Carpenters, District Council of Kansas City

740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, AFL-CIO, District Council of Kansas City and Vicinity (B. H. Brown Construction Co.)1 and Congress of Independent Unions. Case 17-CP-133 March 26, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 13, 1972, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge, and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed. I The name of the Respondent appears as amended at the heanng 2 The Administrative Law Judge inadvertently found at one point that Respondent filed its petition after receiving the Regional Director 's letter of August 28 that the CI U petition was to be dismissed , as correctly stated by him elsewhere, Respondent filed its petition on August I He also inadvertently stated that the Regional Director announced on July 24 that an election pursuant to the CIU petition would take place on August 31, as correctly stated by him elsewhere , the latter date was August I DECISION FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY B. H. Brown Construction Co., a sole proprietorship, is engaged in the building and construction industry as a general contractor and maintains its principal office and place of business in Clinton, Missouri; it does business in more than one State. Annually it performs services having a value in excess of $50,000 for customers located within the State of Missouri, which customers in turn annually perform services outside the State having a value in excess of $50,000. During its last fiscal year, ending September 30, 1972, Brown contracted for onejob in the State of Kansas, at a price of $87,000, for which it billed $61,000 during the same year. I find that the Company is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED I find that United Brotherhood of Carpenters and Joiners of America, AFL-CIO, District Council of Kansas City and Vicinity , is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES In December 1971, Brown started work on the construc- tion of a school building addition in Adrian, Missouri, using six or seven subcontractors of the usual kind By the spring of 1972, he also had four or five employees in his direct employ. These were carpenters for the most part. The job was completely unionized, in the sense that all the subcontractors used union help and that Brown Company itself only hired members of the Respondent District Council of Kansas City. Brown never signed a contract with the Respondent, despite the fact he always paid full union scale and contributed to all fringe benefit funds, such as pension, administered by that Union. On June 28, the Carpenters council placed a picket in front of the construction site ; it remained there 5 days a week continuously to October 29. Its banner read: Brown Const. Co. No Contract with Carpenters District Council of Kansas City and Vicinity 3114 Paseo AFL-CIO THOMAS A Ricci, Administrative Law Judge: A hearing in this proceeding was held on October 31, 1972, at Kansas City, Missouri, on complaint of the General Counsel against United Brotherhood of Carpenters and Joiners of America, AFL-CIO, District Council of Kansas City and Vicinity, herein called the Respondent The charge was filed on July 18, 1972, by Congress of Independent Unions, herein called the Charging Party, and the complaint issued on August 31, 1972. The sole issue of the case is whether the Respondent Union picketed the construction site of B. H. Brown Construction Co., in violation of Section 8(b)(7)(C) of the Act. Briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses I make the following: The Council was not certified as representative of Brown's employees. The complaint alleges that the object of the picketing was to force Brown to recognize that Union as the majority representative and to bargain with it, and that, as no petition for a Board election was filed within a reasonable time, the picketing violated Section 8(b)(7)(C) of the Act. In pertinent part that section reads as follows- It shall be an unfair labor practice for a labor organization or its agents . . to picket or cause to be picketed . . . any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees . . . where such picketing has been 202 NLRB No. 103 CARPENTERS, DISTRICT COUNCIL OF KANSAS CITY 741 conducted without a petition under Section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of Section 9(c)(1) or the absence of a showing of a substantial interest on the part of the labor organiza- tion, direct an election in such unit as the Board finds to be appropriate. . . Provided further . . . unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. Several underlying facts were explored and proved at the hearing, but they are only collateral to the real issue to be decided. The Respondent denies the allegation that a purpose of the picketing was to compel Brown to sign a contract with it; it asserts instead, in its answer to the complaint, that all it intended was to advise the public of the fact that Brown's direct employees were not covered by any collective-bargaining agreement. The Respondent also seemingly contradicts the prosecution claim that the picketing effectively prevented employees from working, or from making deliveries across the picket line. As will appear, these questions are directly answered by the evidence. The real point at issue between the General Counsel and the Respondent is whether there was, during the picketing, "a petition under section 9(c) ... filed within a reasonable period of time ...." In International Hod Carriers Building, Local 840, 135 NLRB 1153, the Board said: ". . the filing of a