Carpenters Local 399 (K & K Construction Co.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union 399, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and K & K Construction Co., Inc. Case 22-CC-675 November 22, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS, PENELLO, AND MURPHY On December 8, 1976, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. For reasons set forth herein, we disagree with the Administrative Law Judge's conclusion that Respon- dent Local 399 violated Section 8(b)(4)(ii)(B) of the Act by publicizing a primary area standards dispute to the consuming public by means of peaceful pickets and handbills. As more fully detailed in the Administrative Law Judge's Decision, Panther Valley Ltd. is a contractor engaged in land development and construction of housing at the Panther Valley development in New Jersey. Robert L. Karnell & Co., Inc., and K & K Construction Co., Inc., herein called K & K, comprise a single employer and are subcontractors performing carpentry work at the Panther Valley construction site. In October 1975, Respondent's business representative, Whitford, wrote K & K stating that he had been advised K & K was to perform carpentry work at the Panther Valley site and that, according to his information, K & K employees did not receive wages and fringe benefits commensurate with prevailing union standards. Whitford requested confirmation of his information, indicating that if he did not receive an answer he would assume his information was correct and the Union would commence informational picketing and handbilling to advise the public of its area standards dispute. Whitford also clearly indicated to K & K that all publicity would terminate when area stan- dards were met. Respondent subsequently picketed entrances to the Panther Valley construction site on two dates in November 1975, one weekend in April 1976, and two weekends in June 1976. Shortly thereafter, charges were filed by K & K leading to the instant proceeding. ' 190 NLRB 261 and 192 NLRB 377 (1971), enfd. 468 F.2d 1187 (C.A. 9, 1972). 2 International Union of Operating Engineers, Local No. 139, AFL-CIO, et al. (Oak Construction, Inc.), 226 NLRB 759 (1976). 233 NLRB No. 99 The record shows that Respondent exercised great care to comply with the law in publicizing its area standards dispute. Signs and handbills clearly indi- cated that the dispute was directed solely at K & K, the primary employer. Picketing was at all times peaceful and at no time sought or in fact resulted in work stoppage or interference with services or deliveries. Nor did the Union impermissibly threaten or coerce any employer for a proscribed object, as the record amply demonstrates that the Union's activity was in furtherance of a lawful primary object-the preservation of area standards. The legitimacy of this object is substantiated by the Union's conscientious efforts to confirm the primary employer's substandard wage and benefit structure and by the Union's unequivocal communication to the Employer that all publicity would cease when area standards were met. The Administrative Law Judge concluded, how- ever, on the basis of Cement Masons Union Local 337, Operative Plasterers' and Cement Masons' Internation- al Association of the United States and Canada, AFL- CIO (California Association of Employers),1 and the merged product exception2 to the Supreme Court's Tree Fruits doctrine,3 that Respondent had engaged in an illegal consumer boycott in violation of Section 8(b)(4)(ii)(B) of the Act. Essentially, the Administra- tive Law Judge found that by picketing on weekends at entrances to Panther Valley the Union was appealing directly to consumers to boycott the product of the primary employer. Since the product of the primary was merged in the product of a neutral secondary employer, the Administrative Law Judge concluded that the Union was impermissibly requesting consumers to boycott the sole product of the neutral secondary employer to force it to cease doing business with K & K. Reliance by the Administrative Law Judge and our dissenting colleague on Cement Masons, supra, is misplaced in the context of the instant proceeding. That case involved a pretextual area standards dispute which had no basis in fact, coupled with an express appeal to consumers not to purchase homes for which the "offending" subcontractor had provid- ed masonry work. Thus, in contrast to the instant case, the union in Cement Masons made no attempt whatsoever to verify its claim that the primary employer paid wages and benefits below union standards. In fact, the "offending" subcontractor actually paid higher wages and benefits than those received by the respondent union's members. The particular facts of the case thus led the Administra- tive Law Judge to conclude that the union's ' N. LR.B. v. Fruit & Vegetable Packers & Warehousemen, Local 760, et al. [Tree Fruits Labor Relations Committee, Inc.], 377 U.S. 58 (1964). 718 LOCAL UNION 399, CARPENTERS inaccurate representations were made "with knowl- edge of, or reckless disregard for, the truth." The express appeal to consumers not to purchase the secondary employer's product and the absence of a bona fide area standards objective made it abundant- ly clear that the union's claims were a mere smokescreen to facilitate pursuit of an impermissible secondary object. Moreover, the Administrative Law Judge's conclu- sion in this case is not compatible with our historic recognition of traditional methods of labor protest. Publicizing area standards disputes has long been recognized as legitimate primary activity. Granted, even though it does not affirmatively appear that any potential customer was dissuaded from purchasing a home as a result of the publicity in this case, such publicity may tend to induce some consumers not to patronize a certain employer or purchase a certain product. However, we cannot permit the potential indirect secondary impact of otherwise lawful pri- mary activity to undermine the legitimacy of such activity without doing serious harm to the goals to be effectuated under the Act. In addition we note that the other cases cited by our dissenting colleague are erroneously character- ized as "clear precedent" requiring the finding here of a violation of Section 8(b)(4)(ii)(B) of the Act on the basis of the merged product doctrine. These cases are factually distinguishable and do not at all turn on the applicability of the merged product doctrine. As such, they can hardly be considered controlling authority. Millmen & Cabinet Makers Union, Local No. 550, United Brotherhood of Carpenters & Joiners of America, AFL-CIO (Steiner Lumber Company), 153 NLRB 1285 (1965), is a construction industry case which involved a union's contention that picketing in furtherance of a consumer boycott was a