Carpenters, Local 1849

CARPENTERS, LOCAL 1849 461 United Brotherhood of Carpenters and Joiners of America, Local No. 1849, AFL-CIO and Robert Young Developments, Inc. Case 19-CP-183 January 17, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PFNELLO On March 12, 1973, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief, Charging Party filed exceptions and a supporting brief, and Respondent filed a brief in support of the Administrative Law Judge's Decision and in opposi- tion to exceptions. Pursuant to tie 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 briefs and has decided to affirm the rulings, findings. and conclusions of the Administrative Law Judge and to adopt his recommended Order only to the extent consistent herewith. The General Counsel alleges that Respondent violated Section 8(b)(7)(C) of the Act by picketing Robert Young Developments, Inc., for the purpose of securing recognition without filing an election petition within 30 days after the commencement of such picketing. The Respondent admittedly picketed for recogni- tion, but argued at the hearing that it was for continued rather than initial recognition. At the hearing the parties litigated only the issue of whether Respondent picketed for continued recognition of an employer operating under a new name or whether the Employer was a new employer and the picketing was for initial recognition. The Administrative Law Judge found that the Employer was an employer which had at one time recognized Respondent as the collective-bargaining representative of its employees and was operating under a new name, but that it had successfully terminated its collective-bargaining relationship and that the picketing was for initial recognition. Respon- dent has not excepted to this finding, and we adopt it. Although the Administrative Law Judge found that Respondent was picketing for initial recognition, he further found, sua sponte, that the purpose of Respondent's picketing was to truthfully advise the public that the Employer did not have a contract with Respondent within the meaning of the second proviso to Section 8(b)(7)(C) of the Act and, since there was no "effect" shown, the picketing was not violative of Section 8(b)(7)(C) of the Act. Such a defense was not alleged by Respondent, nor was it specifically litigated at the hearing. Nonetheless, assuming arguendo that the defense is properly before us, we do not agree with the Administrative Law Judge's finding that Respondent's picketing met the requirements of the publicity proviso to Section 8(b)(7)(C) of the Act. Robert Young Construction, a sole proprietorship owned by Robert Young. built and sold residences. In March 1969, Robert Young terminated all of his employees except supervisors and office clericals, sold his equipment, and carried on his work through subcontractors. In July 1969, Robert Young desig- nated Bosch as his general manager in charge of day- to-day decisions and labor relations. Since May 1967, Robert Young Construction, through its membership in a multiemployer bargain- ing group, has had contracts with Respondent which terminated in June 1971. In March 1971, Robert Young Construction ceased doing business. Also in March 1971, Robert Young Construction. Inc., was formed with Robert Young, his wife, and Bosch as stockholders. Robert Young Construction, Inc., during March 1971, notified the Union that it was not a party to the negotiations being then carried on between the multiemployer group and Respon- dent and would not be bound by any agreement they concluded. On April 13, 1971, Robert Young Construction, Inc., left the multiemployer bargaining group and during May 1971 began hiring carpenters and resumed performing its own construction work. Robert Young Developments, Inc., was formed in September 1971 and was owned by both Robert Young and Bosch. In March 1972, Robert Young Construction, Inc., transferred all of its employees to the new company. On April 11, 1972, Respondent informed Bosch, as president of Robert Young Construction, Inc., that it was negotiating with the multiemployer bargaining group and requested that, since the company was not a member of the multiemployer group, it bargain separately with Respondent. Bosch refused. During April and July 1972, Respondent then met with Bosch and demanded that Robert Young Developments, Inc., enter into a labor agreement recognizing Respondent as the representative of its employees. Robert Young Developments, Inc., re- fused Respondent's demand. Respondent then claimed that Robert Young Developments, Inc., was nevertheless bound by Respondent's multiemployer 208 NLRB No. 42 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract by virtue of Robert Young Construction's and Robert Young Construction, Inc.'s membership in the multiemployer bargaining group. Respondent then picketed Robert Young Develop- ments, Inc.'s operations, starting July 19, 1972, for more than 30 days without filing an election petition. The picket sign read as follows: STRIKE ROBERT YOUNG DOES NOT HAVE AN AGREEMENT WITH UNION CARPENTERS Additional Conclusions of Law United Brotherhood of Carpenters and Joiners of America, Local No. 1849, AFL-CIO, by