Sales Delivery Drivers, Local 296

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sales Delivery Drivers, Warehousemen and Helpers Local 296 of Santa Clara and San Benito Counties, California; Bakery Wagon Drivers and Salesmen Local 432 of Alameda and Contra Costa Counties, California; Bakery Wagon Drivers and Salesmen Local 484 (Alpha Beta Acme Markets, Inc.) and Food Employers Council, Inc. Case 20-CP-434 August 10, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 30, 1973, Administrative Law Judge Louis S. Penfield issued the attached Decision in this proceeding. Thereafter, the Charging Party and the Respondents filed exceptions and supporting briefs, and the General Counsel filed a 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs I and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondents, Sales Delivery Drivers, Warehousemen and Helpers Local 296 of Santa Clara and San Benito Counties, California, San Jose, Cali- i In its exceptions and brief, the Charging Party contends that the doctrine of area standards picketing should be permissible only under the informa- tional proviso of Sec 8(b)(7XC) and absolutely forbidden by the provisions of Sec. 8(b)(7)(A) It is argued that when an employer has recognized a labor organization as the representative of its employees, and has executed a sub- stantial contract with that representative establishing the employees' wages, hours, and working conditions, area standards picketing necessarily has the effect of undermining the bargaining relationship so created and establishing the picketing union as the de facto representative of the employees Accord- ingly, the Charging Party urges the adoption of a rule of practice whereby area standards picketing in the face of an established collective-bargaining relationship would constitute a per se violation of the Act While we concur in the analysis of the Administrative Law Judge in this regard, we also note, as we did under similar circumstances in International Hod Carriers, Building and Common Laborers' Union of America, Local No 41, AFL-CIO (Calumet Contractors Association and George DeJong), 133 NLRB 512, 513, that the Charging Party's argument is tantamount to a request for the adoption of a new unfair labor practice not currently encom- passed by the restrictions on picketing contained in Sec 8(b)(4) or (7), and consequently is more appropriately addressed to the Congress than to this Board. forma; Bakery Wagon Drivers and Salesmen Local 432 of Alameda and Contra Costa Counties, Califor- nia, Oakland, California; and Bakery Wagon Drivers and Salesmen Local 484, San Francisco, California, their officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE Louis S. PENFIELD , Administrative Law Judge : This case was tried before me in San Francisco , California, on Octo- ber 10 and November 6, 7, and 8 , 1972, with all parties represented.' The complaint is based on a charge filed by Food Employers Council , Inc., herein called the Council, on July 6, and an amended charge filed on July 26. Copies of each were duly served on Sales Delivery Drivers, Ware- housemen and Helpers Local 296 of Santa Clara and San Benito Counties, California ; Bakery Wagon Drivers and Salesmen Local 432 of Alameda and Contra Costa Coun- ties, California ; Bakery Wagon Drivers and Salesmen Local 484, herein called Locals 296, 432 , and 484, respectively, and herein collectively called Respondents . The complaint alleges violations of Section 8(b)(7)(A) of the Act by Re- spondents . All parties were given full opportunity to partici- pate in the proceedings and after the close of the hearing each party filed a brief. Counsel for the Charging Party and counsel for Respon- dents each filed motions to correct the reporter's transcript following the close of the hearing . With one exception, no objections were raised to any of the proposed corrections. The General Counsel opposes the proposed change of the word "pride" to the word "problem" on page 250, line 19. I am of the opinion that the correction is warranted, but note that even were it not to be changed it would have no significant effect on issues material to this proceeding. I have considered each of the proposed corrections, deem them appropriate and in accord with my recollection. Ac- cordingly, the motions to correct the transcript are hereby granted in their entireties and it is hereby ordered that the transcript be corrected in the particulars set forth in each such motion. Upon the entire record in this case , and upon my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT I JURISDICTION This proceeding is concerned with alleged unlawful pick- eting involving Alpha Beta Acme Markets, Inc., herein called Alpha Beta. Alpha Beta is a Delaware corporation with its principal office in La Habra, California. It is en- gaged in the retail sale of groceries and related merchandise in over 100 stores located throughout the State of Califor- i All dates will be 1972 unless otherwise noted 205 NLRB No. 81 SALES DELIVERY DRIVERS , LOCAL 296 nia. During the past year in the course and conduct of its business operations Alpha Beta sold goods valued in excess of $500,000, and during the same period it purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of California . I find that at all times material herein Alpha Beta was an employer engaged in operations affecting commerce within the mean- ing of Section 2(6) and (7) of the Act, and the assertion of jurisdiction to be appropriate. II THE LABOR ORGANIZATIONS INVOLVED Respondent Locals 296, 432, and 484, and each of them, are affiliates of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and each is a labor organization within the meaning of Section 2(5) of the Act. At all times material herein, Wendell Phillips was chief executive officer for Local 484, Mike Mitchell was business representative of Local 432, and David Tones was business agent of Local 296 . In a manner to be set forth below, each of these individuals acted as an agent for his respective local and for Respondents collectively. III THE ALLEGED UNFAIR LABOR PRACTICES This proceeding is concerned solely with the alleged un- lawful character of certain picketing conducted by Respon- dents at various of Alpha Beta's facilities in northern California. The General Counsel and the Charging Party claim such picketing to have had a recogmtional object, and thus to have been violative of Section 8(b)(7)(A). Respon- dents claim that their picketing constituted a lawful protest against the deliveries of bakery products to Alpha Beta's northern California supermarkets under substandard con- ditions. I will consider the background against which this contro- versy arose, the circumstances under which the picketing took place, and the efforts made to resolve the controversy, and finally will undertake an analysis and resolution of the issues raised. A. The Background The headquarters for Alpha Beta are located in southern California in the city of La Habra. The majority of Alpha Beta's stores are located in southern California . Twenty- eight stores, however, are located in northern California in towns and cities that are between 400 and 500 miles from La Habra. Respondent locals are each affiliates of the Inter- national Brotherhood of Teamsters and each has jurisdic- tion to represent drivers who deliver bakery products in its respective northern California territorial jurisdiction. In addition to its corporate headquarters Alpha Beta also operates a large distribution complex at La Habra designed principally to serve its southern California stores. In March 1971, Alpha Beta opened a large bakery production facility at La Habra designed to supply all Alpha Beta stores with bakery products, including those in northern California. Commencing in May 1971, Alpha Beta supplied its south- ern California stores from the new facility . It started to 463 deliver bakery products to some of its northern California stores in June 1972 . These deliveries gave rise to the contro- versy which brought about the charges in the instant case. Alpha Beta is a fully organized employer in both northern and southern California. Prior to May 1972, Alpha Beta maintained a distribution depot in Watsonville to serve its northern California stores. Grocery products of consider- able variety, but no bakery products, were delivered from this facility by drivers covered by a collective-bargaining agreement with Teamsters Local 912. In May 1972, Alpha Beta completed and opened a large distribution center at Milpitas, which was to replace the Watsonville facility in serving the northern California stores. The new distribution center fell within the territorial jurisdiction of Teamsters Local 287. With its opening, Local 287 took over the collec- tive-bargaining agreement from Local 912. Delivery of bak- ery products, however, was not encompassed in such transfer. Prior to June 1972, Alpha Beta supplied all of its northern California stores with bakery products purchased from independent bakeries located in northern California and delivered in a manner to be described below. As set forth above, each of Respondent locals is an affili- ate of International Brotherhood of Teamsters. Locals 484 and 432 are known as specialty locals whose membership is comprised of drivers who deliver bakery products exclusive- ly. Local 296 has a membership comprised of both bakery drivers and drivers who deliver or sell some other products as well. Each of the three locals, however , has been granted exclusive jurisdiction by the Teamsters to deliver bakery products within its respective territorial jurisdiction. These 3 locals together with 10 other locals , which also have exclu- sive jurisdiction over bakery deliveries in various counties in northern California, are parties to a multiunion multiem- ployer collective-bargaining agreement which governs the working conditions for the delivery of almost all bakery products in northern California. An employer association known as the California Bakery Employers Association is the employer party to this collective -bargaining agreement, which will hereinafter be referred to as the Area Agreement. The employer association has a membership comprised principally of the major independent bakeries in northern California. Wendell Phillips of Respondent Local 484 has for many years been the