defense to an allegation that it was picketing to directly coerce a neutral secondary employer to cease doing business with the primary employer. This is a very different case from the present one where the Union meets the allegation that it was engaged in a consumer boycott by demonstrating that it was engaged in legitimate 4 Our dissenting colleague attrbutes the quote from Steiner lumber Company appeanng in his dissent (fn. 16, infra) to the Board. In fact this quoted passage is taken from the Trial Examiner's Decision. We note that the Board actually stated: In adopting the Trial Examiner's conclusion that Respondent's picketing did not constitute lawful consumer picketing, we do not find it necessary to adopt all of his reasoning and his distinctions between this case and N.L R. B. v. Fruit and Vegetable Packers d Warehousemen, Local 760 (Tree Fruits), 377 U.S. 58. .... [153 NLRB at 1286, fn. 1.1 Thus, the Board specifically relied on the fact that pickets were set up at the jobsite pror to the arrval of the secondary employer's employees and were not present at times when only prospective purchasers were at the jobsite: the fact that there was no attempt to negate the obvious appeal to primary area standards picketing. Moreover, Steiner Lumber Company, supra, was not decided on the basis of the merged product doctrine, but on the basis of the Board's conclusion that the union's pretextual appeal for a consumer boycott was a subterfuge to conceal its actual efforts to engage in illegal secondary activity; i.e., embroilment of the secon- dary employer's employees in its dispute with the primary.4 In sum, this case neither involved legiti- mate primary area standards picketing nor the applicability of the merged product doctrine. In Salem Building Trades Council, AFL-CIO (Cascade Employers Association, Inc.), 163 NLRB 33 (1967), the Board also found the union's area standards picketing to constitute an obvious pretext designed to disguise illegal secondary activity and again found it unnecessary to reach the merged product issue. The only discussion of the merged product question in that case is contained in dicta and is therefore not dispositive of any of the issues therein.5 In contrast to the instant proceeding, Cascade Employers Association, supra, involved "area standards" picketing which began only after the primary employer had completed construction of the building in question and the neutral commercial tenants had located on the premises. It was thus readily apparent that the picketing was not directly intended to advance any legitimate area standards objective, inasmuch as the primary employer had completed its work and had departed from the jobsite and could not secure the withdrawal of pickets by complying with prevailing area standards. In addition, the Board found significance in the ambiguous wording of picket signs which failed to clearly indicate that the premises of the neutral tenants were not involved in the dispute, thus evidencing "a design to affect some aspect of those neutral business operations." 163 NLRB at 36. Accordingly, this case presented a situation where picketing could not reasonably be said to advance any legitimate primary area standards objective, but was actually shown to be calculated to "serve notice on all other persons of the retaliatory consequences the secondary employer's employees to honor the picket lines; and the fact that there was no attempt to appeal for any specific conduct on the part of consumers. In addition, as further evidence of the union's impermissible secondary object, we note that the union's attorney told the secondary employer that he could secure the withdrawal of pickets by ceasing to do business with the prmary. 5 In an apparent attempt to refute the significance of this fact, our dissenting colleague states that the rationale contained in dicta in Cascade Employers Association was relied on in Cement Mason. The fact that a legal proposition set forth in dicta in one case is subsequently relied on as the ratio decidendi in another case does not change the fact that it remains dicta and is therefore not dispositive of the outcome in the first case. The application of the legal proposition in the subsequent case means only that the facts of that particular case warrant its application, not that it becomes the ratio decidendi of the first case retroactively. 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of retaining or otherwise doing business with [the primary.]" 163 NLRB at 35. We consider these cases to be inapposite on their facts and therefore not dispositive of the issues here presented. Moreover, while Steiner Lumber Company and Cascade Employers Association do not turn on the applicability of the merged product doctrine, we note with concern the far-reaching implications of the Administrative Law Judge's reliance on this doctrine in Cement Masons. We view this rationale as an overly mechanical application of the merged product doctrine. Specifically, we are disturbed by the proposition that the mere publicizing of an otherwise lawful area standards dispute is necessarily an appeal for a consumer boycott and the corollary proposition that in the construction industry such a boycott is necessarily illegal under the merged product doctrine. In essence, the Administrative Law Judge sets up a rather arbitrary double standard banning otherwise permissible activity based on the nature of the Employer's operation. Thus, in certain industries, most notably the construction industry, the fortuity that the primary employer's product usually ends up incorporated in a secondary employ- er's product imposes a per se broad prohibition on what would otherwise be legitimate primary activity in most other industries. We cannot believe that Congress intended that such a fundamental right would be totally unavailable in certain industries because of the nature of their business. Certainly, we should not presume that Congress intended that the Act should have such a bifurcated impact when no such distinctions are drawn in the statute itself or the legislative history applicable to it.6 Finally, we also note that the 8(b)(4) proviso relating to publicity "other than picketing" does not necessarily condemn the activity here in question by implication. The legislative history of the Landrum- Griffin amendments to the Act shows that because of policy and constitutional concerns Congress intend- ed its restrictions on peaceful picketing only to curb isolated evils. Consistent with this view, the Supreme Court has said of the above-referred-to proviso, "[I ]t does not follow from the fact that some coercive conduct was protected by the proviso, that the exception 'other than picketing' indicates that Con- gress had determined that all consumer picketing was coercive." 