picketing Robert Young Developments, Inc.. on and after July 19, 1972, with an object of forcing or requiring Robert Young Developments, Inc., to recognize or bargain with Respondent as the representative of the employees of Robert Young Developments, Inc., although Respondent was not certified as the representative of said employees, without a petition under Section 9(c) of the Act having been filed within 30 days after the commencement of such picketing, has engaged in unfair labor practices proscribed by Section 8(b)(7)(C) of the Act. At the same time Respondent requested that Robert Young Developments, Inc., recognize it as the bargaining representative of its employees. The Administrative Law Judge found that the reference to "strike" on the picket sign was not sufficient to show that the union's picketing was aimed at employees rather than the public. In the absence of 'any other activity by Respondent to show that the picketing was not directed to the public, the Administrative Law Judge found that the picketing, although for a recognitional object, was protected by the second proviso to Section 8(b)(7)(C). Contrary to the Administrative Law Judge, we believe that the word "strike" on Respondent's picket sign indicates that the picketing was directed at employees rather than to the public. Partly because use of these words in this situation is untruthful, such words have been held, in a similar case, to constitute not just publicity but a "signal" to other employees to respect a picket line.' Further- more, Respondent's contention that it was picketing for continued recognition implied that the picketing was directed to Robert Young Developments' em- ployees, or to Robert Young, and not the public. We therefore find that Respondent's picketing was not for the purpose of truthfully advising the public that it did not have a contract with the Employer, and therefore was not protected by the proviso to Section 8(h)(7)(C).2 We find, accordingly, that Respondent violated Section 8(b)(7)(C) by picketing Robert Young Developments, Inc., for over 30 days for the purpose of securing recognition without filing an election petition. i See Hotel, Motel and Club Employees, Union Local 568, AFL-CIO (Restaurant Management), 147 NLRB 1060, 1068 In Restaurant Manage- ment, supra, the Board adopted the Trial Examiner's conclusion that a picket line with the words "on strike," by proclaiming the existence of a strike against the employer went beyond truthfully advising the public that it did not have a contract with the employer Cf. Hoisting and Portable Engineers, Local 101, etc, 140 NLRB 1175, wherein also a violation was Remedy Having found that Respondent engaged in certain unfair labor practices , we shall order that it cease and desist therefrom , and take certain affirmative action designed to effectuate the policies of the Act. Respondent shall be ordered to cease and desist from picketing Robert Young Developments, Inc., where an object thereof is to force it to recognize or bargain with United Brotherhood of Carpenters and Joiners of America, Local No. 1849, AFL-CIO, as the collective-bargaining representative of the employees of Robert Young Developments, Inc. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby orders that Respondent, United Brotherhood of Carpenters and Joiners of America, Local No. 1849, AFL-CIO, Pasco, Washington, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Picketing or causing to be picketed, or threaten- ing to or causing to be picketed, Robert Young Developments, Inc., where an object thereof is to force or require Robert Young Developments, Inc., to recognize or bargain with United Brotherhood of Carpenters and Joiners of America, Local No. 1849, AFL-CIO, or any other labor organization, as the collective-bargaining representative of the employees of Robert Young Developments, Inc., or to force or require the employees of Robert Young Develop- ments, Inc., to accept or select United Brotherhood of Carpenters and Joiners of America, Local No. found, cited and distinguished by the Administrative Law Judge 2 In view of this finding, we need not reach the contention of the General Counsel that, in any event. Respondent stipulated in the injunction proceeding before the District Court that its picketing had an effect of stopping deliveries, and for that additional reason, the General Counsel contends, is not protected by the proviso CARPENTERS, LOCAL 1849 1849, AFL-CIO, or any other labor organization, as their collective-bargaining representative, unless and until United Brotherhood of Carpenters and Joiners of America, Local No. 1849, AFL-CIO, or such labor organization, is, at the time of such picketing, currently certified as the collective-bargaining repre- sentative of such employees. (b) In any like or related manner restrain or coerce the employees of Robert Young Developments, Inc., in the exercise of their rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Post at its business offices and meeting halls in Pasco, Washington, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's repre- sentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and forthwith mail to the aforesaid Regional Director such additional copies of the aforesaid Appendix, as said Regional Director may request, for posting by Robert Young Developments, Inc., said Employer being willing at the latter's Richland, Washington, premises where notices to employees thereof are customarily posted. (c) Notify saie. Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 In the event that this Order is enforced by a Judgment of a 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 EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket or cause to be picketed Robert Young Developments, Inc., where an object thereof is to force or require the aforesaid Company to recognize or bargain with us as the representative of its employees, or where an object is to force or require the employees of Robert Young Developments, Inc., to accept or select us as their collective-bargaining agent in violation of Section 8(b)(7)(C) of the Act. 463 WE WILL NOT in any like or related manner restrain or coerce employees at those premises in the exercise of their rights guaranteed them by Section 7 of the Act. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL No. 1849, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Republic Building, 10th Floor, 1511 Third Avenue, Seattle, Washington 98101, Tele- phone 206-442-4532. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in this case, held on January 30, 1973, is based upon charges filed by Robert Young Developments, Inc. on August 21, 1972, and a complaint issued on November 20, 1972, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of the Board, Region 19, alleging that United Brotherhood of Carpenters and Joiners of America, Local No. 1849, AFL-CIO, herein called Respondent, has engaged in unfair labor practices within the meaning of Section 8(b)(7)(C) of the National Labor Relations Act, as amended. The complaint was amended without objection at the hearing. Respondent filed an answer denying the commission of the alleged unfair labor practices. Upon the entire record, and from the observation of the demeanor of the one witness, and having considered the posthearing briefs, I make the following: FINDINGS OF FACT' I. THE BUSINESS OF THE EMPLOYER INVOLVED Robert Young Developments, Inc., is a State of Wash- I The facts in almost all respects were stipulated 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ington corporation with its principal business office located at 1201 Jadwin, Richland, Washington, where it is engaged in the construction and sale of residential and apartment buildings . During the past calendar year , its gross revenue from sales or the performance of services was in excess of $500,000 and in the same period it purchased products valued in excess of $50,000 from suppliers who in turn purchased said products directly from outside the State of Washington. Respondent admits that Robert Young Developments, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, Local No. 1849, AFL-CIO, the Respondent, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE QUESTIONS PRESENTED The ultimate question presented is whether Respondent in picketing Robert Young Developments, Inc., with a recognitional object was picketing for "initial" recognition in violation of Section 8(b)(7)(C) of the Act, or was picketing in support of previously granted recognition. Also presented is the question of whether the publicity proviso in Section 8(b)(7)(C) immunized the picketing from illegality. IV. THE UNFAIR LABOR PRACTICES A. The Facts Respondent is not the certified bargaining representative of the employees of Robert Young Developments, Inc., and it is undisputed that it has picketed this Employer's operations since July 19, 1972, for over 30 days without the filing of an election petition . The picket signs read as follows: STRIKE ROBERT YOUNG DOES NOT HAVE AN AGREEMENT WITH UNION CARPENTERS Immediately before and after the picketing, the Respon- dent, through its business representative, Guy Adams, demanded that Robert Young Developments, Inc., enter into a labor agreement compelling it to recognize the Respondent as the representative of its employees. The Employer refused to grant recognition to Respondent. Respondent admits that its picketing has a recognition object, but urges it is not unlawful because Robert Young Developments, Inc., has recognized and extended bargain- ing rights to the Respondent . In order to understand this defense it is necessary to view the operations of, and relationships between , the following business organiza- tions: Robert W. Young d/b/a Robert Young Construc- tion, herein sometimes called Robert Young Construction; Robert Young Construction, Inc., herein sometimes called Construction, inc.; and Robert Young Developments, Inc., herein sometimes called Developments, Inc. 1. Robert Young's business enterprises Robert Young Construction, a sole proprietorship, was owned by Robert Young, who for a number of years prior to 1969 built and sold residences. In March 1969, he terminated all of his employees except for supervision and an office clerical and sold all of his construction equip- ment . All building operations thereafter were carved on through the use of