chairman of the union negotiating committee which has controlled both the negotiation and enforcement of the Area Agreement . The agreement proper covers in excess of 2,100 employees working for the various association members. An additional 1,200 employees are subject to the same agreement because various independent employers have executed a so-called agreement to be bound to the Area Agreement . It is estimated that in all northern California there are less than 50 employees regularly en- gaged in the delivery of bakery products not covered by the Area Agreement. It is also estimated that well in excess of 95 percent of the dollar value of bakery products delivered in northern California is handled by employees covered by the Area Agreement. Driver-salesmen and transport drivers are the two princi- pal classifications of employees to which the Area Agree- ment refers. Transport drivers drive loads from a bakery to a depot in large rigs , but do not generally deliver bakery products to individual stores. Driver-salesmen deliver bak- 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ery products to individual stores and display such products on the shelves. The contract provides different rates for each classification. Although the contract has no starting time restrictions for transport drivers, it provides that driver- salesmen may not start before 7 a.m. It also provides that commissions of 7 percent be paid driver-salesmen on all sales over a certain minimum amount.2 The Area Agreement also covers, with some variations, the so-called northern California captive bakeries. Captive bakeries are those which bake and distribute bakery prod- ucts to their own retail outlets. Prior to the advent of Alpha Beta, the two principal captive bakeries in northern Califor- ma were Lucky and Safeway. The captive bakery contracts for each parallel the Area Agreement, except that in the Lucky contract there is a modified provision concerning the display of bakery products delivered to the Lucky stores, and the Safeway contract permits the Safeway drivers to drop the bakery products at the stores without displaying them on the shelves. In the Safeway contract, however, as compensation for the loss of this display work the drivers are paid $10 more per week. The Area Agreement provides that no commissions be paid on delivery of products to retail outlets owned by the employer of the driver. However, to the extent that Lucky and Safeway drivers deliver prod- ucts to other bakeries, they would be entitled to commis- sions in accordance with the terms of the Area Agreement. The 7 a.m. starting time is applicable to all nontransport drivers delivering for these captive bakeries. The Alpha Beta facility at La Habra is a so-called captive bakery. Prior to June 1972, Alpha Beta's northern Califor- nia stores had obtained bakery products from northern Cal- ifornia commercial bakeries and these products were delivered to the Alpha Beta stores by drivers covered by the Area Agreement. Alpha Beta has at no time been a party to the Area Agreement. After the opening of the La Habra bakery, deliveries of bakery products produced there were at first limited to Alpha Beta's southern California stores. Such deliveries, which commenced in May 1971, were made by drivers covered by a collective-bargaining agreement between Alpha Beta and a Teamster affiliate known as Bakery Drivers Local Union 952, herein called Local 952. This local had jurisdiction to deliver bakery products and a territorial jurisdiction limited to bakery drivers based in certain southern California counties. Unlike the northern California Area Agreement, the Local 952 agreement con- tained no provisions requiring a 7 a.m. starting time, display of bakery goods by the drivers, or the payment of commis- sions on products delivered. According to the testimony of John Gibson, Alpha Beta's director of labor relations, the first direct discussions with any of Respondents' representatives relating to proposed northern California deliveries took place in October 1971. A meeting had been requested by Henry DiDiego, a busi- ness representative of Respondent Local 296. This possibly came about because Local 296 had become aware of the construction by Alpha Beta of a distribution center in Mil- pitas which fell within the territorial jurisdiction of Local 2 If in an unusual situation a transport driver is required to serve a retail outlet he will be paid at the driver-salesman rate, and will also receive commissions on the product which he delivers 296. In any event Gibson accompanied by his assistant, Bill Bloomer, met with DiDiego and David Torres of Local 296 on some date in October. They discussed Alpha Beta's plans for future delivery of bakery products to northern Califor- nia, including the possibility that in part such deliveries might be made by transport to the Milpitas distribution center and then by truck from there to the Alpha Beta stores. Gibson testified that he made it clear that the terms of the Area Agreement were acceptable except for the 7 a.m. starting time, display, and commission provisions. He fur- ther testified that the Local 296 representatives had re- sponded without equivocation by stating that "if we were going to deliver bread in the San Jose area that this [Area Agreement] would cover the delivery," and that there would be "no exceptions and no side letters relating to such mat- ters as starting time, commissions or display." The discus- sion was vague as to transporting bakery products from La Habra to Milpitas. The Local 296 representative in no way suggested that any northern California locals sought to rep- resent drivers based in southern California. Torres stated, however, that "when bread comes across whatever county line, it's under the Northern California agreement." There was no consideration, however, as to the specifics of how this might be worked out using northern California-based drivers covered by the Area Agreement. Neither DiDiego nor Torres testified. Gibson testified that because of Respondents' position on the three restrictive provisions he arranged to and did meet on November 11, 1971, with Lee Kearney of Teamsters Local 952 to discuss the possibility of extending the south- ern California bakery drivers agreement to the delivery of bakery products to Alpha Beta's northern California stores. This meeting resulted in an agreement whereby Local 952 was to extend the contract to encompass long hauls with regard to both milk and bakery products. The parties exe- cuted a long-haul addendum to the existing Local 952 con- tract, containing specific provisions for payment of drivers making long hauls on a mileage basis together with provi- sions for hourly compensation for nondriving duty time. This, of course, would cover drivers who might make deliv- eries to the northern California stores. In May 1972, Alpha Beta opened the new Milpitas distri- bution center. This had the effect of bringing the delivery of grocery products within the jurisdiction of Local 287. In a meeting at this time, Al Winters of Local 287 advised Bill Bloomer, Alpha Beta's assistant director of labor relations, that Local 296 had jurisdiction over any Alpha Beta bakery deliveries and that should these occur they would not be covered by Alpha Beta's agreement with Local 287. B. The Start of the Northern California Deliveries and the Initial Picketing On June 20, a Tuesday, Alpha Beta began its deliveries of bakery products from the La Habra facility to a training store in the San Jose area. Deliveries to this store, and possibly one other, were made also on Wednesday, Thurs- day, and Friday. These deliveries were made by Local 952 bakery drivers based in southern California covered by the long-haul addendum to the Local 952 contract noted above. The initial plan was for each driver to pull two trailers which SALES DELIVERY DRIVERS, LOCAL 296 465 had been loaded at the La Habra bakery, and then drive them directly to designated northern California stores of Alpha Beta following a prearranged schedule. On reaching a store, the driver was to drop the designated bakery prod- ucts for shelving and handling by the store clerks. When a driver had completed his bakery products deliveries, he was to drive the truck to a designated location and it would be loaded with merchandise for a back haul to the La Habra distribution center. When the back haul loading had been completed, the driver would check in at a motel for his required rest period. With that completed, he would drive the rig to La Habra. Generally, the delivery schedule was to commence in the early evening of one day with the truck to return approximately 24 hours later. It is not altogether clear when Wendell Phillips first learned of Alpha Beta's contractual arrangement with Local 952 with respect to these deliveries, or when he found out the precise time that Alpha Beta planned to start the north- ern California deliveries. However, at least by mid-May 1972 he had become fully aware that northern California deliveries were imminent. Thereupon, Phillips communicat- ed by telephone with Lee Kearney of Local 952, and dis- cussed with him the provisions of the long-haul addendum as they would affect the Local 952 drivers who would be delivering the products to the northern California stores. Phillips testified that, although at that time he had not actu- ally seen the Local 952 contract, he ascertained from Kear- ney the mileage rates the drivers were to receive for driving, and the hourly rates provided for their nondriving time. Using these figures, Phillips made his own calculations as to the distance that would likely be covered and the nondnv- ing time likely to be needed, and concluded that the costs of northern California deliveries would not measure up to area standards embodied in the Area Agreement. Phillips did not communicate with Alpha Beta directly or make any attempt to verify his figures in any other manner. According to Phillips, upon concluding that the deliveries would be made under substandard conditions, he consulted his attor- ney to ascertain if there was a lawful means by which he could protest. His counsel, apparently accepting at face value Phillips' representation that the deliveries would in fact be made under provable substandard conditions, ad- vised Phillips in a letter dated June 12 that