timely petition stays the limitation [upon recognitional picketing] and the picketing may continue pending the processing of the petition." If there were no petition pending, the recognitional picketing was illegal, for it extended beyond 30 days. If there were a petition in being, the picketing must be deemed entirely lawful, regardless of its purpose, or even its effect. A. Purpose It seems this was the first job that Brown undertook within the jurisdiction of the Kansas District Council of Carpenters Clyde Epps, business representative of the Council, testified that, when he first learned of Brown's intention to use members of his Union, he told the general contractor he would have to sign a contract. The union agent's stated reason, then as well as later, was that pension or other fringe benefit contributions to the Union's fund must be covered by a regular collective-bargaining agree- ment in order to be "legal." Again in June, when Brown called on the Respondent to supply needed carpenters, Epps repeated the demand that a contract must be signed. Brown used the men referred by this Union, even hired members who were not referred out of the union hall, but always refused to sign any agreement. On June 25, 3 days before the start of the hearing, Epps left signed copies of regular union contracts-comprehensive agreements cov- ering all aspects of employment-at the jobsite for Brown to sign Twice while the picketing was going on, Ralph Hager, another business representative of the Respondent, talked to Brown, repeating the request. As Brown recalled these talks with Hager, one of them occurred late in July, when Hager said: "If you will go ahead and sign this agreement with me I will have that banner off there this afternoon . . .." Still Brown refused to sign anything. Whatever Brown's motivation may have been, what all this amounts to is that the picketing union wanted to be recognized as the bargaining agent for his employees and he refused to extend recognition. That he was simultane- ously of a mind to hire only union carpenters, to pay the going area union wage scale, and even the fnnge benefit enjoyed by all other members of the District Council, in no way alters the continuing dispute between him and this union. I find that the purpose of the picketing throughout was to compel the employer to cede recognition to the Respondent. And the wording of the picket's banner only reinforces this finding. B. Work Stoppages Brown testified, credibly and without substantive contra- diction, that he had five men working for him the day the picketing started, and that they refused to work the next day because of it. He also said that three of the approximately six or seven subcontractors had men at work, about 15 all told, and that all of these refused to cross the picket line for 2 weeks. At that time, some contractors returned to work but two did not-iron workers employed by subcontractor Robert Hill Steel Erection Co. and carpenters working for Robbins Flooring Co. The iron workers came to work later only on Saturday and a Sunday when the picket was not there, and then refused to return at all. Hill, of the Hill Company, said he was not able to complete this contract; Brown found another subcontractor to do it in his place. The floormen, also members of the Respondent Council, worked at times but by August 1 quit altogether, still because of the picket. Their employer, the subcontractor, discharged his contract obligation by obtaining another company to do it. The school project was originally scheduled for completion on September 1. It was in its final stages instead at the time of the hearing on October 31. The only contradiction to all this is vacillating and vague testimony by the sole picket himself. His attempted denials are not persuasive. I find on the total record that the Respondent's picketing activity effectively interrupted the work of many employ- ees. C. Two Representation Case Petitions and an Unfair Labor Practice Charge Shortly after the picketing started on June 28, another union somehow came into the picture claiming to represent Brown's three to five employees; it is called Congress of Independent Unions. It filed a representation case petition on July 11, seeking an election among those employees (Case 17-RC-6958). These were the same persons for whom the District Council was demanding recognition. On July 24, the Regional Director wrote a letter to all parties advising that a Board-conducted election would be held on August 1. The next day, July 25, the Respondent and picketing Union filed an unfair labor practice charge against the Brown Company, alleging illegal assistance to 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Congress of Independent Unions in violation of Section 8(a)(2) of the Act (Case 17-CA-5263). At this point, the Regional Director canceled plans for the election planned for August 1. Upon investigation , it was deter- mined that there was merit in the unfair labor practice charge, and therefore on August 28 the Regional Director dismissed the election petition of the second union and informed the Company a complaint against it would issue The complaint case was resolved by a settlement agree- ment, the Company promising not to assist the Congress of Independent Unions and to post the usual appropriate notices for a 60-day period. Meanwhile, upon hearing, when it received the Regional Director's letter dated August 28 , that the petition in Case 17-RC-6958 was to be dismissed, the Respondent filed its own petition (Case 17-RC-6973), asking for an election among the same employees it wished to represent. That petition was held