subcontractors. Also, in July 1969, Robert Young accepted employment in California, moved his residence there, and designated Gary Bosch as general manager in charge of the operations of Young 's business, Robert Young Construction. From that time Bosch made all of the day-to-day and labor relation decisions. Finally, on or about March 9, 1971, Robert Young Construction, under the following circumstances, ceased doing business. On or about March 9, 1971, Robert Young Construction, Inc., a corporation wholly owned by Robert Young and his wife, Jacqueline Young, was incorporated and took over the business operations of the proprietorship, Robert Young Construction. The intent of Robert Young in incorporating the proprietorship was to take advantage of the limited liability provided by a corporation and to provide an equity ownership for General Manager Gary Bosch. The officers and board of directors of Construction Inc. at all times have been: Robert Young, president; Gary Bosch, vice president; and Jacqueline Young, secretary- treasurer . The corporation took over and engaged in the identical business as the proprietorship, land and property development and home construction Its registered agent with the State of Washington is Gary Bosch. Until August 1972 it operated using the contractor's license issued to the proprietorship. And, like the proprietorship, it initially employed no carpenter employees, apparently using subcontractors to perform this work. In May 1971, however, it hired carpenter employees, none of whom had been employed by the proprietorship. Although it does not appear that Construction, Inc., ever totally ceased opera- tions, all of its employees were transferred to a new company, Robert Young Developments, Inc., on or about March 1, 1972, under the following circumstances. As indicated above, Construction, Inc., was formed on March 9, 1971, to limit Robert Young's personal liability and to give General Manager Gary Bosch an equity in the business. Robert Young's tax attorney, however, deter- mined that if certain real property was transferred from Construction, Inc., it would be disadvantageous tax wise to Robert Young. So, on the advice of his tax lawyer, Robert Young formed a new corporation, Robert Young Develop- ments, Inc., which was incorporated on September 30, 1971. Certain real property was transferred to this corporation and other real property allowed to remain with Construction, Inc. The major part of Developments, Inc., 70 percent, is owned by Robert Young; the remainder, 30 percent, by Gary Bosch. On September 30, 1971, the officers and board of directors were: Robert Young, president; Gary Bosch, vice president; and Jacqueline Young, secretary-treasurer. On June 29, 1972, the officers were: Gary Bosch, president; Elly Rowland, vice presi- CARPENTERS, LOCAL 1849 465 dent; and Jacqueline Young, secretary-treasurer. These individuals, with Robert Young, comprised the hoard of directors. On the date of this hearing, January 30, 1973, the officers and board of directors remained the same, except that Thomas Bosch, a brother of Gary Bosch, is now vice president and a director, replacing Elly Rowland. Develop- ments, Inc., is engaged in the identical business as Construction, Inc., shares an office, telephone number, and post office box with Construction, Inc. Like Construction, Inc.. it has designated Gary Bosch as its registered agent with the State of Washington. Also, on one occasion Developments, Irc., shared an advertisement with Con- struction, Inc. Developments. Inc., until August 1972, operated using the contractor's license issued to the proprietorship, Robert Young Construction. Regarding employees, on or about March 1, 1972, all of the employees employed by Construction, Inc.. were transferred to the payroll of Developments, Inc., and since that date have been the responsibility of, and have been paid by, Developments, Inc. At all times material, Developments, Inc., has employed employees on its construction projects located within the Respondent's geographical jurisdiction, a majority of whom were not members of the Respondent, and who had not designated the Respondent as their representative for the purposes of collective bargaining. 2. Respondent's bargaining history with Robert Young's enterprises The various enterprises owned by Robert Young, described above, are located in that part of the State of Washington known as the area of the Tri-Cities. The home builders located in this area have formed an association known as the Home Builders Association of the Tri-Cities, herein called the NAHB, which on behalf of its member- ship has negotiated a collective-bargaining agreement, known as the carpenter agreement, with Respondent covering all building, heavy highway and engineering construction work within the jurisdiction of Respondent. The carpenter agreement covers a multiemployer bargain- ing unit consisting of all those employees employed by the members of NAHB who give the association authority to bargain on their behalf. Robert Young Construction, the proprietorship, was a member of NAHB and, commencing in May 1967, as part of the multiemployer unit a became a party to successive