu- ment reads: I now recall that when the pickets were first out there and I spoke to Wainscott he said to me, "remember the bylaws." I didn't reply. He asked me if I was working up there and I replied, "Hell, no." The following series of questions and answers fol- lowed: Q. (By Respondents' counsel) The question was whether or not when you made the state- ment to Mr. Coran if you did not give him the information and sign the affidavit which con- tains these words, I now recall that when the pickets were first out there I spoke to Wain- scott and he said to me remember the bylaws. I didn't reply. A. (By Coleman) I don't think he ever did mention the bylaws. Q. When you say he mentioned the bylaws who do you mean? A. Mr. Wainscott. Q. In other words now, is this correct, sir, that your testimony now is that you do not re- member the conversations you had with Mr. Wainscott about this matter on June 4, that at any time he said to you, remember the bylaws? A. I don't think he said anything about the bylaws. Coleman's last words on the subject came during redirect examination in the following exchange: Q. (By General Counsel) During this con- versation, the first one you had with Mr. Wain- scott on June 4 where the picket was located, did he then tell you to remember the bylaws as stated in your affidavit? A. To the best of my knowledge I do not think that he mentioned anything about the bylaws or anything. Wainscott denied having mentioned the bylaws in his conversation with Coleman on June 4. D. "Respondent Carpenters, by its agent, Winford Green, on or about June 5, 1969, in a telephone conversation at Memphis, Tennessee, threatened Kroger that in order to have the pickets removed from the Raleigh Plaza, Kroger should demand that Walker Hall hire union members."9 Stanley C. Hungerford, vice president of the Memphis division of Kroger , gave testimony in sup- port of this allegation of the complaint. Hungerford testified that Fred Gruel had told him that the pickets were from the Carpenters and Cement Masons and acting on the understanding that the Carpenters were picketing he called Green, the Carpenters business representative. Hungerford stated that he called Green's office on June 5 and upon being informed that Green was out asked that he call back. Later that afternoon Green returned the call and introduced himself. Hungerford told Green the purpose of his call, that he understood that Green had one of his men picketing at the Raleigh Plaza and Hungerford wanted to know why they were picketing because to the best of his knowledge there were no carpen- ters on the job. Hungerford expressed his concern that the Carpenters were picketing. Hungerford testified that Green informed him that the Carpen- ters were picketing and that Green was helping the Cement Masons. Hungerford told Green that Kroger was 100 percent union, had cooperated with the union for many years, and that all persons working in the store were union people. Hunger- ford told Green he considered it very unjust for Green to picket a store where all employees were union members. Hungerford told Green they had been progressing very nicely in their work inside the store and would complete the store remodeling within a week or 10 days but that they were at a crucial point in the work because the store was upset as the new equipment was being put in place. Hungerford testified that he asked Green what Kroger had to do to get their remodeling work finished. Green replied that he had nothing against Kroger and had not told anyone they could not work. Hungerford replied that he was aware of this ' Par 14 of the consolidated complaint 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but he had been informed by people on Kroger's payroll that if they crossed the picket line they would be fined and probably be put out of the union . Green denied having told that to anyone. Hungerford said he was aware of that but "they" had told him this was in the rule book. Green replied , in Hungerford 's words , "Well, they know the rules and they abide by the rules." Hungerford then asked what Kroger had to do to get the pickets off the store . Green answered that he knew it was putting Hungerford in an unpleasant situation but they had been trying to get Walker Hall to get his people to join the union . Green men- tioned that Hall had other jobs going and they had been trying to get Hall to pay union wages "and then join the union ." Hungerford said that Kroger was only a lessee and had no control over Hall. Green repeated a number of times that the main objective was to get Walker Hall to pay closer to union wages and then get his employees organized. Hungerford testified that in the discussion of how Kroger could get the pickets off and get the store back in operation Green mentioned, "Walker Hall to get his men