picketing to protest deliveries under substandard conditions "must be restricted to a protest against substandard conditions and must not be broadened into a demand that the work be performed under your contract or by your members." In the same letter, counsel also advised Phillips that "if the em- ployer pays its employees the equivalent of wages and other economic benefits which you have established under your contract, you would no longer have the right to continue picketing." When Alpha Beta had commenced its northern Califor- nia bakery deliveries, Phillips directed that pickets be placed at an Alpha Beta store in San Jose and at the Alpha Beta distribution center in Milpitas. The pickets appeared on June 23, carrying picket signs which read: Alpha Beta unfair. Company bakery delivery work per- formed under substandard conditions. Teamsters Lo- cal 296. Upon learning of the picketing, Robert Fox and Carl Bussi of Food Employers Council, Inc., the Charging Party herein and an organization which represents employers in the food industry for collective-bargaining purposes, ar- ranged to, and did, meet with Phillips later on the same day that picketing had commenced. Fox acted as spokesman for the Council and Alpha Beta at this meeting. His testimony as to the events is fully corro- borated by Bussi. At the outset, Phillips advised them that the picketing was solely to protest substandard conditions. Fox expressed his disbelief pointing out that the drivers were covered by the Local 952 agreement which he viewed as generous both as to wages and benefits, thus rendering it most unlikely that the deliveries would be under substan- dard conditions. Phillips contented himself with a sweeping assertion that this was not so, but offered nothing specific by way of figures to support his contention. Indeed, accord- ing to the mutually consistent testimony of Fox, Bussi, and Phillips, apart from general statements by Phillips as to his beliefs about the delivery standards and general expressions of incredulity from Fox, nothing specific in the way of figures or computations relating to delivery costs under any delivery method was brought forth at this meeting. Fox signified that Alpha Beta was not unwilling to become a party to the Area Agreement and repeatedly asked Phillips if this is what he sought. According to Fox, Phillips showed him the June 12 letter from his attorney and stated that this embodied the Respondents' position. In response to further questions as to how the controversy might be settled, how- ever, Fox testified that at one point Phillips had responded, "Let me level with you, Bob," and had gone into a "long discussion" of the Area Agreement, with particular refer- ence to its provisions covering starting time, display, and commissions, which Fox had already indicated to be the three features to which Alpha Beta particularly objected. Following this, when Fox once again asked Phillips if he was insisting that Alpha Beta comply with the terms of the Area Agreement, Fox states Phillips replied "that he had no choice," explaining that to allow Alpha Beta to deliver bread without complying with such conditions "would re- sult in unemployment". Phillips insists that at no time did he suggest that Alpha Beta become bound to the Area Agreement. Phillips does not dispute the fact, however, that in large measure the meeting was taken up with discussion of the Area Agree- ment itself, or that the discussions had encompassed those provisions that Alpha Beta found particularly objectiona- ble, and that he had explained in some detail how such provisions had come into being, and how important they were to the drivers. Phillips showed reluctance to concede that Fox had asked if Respondent sought to have Alpha Beta become a party to the Area Agreement. When pressed, Phillips even denied that Fox had asked such a question, explaining, "I never asked him to nor did he, at any time ask me, as nearly as I can recall, directly did I want to substitute our contract for 952's contract". Following the conclusion of this meeting, Fox telephoned Phillips and advised him that Alpha Beta was suspending its delivery of bakery products to the northern California stores. Upon this representation, Phillips agreed that the pickets would be removed, and this was done. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Period Before Resumption of the Northern California Deliveries and the Picketing Following the initial meeting of June 23 and the subse- quent cessation of deliveries, another meeting relating to the controversy was held on June 29. Fox and Phillips again were the principal spokesmen. Alpha Beta's director of la- bor relations, John Gibson, accompanied Fox to this meet- ing, and David Torres of Local 296 and Mike Mitchell of Local 432 joined Phillips. Gibson corroborates Fox's ver- sion of the events which transpired, but neither Torres nor Mitchell testified. In many respects, the meeting resembled the one on June 23. Once again no discussion ensued con- cerning relative cost packages for northern California deliv- eries whether made pursuant to the Area Agreement or the Local 952 agreement. Each side limited itself to general assertions that the resumption of deliveries under the Local 952 agreement would, or would not, be substandard, de- pending upon its respective point of view. According to Fox, at the outset of the meeting he again represented that Alpha Beta was seeking a means of settling the dispute, and that it had no quarrel with the economic package provided by the Area Agreement. Fox reiterated, however, that Alpha Beta believed that the starting time limitation and the com- missions and display requirements of the Area Agreement would lead to an inefficient operation when applied to northern California deliveries originating at the La Habra bakery, and that these provisions were deemed unaccept- able. According to Fox, Phillips responded specifically to this by stating that "there would be no deviation from the [area] agreement." Fox concedes, however, that Phillips sig- nified that a modification as to the display requirement which followed the lines of the northern California captive bakery agreement would be acceptable. Copies of the Lucky and Safeway agreements were produced for Fox's inspec- tion. After examining them Fox states that he asked Phillips, "Are you saying that to resolve this thing that Alpha Beta has to become a party to these agreements?" Phillips re- sponded by saying, "I give you a choice. You can have either one." Phillips acknowledges that various provisions of the Area Agreement, especially the three to which Alpha Beta was objecting, were discussed in some detail, and he concedes that copies of the northern California captive bakery agree- ments were produced for Fox's examination . He again de- nies, however, that he asked Fox to sign any agreement, or that he insisted that Alpha Beta had no choice but to be- come a party to one of the northern California captive bakery agreements. Phillips testified that at all times his conduct was governed by the advice of his attorney in the June 12 letter regarding the limitations which surround the right to protest substandard conditions by picketing. When asked about Fox's assertion that he had offered Alpha Beta its choice of one or the other of the captive bakery contracts, Phillips states he told Fox, "Bob, we have picketed you on the basis that your operations are substandard in the North- ern California contract. I would not be in a position in my opinion, if you selected either of those provisions, I would not be in the position to say that you are operating under substandard conditions, because you selected one as against the other." The testimony of both Phillips and Fox makes it clear that at neither meeting did Phillips claim, nor did Fox un- derstand, that Respondents sought to represent Local 952 drivers based in southern California. The underlying pur- pose of this meeting was to explore possible means of set- tling the controversy. One possible way was of course for Alpha Beta to be brought under the Area Agreement. Thus I have no doubt that Fox pressed Phillips to ascertain if this was what Respondents wanted. Whether or not Phillips responded in the apparently unequivocal manner which Fox attributes to him, it is clear from his own testimony that despite repeated assertions that the current Alpha Beta de- livery method was substandard Phillips offered no sugges- tion whatsoever as to how it might be brought up to standard short of recognition, and that virtually the entire time at each meeting was spent discussing Area Agreement provisions. On July 6, the original charge in this proceeding was filed, and an amended charge was later filed on July 26. On August 2, Respondents executed a settlement agreement in an attempt to resolve the allegations made in these charges. The settlement agreement, however, was not signed by the Charging Party and was not approved by the Regional Di- rector. Commencing on August 3, there began an exchange of letters between counsel for Respondents and counsel for the Charging Party relating to these unfair labor practice charges and to the dispute generally. These letters contain significant statements regarding Alpha Beta's operation and the positions of the parties. On August 3, counsel for Respondents sent a letter under- taking to reaffirm that the initial picketing had been solely to protest substandard conditions. Counsel sets forth that Respondents' willingness to execute a settlement agreement did not signify any abandonment of its right to make lawful protests in the future should there be a continuation of deliveries under substandard conditions. Counsel repre- sented that Respondents' own investigation had disclosed the Alpha Beta drivers to be making deliveries to the north- ern California stores under "substantially substandard" conditions as compared to the prevailing area standards as defined in the Area Agreement? Counsel went on to say, however, that if at any time Alpha Beta should present evidence that "the drivers are receiving comparable wages and benefits to those which prevailed under the area con- tract" there would be no further picketing, since the object of Respondents "is to bring pressure to eliminate the com- petitive advantage which Alpha Beta would have over em- ployers