7 The traditional objects of picketing, such 6 Our dissenting colleague evidences his misperception of the thrust of our decision here in his discussion regarding the Administrative Law Judge's application of the merged product doctrine. His condemnation of legitimate primary area standards picketing because of its potential indirect secondary impact is not supported by the Act, by the underlying legislative history. or by the interpretation thereof by the Board or the courts. Since we deem the conduct here engaged in by the Union to constitute legitimate pnmary activity, we do not view the issue of the applicability of the merged product doctrine to consumer boycotts in the construction industry to be before us as inducing concerted refusals to work or halting services and deliveries, were not involved in the present case. Rather, the Union's object was purely informational. Clearly, under these circumstances such activity warrants protection under the Act. The conclusion reached by the Administrative Law Judge produces a result which inordinately restricts the right to engage in a traditional form of primary activity in contravention of established policy under the Act. Moreover, such a result comes perilously close to infringement of constitutionally protected first amendment freedoms. For all of the foregoing reasons, we find the publicity picketing engaged in here to be a legitimate form of primary activity and thus not violative of the Act. Accordingly, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER PENELLO, dissenting: The majority opinion in this case departs from several well-established labor law doctrines without relying on the law of any case heretofore issued by the Board or the courts. In addition, the majority opinion disregards the legislative intent of Section 8(b)(4)(ii)(B) of the Act, as interpreted by the Supreme Court, and, in effect, amends the secondary boycott provisions of the National Labor Relations Act by mere administrative adjudication. The majority at first attempts to support its position in this case merely by distinguishing the facts herein from those presented in the Cement Masons case,8 relied on by the Administrative Law Judge. The majority notes that in that case the union made an express appeal for a consumer boycott of the neutral employer's product, thereby indicating a secondary objective of the union to unlawfully enmesh the neutral employer in its dispute with the primary employer. However, in this case, the Union made no such express appeal to consumers. Hence, the majority asserts, Cement Masons is inapposite on its facts, and therefore not dispositive of the issues presented herein. However, the majority at first either overlooked or ignored, and, in hindsight, at this time. Nor can we follow the dissent's argument that, because Sec. 8(e) and (f) of the Act provide some degree of favorable treatment to the construction industry, other sections of the Act should be applied especially unfavorably to that industry. 7 N.LR.B. v. Fruit & Vegetable Packers, Local 760, 377 U.S. at 69. s Cement Masons Union Local 337. Operative Plasterers' and Cement Masons' International Association of the United States and Canada, A FL-CIO (California Association of Employers). 190 NLRB 261 (1971), enfd. 468 F.2d 1187 (C.A. 9, 1972). 720 LOCAL UNION 399, CARPENTERS ineffectually attempts to distinguish, other Board cases which are in fact directly on point and, consequently, dispositive of the issues presented in this case. In both Steiner Lumber Company 9 and Cascade Employers Association,'0 a union attempted to publi- cize an area standards dispute by picketing the primary employer at the site of a neutral secondary employer who engaged in business with the primary. As in the instant case, the union's picket signs in those cases did not request customers to refuse to patronize the neutral employers. Nevertheless, the Board found in each case that the union violated Section 8(b)(4)(ii)(B) of the Act, basing its determina- tion in part on the so-called "merged product" doctrine, discussed below. The "merged product" doctrine is an outgrowth of the Supreme Court's opinion in the Tree Fruits case," wherein the Court interpreted the congressio- nal intent of Section 8(b)(4)(ii)(B). In Tree Fruits, the Supreme Court determined that the "publicity other than picketing" proviso of Section 8(b)(4) did not indicate a legislative plan to proscribe all consumer picketing at secondary sites. However, secondary consumer picketing was prohibited, the Court indi- cated, where it was "use[d] to persuade the customers of the secondary employer to cease trading with [the secondary] in order to force him to cease dealing with, or to put pressure upon, the primary employ- er."' 2 The Court distinguished between secondary consumer picketing which merely persuaded custom- ers not to purchase the "struck" product produced by the primary employer and such picketing which appealed to consumers to curtail all trade with the secondary employer. In the former instance, the Court stated, the union's appeal is "closely confined to the primary dispute" and, hence, constitutes protected concerted activity. However, in the latter 9 Millmen d Cabinet Makers Union, Local No. 550, United Brotherhood of Carpenters & Joiners of America, AFL CIO (Steiner Lumber Company), 153 NLRB 1285, 1286, fn. I, 1290 (1965), enfd. 367 F.2d 953 (C.A. 9, 1966). i' Salem Building Trades Council, AFL-CIO (Cascade Employers Associa- tion, Inc.), 163 NLRB 33, 36 (1967), enfd. 388 F.2d 987 (C.A. 9, 1968). " N.L.R.B. v. Fruit & Vegetable Packers di Warehousemen, Local 760 [Tree Fruits Labor Relations Committee], 377 U.S. 58 (1964). 12 Id. at 63. 13 Id. at 63-72. 14 In addition to Steiner Lumber and Cascade, supra, see International Union of Operating Engineers, Local No. 139, AFL-CIO (Oak Construction, Inc.), 226 NLRB 759 (1976); Cement Masons, supra at 265-66; Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local 327, affiliated with Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (American Bread Company), 170 NLRB 91, 93 (1968), enforcement denied on other grounds 411 F.2d 147 (C.A. 6, 1969). 1s In attempting to distinguish the facts relating to the 8(b4)(ir)(B) aspects of those cases from that issue in the instant case. it is interesting to note that the majority cites certain facts in Steiner Lumber which formed the basis of the separate 8(bX)4X(B) violation in that case. 1s The Board in Steiner Lumber stated: Applying the above-quoted language [from Tree Fruits] to the case at hand, it is apparent that Respondent's objective (if it existed at all situation, the union creates a separate dispute with the secondary employer which Congress clearly intended to outlaw.' 