in abeyance , and was still pending in the hands of the Board's Regional Office on the day of the hearing. Notwithstanding the pendency of that perfectly proper petition, the complaint, charging the Respondent with illegal picketing , was issued on August 31 D. Analysis, the Theory of Illegality On this critical question-was there a petition filed-the complaint is ambiguously phrased. It says there was not a "valid" petition filed, "involving Brown's employees" within "a reasonable time." Discussion must start with the fact that two petitions "under Section 9(c)" were filed during the picketing, and no amount of descriptive phraseology or devious argumen- tation can alter that reality. The first was filed on July 11, 13 days after the picketing started; the second petition was filed on August 1, and therefore throughout the month of August there were two petitions pending. The first was dismissed by the Regional Director on August 28, and the second was never acted upon by the Regional Office. There is no contention that the 13 days that passed between June 28 and July 11 was an "unreasonable period of time " The only conceivable argument that can be made in support of a theory that throughout the period June 28 to August 1-more than "30 days from the commencement of the picketing"-there was no "valid" petition filed, is that this one was filed by a labor organization other than the one that was doing the picketing. No case precedent has been cited lending support for the view. There is nothing in the statutory language excluding such a petition from proper consideration under the section. Moreover, the cases reflect unnumbered situations where recognition- al picketing was deemed permissible despite the fact the employer filed the petition and not' the picketing union. And, finally, the entire scheme of the statute requires that there be some petition to support an expedited election, and this objective is satisfied regardless of what party files the petition-so long as it permits the Regional Director to resolve the question concerning representation with dis- patch. I find the fact that the first petition here was filed by a competing union and not by the picketing one irrelevant to the question whether this picketing was unlawful or not. The second theory of illegality in the picketing is bottomed on the reason why the Regional Director did not hold an election on the petition filed by the Congress of Independent Unions. On July 24, he announced the election would take place on August 31; the next day the picketing union filed an 8(a)(2) charge against the employer, and on July 28 the Regional Director canceled the election. Had the Respondent Union not charged the Company with illegal assistance to the competing Union the expedited election would have been held. It is argued that by its conduct in filing that charge the picketing Union deliberately made the election impossible and therefore placed itself in the same position it would have been in if no petition had been filed at all. So viewed, according to the General Counsel, the petition of the Congress of Independent Union was "invalid," i.e., invalidated by the picketing union itself . Under this view, since the Respondent frustrated the scheme of the statute on July 24, the "unreasonable" period of picketing started that day. Before considering the idea that by filing a charge against the employer a picketing union loses the protection afforded by any petition-regardless of who filed it-it is important to bear in mind also the second petition On August 1, the Respondent filed a petition in Case 17-RC-6973. Unless some theory can be found to say that this one too was "invalid" for some reason, the period of unreasonable picketing-that is, the period during which there literally was no petition pending, would have to be between July 25, when the 8(a)(2) charge was filed, and August 1 This reaches the third possible theory of illegality. The Regional Director did not hold an election on this second petition because, following settlement of the 8(a)(2) charge against the Company, notices were posted during the next 60 days. Presumably this period was required to dissipate the effect of the Company's coercive conduct upon the employees. The reasoning of this third theory then becomes that, because the Respondent filed the unfair labor practices charge, the Regional Director decided the Company was guilty; and, because the Company misconducted itself, the employees had to be reassured; and, because the 60-day posting period is dictated by Board procedures, the election requested by the picketing union could not be held- ergo, the Respondent was responsible for the entire congery of events and its own petition must be ignored. It is a hollow house of cards that falls in its entire structure if only because there was merit in the charge of unlawful interference by the Employer itself in the self-organization- al activities of its employees. I find no merit in the unqualified contention that whenever a union files an unfair labor practice charge it removes any pending petition from consideration in the evaluation of a complaint against it under Section 8(b)(7)(C) of the statute. The broad statement includes every possible situation Three conceivable sets of fact come to mind. (1) The evidence shows conclusively that the Union knew its charge was false, that it intended deliberately to obstruct the election for purposes of delay. (2) There is no evidence of malicious purpose, so that it could not be said the charge was filed in anything other than good faith. (3) The record as a whole proves the Union had solid basis for the