under their contract by engaging in delivery practices which are substandard." Counsel for the Charging Party responded by letter dated August 10. He represented that the statements in the August 3 letter had been thoroughly reviewed by his client. Counsel asserted that under the guise of "standards" picketing Re- 3 This "investigation" appears to refer solely to the personal computations made by Phillips shortly before seeking advice from his attorney as to the legality of "area standards" picketing SALES DELIVERY DRIVERS, LOCAL 296 467 spondents could not require an employer to adopt "specific, area contract employment conditions which would neces- sarily result in modification of the existing labor agreement between such employer and another labor organization." Respondents were charged with insisting on the three re- strictive contract conditions noted above and it was claimed this sufficed to establish a violation of Section 8(b)(7)(A). Counsel claimed "standards" picketing to be permissible only when the picketed employer's total labor costs are in fact less than those demanded by the prevailing area stan- dards. He challenged the adequacy of Respondents' investi- gation relating to comparative costs asserting it to be the burden of a union claiming substandard conditions to es- tablish the employer's operation to be, in fact, substandard. Counsel represented, however, that Alpha Beta had con- ducted an investigation of comparative costs and was pre- pared to prove that Alpha Beta's northern California delivery costs under the Local 952 contract actually exceed- ed those which would be required under the Area Agree- ment. On August 14, Alpha Beta again commenced to deliver bakery products from La Habra to its northern California stores. This time deliveries were made to all of the northern California stores using five designated routes. On August 25, counsel for Respondents replied to the August 10 letter. He represented that, based on further in- vestigation which allegedly involved a detailed examination of the Local 952 contract and personal observations by union business agents of Alpha Beta's delivery practices since the northern California deliveries had resumed, Re- spondents had verified their original conclusion that "Alpha Beta's delivery practices [were] disgracefully substandard for this area." Counsel recited the basis for the computa- tions which had led Respondents to this conclusion and stated that he had advised his client that Respondents might lawfully engage in "area standards" picketing to protest deliveries under such conditions.4 Respondents adduced evidence at the hearing that shortly after the northern California deliveries had resumed one of its business agents had obtained a route sheet from an Alpha Beta Local 952 driver which showed the scheduled starting times for each driver from Los Angeles, and the northern California stores to which he was to be making deliveries These route sheets showed the La Habra departures to be at 6 or 7 p in with the northern California deliveries to be made on the following day Each driver was scheduled to deliver to five or six designated stores Wendell Phillips directed that certain of his business agents make observations of the deliver- ies to the stores On August 14, a business agent observed an Alpha Beta driver deliver bakery products to one store at approximately 8 a.m He waited until the delivery had been completed, followed the truck to a food plant where it was loaded for the back haul, and again followed the driver to a motel at which he checked in for his rest period at approximately noon On August 18, business agents again observed Alpha Beta drivers making deliv- eries to six Alpha Beta stores at various locations and at various times during the morning They subsequently followed these drivers to their back-haul locations, and after they were loaded there followed them to the motel where each driver checked in at or sometime after noon for his rest period On September 12, two union agents again observed deliveries of bakery products by Alpha Beta drivers, this time noting times of deliveries at five Alpha Beta stores during the course of the morning In one instance, a union agent followed the driver to his back-haul location but lost him before he had driven to his motel It was the August 14 and 18 observations taking place during the first week of resumed deliveries that Respondents used to make the computations that it charges verified that the deliveries were made under substandard conditions. Alpha Beta claims this initial week not to be repre- sentative of the mode of operation later achieved On August 31, counsel for the Charging Party replied to the August 25 letter. Counsel charged the computations set forth in that letter regarding comparative labor costs to be in error. Counsel went into some detail to point out that among other things the computations had been based solely on observations made during an initial phase of the resumed deliveries when the drivers were not following instructions and the deliveries thus were not representative. Counsel represented Alpha Beta had made its own computations based on its records which showed the deliveries under the Local 952 contract to be more costly than would be the case should Alpha Beta meet the economic requirements of the Area Agreement. Counsel asserted that Alpha Beta was "ready and willing to adopt the economic standards of the Bay Area contract; to pay all wages, fringes and other bene- fits required and to deliver bread under and pursuant to such agreement: so long as the three restrictive conditions, which are noncost items, are waived." Counsel insisted that it was only because of Respondents' apparent insistence that these three restrictive conditions be adhered to that it had embarked on its present more costly mode of bread delivery to the northern California stores. Counsel stated specifically, and unequivocally, that but for this it was pre- pared to undertake deliveries to the Milpitas distribution center and from there make subsequent store deliveries us- ing other drivers following requirements of the Area Agree- ment except for the restrictive conditions. Counsel concluded the letter by once again denying its present deliv- ery method to be in fact less costly, than would be deliveries under the Area Agreement, but asserting that should Re- spondent be able "to demonstrate on the basis of acceptable cost analysis that the total economic outlay for operations under the Local 952 agreement is in fact less than the economic outlay provided in the Bay area agreements, you may be as- sured that our client will take whatever steps are necessary to insure that the ultimate costs are identical." (Emphasis sup- plied.) The exchange of letters between counsel ended with the reply from Respondents' counsel dated September 6. Coun- sel repeated his earlier assertions that Respondents were not seeking representation rights for Alpha Beta drivers. Coun- sel stated that Respondents had noJurisdiction to represent the drivers presently making bread deliveries and that there was "no effort being made to displace their existing repre- sentatives." Counsel completely rejected the cost figures which had been included in the August 31 letter, asserting that if the drivers were making the amounts claimed "the mileage involved would necessarily be too great to permit them to make the round trip within the time alleged... . At no point did counsel suggest further exploration of the apparent discrepancies in the comparative cost conclusions reached by each party. Nor did counsel make any reference to Alpha Beta's offer to meet the existing economic stan- dards in the area if it could be shown by "acceptable cost analysis" that the operation as it was then being conducted was in any way substandard. On September 7, Respondents once again commenced picketing Alpha Beta's northern California stores. It used picket signs similar to those used before and the pickets were specifically instructed that Respondents were not seek- ing to represent the Alpha Beta drivers and were not seeking 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a contract with Alpha Beta. This picketing continued until September 19 at which time the pickets were removed. D. Analysis of the Issues and Conclusions 1. The scope of the statutory proscription Section 8(b)(7) as a whole is aimed at proscribing picket- ing where it has a recognitional or organizational object. Section 8(b)(7)(A) treats with a situation where the picketed employer is lawfully recognizing a bargaining agent. In the instant case, Respondents were picketing Alpha Beta, which admittedly had lawfully recognized Local 952 as the bar- gaining representative of certain of Alpha Beta's employees, and it is conceded that no question concerning representa- tion with respect to such employees could appropriately be raised. Respondents defend their conduct by claiming that the picketing did not have an unlawful recognitional object, but was undertaken solely to protest deliveries of bakery products under conditions that did not measure up to those prevailing in the northern California area. Before considering the area standards doctrine, which is the basis for Respondents' defense, or the factual circum- stances which the General Counsel alleges establish an un- lawful object, we must first treat with certain claims of Respondents regarding the scope of Section 8(b)(7). Re- spondents correctly point out that the General Counsel has not established that Respondents sought to bargain on be- half of those truckdriver employees who were actually deliv- ering bakery products to Alpha Beta's northern California stores under the terms of the Local 952 contract. It is argued that this fact alone suffices to negate a claim of unlawful recognitional object within the meaning of Section 8(b)(7)(A). Respondents also assert that even should it be found that Respondents were picketing for the purpose of representing future employees to be based at the Milpitas distribution center, or in some of the other northern Califor- nia counties, no violation can be found because the pro- scriptions of the section are limited to existing, and not future, employees. Section 8(b)(7) has not been given the narrow construc- tion for which Respondents argue. A recognitional object may