3 In Tree Fruits, the primary employer's goods (apples) were clearly identifiable from the other products offered for sale by the secondary employer (a food market). Thus, the union could-and, in fact, did-limit its appeal to consumers to boycott only the struck product. However, where the primary employer's products are integrated and merged into the secondary employer's goods so that the primary's goods are not clearly identifiable from those sold by the secondary, a consumer boycott of the primary employer necessarily results in a boycott of the secondary's products as well. In cases such as this, where the neutral employer produces a "merged product," the Board, with approval from the courts, has consistently found a violation of Section 8(b)(4)ii)(B) of the Act.14 The reasoning in these cases represents the "merged product" doctrine. The majority, however, attempts to distinguish the facts and law in Steiner Lumber and Cascade from those presented in this case, claiming that neither case involved the applicability of the "merged product" doctrine.' 5 I address the attention of my colleagues in the majority to the relevant portions of those cases,' 6 and question their adherence to their position that these were not "merged product" cases. In that regard, I note with incredulity the majority's characterization of the discussion of the "merged product" doctrine in Cascade as mere dicta, which is "not dispositive of any of the issues therein." Perhaps the majority has overlooked the fact that the exact same language to which it now refuses to accord precedential value was in fact relied on in the Cement Masons case.' 7 This "merged product" pattern was present in both Steiner Lumber and Cascade Employers Association. during the picketing) aimed at persuading home buyers not to buy BESCO homes was aimed at causing them not to trade at all with BESCO [the neutral employer]. This, of course, follows since a home buyer could scarcely buy a home with its many components without purchasing the lumber in the home. 1153 NLRB at 1290.1 Although, as the majority opinion correctly states, the Board did not rely on all of the Administrative Law Judge's reasoning in Steiner, the Board did state that "the picketing in this case did not constitute consumer picketing lawful under the Tree Fruits decision." 153 NLRB at 1286, fn. I. In Cascade, the Board stated: Even assuming, arguendo, that identification of the building as the subject of the dispute created an appeal for a consumer boycott of the so-called "product" of the primary employer, such a product boycott would of necessity encompass the entire business of the neutral occupant's premises and, therefore, the entire business of the secondary employer, and must be said to be "employed to persuade customers not to trade at all with the secondary employer" and "designed to inflict injury on his business generally." 1163 NLRB at 36, citing N.LR.B. v. Fruit & Vegetable Packers [Tree Fruits], 377 U.S. at 72, fn. 6.1 1' In Cement Masons, after quoting the same language from Cascade as I have cited in fn. 16, supra, the Board stated: (Continued) 721 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the former case, the primary sold precut lumber to the neutral employer who used the lumber in the building of homes. In the latter case, the primary built motels and stores for secondary employers who operated the structures or leased the buildings to others. The instant case also presents a "merged product" situation. Here, the primary employer supplied wooden frames for houses which the secondary employer utilized in the construction (and eventual sale) of houses. Thus, this case presents facts virtually indistinguishable from Steiner Lumber and Cascade. Consequently, a finding that the Union violated Section 8(b)(4)(ii)(B) is mandated by clear Board precedent. Despite the existence of this precedent, the majori- ty missteps further by disputing the Administrative Law Judge's application of the "merged product" doctrine in this case. The majority reasons that we should not presume that Congress intended that the lawfulness of secondary consumer picketing could be based on the nature of the relationship between the primary and secondary employers. Such an interpre- tation, the majority claims, could require different results in different industries.1 8 Thus, the majority implies, the Board should abandon the "merged product" doctrine. 9 However, the Supreme Court's decision in Tree Fruits definitively interpreted the congressional intent of Section 8(b)(4)(ii)(B) of the Act, and I intend to follow its guidance. In Tree Fruits, the Court stated that "picketing which persuades the customers of a secondary employer to stop all trading with [the secondary employer] was also to be barred." 20 I fail to understand how the majority can overlook such an explicit indication of legislative intent and refuse to find a violation of the Act in this case. Although the Thus, the teaching of Board and Court decisions is that a violation of the Act occurs when a struck product is so merged with other products that the only way for a customer to boycott the struck product is to cease patronizing the picketed place of business. 1190 NLRB at 266.1 18 The majority notes that the result advanced by the Administrative Law Judge, and adopted by the dissent, inequitably deprives construction trades unions of the right, accorded to unions in the bulk of other industries, to peacefully appeal for a consumer boycott at the site of the secondary employer. (I note for the majority, however, that construction trades unions enjoy certain rights under the Act to which no other unions are equally privileged. See the first proviso to Sec. 8(e) and Sec. 8(f).) I do not suggest, as the majority attributes to my last statement, that construction trades unions should be treated unfavorably because they are accorded special status elsewhere in the Act. In fact, a careful reading of the relevant portions of the majority opinion vis-a-vis my statements in this footnote clearly demons- trates that the majority is now attempting to camouflage its own initial displeasure over the (formerly) unenviable position of such unions with respect to consumer picketing. Nevertheless, this result is mandated by the legislative enactment of the secondary boycott provisions of the Act. The Board's authority is limited to administering the Act, and we may not, as I believe the majority seeks to do, substitute our judgment for that of the Congress on the need for certain laws. 19 In effect, the majority decision overrules all of the Board cases cited instant case is not the factual duplicate of Tree Fruits, much of the Court's discussion of the secondary boycott provisions of the Act is equally applicable to the instant case. For instance, in Tree Fruits, the Supreme Court