carpenter agreements negotiated on its behalf by the NAHB. Each one of these agreements contained the type of union-security provision permitted in the construction industry by Section 8(f) of the Act, namely, requiring union membership after 8 days of employment.3 The last carpenter agreement was entered 2 While not clear that Robert Young Construction initially was part of the multiemployer unit, it is undisputed that by October 1, 1968. it had become a part of this unit a When Robert Young Construction initially became a party to the carpenter agreement, of its two employees only one was a member of Respondent There is no showing, however, that a majority of the employees covered by the union-security agreement in the multiemployer unit either at this time or at any time were not members of Respondent 4 Robert Young Construction prematurely attempted to terminate its obligations under this contract on June 23, 1969, at which time Robert Young by letter notified the Respondent that it was terminating the carpenter agreement "effective immediately" explaining, in substance, that the Respondent's threat to institute certain legal action against him while it into by Respondent and NAHB, on behalf of its member- employers including Robert Young Construction, on October 1, 1968, and was effective from that date until June 1, 1971, "and from year to year thereafter unless notice is given in writing by the [Respondent] or the [NAHB] to the other party sixty days prior to the expiration of any subsequent annual period of its desire to modify, amend or terminate this agreement, and in such case the agreement shall be opened for modification, amendment or termination such as the notice may indicate at the expiration of the period with which the notice is given." 4 By letter of March 29, 1971, Respondent notified NAHB of its intent to reopen the carpenter agreement "for modification and amendments" and asked the NAHB to schedule a negotiation meeting. The record does not indicate when the parties first met or when they exchanged their initial proposals. However, on April 13, 1971, Gary Bosch on behalf of Construction, Inc., notified the Respondent and NAHB by letter that Construction, Inc., was not a party to, or involved in, the negotiation of the carpenter agreement between the Respondent and NAHB and would not be bound by any such agreement .-9 This letter went unanswered. In the meantime the negotiations for a new carpenter agreement with the NAHB was delayed by the fact that proposed agreements dealing with wages and fringe benefits had to be submitted for approval to the Construction Industry Stabilization Committee set up under the Federal Government's wage-price freeze machinery in the construction industry. Eventually, on April 11, 1972, Respondent, through its business represent- ative Guy Adams, by letter addressed to Gary Bosch as president of Construction, Inc., informed Bosch that Respondent was currently negotiating with NAHB and hoped they would agree to a contract on April 12, 1972, which in turn could be used as a guide for other home builders in the Tn-City area that had not delegated their bargaining to the NAHB. Continuing. Adams expressed the thought to Bosch that, "[t]herefore, since your company is not represented by the [NAHB ], please accept this as an invitation to negotiate with us on the modifica- tions and amendments to the body of the Agreement and wage structure." Thereafter, as set out earlier, Adams met with Bosch during the months of April and July 1972, at which time Adams demanded that Developments. Inc., enter into a labor agreement compelling it to recognize the Respondent as the representative of its employees.6 Bosch refused. Finally, it seems that at one of these meetings that Adams claimed that Developments, Inc., was bound by a contract with the Respondent. Thus, Bosch in his letter of might he well grounded legally was morally unconscionable s Whether the Employer be viewed as Robert Young Construction or Construction, inc., I find that by this letter it effectively withdrew from the multiemployer unit covered by the carpenter agreement and, as indicated infra, the Respondent consented to this withdrawal Respondent's attorney during the hearing conceded that the withdrawal was timely and effective In these circumstances, the fact that in the fall of 1971 NAHB in one of its publications included Robert Young Construction among the list of its members, without permission, does not demonstrate that the Employer remained within the contractual multiemployer bargaining unit. 6 In making these demands, Adams did not intend to draw any distinction between Construction. Inc, and Developments. Inc. regarding them as the same employer 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 27, 1972, to Adams stated: "During our meeting on Friday April 21, 1972, we agreed that you would supply me, Monday, with our contract and information showing that we are still under union agreement. As I stated then, I cannot make a decision without knowing the situation pertaining to whether or not we are under contract." B. Discussion and Ultimate Findings Section 8(b)(7)(C) of the Act, which is involved