be found even though the picketing union does not seek to substitute itself for the recognized bargaining repre- sentative. It has been held that where the recognitional de- mand, if granted, would result in changing the nature of the existing bargaining relationship between the picketed em- ployer and a lawfully recognized labor organization a viola- tion may be found. In Hoisting and Portable Engineers Local Union 101, affiliated with the International Union of Operat- ing Engineers, AFL-CIO (Sherwood Construction Company, Inc.), 140 NLRB 1175, the picketing union sought to bar- gain for its members only. The Board held: Even if we were to assume this was Respondent's sole object, we nevertheless hold that forcing or requiring an employer to recognize and bargain with a labor organization as the representative of his employees is an object within the scope of Section 8(b)(7), even though exclusive recognition for all employees in the ap- propriate unit is not also being sought. [Emphasis sup- plied.] In Local 542 International Union of Operating Engineers, AFL-CIO (R.S. Noonan, Inc.), 142 NLRB 1132, enfd. 331 F.2d 99 (C.A. 3, 1964) a union picketed to obtain recogni- tion for certain operating engineers . The employer had no engineers in its employ at the time of such picketing. The Board held picketing to compel bargaining for future or prospective employees , as well as those currently employed, to be proscribed by Section 8(b)(7). Commenting on the scope of the section , the United States Court of Appeals for the District of Columbia in Dallas Building and Construction Trades Council v. N. L. R. B., 396 F.2d 677 (C.A.D.C., 1968), stated: Moreover, the Board's decision recognized that, while Section 8(b)(7) was primarily motivated by con- cern for the employees, it also reflects a solicitude for the predicament of the employer caught between two labor organizations, whether or not they are rivals. In the Board's words: "Employers are entitled to the protection of Section 8(b)(7)(A) against actions which tend to erode or even destroy their right to operate, unimpeded by outsiders' threats and picketing, under the collective-bargaining terms lawfully negotiated with their employees ' repre- sentatives." Accordingly to the extent that Respondents' defense rests on its claims that Respondents were not seeking to represent the Local 952 drivers or that Alpha Beta had no bakery drivers presently operating out of the Milpitas distribution center, they must be rejected. The general statutory proscription against recognitional picketing has one significant qualification. It is now well established that in the absence of evidence disclosing a rec- ognitional object a union may picket where the labor costs of the picketed employer are below those established in the area. This has become known as the area standards doc- trine, and picketing which conforms to its limitations is lawful. The rationale of the doctrine is set forth in the fol- lowing: A labor union normally seeks to organize the unor- ganized and to negotiate collective-bargaining con- tracts with employers; but it also has a legitimate interest apart from organization or recognition that employers meet prevailing pay scales and employee benefits, for otherwise employers paying less than the prevailing wage scale would ultimately undermine the area standards. . . . Hence, if a union pickets and says to an employer, "We only want you to pay the prevailing wage scale, but don't want to bargain with you or organize your employees," and there is no independent evidence to SALES DELIVERY DRIVERS, LOCAL 296 469 controvert this statement of objective the Board cannot find that the picketing has organization recognition or bargaining objectives. The question of objectives in every case is one of fact and not of assumptions or presumptions. In the present case, there is no evidence apart from the demand that Riggs met prevailing standards to support an inference that Respondent sought to bargain with Riggs. If words have any meaning, then the foregoing evi- dence indicates that Respondent was not seeking to negotiate with Riggs. Moreover, it did not have to neg- otiate to achieve its objective-establishment of stan- dard wage and working conditions. These had already been set in contracts with unionized employers. All that Respondent had to do was furnish information as to these standards to Riggs. This it did in its letter.' It must be noted that the doctrine recognizes that the usual and normal purpose of a union is to organize the unorganized and to negotiate collective-bargaining con- tracts, and that the statutory proscription is aimed at out- lawing picketing as a means of attaining such ends. The area standards doctrine comes into play only when a union has forsworn its normal role to pursue such ends, and has elect- ed only to protect that which it has already attained in the area from unfair competitive advantage.6 When relying on a standards defense, the union goal must be shown as not to represent employees, but to protect the negotiated area standards from the unfair competitive advantage that would come to an employer whose labor cost package was less than those of employers subjected to the area contract stan- dards. Thus, failure to make any real effort to determine the economic costs of the picketed employer, or to ascertain 5 Local Union No 741, United Association of Journeymen and Apprentices of the Plumbing and Pipe Filling Industry of the United States and Canada, AFL-CIO (Keith Riggs Plumbing and Heating Contractor), 137 NLRB 1125. 6 We may note further that the area standards defense was first urged upon the Board in an 8(b)(4)(C) case , International Hod Carriers, Building and Common Laborers ' Union of America, Local No 41, AFL-CIO (Calumet Con- tractors Association), herein referred to as Calumet In its first decision in Calumet, reported in 130 NLRB 78, the Board rejected an area standards defense The Board reasoned that despite a "disclaimer of interest in recogni- tion or bargaining by Respondent , picketing for a change in the prevailing rates of pay and conditions of employment agreed upon between a certified bargaining agent and an employer constitutes an attempt to obtain condi- tions and concessions normally resulting from collective bargaining" How- ever, in a supplemental decision in Calumet, reported in 133 NLRB 512, the Board reversed its earlier holding and for the first time established the lawful character of area standards picketing based on the rationale quoted above from the Keith Riggs case The area standards concept was subsequently earned over to Sec 8(b)(7) in a Board decision entitled Houston Building and Construction Trades Council (Claude Everett Construction Company), 136 NLRB 321, and it has been followed ever since , where the issue has arisen in 8(b)(4)(C) and 8 (b)(7) cases how they compare with area standards costs, would be in- consistent with such goal, and would suggest that the picket- ing union's concern was in reality recognitional, and its disclaimer of that object a pretext. Similarly in seeking to eliminate competitive advantage the primary concern of a picketing union must center on the total economic cost package, and not merely the form in which the benefits are to be given employees of the picketed employer . Thus, an approach geared to equal benefits, particularly where these might include noncost items such as seniority or grievance machinery, is an approach inconsistent with a standards goal, and may also suggest the true object to be recogni- tional.8 As the Board said in Keith Riggs, the issue in each case "is one of fact and not of assumptions and presump- tions." We must continually bear in mind that recognition and area standards represent different goals. Unions exist for organizational and recognitional purposes , and always have an ultimate goal of representing all employees func- tioning in a particular industry . They do not lightly forgo it, and pursuit of an ostensible area standards object must not be viewed as an easy way to circumvent the statutory pro- scriptions against recognitional picketing. Thus, we must always carefully scrutinize the circumstances surrounding alleged area standards picketing to determine if the union in pursuing this course of action has accepted the required limitations, and may reasonably be said to be seeking no more than an equalization of competitive advantage rather than the attainment of a bargaining relationship. 2. The claim that the area standards doctrine is not applicable to 8(b)(7)(A) violations The Charging Party, not joined by the General Counsel on this issue, asserts that as a matter of law the area stan- dards defense should never be applied to an 8(b)(7)(A) situ- ation. It is argued that should the picketed employer accede to the area standards demands this "must impinge directly upon the bargaining power of [the lawfully recognized union] and the bargaining relationship established" be- tween the employer and that union. Counsel states that in the instant case, should Alpha Beta be forced to pay the same labor costs as are required by Respondents under the Area Agreement, Local 952 will be left with little of sub- stance about which to bargain, and its power and ability to act as the lawful representative of the employees will be seriously weakened and impaired. Counsel undertakes to support his argument by reference to Board and court decisions in Centralia Building and Con- struction Trades Council v. N.L.R.B., 155 NLRB 803, enfd. 363 F.2d 699 (C.A.D.C., 1966); Dallas Building and Con- struction Trades Council v. N.L.R.B., 164 NLRB 938, enfd. 396 F.2d 677 (C.A.D.C., 1968); and Lane-Coos-Curry-Doug- las Counties Building and Construction Trades Council, AFL- 7 Local Joint Executive Board, Bartenders and Culinary Workers of Las Vegas and Vicinity, et al (Holiday Inns ofAmerica, Inc), 169 NLRB 683, San Francisco Joint Board International Ladies Garment Workers Union, AFL- CIO (Romay of California), 171 NLRB 761, United Brotherhood of Carpenters and Joiners of America, Local 745, AFL-CIO (James W Glover, Ltd.), 178 NLRB 684, International Union of Operating Engineers, Local 4, AFL-CIO (Seward Construction Company Inc), 193 NLRB 632 sRetail Clerks International Association, Local Union No 899, AFL-CIO (State-Mart, Inc, d/b/a Giant Food), 166 NLRB 