stated as a general proposition that Section 8(b)(4) was enacted in order to deal "explicitly with isolated evils which experi- ence has established flow from such picketing."21 The Court then said: All that the legislative history shows in the way of an "isolated evil" believed to require proscription of peaceful consumer picketing at secondary sites, was its use to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer.22 Consequently, since this "isolated evil" is also present in "merged product" situations, I continue to subscribe, in accordance with clear Board and judicial precedent, to the validity of the "merged product" doctrine.2 3 The majority's failure to do so is tantamount to a repudiation of the Supreme Court's decision in Tree Fruits and the congressional intent of Section 8(bX4)(ii)(B) of the Act.24 As a final resort, the majority seeks to legitimize Respondent's conduct in this case by labeling it mere "area standards" picketing. However, labels alone cannot serve to convert otherwise unlawful conduct into, in the majority's language, "a fundamental right." As the Board has previously stated: "Picket- ing for a lawful objective, such as to preserve area standards, may be unlawful if there is additionally an unlawful objective as revealed by . . . pertinent evidence." 25 In this case, the pertinent evidence, omitted from the majority opinion although cited by herein insofar as the Board relied on the "merged product" doctrine in reaching its conclusions. In each of those decisions, Chairman Fanning or Member Jenkins, who have joined the majority opinion herein, had participated and endorsed the "merged product" doctrine which they now wish to discard. 20 377 U.S. at 71. 21 Id at 63, citing N.L.R.B. v. Drivers, Chauffeurs, Helpers, Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Curtis Bros., Inc./, 362 U.S. 274, 284 (1960). 22 Id at 63. 23 I note that the Board had in fact very recently reaffirmed the "merged product" doctrine in Oak Construction, Inc., supra, relied upon by the Administrative Law Judge. 24 1 also note that the majority's opinion neglects a thoughtful application of Tree Fruits to the facts in this case. The sole reference by the majority to that case (see text at fn. 7, supra) is merely utilized to set the stage for a conclusionary statement that the object of the Union's picketing was "purely informational." 25 Local No. 441, International Brotherhood of Electrical Workers, A FL- CIO (Rollins Communications, Inc.), 208 NLRB 943, 944 (1974). See also Carpenters District Council of Northwestern Montana, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Lilienthal Insulation Compa- ny), 220 NLRB 1241, 1245 (1975); Carpenters District Council of Milwaukee County and Vicinity, AFL-CIO, et al. (Westra Construction, Inc.), 224 NLRB 1071, 1079, fn. 16(1976). I 722 LOCAL UNION 399, CARPENTERS the Administrative Law Judge, is quite persuasive in revealing Respondent's unlawful objective.2 6 For instance, Respondent picketed only on weekends (both Saturdays and Sundays)-the only times when most potential home buyers are able to look at homes. Moreover, Respondent picketed at times (Sundays) when the primary employer, K & K, was not on the jobiste, despite its knowledge that K & K employees were idle on those days. Even more "telling," however, are the places Respondent's picketers were located. On the last five occasions Respondent picketed, its signs were positioned at the shopping center adjacent to the Panther Valley complex. One of the stores in the shopping center was the Panther Valley sales office. Thus, despite the apparently unoffending language on the picket signs, it is clear that one of Respondent's direct objects was to induce potential customers to refrain from purchasing Panther Valley homes in order to force Panther Valley to cease doing business with K & K. My colleagues in the majority have failed to dispute the above conclusion derived from the pertinent evidence that Respondent engaged in picketing for an unlawful objective. Thus, even in the absence of the application of the "merged product" doctrine, Respondent's conduct has been clearly shown to have violated Section 8(b)(4)(ii)(B) of the Act. Finally, I note that the majority's opinion-permit- ting a union to picket at the site of a secondary employer who produces a "merged product" as long as it makes no express appeal to consumers to boycott the secondary's product-creates a glaring loophole in the secondary boycott provisions of the Act, and, in effect, amends the Act to condone conduct clearly intended by Congress to be illicit. By the decision in this case, otherwise unlawfully motivated secondary consumer picketing can be easily transformed into lawful "area standards" picketing by cleverly wording the inscription on picket signs. I hardly believe that Congress ever intended Section 8(b)(4)(ii)(B) to have such a circumscribed effect. 26 The Board has consistently looked at the timing and location of picketing in order to glean a motive behind the union's action. See, e.g., Mississippi Gulf Coast Building and Construction Trades Council and its Constituent Members, el al. (Roy C Anderson, Jr., Inc.), 222 NLRB 649. 650 (1976); Local 542. International Union of Operating Engineers (A FL-CIO), et al. (Paddock Pool Builders Inc.), 209 NLRB 377 (1974); Plumbers & Steamfitters Local Union No. 178 (Springday Company, Division of Dayco Corporation), 185 NLRB 725, 729 (1970); Cascade Employers Association, supra at 35-36; Alton-Wood River Building and Construction Trades Council, AFL-CIO, et al., (Alton District Independent Contractors and Associates), 154 NLRB 982, 983, fn. 1 (1965); Local 254, Building Service Employees International Union, AFL-CIO (Herbert Kletjian, d/b/a Universitv Cleaning Co.), 151 NLRB 341, 347 (1965); Steiner Lumber Company, supra at 1286, fn. I. Cf. Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 (1950). DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: K & K Construction Co., Inc., herein called K & K or the Charging Party, filed the charge in this matter on June 23, 1976,1 alleging that Local Union 399, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called Local 399, the Union, or Respondent, had violated Section 8(bX4)(i) and (iiXB) of the Act since April 13, by its actions at the Panther Valley construction site. The Regional Director issued a complaint on July 27, which alleged, in addition to the jurisdictional and commerce allegations, that K & K is a subcontractor for carpentry work at the Panther Valley site and that the Union has a primary dispute with it and with no other person or employer at that site. It is alleged that on April 3 and 4, June 12, 13, 19, and 20, the Union picketed that site and by such picketing and other appeals encouraged individuals employed by the site owner, the contractor, and other subcontractors and employers to cease doing work for their employers and threatened these and other employers, and that thereby Respondent violated Section 8(bX4)i) and (iiXB) of the Act. Respondent's timely answer, as amended at the hearing, admitted the jurisdictional and commerce allegations, the agency status of its business representative, Whitford, the fact that K & K is a subcontractor at the Panther Valley site and that Respondent is engaged in a labor dispute only with it, and that it did picket the Panther Valley site on the dates alleged. Respondent claims that its picketing did not induce or encourage any employees to cease work and that it was engaged solely in permissible informational picket- ing and did not in any way violate the Act. The hearing in this matter was held on September 20, in Newark, New Jersey. There is no essential disagreement as to the facts but merely as to the conclusions that must be drawn from those facts. Principally, because of the manner in which the picketing was conducted here, I have concluded that there is insufficient evidence to find that Section 8(bX4XiXB) of the Act was violated. However, based on the Board's decisions in Cement Masons Union Local 337, Operative Plasterers' and Cement Masons' International Association of The United States and Canada, AFL-CIO (California Association of Employers), 190 NLRB 261 and 192 NLRB 377, enfd. 468 F.2d 1187 (C.A. 9, 1972), I have concluded that Section 8(bX4XiiXB) of the Act was I Unless specifically stated otherwise all dates herein occurred during 1976. 723 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated and will make appropriate remedial recommenda- tions. The parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing in this matter. General Counsel and Respondent have filed briefs which have been considered. On the entire record in this case I make the following: FINDINGS OF FACT I. COMMERCE FINDINGS AND UNION STATUS Robert L. Karnell & Co., Inc., and K & K are each New Jersey corporations which share common officers, owners, labor relations policy, and comprise a single employer and are engaged as subcontractors in performing carpentry work at construction sites in New Jersey including the Panther Valley site. During the preceding year the two corporations purchased and received at various New Jersey jobsites goods and materials which were transported in interstate commerce directly into the State of New Jersey and were valued in excess of $50,000. Panther Valley Ltd. is a copartnership comprised of Panther Valley, Inc., and other persons which is engaged in New Jersey as a contractor in land development and the construction of housing at Panther Valley. During the previous year Panther Valley Ltd. purchased and had delivered to the Panther Valley construction site directly from points outside the State of New Jersey goods and materials valued in excess of $50,000. Jan Construction Co., Inc., is a New Jersey corporation engaged in the business of masonry work as a subcontrac- tor in the building and construction trades and is performing work at the Panther Valley site. This corpora- tion in the previous year purchased goods and materials which were delivered to New Jersey jobsites directly from points outside the State of New Jersey which were valued in excess of $50,000. Respondent admits and I find that K & K and Robert L. Karnell & Co., Inc., Panther Valley Ltd., and Jan Construction Co., Inc., are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties agree and I find that Local 399 is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Facts The Panther Valley construction site is an irregular oblong block of property, approximately 2 1/2 miles long by 2 miles wide, with irregular projections on all sides. It is situated just off of Interstate Route 80 about 50 miles west of New York City. The main entrance is a four lane divided road intersecting Route 517 about I mile south of Route 80 and is at the southeastern edge of Respondent's property. To accommodate traffic coming from or going to Route 517 there are four entrance or exit lanes. Just south of the entrance, in an elongated triangle that somewhat resembles a canine tooth, is the Panther Valley Mall where there are stores, offices, and the sales office for Panther Valley. This triangle runs for about a half mile along Route 517. Old Hackettstown Road intersects Route 517 at a severe angle at the south end of the mall and forms the backside of the triangle, dead ending into the main entrance road, Bald Eagle Road, about one-tenth of a mile west of the main intersection. The one-tenth mile between Route 517 and the intersection of Old Hackettstown Road on Bald Eagle Road forms the third leg of the triangle. About one-tenth of a mile further west on Bald Eagle Road is the main gate to the property and access is controlled by Panther Valley security personnel. Bald Eagle Road runs west through the property past Village II, a multifamily and townhouse area, through Village I, an area of single-family lots and homes, by Village III and then turns north and wiggles to the northwestern extension of the property at Alphano Road some 3.6 miles from the beginning at Route 517. Alphano Road at this point runs from southwest to northeast. Approximately half a mile before its intersection with Alphano Road an irregular semi-circular street called Sparrow Hawk runs west from Bald Eagle about one-half mile and then turns north and east and intersects Bald Eagle close to its intersection with Alphano Road. At Sparrow Hawk's western most extension another road of about one-tenth of a mile has been constructed to intersect with Alphano Road which at that point has curved to the south. Shortly after the commencement of picketing by Respon- dent in 1975, a separate reserved gate for K & K was erected at the intersection of Bald Eagle and Alphano Roads and a gate for all the other construction trades was located at the new road cut into Alphano from Sparrow Hawk. Thus, these two gates which both intersect Alphano Road are at either end of a 45 degree curve and about seven-tenths of a mile apart. According to testimony, construction work was taking place in Villages I and III and it was there that the K & K employees worked most of the time. This location would be as close to the main entrance as it would be to the K & K entrance on Alphano Road, but would not be visible from either entrance due to the terrain. Thus, there would be no way for someone outside the property to know which employees, if any, were working. Testimony indicated that the two gates on Alphano Road would be secured at night and opened again in the morning by a security guard and were then left unattended. The K & K gate had a hand-lettered