organized and we would have no problem." ( Hungerford 's words.) At one point in the conversation Hungerford asked Green for the name of the Cement Masons agent, saying he would speak to Davis about remov- ing his pickets. During cross-examination Hungerford stated that Green advised him that it was the Cement Masons who had the dispute with Walker Hall and that they were picketing his motel . Green advised Hunger- ford that it was Davis to whom he should speak with respect to the pickets . During this examina- tion , on the subject of possible union fines, Hunger- ford stated that he "was the agressor on this and not asking the question but telling the point." In fact, Hungerford testified that he could not recall if Green said the Carpenters had no $50 fine because "I was the agressor in this thing." Hungerford did recall Green saying , "We don't have anything that says there will be a fine ." Hungerford reiterated his earlier testimony that when he asked Green what was necessary to get the pickets off the job, Green replied , "Get Walker Hall to get his men to join the Union." Fred Gruel testified that late in the afternoon of June 5 Hungerford told him of his conversations with Green and Davis. Hungerford told Gruel that he looked for a resolution of the situation whereby Kroger 's employees would be allowed to resume work on June 6 without their doing so being con- sidered by the unions involved as a violation of the picket line. On June 6 , Gruel stated , he called Green, asked if Green had spoken to Davis, and stated his understanding that an arrangement was to be made to permit Kroger 's fixture crew to resume work without such action being considered a crossing of the picket line. Green said he knew of no such arrangement and that nothing in that vein had been discussed . During cross-examination Gruel stated that he had been present when Hun- gerford spoke to Green. Gruel was asked: Q. And do you remember [ Hungerford] relating anything to you to the effect that it was not [Green 's] picket line? A. I don't specifically remember but I am sure he did because as I understand it at that time by both of us [sic]. Green testified that on June 5, as he returned to his office from the field and was at his secretary's desk , Hungerford called and Green took the call there . The secretary was present and Wainscott, the assistant business agent, was in the outer office, some 12 feet away . Hungerford asked what the trouble was out at the Raleigh Plaza and Green replied that he had no trouble there but had received a report that the Cement Masons were picketing Walker Hall at the shopping center. Green told Hungerford the Carpenters had nothing to do with the picketing , as far as the Carpenters were concerned Kroger was a good employer and he had not told his members to work or not to work and was not planning to do so . Green testified he told Hungerford, "It was a man 's prerogative to do what he wants to do as far as working on the job is concerned." Hungerford then asked Green to contact Davis to try to help Kroger in view of the longtime good relations between Kroger and the Carpenters. Green stated that he told the Kroger official that he knew of nothing he could accomplish by calling Davis "other than to talk to him and maybe try to reach an arrangement whereby he would let the people in the Kroger store go ahead and work." Hungerford expressed his appreciation for such an effort. When Hungerford repeated his inquiry to Green as to why "we had a picket up," Green emphasized that it was the Cement Masons , not the Carpenters, who were picketing . Hungerford brought up the subject of fines , telling Green that he had been told that members would be fined or expelled from the local for working behind a picket line. Green replied that he knew of nothing in the constitution or bylaws that provided for such action. At Hungerford's request Green supplied Davis' telephone number. Green denied telling Hungerford or anyone in the Kroger organization that to have the pickets removed Kroger should demand that Walker Hall hire union members. The following day Gruel called Green asking why the Kroger employees could not work. Green testified that he explained to Gruel that it was not a Carpenters picket line , the Cement Masons were picketing and Green was not telling his members to work or not to work. He told Gruel that he could not do anything about the picket line because they were not his pickets. Connie Taylor, the Carpenters office secretary, testified that she remembered Hungerford's call because he contacted the office only on that occa- CARPENTERS INTL. UNION LOC. 345 sion . She testified that Hungerford had tried to reach Green a number of times on June 5 and had finally spoken to the Carpenters official as he was standing at Taylor's desk. Taylor testified