818 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIO v. N.L.R.B., 165 NLRB 538, enfd. 415 F.2d 656 (C.A. 9, 1969). Centralia is an 8(b)(7)(C) case. A union picketed a nonun- ion employer seeking to have it execute a written settlement agreement binding the employer to pay the cost of the area economic package . The union specifically disclaimed a rec- ognitional object . The Board and the court of appeals held the object to be unlawful stating, "With such an agreement in effect, very little would be left in the field of collective bargaining to a representative chosen by Pacific 's employ- ees, and therefore the will and choice of employees when and if exerted with respect to the bargaining agent would be thwarted and nullified." Both Dallas and Lane are 8(b)(7)(A) cases. In each a building trades council picketed to require an employer, or an association of employers, to execute an agreement that would foreclose the picketed employers from subcontract- ing work on construction projects to subcontractors who did not have collective-bargaining agreements with labor organizations that were members of the building trades council . The same employers, or association members, themselves had collective-bargaining contracts with various craft unions which in turn were members of the building trades council. These contracts, however, did not have clauses limiting subcontracting . In both cases , the Board and the courts found unlawful recognitional objects and a violation of Section 8(b)(7)(A). In Dallas, the court stated: The Association has already bargained with several of the local craft unions for the omission of subcon- tracting clauses from their agreements. Its members should be shielded from coercion on a second front by an organization with which they have no obligation to bargain. Because of the actual impact which the picket- ing and the Council's proposed agreement could have on the general contractors and some of their employ- ees, the Council's disclaimer of intentions to seek rec- ognition is unavailing. s s s : s Centralia, however does not mean that Section 8(b)(7) is violated only when the picketing union seeks to preempt the entire scope of interest of a recognized representative of the employees. The thrust of Centralia is that, so long as the union seeks a contract dealing with a subject relating to the conditions of employment of the general contractor's own employees, the picket- ing is recognitional within Section 8(b)(7). The Charging Party argues that the Board and the courts in these cases took cognizance of the realistic effect of the picketing upon the bargaining relationship existing between the picketed employer and the lawfully recognized union. The Charging Party notes the labor organizations in those cases were insisting upon the execution of written agree- ments, whereas in the instant case Respondents expressly disclaimed such object. It is claimed, however, that this is not a distinction that should control inasmuch as the de- mands of Respondents were for equality of economic out- lay, and this if granted would have no less effect upon the bargaining relationship with Local 952 than did the de- mands of the unions in Centralia, Dallas, and Lane. Counsel concludes by asserting that "We submit that as a matter of law and policy, standards picketing is inherently contrary to the maintenance of an unimpaired bargaining relationship and necessarily presupposes the indirect substitution of the existing bargaining representative by the picketing union so that by definition, such picketing must be held to violate the concepts underlying Section 8 (b)(7)(A)." It must be conceded that in terms of consequences the Charging Party's contention has merit . If in fact Alpha Beta's operations be substandard in relation to the Area Agreement, this is so because the deliveries are being made pursuant to the terms of the Local 952 contract. If the disclaimer of a recognitional object be deemed valid, Alpha Beta can only bring the operation up to standard by action that will vary the terms of the agreed-upon bargain with Local 952, and of necessity this would "impinge directly upon the bargaining power" of that organization. Counsel concedes that the Board to date has accepted the standards defense in a few 8(b)(7)(A) cases , but he argues that in no one of these has the issue been squarely posed or fully considered? The Charging Party's argument is exceptionally well pre- sented, and does seem to draw support from language found in Centralia, Dallas and Lane. I am satisfied, however, upon careful consideration , that the contention cannot be sus- tained. To do so would in substantial measure destroy the foundation upon which the well-established area standards doctrine rests and, in effect, revert to the rationale of the first Calumet case. In the first Calumet decision, the Board in rejecting an area standards defense altogether reasoned as follows: While, clearly, no express demand for recognition or bargaining was made, it is equally clear that one of the objects of Respondent's picketing was to force DeJong and the Association to meet the "prevailing rate of pay and conditions" for the area. It is well established that a union's picketing for prevailing rates of pay and con- ditions of employment constitutes an attempt to obtain conditions and concessions normally resulting from collective-bargaining, and constitutes an attempt by the union to force itself on employees as their bargain- ing agent. Respondent's disclaimer of interest in the bargaining unit, indeed its affirmative statement that it would never bargain in such a unit, is, therefore, in the circumstances here present, an inadequate defense; for despite Respondent's disclaimer, the picketing neces- sarily had as its ultimate end the substitution of Re- spondent for the Christian Labor Association, the certified bargaining agent.10 9 Hoffman v Genera! Truck Drivers, Local 980, 58 LRRM 2499; Steamfit. ters Local Union No 614, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Trumbo Welding and Fabricating Company ), 199 NLRB No 158 i0 130 NLRB 78, 81 SALES DELIVERY DRIVERS , LOCAL 296 Essentially the Charging Party's argument in the instant case follows the same rationale. While this may not be an unreasonable approach, it is not the one which prevailed when Calumet came before the Board a second time." It was then that the area standards doctrine was first an- nounced and it has been followed ever since by the Board based on the underlying rationale in the excerpts quoted from the Keith Riggs case in the preceding section. I view the basic rationale for the doctrine to rest upon the proposition that a union which renounces the normal recog- nitional object can protect standards it has attained in the area by picketing employers who may be gaining a competi- tive advantage from having lower labor costs than the area standards require. Whenever such picketing forces the em- ployer to meet the area standards, a change takes place in the existing relationship between such employer and his employees. In the first Calumet case the Board held the fact of this change to constitute bargaining, and the picketing thus to be unlawful. In establishing the area standards doc- trine, the Board in the second Calumet case and its succes- sors rejected this approach and, in effect, determined that picketing which brought about bargaining in this limited manner was lawful under the statute. If, in fact, the opera- tions of a picketed employer be truly substandard, the need to protect existing area standards is equally great whether or not the picketed employer has a contract with another union. In Dallas and Lane the Board and courts speak of disturbing existing bargaining relationships, but we note that the picketed union had made express demands that the picketed employers sign agreements. I view these cases as standing for the position that when a union demands an agreement the result of which will be to disturb an existing relationship the picketing is deemed recognitional and un- lawful. This does not mean that, absent any evidence of a demand for recognition or bargaining, the fact of a disturb- ance in the relationship standing by itself will suffice to render the picketing unlawful. In the instant case, there was an express disclaimer of a recognitional object. The validity of this disclaimer will be considered below, but, assuming it to be valid, the mere fact that successful pursuit of an area standards object would have had the effect of "impinging directly" on the bargaining power of Local 952 does not suffice to establish as a matter of law a violation of Section 8(b)(7)(A). Accordingly, I rej°ct the Charging Party's con- tention to that effect. 3. The object of the picketing Having determined the scope of Section 8(b)(7)(A) to be broader than merely encompassing a demand to represent employees presently performing the work, and having de- termined that picketing in the face of a lawful collective- bargaining relationship does not preclude an area standards defense as a matter of law, we must next consider the cir- cumstances leading up to, and surrounding, the picketing to determine if the ostensible announced area standards de- fense falls within the parameter of the doctrine, or whether, 471 as the General Counsel and the Charging Party claim, the defense is a pretext advanced to cover up an underlying unlawful recognitional object. Respondents are 3 of the 13 locals that collectively repre- sent employees who, under the coverage of the Area Agree- ment, make over 95 percent of the bakery product deliveries in northern California. 