sign which read: "K & K Construction Gate for Employees of and Deliveries to K & K Construction Co. only." There is testimony that this sign was not always posted. The area for future construction at Panther Valley is rather large with a number of plans developed for various types of housing, including single-family, townhouses, and multifamily housing. The area has a golf course, and there are plans for further expansion. The whole operation will take a number of years to build according to the present plans. Business Representative Whitford knew of the Panther Valley plans and of the work to be done there, and in October 1975 wrote to K & K on two occasions stating that he had been advised that K & K was to do the carpentry work. His letters set forth the working conditions for AFL- CIO carpenter contracts for construction in that area 724 LOCAL UNION 399, CARPENTERS listing the rate of pay, hospital insurance, pension assess- ments, etc., and stated he had been informed the K & K employees did not receive all of the wages and benefits provided under union contractual conditions and asked K & K to advise if his information was not correct. The letters continued that if Whitford did not receive an answer it would indicate to him that the information was correct and the Union would proceed to advise the public by picketing and publicity that the carpenters working for K & K were not receiving the union benefits standard in the area. The letters said that the Union was not making any demands on K & K or seeking to ask them to have their employees join the Union, but that the purpose of picketing would be to exercise the Union's rights to inform the public of the conditions and if at any point K & K met the standards it would immediately withdraw from such picketing and publicity. Counsel for K & K responded within a week stating that there were separate gates for K & K and for all other employees established on Alphano Road and that the main gate at Route 517 and Bald Eagle would be used by neutral employees and other persons not involved in the primary dispute. Picketing occurred on two dates in November 1975, and nothing further happened. On Saturday, April 3, and Sunday, April 4, the Union had pickets at the Panther Valley site. According to Business Representative Whitford on Saturday there were three pickets at the main entrance on Route 517 and two pickets on Old Hackettstown Road behind the shopping center. According to Whitford the pickets walked back and forth across the entrances at Route 517 and at Hackettstown Road near Bald Eagle, did not talk to people, but handed out handbills when any questions were asked of them. On Sunday, April 4, there were six pickets engaged again at Route 517 and at Hackettstown Road and possibly at the shopping center entrance somewhere near the sales office for Panther Valley Ltd. All pickets wore a sign which was as follows: NOTICE CARPENTERS LOCAL # 399 PROTESTS SUBSTANDARD WAGES AND CONDITIONS BEING PAID ON THIS JOB BY k & k construction co., inc. CARPENTERS LOCAL # 399 DOES NOT INTEND BY THIS PICKET LINE TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY EMPLOYER TO ENGAGE IN A STRIKE OR A CONCERTED REFUSAL TO WORK The handbill passed out by the pickets was as follows: HERE ARE THE FACTS UNION CARPENTERS IN THIS AREA ENJOY THE FOLLOWING WAGES, BENEFITS: ON HOMES, WALK-UP APARTMENTS CONDOMINIUMS AND TOWNHOUSES Journeymen Rate-$6.25 per hour Hospital Insurance-6% of gross wages Pension-6% of gross wages Apprentice Training-.002% of gross wages WE ARE PICKETING THE K & K Construction Co. Inc., WHICH IS PERFORMING CARPENTRY WORK ON THIS JOBSITE UNDER non AFL-C10 UNION CONDITIONS, WHICH HAVE THE EFFECT OF DESTROYING THE WAGE STRUCTURES, FRINGE BENEFITS AND GOOD WORKING CONDITIONS WHICH HAVE BEEN ESTABLISHED AS AREA STANDARDS FOR THIS TYPE OF WORK PERFORMED IN THIS COUNTY. OUR MEMBERS ARE RESIDENTS AND TAXPAYERS IN THIS COUNTY. THEY ARE YOUR NEIGHBORS. THEY ARE TRYING TO PROTECT THE WAGES AND CONDITIONS WHICH TOOK MANY YEARS TO ACHIEVE. UNITED BROTHERHOOD OF CARPENTERS, AFL-CIO CARPENTERS LOCAL UNION 399 The reverse side of the handbill contained a diagram under a heading "Housing Costs" and explanation which stated that on-site labor should represent "16% of your overall cost," and gave as the source the National Association of Home Builders. On April 9, counsel for K & K again wrote to Whitford noting that the pickets had been at the main gate and mentioning the K & K reserved gate on Alphano Road stating that if the picketing was not confined to that gate it would take action against the Union. On Saturday, June 12, and Sunday, June 13, the Union again picketed the area with thret pickets at the main entrance and two pickets either near the Panther Valley sales office at the shopping mall or on Old Hackettstown Road. When Mr. Whitford testified about the pickets being near the Panther Valley sales office, he was questioned further and said by that he meant at the shopping center or mall. The pickets were there on both dates. Again on Saturday, June 19, and Sunday, June 20, the Union picketed. On Saturday they had four pickets with two at the main entrance and two at the shopping center and on Sunday they had six pickets with two at the main entrance, two at the shopping center, and two on Hackettstown Road. The Union never picketed at either of the gates on Alphano Road. On June 17, counsel for K & K sent a mailgram to Business Representative Whitford advising him that K & K employees did not work on Sundays and only on certain Saturdays and stating that picketing taking place at times when K & K employees were not on the job was in violation of Moore Dry Dock standards (Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 (1950)). The mailgram said that picketing must take place 725 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only at the K & K reserved gate and that if there were further picketing at other points K & K would file a charge with the Board. According to Whitford this was the first time he was ever notified that K & K did not work on Sunday. It is undisputed that at times a truck with K & K identification signs on it was seen in the shopping mall and that it used the main gate. There was no clear evidence as to whether K & K employees used only the reserved gate or whether they used any other gates. No one knew for certain just how employees entered or left the premises since there were no guards at either of the gates on Alphano Road. Employees arriving for work at this surburban location usually did so in their own private cars and it would be difficult for anyone to tell whether someone going in the main gate was a job employee, and for which firm, or a prospective property buyer. Wayne Karnell, the vice president of K & K, testified