that she heard only part of Green's end of the conversation. She recalled Green saying that he understood the pickets were those of the Cement Masons and the picketing had nothing to do with his union . Further Green told Hungerford that he could not ask "our people" to go back to work and could not ask them not to work, that this was their own "prerogative." Taylor also heard Green tell Hungerford he would talk to Davis and see what he could do to help Hun- gerford. Wainscott testified that he was in his office about 15 feet from Taylor's desk. Wainscott heard little of the conversation. He did recall Taylor telling Green that Hungerford was calling and Green advising Hungerford that it was not a Carpenters picket but rather that of the Cement Masons. The only other part of the conversation Wainscott overheard was Green telling Hungerford that the picketing was not directed against Kroger and that the Carpenters had always had good relations with Kroger. E. "Respondent Cement Masons, by its agent, Cordis E. Davis, on or about June 5, 1969, in a telephone conversation at Memphis, Tennessee, threatened Kroger that in order to have the pickets removed from the Raleigh Plaza, Kroger should demand that Walker Hall pay union scale wages to Hall's employees."10 After his conversation with Green, Hungerford testified, he called Davis, reaching him at his home at or about 6:30 p.m. Hungerford introduced him- self and repeated much of what he had said to Green. Hungerford stated his understanding that one of the pickets was from the Cement Masons and told Davis about the adverse effect the picket- ing was having on the remodeling work in the store. Hungerford said that he was not concerned about the outside of the store, his main interest was getting the selling area organized. He told Davis, Hungerford stated, that all Kroger employees were union, and wondered why, now that Walker Hall had taken his cement finishers off the job, the Kroger work could not continue. Davis said he was not aware that Hall had taken his men off the job. Hungerford repeated that to the best of his knowledge Hall had done so. Davis assured Hungerford that he had not told any employees not to work. Hungerford testified, "I know you haven't, apparently, but the men tell me you have rules and apparently under the rules they will be fined $50 and possibly get thrown out of the union." Davis replied that he knew of no reason why the men couldn't work. Hungerford said that 1119 the men would not work because they will be fired and thrown out of the union . To this Hungerford testified, Davis replied, "They know their rules and by-laws. " Davis then stated that he had no dispute with Kroger, his problem was with Walker Hall, and the Cement Masons were not insisting that Hall's em- ployees join the union but that Hall ought to pay closer to the union scale. In Hungerford's words, Davis said, "If [Hall] would only pay a little closer to the union scale I think it would be satisfactory." Hungerford disclaimed any influence over Walker Hall. To this Davis allegedly replied that if Hungerford could tell Hall to take his men off the job he must have some control over Hall. Hunger- ford then said he didn't know if Hall had taken his men off the job, all he knew was that a Kroger man had asked Hall's foreman to leave the job, the foreman had done so but Hungerford did not know if Hall would agree with this course of action when he learned what had been done. Davis then said he would see what he could do to help Hungerford, the Kroger official testified, and that Davis would talk to Green to see what could be done. Hungerford said he would appreciate Davis doing so. Hungerford testified that he asked Davis what Kroger could do to have the pickets removed and that Davis replied his quarrel was with Walker Hall because he was paying below union scale and asked what Hungerford was doing to get Walker Hall to bring his pay scale up closer to the union rate. In either his conversation with Davis or Green, one of the union agents mentioned to Hungerford that Walker Hall had an office at the Raleigh Plaza. Fred Gruel testified that Hungerford told him of this talk with Davis about 7 or 8 p.m. on June 5. Hungerford told Gruel that he looked for an ar- rangement whereby Kroger employees could resume work without their doing so being con- sidered a violation of the picket line. Hungerford did not say that he had a promise from Davis to remove the pickets. Cordis Davis testified that he received Hunger- ford's call at his home. Bill Austin, a Cement Masons member, was with Davis during the conver- sation with Hungerford. Hungerford asked him, Davis stated, why the Ce- ment Masons had put a picket on Kroger as Kroger had no union problems. Davis replied that they were not picketing Kroger, had no dispute with Kroger, and