herein, prohibits picketing by an uncertified union where an object thereof is "forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees," if such picketing has been conducted for more than 30 days without the filing of an election petition. The second proviso to this section, commonly known as the publicity proviso, exempts from the prohibition "any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization" unless an effect of such picketing is to induce employees of other employers not to pick up or deliver goods or perform services. In the instant case, Respondent picketed with signs stating that the Employer does not have a contract with Respondent. Immediately prior to, and after, the com- mencement of this picketing, a representative of Respon- dent requested that the Employer recognize the Respon- dent as the bargaining representative of its employees. Clearly, the language of the picket sign and the statements of Respondent's representative, taken together, establish that, in picketing the Employer the Respondent was motivated by a recognitional objective. In these circum- stances, since Respondent has not been certified to represent the Employer's employees and the picketing has been carried on for over 30 days without an election petition having been filed, it would seem that Respondent violated Section 8(b)(7)(C) by its picketing unless, as contended by Respondent, the picketing was not for an object of "initial" recognition or unless the second proviso in 8(b)(7)(C), the publicity proviso, immunized the picket- ing. I shall now set out and discuss my ultimate findings with respect to these defenses. I Construction, Inc., and Developments, Inc., I find, constitute one employer for purposes of the Act. They share the same office, post office box, phone number, on one occasion advertised together, and until August 1972 used the same contractor's license. In short, they represent themselves to the public as a single enterprise. Even more important, there is common ownership and control, and Gary Bosch exercises control over the labor relations policies of both companies. Also, all of the employees of Construction, Inc. were transferred without a break in their employment to Developments, Inc. and both employers are engaged in the identical business. In short, I am convinced that whether they are viewed as a single T Building and Construction Trades Council of Santa Barbara County, AFL-CIO, et al. (Sullivan Electric Co.), 146 NLRB 1086, 1087, also see, Bay Counties District Council of Carpenters, etc (Disney Roofing & Material), 154 employer or alter egos of each other, or whether Develop- ments, Inc., is the successor to Construction, Inc., that in the circumstances of this case Developments, Inc., and Construction, Inc., have been one employer, at all times material, for the purposes of the Act. Cf. International Union of Operating Engineers, Local 428, AFL-CIO, 169 NLRB 184; N.L.R.B. v. Burns International Security Services, Inc., et al, 406 U.S. 272, 277-281; Associated Transport Company of Texas, Inc., et al., 194 NLRB (1972) 62. Regarding the relationship between Construction, Inc., and Developments, Inc., hereafter referred to collectively as Developments, Inc., and the proprietorship, Robert Young Construction, I am of the opinion that Develop- ments, Inc., is the same employer as, or the alter ego of, Robert Young Construction. Developments, Inc., was formed for the purpose of taking over the business of Robert Young Construction. As late as August 1972, Developments, Inc., operated using the contractor 's license issued to Robert Young Construction. The principal investor and the motivating force in forming Develop- ments, Inc., was Robert Young, the sole owner of Robert Young Construction. And the same person, Gary Bosch, controlled, conducted, and was responsible for the opera- tions, including labor relations , of Developments, Inc., in the same manner as he had done with respect to the operations of Robert Young Construction. I realize that there was no transfer of employees from Robert Young Construction to Developments, Inc., and that under conventional successorship doctrine (see N.L.R.B. v. Burns International Security Services, Inc., et al., supra ) this mitigates against a finding that Developments, Inc., is a successor employer to Robert Young Construction. I do not believe, however, that the conventional tests for successorship apply in a situation such as the instant case which does not involve the normal arms' length transfer of a business between unrelated sellers and purchasers. Cf. Stateside Shipyard and Marina Inc., 178 NLRB 516, 518. In the light of the foregoing, and the whole record, I find that at all times material Robert Young Construction, Robert Young Construction, Inc., and Robert Young Developments, Inc. have been one employer or the alter egos of each other for purposes of the Act, and hereafter I will refer to each of them as the Employer. II The Board has held in a number of cases that Section 8(b)(7)(C) is not to be literally applied so as to reach picketing by a recognized union to secure a new agreement or to secure compliance with an existing contract, since the section was intended to proscribe picketing having as its target forcing or requiring an employer's initial acceptance of the union as the bargaining representative of his employees. [Emphasis supplied.]