12 The bargaining relationship is both long established and comprehensive from an area stand- point. Wendell Phillips, as chairman of the Joint Union Negotiating Committee, has for many years played the most important role for the northern California locals in both negotiation and enforcement of the Area Agreement. It can scarcely be questioned that Phillips personally, together with officials of each of the locals, takes great pride in the coverage and benefits to be found in its terms. It is a fair assumption that Phillips and the locals have an overriding desire to see nothing happen that would limit the scope or lessen the benefits that the Area Agreement provides, and that any proposed or actual delivery of bakery products in northern California not taking place under the existing con- tract umbrella would be viewed with disfavor. As Phillips testified, "If I could legally do it, I'd be doing my damnedest to apply every term and condition of that Agreement to Alpha Beta." Phillips learned of Alpha Beta's plans for northern California deliveries considerably before they started, and he must have learned from the Local 296 repre- sentatives following the October 1971 meeting with Alpha Beta that while Alpha Beta was not objecting to most of the Area Agreement terms it was posing serious objections to the three restrictive clauses which have been discussed above. Apparently, Phillips concluded that any agreement without these clauses would be unacceptable to the north- ern California locals and cast about for an alternative ap- proach to the problem which Alpha Beta's position raised. This led to picketing ostensibly for area standards, and it is this approach which we must now examine to ascertain if, in making it, Phillips altogether abandoned any recogni- tional object and observed the limitations which the area standards doctrine imposes, or whether circumstances exist which suggest that he was only using the area standards approach as a pretext to further a.i ultimate bargaining object. Area standards picketing can only be justified where, in fact, the picketed employer's mode of operation can be shown to be substandard in comparison with the negotiated area standards. This necessarily means that there must have been an investigation and an evaluation of comparative standards carried out with as great a degree of thoroughness as the circumstances will permit. In the instant case, we see Phillips embarking upon his initial area standards picketing with at best a most cursory sort of investigation. Phillips had not even made a personal examination and evaluation of the Local 952 contract as a whole, but merely had learned in a telephone conversation of its provisions regarding mileage rates and nondriving time rates. Using this information, he had made hasty calcu- lations of the probable mileage and times that would be 12 Respondents are the only 3 locals of the 13 which would have jurisdic- tion over bakery drivers based in northern California counties in which 133 NLRB 512 Alpha Beta presently has stores. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved in the deliveries. He had not consulted Alpha Beta or any other source for purposes of establishing with any degree of precision the full dimensions of the projected operation but had jumped to the conclusion from his own sketchy investigation alone that once deliveries commenced they would necessarily be substandard. Phillips consulted with his attorney about the area standards doctrine and its limitations, and was advised of the need expressly to dis- claim a recognitional object and generally to act in a man- ner not inconsistent with such disclaimer. Phillips does not represent, however, that the adequacy of his investigation into the standards themselves was discussed with his attor- ney and, apparently, the advice which he received was given on the premise that the investigation which he had conduct- ed was sufficient. I deem Phillips' initial investigation into the comparative costs issue to have been wholly inadequate. From the outset, Phillips' approach to the problem showed little concern for the realities of comparative costs. An accurate evaluation of comparative economic costs of any employer's operation in terms of complex and comprehensive bargaining agree- ments is a difficult task. In a situation like that before us, where comparisons involve both mileage and hourly rates, a definitive comparison becomes especially difficult. Evi- dence in the form of exhibits and testimony in this proceed- ing itself discloses the existence of variables and matters of interpretation which make for differences in results even after the most exhaustive investigation possible. This is a circumstance that cannot have eluded one so experienced as Phillips. Thus, his failure to probe the matter initially with any greater degree of thoroughness than has been shown before embarking upon a course of alleged area standards picketing suggests that his interest did not lie in the area of comparative costs but elsewhere. I deem it a fair inference that Phillips' basic aim at the outset was to bring Alpha Beta within the northern California contract coverage, and that aware that a direct approach might encounter legal obsta- cles he embraced an ostensible area standards approach in the hope that it might circumvent such obstacles and put sufficient pressure on Alpha Beta to further his ultimate bargaining aim. The June 23 and June 29 meetings were called for the sole purpose of exploring the reasons for the picketing, and seek- ing a means to stop it. At these meetings, Phillips insisted the picketing object to be solely to protest substandard de- livenes. However, the events that transpired at both meet- ings, as opposed to these self-serving assertions, do little to suggest that the existence of substandard conditions had replaced Phillips' underlying concern with establishing a bargaining relationship. I find the mutually corroborative testimony of Fox and his associates at each meeting to be reasonable, and, if it is to be credited in all its aspects without qualification, it compels the conclusion that at these meetings Phillips made unequivocal bargaining demands and demonstrated an un- yielding attitude on the three restrictive clauses to which Alpha Beta was objecting. Phillips denies making any such outright bargaining demands, however, and insists that at all times he remained on the legal tightrope prescribed by his attorney in the June 12 letter. Examination of Phillips' testimony, however, indicates that despite his claims to the contrary Phillips' approach was more nearly consonant with the bargaining object than with that which he was ostensibly asserting. At both meetings, Phillips undertakes to support his area standards claim with no more than the sketchy comparative costs investigation which I have already found to be inade- quate. While Fox made repeated assertions that Alpha Beta's deliveries were not being made under substandard conditions, Phillips offered no specifics calculated to refute this nor did he make any suggestions as to how the substan- dard conditions, assuming they existed, might be remedied. Phillips admitted that discussions at both meetings revolved principally around the contract provisions, including espe- cially the three restrictive provisions to which Alpha Beta objected. He acknowledges that copies of the northern Cali- fornia captive bakery agreements were produced and their provisions fully discussed. These meetings took place to seek a means to remove pickets. Phillips purported to insist that his only purpose was to protest substandard deliveries. The purpose could be achieved if Alpha Beta would agree to meet the standards. It could not do so unless Respon- dents could show by facts and figures wherein the existing operation actually was substandard. This aspect however, was completely ignored. Holding a true area standards pur- pose, there was not only no reason to discuss contract provi- sions but, on the contrary, reason to avoid such discussion particularly where it involved noncost items. By failing to advance specific comparative cost data and by fully discuss- ing contract terms, it would appear that Phillips was still following the course which led him to initiate the picketing. The events at these meetings point even more directly to a conclusion that Phillips' underlying interests continued to be to seek some means to bring Alpha Beta within the coverage of the Area Agreement, and that he was continu- ing to use an area standards approach as a means of giving his conduct a lawful cloak, and I so find. The exchange of letters between counsel which led up to the resumption of the picketing presents a further attempt to define the object. An examination of these letters fails to show a reversal of the course which Respondents had been pursuing. On the contrary, I am of the opinion that the letters reinforce my earlier conclusions as to the real object and serve to make it clear that the resumption of the picket- ing on September 7 was for the same unlawful bargaining purpose. The disclaimers in the letters are strongly voiced and are put in language appropriate for the purpose. They cannot be divorced, however, from what had already oc- curred and, considered in conjunction with other aspects of the letter exchange, they do not suffice to establish a lawful object. Counsel for the Charging Party made it clear in his letters that Alpha Beta did not desire nor intend to operate on a substandard basis, that Alpha Beta believed the Local 952 operation to subject it to costs which equalled if not exceed- ed those that would be required by the Area Agreement, that Alpha Beta sought to have Respondents furnish it with an economic analysis showing the manner in which the operation was substandard, that Alpha Beta was prepared to supply Respondents with any facts needed to make the necessary calculations, and finally that, if on the basis of an acceptable cost analysis it could be demonstrated that the SALES DELIVERY DRIVERS, LOCAL 296 economic outlay of Alpha Beta under the Local 952 con- tract was less than the Area Agreement demanded, Aplha Beta "would take whatever steps are necessary to insure that the ultimate costs are identical." The letters from counsel for Respondents fail to meet the basic issues the Charging Party poses. Respondents contin- ue to rely solely on generalized assertions relating to costs to support their claim that the deliveries remained "dis- gracefully substandard." Respondents still place credence exclusively on the totally inadequate initial investigation by Phillips alone, buttressed only by the scarcely more ade- quate supplemental investigation which included tailing a few trucks. Respondents completely ignored Alpha Beta's expressed willingness to give access to records that could lead to a comprehensive and definitive cost analysis. This even suggests that Respondents may have feared that results of such analysis might destroy an excuse for further picket- ing. More significant, however, is