that the picket was directed against Walker Hall. Hungerford then said that the picket- ing was interfering with Kroger's work and Davis replied that he could not help that, the Cement Masons were not trying to stop anyone from work- ing for Kroger. When Hungerford told him that Hall's people were off the job and Davis should 10 Par 15 of the consolidated complaint The date of the alleged viola- tion reads as amended at the hearing 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remove his pickets from the Raleigh Plaza, Davis answered that he didn't care whether Hall took his men off the Raleigh Plaza job because Hall main- tained his office at the shopping center and there- fore Davis would keep the pickets there. Hungerford claimed that the picketing was il- legal. To this Davis said Hungerford should talk to his attorney. The Kroger official asked if it was all right for Kroger's employees to go back to work. Davis replied that if they wanted to work it was agreeable to him, the Cement Masons dispute was with Walker Hall. Hungerford asked if Davis would try to help get the workers back in the store. Davis said if he could be of any help he would. Davis denied having told Hungerford that he would talk to Green to see if the Carpenters could work on the Kroger job Further, Davis denied hav- ing said that in order to have the pickets removed Kroger should demand that Hall pay union scale to his employees. Bill Austin, a Cement Masons member, testified that he was at Davis' home during the evening of June 5 in connection with the apprenticeship pro- gram. Austin heard Davis' conversation with Hun- gerford. Davis told Hungerford that the problem was not with Kroger, it was with Walker Hall and that they were picketing the Raleigh Plaza because Hall had his office there. Davis said the picket line was there because Hall did not meet area standards. After the conversation Davis told Austin that Hun- gerford was connected with Kroger. F. Conclusions and Findings 1. The alleged threat to invoke the Carpenters bylaws The sole witness presenting evidence in support of the complaint allegation that the Carpenters, by Assistant Business Agent Wainscott, "attempted to cause [Coleman] to cease work by warning him of the Respondent Carpenters by-laws and constitu- tion concerning work by a member at a jobsite being picketed" was Coleman." Coleman first testified that in his conversation with Wainscott during the morning of June 4 he asked Wainscott what the trouble was, Wainscott replied that the picketing was against Walker Hall and thereafter Coleman complained that he had not been advised before the picket was put up. Coleman finished his testimony on the conversation with the statement, "And that is about all that was said." When asked by General Counsel if there was more to the conversation, Coleman reiterated the limited nature of his talk with Wainscott, saying, " For the purposes of my findings herein I deem it immaterial that the Carpenters bylaws and work rules contain no reference to work behind a picket line and that the constitution provides penalties only for working be- hind a picket line authorized by the International union or one of its af- "No, that was all that was said about the pickets in that conversation." Shown his affidavit taken during the precom- plaint investigation of the case and asked to read only one paragraph on the second page of his state- ment Coleman then added to his testimony con- cerning the conversation with the statement, "I asked him about us working up there and he said just remember your bylaws. So, I knew what they were without his telling me." On cross-examination Coleman first repeated his testimony that Wainscott had told him to remember the bylaws. Asked to read a paragraph on the first page of his affidavit, Coleman then testified, "I don't think he ever did mention the bylaws." In the paragraph on the first page of the affidavit Coleman had stated, "The assistant business agent did not say anything to me about the union bylaws and constitution." The second page of the affidavit contains a paragraph reading in pertinent part, "I now recall that when the pickets were first out there and I spoke to Wainscott he said to me 're- member the bylaws."' Finally during redirect examination Coleman again denied that Wainscott had referred to the bylaws or constitution, saying, "To the best of my knowledge I do not think that he mentioned anything about the bylaws or anything." Thus in his affidavit Coleman both claimed and denied that Wainscott had asked him to remember the bylaws and during his appearance on the stand Coleman twice affirmed that Wainscott had told him to remember the bylaws and twice denied that the assistant business agent had referred to the Car- penters bylaws. In his brief General Counsel asks that I credit