? Respondent contends its picketing of the Employer did not NLRB 1598. 1605: Local Union No 612, etc. (Deaton Truck Line), 150 NLRB 514, 517: Warehouse Employees Union Local 570, etc (Whitaker Paper Co), 149 NLRB 731. CARPENTERS, LOCAL 1849 467 have an "initial" recognition object inasmuch as the Employer had previously recognized the Respondent; and Respondent was irying to get the Employer to comply with an existing bargaining obligation under the carpenter agreement which was being renegotiated. I disagree. In my view the record establishes that the Respondent's picketing has "as its target forcing or requiring [Developments, Inc.'s ] initial acceptance of the [Respondent] as the bargaining representative of [its] employees." Building and Construction Trades Council of Santa Barbara County, AFL-CIO, ei al. (Sullivan Electric Co.), supra at 1087. The Employer's last contract with the Respondent was entered into on October 1, 1968, and was effective from that date until June 1, 1971. The Employer for a major part of this period, over 2 years from March 1969 until May 1971, employed so construction employees. At about the same time the Employer in 1971 commenced to reemploy construction employees, it notified Respondent and NAHB that it was withdrawing from the multiemployer bargaining unit represented by NAHB and would not be bound by the results of Respondent's negotiations with the NAHB. Respondent acquiesced in the Employer's timely withdrawal from the multiemployer unit and thereafter sought recognition and bargaining on a single-employer basis. The Employer, as a single employer, at all times refused to recognize Respondent. Finally, it was stipulated by Respondent that at all times, including the dates of the picketing, it was in effect a minority union, specifically that it did not represent a majority of the Employer's employees employed on the various construction projects and that less than a majority of these employees were members of Respondent.8 In summation, the Respondent had no bargaining constituency among the Employer's employees for over 2 years, the Respondent when the Employer reemployed such employees accepted the Employer's withdrawal from the multiemployer unit and unsuccessfully sought recogni- tion in a single employer unit in which the Respondent did not represent a majority of the employees. These circum- stances demonstrate to my satisfaction that in picketing the Employer the Respondent was not picketing in support of the bargaining rights it had already secured in the historical multiemployer unit, but the picketing was designed to force or require the Employer's "initial" acceptance of the Respondent as the bargaining represent- ative of employees in a single employer unit, despite the fact that the Respondent did not represent a majority in such a unit. Clearly, such picketing is identical to the so- called "blackmail picketing" for which 8(b)(7)(C) was meant to cover .9 See, Warehouse Employees Union Local 570, etc. (Whitaker Paper Co.), supra, at 734. In concluding that Respondent's picketing was not for initial recognition, I have considered its argument that the 1968 multiemployer carpenter agreement to which the s Although the stipulation, as set out above, is not a model for clarity, I find from the record as a whole and from the stipulation itself that the parties meant to stipulate and in fact did stipulate that the Respondent was a minority union among the Employer's employees whom Respondent was attempting to represent 9 I realize, as the Charging Party and General Counsel point out, that the initial contract between the Respondent and the Employer was apparently entered into pursuant to the provisions of Section 8(f) of the Act, that the Employer was a party has never terminated, that negotia- tions were only opened to amend and modify the agreement, and that under these circumstances the Em- ployer was obligated to continue to honor the agreement at the time of the picketing. In this connection the record shows that the 1968 carpenter agreement by its terms only grants to the party-signatories, the Respondent and NAHB, the power to terminate the agreement at the expiration date. They chose in 1971 not to terminate the agreement but rather to open the entire agreement "for modifications and amendments." Thus, it literally appears that the 1968 agreement was never terminated. Neverthe- less, I cannot accept Respondent's contention that the Employer, despite its timely withdrawal from the contrac- tual multiemployer bargaining unit embodied by the carpenter agreement, was still obligated to honor the agreement. This would be inconsistent with the Employer's withdrawal from the contractual bargaining unit and, in large part, makes such a withdrawal meaningless. In this regard, I note that a multiemployer bargaining relationship is a consensual matter and that the Employers have an absolute right to withdraw from such a unit, subject to certain ground rules established by the Board. Retail