Respondents' failure to respond to Alpha Beta's offer to meet the standards should an analysis reveal the operation to be substandard. It is difficult to conceive how Respondents can continue to urge an area standards defense while ignoring such an offer. Disparity in comparative costs is the very foundation upon which an area standards defense rests. In the more usual situation computation of these costs is relatively simple. The comprehensive collective-bargaining contracts render the situation more complex here, but it remains the duty of the union relying on an area standards defense to support its belief in the substandard character of an employer's opera- tion by coming forward with credible evidence that this is in fact true. Here the picketed employer not only challenged the claim that its operation was substandard, but it offered full cooperation in supplying relevant data to prove it, and finally offered to meet area standards if its operation could be shown to be substandard. Under such circumstances, for Respondents to disregard such opportunities and to contin- ue to claim an area standards object, relying only on its own inadequate cost analyses, compels an inference that mainte- nance of standards was not its object at all. For reasons set forth above, I find that from the outset Respondents were seeking to bring Alpha Beta within the coverage of the Area Agreement and that initial picketing as well as the resump- tion of picketing on September 7 was undertaken to achieve that purpose. As we have seen, neither before the initial nor the re- sumed picketing did Respondents endeavor to verify their comparative cost estimates by resort to Alpha Beta's re- cords. Respondents subpenaed such cost data at the hear- ing. Alpha Beta, although claiming such information not to be relevant at this point in the proceeding, supplied Respon- dents with voluminous data pertaining to its delivery costs under the Local 952 contract. This material served as the basis for exhibits prepared by both Respondents and the Charging Party which purport to set forth a comprehensive analysis of comparative costs. The Charging Party claims this exhibit to establish beyond any doubt that Alpha Beta's actual delivery costs under the Local 952 agreement exceed- ed any costs to which it might have been subjected under the Area Agreement. Respondents, on the other hand, as- sert that its analysis of the data as embodied in the exhibit shows the Local 952 delivery costs to have been lower than 473 those which would have been required by the Area Agree- ment. Respondents submit this as support for a continuing claim of an area standards object. The Charging Party chal- lenges the accuracy of Respondents' analysis of the cost data, claiming that the total hours that Respondents used in making their computations do not accurately reflect the true situation, and that the conclusions reached are distorted in a manner which favors Respondents' contention. A cursory examination of the cost data submitted by each party suggests that the Charging Party may be correct in its analysis, and that Respondents' figures may be inaccurate in certain respects. A comprehensive analysis and definitive resolution of these opposing positions, however, is not re- quired, since I deem it unnecessary to rely on comparative cost data not obtained by Respondents until after the hear- ing opened. The General Counsel argues that calculations based on data not secured by Respondents until the time of the hearing "can serve neither to justify nor condemn past conduct for an alleged area standards object." I agree. I have hereto found that Respondents initiated the picketing on June 23 and resumed it on September 7, in circumstances indicating little or no concern with comparative cost stan- dards, but which support an inference that Respondents' true object was to establish a bargaining relationship with Alpha Beta. Even if an evaluation of the data supplied at the hearing should show the deliveries under the Local 952 contract to have been made under substandard conditions, it would not suffice tojustify past conduct in which Respon- dents had revealed its real object to be something else. The issue before me is Respondents' motivation at the time the picketing took place. I have found that Respondents com- menced the picketing following a casual and inadequate investigation of the comparative costs, and that Respon- dents resumed the picketing without giving sufficient con- sideration to Alpha Beta's offer to meet the existing area cost standards following a definitive cost analysis. I have further found that these facts considered in conjunction with surrounding circumstances support an inference that Respondents were picketing for an unlawful recognitional object. Respondents cannot later be heard to justify their picketing by making use of data which they chose to ignore in the first place. Accordingly, I find comparative cost data not obtained until the hearing opened to be irrelevant in determining the issue of unlawful object.13 In summary, and for reasons set forth above, I find Re- spondents' initial investigation of comparative costs to have been sketchy and inadequate, the subsequent settlement discussions to have only emphasized concern for contract coverage rather than compliance with area standards, and the resumption of picketing to have taken place in the face of an inadequate cost analysis and in spite of Alpha Beta's offer to meet existing cost standards. I further find these circumstances to support an inference that, despite Respon- dents ostensible announced area standards object and its 13 Respondents also assert that at all times during the course of this contro- versy they acted in a good-faith belief that Alpha Beta's deliveries were actually substandard Even if we assume this to be true, I am of the opinion that good faith alone is not sufficient to justify picketing for area standards when it has not been accompanied by reasonable efforts to ascertain what the standards actually are 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disclaimer of a recognitional object, the true object of the picketing was to bring the northern California bakery deliv- eries under the coverage of the Area Agreement. Picketing for such a proscribed object is conduct violative of Section 8(b)(7)(A), and I so find. THE REMEDY Having found that Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(7)(A), I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Alpha Beta Acme Markets, Inc., is an employer en- gaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Respondent Locals 296, 432, and 484 are each of them labor organizations within the meaning of Section 2(5) of the Act. 3. Respondents, and each of them, by picketing the retail stores and the distribution center of Alpha Beta in northern California, with an object of forcing or requiring Alpha Beta to recognize or bargain collectively with Respondents and other locals which are parties to the Northern California Area Agreement at times when Respondents were not certi- fied as such representative and Alpha Beta had lawfully recognized another labor organization in accordance with the Act and a question concerning representation could not appropriately be raised under Section 9(c) of the Act, en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(7)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in this proceeding, I hereby issue the following recommended: ORDER 14 Respondents, Locals 296, 432 and 484, and each of them, their respective officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Picketing, causing to be picketed, or threatening to picket any retail store or distribution center of Alpha Beta Acme Markets, Inc., located in northern California, where an object thereof is forcing or requiring Alpha Beta to rec- ognize or bargain with Respondents as the collective-bar- gaining representative of its employees, when Alpha Beta has lawfully recognized Local 952, or any labor organiza- tion other than Respondents, and a question concerning representation of said employees may not appropriately be raised under Section 9(c) of the Act , unless Respondents are then currently certified as the collective-bargaining repre- sentatives of the employees of Alpha Beta. 2. Take the following affirmative action which is neces- sary to effectuate the purposes of the Act: (a) Post at the respective business offices and the meeting halls of each Respondent copies of the attached notice marked "Appendix." 15 Copies of the notice on forms pro- vided by the Regional Director for Region 20, after being duly signed by an authorized representative of each Re- spondent local shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Forthwith mail to the aforesaid Regional Director for Region 20 signed copies of the notices for posting by Alpha Beta, if it so chooses, in places where notices to its employ- ees are customarily posted. (c) Notify the Regional Director for Region 20, in wnt- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 14 In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 15 In the event that the Board's Order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, under conditions prohibited by Section 8(b)(7)(A) of the National Labor Relations Act, as amended, picket, cause to be picketed, or threaten to picket Alpha Beta Acme Markets, Inc., at any of its northern California stores or distribution centers where an object thereof is to force or require Alpha Beta to recognize or bargain with us as the representative of its employees. SALES DELIVERY DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL 296 OF SANTA CLARA AND SAN BENITO COUNTIES, CALIFORNIA, BAKERY WAGON DRIVERS AND SALESMEN LOCAL 432 OF ALAMEDA AND CONTRA COSTA COUNTIES, CALIFORNIA, BAKERY WAGON DRIVERS AND SALESMEN LOCAL 484 (Labor Organization) SALES DELIVERY DRIVERS, LOCAL 296 475 Dated By This notice must remain posted for 60 consecutive days (Representative) (Title) from the date of posting and must not be altered, defaced or covered by any other material . Any questions concerning this notice or compliance with its provisions may be direct- This is an official notice and must not be defaced by ed to the Board's Office, 13018 Federal Building, Box 360 anyone. 47, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-0335.