Coleman's later statement in his affidavit that Wainscott uttered the offending words rather than the affiant's earlier denial. This is urged on the basis of an unsupported assertion that the denial on page 1 of the affidavit was engendered by Coleman's reluctance to incriminate the union with which he had been affiliated for 24 years. I find this basis for choosing between Coleman's conflicting sworn statements unpersuasive. And if I am to prefer Coleman's last position in his affidavit why not credit his last words on the subject while testify- ing, that Wainscott did not mention anything about the bylaws. The burden of establishing matters pled in the complaint at all times remains with General Coun- sel. The search for the truth cannot be resolved by the game of best two out of three or four out of seven. I find that General Counsel has failed to come forward with probative evidence to support this allegation of the complaint and shall recom- mend dismissal of this allegation. filiates Were Ito find that Wainscott had made the statement sometimes attributed to him by Coleman this narrow prohibition in the constitution would not preclude a finding of violation General Truck Drivers and Hel- pers Union Local 467, et a! (J B Electric), 171 NLRB No 90 CARPENTERS INTL UNION LOC. 345 2. The allegations that the Carpenters and Cement Masons threatened Kroger that to be rid of the pickets it must demand that Walker Hall hire union members and pay union scale wages Here again General Counsel relies upon the testimony of one witness, in this instance Stanley C. Hungerford, vice president of the Memphis division of Kroger, to sustain these allegations of the com- plaint. I find Hungerford's version of his June 5 conversations with Green and Davis less than per- suasive. Hungerford testified that Fred Gruel had told him that the pickets were from the Carpenters and Cement Masons and acting on the understanding that the Carpenters were picketing he called their business representative. Yet Gruel, Hungerford's subordinate, testified that when he told Hungerford that one of the pickets was a member of the Car- penters, Hungerford replied, "He does not have to be a member of the striking or the picketing local. He can be hired." Hungerford ascribed to Green and Davis identi- cal replies to his statements to them that employees had informed him they would be fined or expelled from the union if they worked behind a picket line. To this each replied, Hungerford testified, that the members know the rules and they abide by them. It should be noted that Kroger employs no Cement Masons and for Hungerford to have raised this issue with Davis would have no relevancy to any discus- sion between them. As to Green, the absence from the Carpenters bylaws and work rules of any men- tion of picket line penalties and the limitation in the union 's constitution of fines for violations only of picket lines authorized by the International union and its affiliated bodies makes Hungerford's testimony suspect. It is one thing to find reasonable a rank-and-file member's conclusion that a "legal" picket line is a duly authorized one.12 It is another matter to attribute such a conclusion to a union of- ficial of long standing. Further, Hungerford claimed that Green admitted to him that the Carpenters were picketing and that Green was helping the Ce- ment Masons. It seems farfetched that the Carpen- ters business agent after disclaiming any connection with the picketing to Coleman and Hardy, members of the union of long standing, would make such a damaging admission in a telephone conversation with a man he had never met and whose interests were adverse to those of the Carpenters. Finally, Hungerford claimed that when he asked what Kroger could do to end the picketing Green had said that if Walker Hall got his men organized there would be no further problem and that Davis in response to a similar inquiry told Hungerford that Kroger should demand that Walker Hall pay ' t General Truk Drivers and Helpers Union Lot at 467, et at (J B Electric), 171 NLRBNo 90 " While neither Taylor nor Wamscott claimed to have heard all of 1121 his employees at a rate closer to the Cement Masons scale. Though aware that Walker Hall undercut the Ce- ment Masons established wage pattern, Davis had scrupulously avoided any contact with Hall because of his conviction that to do so would lead inevitably to a confrontation with the Board. The Cement Masons picketing of the motel is free of any intima- tion of illegality. Green had one contact with Walker Hall, instigated by Hall, at which Green had asked Hall to use Carpenters members and when Hall said he was unable to do so, Green had not pressed the matter. Hall's testimony concerning this conversation confirms that of Green. At all times after the picket appeared at the