Associates, Inc., 120 NLRB 388. The Employer in the instant case followed these rules. Under all these circum- stances, including the Respondent's minority status among the Employer's employees and the timely withdrawal by the Employer from the multiemployer unit, I am of the view that the Employer was not obligated at the time of the picketing to honor the 1968 multiemployer carpenter agreement. Cf. Retail Clerks International Association, AFL-CIO v. Montgomery Ward & Co., 316 F.2d 754, 757 (C.A. 7, 1963) ("An implied condition of the contracts was the continuance of that status as such certified representa- tive.") III The fact that Respondent, as I have found, picketed the Employer for recognition within the meaning of Section 8(b)(7)(C) does not end this matter, for 8(b)(7)(C) provides, in the so-called publicity proviso, that nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ mem- bers of, or have a contract with, a labor organization, 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. In construing this proviso, the Board has held that, even though picketing is conducted for a proscribed object, a Board does not in a normal 8(f) situation presume majority status simply by virtue of the contract's existence, and accordingly will not find an employer in violation of Section 8(a)(5) and ( 1) of the Act for repudiating the contract, absent some showing that the Union has in fact obtained majority status See, e g, R J Smith Construction Co, 191 NLRB 693. However, in view of my findings above. I need not decide the effect of an 8(f) contract in the context of an alleged violation of Sec 8(b)(7)(C) of the Act 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation of Section 8(b)(7)(C) is not established if the picketing is for the purpose of truthfully advising the public, including consumers, that the employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce a stoppage of deliveries and/or services. Retail Clerks Union Local 324, etc. (Barker Bros. Corp.), 138 NLRB 478. The picketing in the instant case, in my view, was conducted for informational purposes. Thus, the picket signs stated, "STRIKE. ROBERT YOUNG DOES NOT HAVE AN AGREEMENT WITH UNION CARPEN- TERS." This language brings the signs within the literal wording of the publicity proviso. There was no contention nor evidence that the picketing caused any interruption of work or deliveries so as to have a sufficient impact on the Employer's operations to constitute an "effect" within the meaning of the publicity proviso. There is no evidence of conduct by Respondent which establishes that the picket- ing rather than "for the purpose of truthfully advising the public" was merely a tactic to advise employees of the Employer and other contractors and subcontractors working on the picketed projects of the existence of Respondent's controversy with the Employer and to induce them to leave work. The use of the word "strike" by itself on the sign is not sufficient for me to infer that the purpose of Respondent's picketing was to signal economic action, rather than to truthfully advise the public. See, Hosting & Portable Engineers Local 101, etc. (Sherwood Construction Co.), 140 NLRB 1175, 1178-79, where the Board in a case involving the use of a picket sign almost identical to the one used here, found that the purpose of the picketing was not to truthfully advise the public. This conclusion, however, was based solely on the manner in which the respondent union in that case conducted the picketing. As already indicated, the evidence in this case does not establish that the Respondent in conducting its picketing, or by other conduct, acted inconsistent with a purpose of truthfully advising the public that the Employer had no contract with Respondent. IV To sum up, I find that Respondent's picketing, although for a recognition object, was for "the purpose" of truthfully advising the public that the Employer did not have a contract with the Respondent and, therefore, such picket- ing fell within the ambit of the second proviso in Section 8(b)(7)(C). I rely particularly on the fact that Respondent picketed the Employer with signs substantially embodying the language of the second proviso and that Respondent took no other action indicating the purpose of its picketing was not to inform the public that the Employer did not have a contract with the Respondent . I also find that Respondent's informational picketing did not constitute "an effect," within the meaning of the second proviso in Section 8(b)(7)(C). I find, therefore, that in the absence of "an effect" attributable to the informational picketing, Section 8(b)(7)(C) is not violated. Accordingly, I shall recommend dismissal of the complaint herein. CONCLUSIONS OF LAW 1. Robert Young Developments, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Brotherhood of Carpenters and Joiners of America, Local No. 1849, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: io ORDER The complaint is dismissed in its entirety. 10 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and order, and all objections thereto shall be conclusions, and recommended Order herein shall, as prodded in Sec deemed waived for all purposes