charge and that in fact it was a meritorious one. CARPENTERS, DISTRICT COUNCIL OF KANSAS CITY There is no need, or occasion here , to consider the first situation, for not only is there no evidence of bad faith but no such claim is convincingly advanced. It is entirely possible the Board would be justified in ignoring a clearly dilatory charge, any technique utilized by the picketing Union to avoid a head count of its representative strength. This is not such a case. There is a confusion in terms in the General Counsel's brief. In Local 294, Teamsters (R.H. Macy), 199 NLRB No. 40, there is passing reference to the situation where the picketing union files a representation petition in bad faith, a document that is tantamount to an absurdity on its face. The picketing union in the case at bar is correctly charged with knowledge that the filing of an 8(a)(2) charge would delay any election under the competitor's petition, and that if the charge stood up that petition would die altogether. This mere knowledge on the part of the Respondent is said to support a finding that the picketing union thereby "ultimately destroyed" the first petition, as though it had itself killed it in the first instance because of a fatally inherent defect . From this it is then argued- that because the Respondent knew it was killing the first petition, it follows the charge was filed in bad faith. This sort of reasoning-that what came first is bad because of what came after, and that what came later is bad because of what preceded it-is unpersuasive, to put it mildly.' A rule holding that the union may not file a charge when it honestly believes the employer has by its misconduct made a fair election impossible would run counter to the general principle that any person may file a charge with this Board. It would do violence to the salutary policies of the statute as a whole. Assume the charge in this case had been filed by an individual, even a member of the picketing Union. Could he be denied the right to complain to the Board that the Company was coercing him into joining a union not of his choice? The only logical distinction that could be made between a petition filed by an employee and one filed by the Union must be that the Union was not attempting to protect the employees' rights, but to make a shambles of the Board processes . But then the situation would revert to the first situation considered above. Clearly the facts shown in the record here establish conclusively that Section 8(a)(2) was violated by the Company, at least to the extent that the Regional Director's investigation convinced him of the fact. In the settlement agreement the Company did not confess guilt, but the General Counsel's theory must be otherwise. This is precisely situation 3 described above. Whatever the ' One must particularly reject the proposition that evil in the Respondent is proved by the fact it knew the Employer had misbehaved when it accused it of wrongdoing From the General Counsel 's brief " if the Respondent did believe that its charge was meritorious, then its conduct in 743 answers to questions 1 and 2 may be as a matter of law, and they really need not be determined here, there is no doubt the charge filed by the picketing Union against the Brown Company cannot be said to have `invalidated' either the first or the second representation petitions. The heart question presented in this case can be viewed in a different light. The Regional Director dismissed the first petition because the charge was filed. He refrained from holding an election pursuant to the second petition because notices had to be posted for two months in consequence of the same charge. Whose fault was it that no election was held under either petition ? Is blame to be placed on the party who accused the other of wrongdoing or on the party who in fact committed the unfair labor practices? The answer is obvious. I find that at all times during the Respondent's picketing activities there was a valid petition filed "within a reasonable period of time," and I shall therefore dismiss the complaint.2 In his brief, for the first time, the General Counsel makes an additional argument to bring the picketing within the proscription of the section . It is that there was no petition on file "involving Brown's employees." The record shows otherwise, for both petitions sought elections among the same employees and these were the ones the Respondent sought to represent . Brown only had three to five persons working for him and they were essentially carpenters. The first petition speaks of "all full time employees and regular part time employees employed by the employer," and asserts they were four in number, and the second of "all carpenters and employees performing carpenter work and their apprentices," and says there were three of them. The issue that the General Counsel now seeks to raise was never mentioned at the hearing and no one for a moment doubted the two Unions were competing for the same people. If the activities of the Congress of Independent Unions involved employees other than the ones for whom the District Council wanted recognition, the Regional Director would have obtained an injunction during the first 30 days of picketing. If the District Council 's petition had nothing to do with the employees involved in the unfair labor practice case there was no reason for not holding an election under the second petition. RECOMMENDED ORDER It is hereby recommended that the complaint be, and it hereby is, dismissed. filing the 8(a)(2) charge amounted to a deliberate attack on the petition itself " 2 Compare Local 294 Teamsters (R H Macy), supra