Raleigh Plaza Green took the position with longtime members of his union, men whom he should have some reason to trust, that the Carpenters were not involved in the picketing, that it was a venture of the Cement Masons only, and that the Carpenters would take no position as to whether its members should work behind the picket, they were free to do so if they wished. In light of Davis' refusal to expose himself to legal entanglement by any contact with Hall; that the one meeting between Green and Hall was of the latter's doing and that Green did not press any de- mands; that Green, to persons known to him, con- sistently denied any interest or Carpenters purpose in the picketing; and, the fact that Hungerford was totally unknown to either Green or Davis before he called them, I cannot credit the testimony that Green and Davis "would have uttered statements so blatantly violative of the Act as those which" Hun- gerford attributed to them. Central Electronics, Inc., 179 NLRB 833. I shall recommend dismissal of these allegations of the complaint." 3. The picketing The evidence detailed above establishes that at all times the picketing conformed with the stand- ards set forth by the Board for determining whether the picketing of a primary employer at a common situs violates Section 8(b)(4)(B) of the Act. Sailors ' Union of the Pacific, AFL (Moore Dry Dock Company ), 192 NLRB 547, 549. At all times material Walker Hall, the primary employer, main- tained his office and principal place of business at the Raleigh Plaza and was engaged in the construc- tion of the addition to the Kroger store at the shopping center. The picket signs clearly stated that the Cement Masons dispute was with Walker Hall and with no one else . All entrances to the Raleigh Plaza can be used to reach the Walker Hall office or the construction site, although the entrances on Powers Avenue , Jones Road , and the center en- trance on Austin Peay Highway, three of the four Green 's side of his conversation with Hungerford , to the extent they were able to testify about the conversation , their testimony corroborates Green Austin's testimony similarly corroborates Davis 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picketed, were the most convenient for that pur- pose. These three entrances were also the most log- ical to use for reaching the Kroger store. The hours of picketing were confined to those of construction personnel, 8 a.m. until 4:30 p.m., Monday through Friday, and 8 a.m. until 1 p.m. on Saturday. Although Davis made no attempt to learn whether the Walker Hall office was actually open on Satur- day, his testimony that construction company of- fices in the Memphis area are usually open on Saturdays is the only record evidence on this sub- ject. In determining whether the picketing was limited to those times when the situs of the dispute was at the common situs, it must be noted that Kroger's business hours at the Raleigh Plaza ex- ceeded the hours of picketing, the store remaining open until 9 p.m. on Monday through Saturday and from 10 a.m. until 7 p.m. on Sunday, when there was no picketing at all. However, General Counsel argues that picketing which on its face conforms with the Moore Dry Dock criteria acquires the taint of illegality when surrounding circumstances, in themselves violative of Section 8(b)(4)(B), establish a cease doing busi- ness object on the part of the picketing labor or- ganization . Highway Truckdrivers and Helpers, Local 107, I.B.T.C.W. (Riss & Company, Inc.), 130 NLRB 943, 949-950, enfd. 300 F.2d 317 (C.A. 3). In support of his contention that the surrounding circumstances herein negated compliance with the Moore Dry Dock conditions General Counsel points to the alleged invocation by Wainscott of the Car- penters bylaws in his June 4 conversation with Coleman, the alleged violative statements by Green and Davis in their conversations with Hungerford on June 5, the failure of a Kroger truck to cross the picket line into the shopping center on June 7, and the theory that since the picketing hurt Kroger it must have been intended to do so. I have heretofore found that General Counsel has failed to establish that Wainscott on June 4 sought to cause Coleman to cease work by reminding him of a bylaw restriction on work behind a picket line or that Green and Davis uttered the offending state- ments to Hungerford in their conversations of June 5. Similarly, on the evidence adduced by General " There is not even evidence of an enigmatic Mona Lisa smile Truck Drivers and Helpers Local Union No 728, etc ( Brown Transport Corp ), 144 NLRB 590, 603 15 General Counsel cites my decision in Local 134, International Brother- hood of Electrical Workers, AFL-CIO, et al (Polly Electric Company), 175 NLRB 507, and argues that there I "found conduct, similar to that engaged in by