that both single-family and townhouse units were being built and that K & K frames those buildings and uses from 40 to 60 carpenters depending on what is necessary at the time. These buildings are being built at Villages I and III which are about halfway in the property from the main gate. There was no testimony that Panther Valley golf course employees or sales employees saw Respondent pickets or responded in any way to the picketing. There is no testimony of any stoppages of work or delivery of goods by anyone as a result of the picketing, and there is no testimony of any inducement or encouragement of any employees to so act. B. Analysis and Conclusions It is obvious from the manner, time, and place of the picketing and from the handbills that the picketing was designed to inform prospective home buyers at Panther Valley that the carpentry work was being done by K & K, which according to the Union paid its employees below standards set by the Union's other area construction contracts. Picketing on Saturdays and Sundays when there were virtually no construction type employees in the area and not picketing at the Alphano Road entrances together with the picket sign language establishes here that the Union was not seeking to induce any sympathy strike or other involvement by construction type employees at this site. Clearly here the picketing and handbilling was aimed at prospective buyers of Panther Valley homes. General Counsel asserts that the picketing violated Section 8(b)(4)(i)(B) because it was not in conformance with the standards set forth in Moore Dry Dock. Section 8(b)(4)(i)(B) states it is a violation of the Act for a union to "engage in, or to induce or encourage any individual employed by any person engaged in commerce or in any industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities or to perform any services," where the object is to stop a person from dealing with another business person or employer. Botn the picket signs and handbills and the manner of the picketing are such that it takes this picketing out from under this prescription. There is no wink, nod, or other sign here which shows that something other than what is stated by the signs and the handbills was intended by this Union. There has been no testimony that any employee was induced or encouraged to strike or stop handling anything, or even that any employee was in a position to even observe the activities which took place. Neither of the Alphano Road gates was policed and there was no true setting up of a situation where K & K used only one reserved gate. In fact the testimony is to the contrary that a K & K truck did use the main gate which serves to negate the reserved gate doctrine. Basically the picketing and handbilling here was not an appeal to employees as such but rather to purchasers of the ultimate product, the Panther Valley housing. The picket signs themselves disclaimed any 8(b)(4XiXB) intention and there is no testimony that any action of the pickets or of the Union was not in line with such a declaration. Similarly the handbill on its face does not present an effort to cause employees to act in accordance with the proscriptions of Section 8(b)(4)(i)(B). I conclude that the allegation of violation of Section 8(bX4)(iXB) has not been established by the offered evidence and, accordingly, I will dismiss this allegation of the complaint. The Cement Masons cases cited, supra, appear to be on point as far as product picketing is concerned. The Supreme Court's Tree Fruits doctrine which allowed a union to picket the product of a primary at a secondary location is distinguishable, according to the Board and the Ninth Circuit Court of Appeals, where the product of the primary is so enmeshed with other products produced at the secondary site that it is impossible to disentangle it from the sole product of the secondary employer. Here the carpentry work produced by K & K is part and parcel of the single-family homes and townhouses being built and sold by Panther Valley Ltd. and cannot be separated or purchased singly. In appealing to a customer and giving him the "facts" in regard to the work being done by K & K, the only conceivable result which could be sought by the Union is to have Panther Valley prospective customers shy away from buying Panther Valley's products, i.e., the houses, because of K & K's part in producing that product. Weekends are generally the time that people go house hunting. Picketing at the main entrance to Panther Valley and at the Panther Valley Mall where the sales office is located, as Whitford stated at one point in his testimony, must have as one purpose hindering Panther Valley's sales of its homes. Such a purpose has an object of seeking to have Panther Valley stop its relationship with K & K, which is a forbidden object under Section 8(b)(4XiiXB). The analysis and rationale of the Administrative Law Judge in the Cement Masons' case as adopted by the Board and the Ninth Circuit are in line with the facts in the instant case and, accordingly, I find that the picketing by Local 399 under the circumstances here violated Section 8(b)(4)(ii)(B) of the Act. The Board has recently found in International Union of Operating Engineers, Local No. 139, AFL-CIO, et al. (Oak Construction, Inc.), 226 NLRB 759 (1976), an 8(bX4)(ii)(B) 726 LOCAL UNION 399, CARPENTERS violation where the union simultaneously picketed and handbilled at a secondary employer's location. A distinc- tion between these two cases is the product picketing in the instant case as shown by the Union's actions and handbills. Nevertheless, as that case states, the law is violated by the picketing where publicity is sought. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section II, above, occurring in connection with the operations of the primary employer and of the secondary employers de- scribed in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent violated Section 8(b)(4)(ii)(B) of the Act, as set forth above, it is recom- mended that it cease and desist from such conduct and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and the record in this case, I hereby make the following: CONCLUSIONS OF LAW I. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. K & K, Panther Valley Ltd., Robert L. Karnell & Co., Inc., and Jan Construction Co., Inc., are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By the conduct of its pickets (in attempting to persuade the public not to patronize Panther Valley Ltd.) and its handbilling, Respondent engaged in a campaign designed to threaten, coerce, and restrain customers of Panther Valley Ltd. with an object of forcing or requiring Panther Valley Ltd. to cease doing business with K & K in violation of Sections 8(bX4XiiXB) and 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 727