Respondents' picket, to constitute a violation of Section 8(b)(4)(i)(B ) of the Act " (G C br ) In Polly Electric the truckdriver, whose employment was in no way connected with the Charging Party, gave direct evidence of inducement and his testimony was credibly cor- roborated The allegations are similar , the proof is not 16 In his brief General Counsel notes that Carpenters Business Agent Green knew that Hall's office was at the Raleigh Plaza because of his visit there in April General Counsel then urges that Davis' explanation of why he did not picket the Raleigh Plaza before June 4 should be discredited Davis can be charged with Green's knowledge of the location of the office only if Green and the Carpenters were agents of the Cement Masons as al- leged in the complaint The evidence does not support this contention Counsel relating to the Kroger truck incident I can- not find as urged in his brief "that Respondents' pickets by blocking the path of a Kroger truck seeking entrance to the Raleigh Plaza, caused it to turn around and not make its scheduled delivery to the Kroger store." The sole evidence adduced as to this incident is the testimony of Parks, manager of the Kroger store. Parks, standing some 150 feet away, saw the Kroger truck turn into the shopping center entrance where it stopped. The picket then came to the side of the truck, Parks saw the picket's mouth moving, the truck backed away to the side of the road and entered the Raleigh Plaza about an hour later. The driver of the Kroger truck, presumably under the Charging Party's control, was not ;alled to testify. Therefore, there is no evidence as to what was said by the picket and the driver, if he spoke at all, or what caused the driver to delay the delivery.14 On this evidence I cannot find un- lawful inducement by the picket.'5 It is clear that Kroger was hurt by the picketing, but this alone does not establish an intention to en- mesh the secondary in the dispute with Walker Hall. The Cement Masons had been picketing Walker Hall's motel construction site for months. His office, clearly identified as such, was at all times material herein in the Raleigh Plaza. Davis' contention that he placed the picket at the Raleigh Plaza soon after learning that Hall's office was there was not rebutted.ls Had it been the Cement Masons intention to involve Kroger the picketing would not have been limited to construction indus- try hours as the Hall office was in the shopping center at all times that the Kroger store was open to the public. Further, if Davis had known of the of- fice before the picketing began and it had been his purpose to hurt the Kroger store operation why did he wait until the job was all but finished. Picketing at an earlier time would have caught Kroger with the store wall open to the weather. I shall recommend dismissal of the complaint in toto. CONCLUSIONS OF LAW 1. Walker Hall, Broadmoor Investment Corpora- tion and the Kroger Company are, each of them, Green 's visit to Walker Hall in April, brought about at Hall's initiative, was limited to a discussion of Hall's possible use of Carpenters members Wain- scott's visit to the picket line on June 4, reasonably explained by the Car- penters steward asking his union for information about the picketing, does not constitute evidence of a common object Portland District Council of Carpenters, AFL-CIO (Cascade Employers Association, Inc ), 178 NLRB 599 The testimony by Coleman and Hungerford that Green had indicated to them that the Carpenters were "intimately involved in the picketing and its objective" is as suspect as their testimony concerning the alleged bylaws incident and the alleged threats to Kroger Green's involvement on June 13 in the removal of the pickets is explained not by an agency relationship between the Cement Masons and the Carpenters but rather by Kroger's lawsuits and Board charges making the two unions codefendants in those proceedings Certainly Green 's willingness to carry out the settlement designed to relieve his union as well as the Cement Masons from further legal involvement does not evidence his working for the Cement Masons throughout CARPENTERS INTL. UNION LOC. 345 1123 engaged in commerce within the meaning of the Act. 2. Carpenters International Union, Local 345, and Local 521, Cement Masons, Affiliated with Operative Plasterers and Cement Masons Interna- tional Association of the United States and Canada, AFL-CIO, are labor organizations within the mean- ing of Section 2(5) of the Act. 3. The allegations of the consolidated complaint that the Carpenters and Cement Masons have en- gaged in unfair labor practices within the meaning of Section 8(b)(4)(i ) and (ii)(B) of the Act have not been sustained. RECOMMENDED ORDER It is recommended that the consolidated com- plaint be dismissed. 427-258 O-LT - 74 - 72