International Assn. of Bridge, Iron Workers, Local 10

INTERNATIONAL ASSN. OF BRIDGE, IRON WORKERS, LOCAL 10 153 International Association of Bridge , Structural and Ornamental Iron Workers , Local 10, AFL-CIO and Grover C. Byrd, its Agent and Vincent Metal Works. Cases 17-CC-535 and 17-CD-170 November 27, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On May 20, 1974, Administrative Law Judge Arnold Ordman issued the attached Decision in this proceed- ing. Thereafter, the Charging Party filed exceptions and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and the briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, only to the extent consistent herein. The facts, more fully described in the Administrative Law Judge's Decision, reveal that Respondent (here- inafter referred to as Iron Workers) has a collective- 'bargaining relationship with Luther L. Essary Con- struction Company (hereinafter referred to as Essary), a general contractor in the construction industry. The contractual arrangement between Essary and Local 10 includes a clause known as article XIII which requires that Essary "shall subcontract work covered hereunder . . . only to a person, firm, partnership or corporation that is party to an executed current agreement with Iron Workers Local No. 10." During the last 4 years, Essary has averaged about 20 projects per year and has followed the practice of requesting the referral of iron- workers from Local 10 whenever ironwork was re- quired at its various construction sites. Local 10 has always complied with these requests, supplying work- ers two or three times at each project. In September 1973,2 Essary was engaged in the construction of a library building for Central Bible College in Spring- field, Missouri. Early in the month, Local 10's field representative, Grover C. Byrd, came to the jobsite and approached Essary's construction superintendent, Ge- rald Thomlinson. According to Thomlinson,3 Byrd inquired as to when Essary would be ready to erect the building. Thomlinson replied that he understood Byrd wanted to know when Local 10 workers would be needed and informed Byrd that Essary had subcon- tracted the structural ironwork to Vincent Metal Works (hereinafter referred to as Vincent), a company which does not have a contractual or collective-bar- gaining relationship with Local 10.4 Thomlinson fur- ther testified that when he told Byrd that he had no authority over who would be used on the job, Byrd cited article XIII of the Iron Workers agreement with Essary. Byrd then told Thomlinson that he would like Essary to ask Vincent to use ironworkers to erect the steel structure at the construction site. Thomlinson re- peated that he had no control over this and that Essary had already subcontracted the work to Vincent. Byrd then stated that Essary would be in violation of its contract with Local 10 and that Local 10 would no longer feel obligated to furnish any more help. Later in the conversation, Byrd and Thomlinson noted that an ironworker had already been working on the job, and Byrd reiterated that he would not have to furnish any help for this particular job. Following his conversation with Thomlinson, Byrd investigated the wage rates of Vincent employees and verified that they were substantially less than those paid members of Local 10. He then sent a letter to Vincent dated September 5, 1973, which informed Vin- cent of the disparity between wages and benefits paid its employees compared with those that prevail in the area. The letter further informed Vincent of Local 10's intention to publicize this situation by peaceful picket- ing, and it expressly disclaimed any intention to de- mand that Vincent employees join Local 10 or that Vincent sign a contract with Local 10. Vincent received the letter on September 7, and the picketing began at or about 8:30 a.m. on September 11. At all times, the picketing was peaceful and performed by a single picket who carried a sign which stated, in relevant part, "Vin- cent Metal Works breaking established working condi- tions of Iron Workers Local 10. . . ." The picketing continued until the sheet metal workers employed by Vincent completed the structural ironwork on Septem- ber 18. Although Essary had no ironworkers on the project during the picketing, it subsequently requested workers, and Local 10 supplied them. On the first day of the picketing, two employees of a company engaged by Vincent to hoist steel stopped work. However, they I The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibil- ity unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wa/I Products, Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 Unless otherwise specified , all dates referred to herein are in 1973 3 Although the Administrative Law Judge characterized this witness' recollection as "imprecise," he credited his testimony with respect to the conversation with Byrd 4 Vincent's employees are represented exclusively by Sheet Metal Work- ers Local Union No 146, and they receive wages and benefits which are less than those received by members of Local 10. Both the Iron Workers and the Sheet Metal Workers perform the kind of work involved in the present controversy 215 NLRB No. 6 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD returned to work the following day and remained on the project without further incident. The Administrative Law Judge found nothing in Byrd's remarks to Thomlinson that constituted a threat, coercion, or restraint as proscribed by Section 8(b)(4)(ii) of the Act or had the illicit objects defined in subsections (B) and (D) of that section. The Ad- ministrative Law Judge also found that the sole object of the picketing was to protect Local 10's area stand- ards from erosion, and that the picketing therefore did not violate Section 8(b)(4)(B) or (D) of the Act either. Although we agree with the Administrative Law Judge that neither the remarks to Thomlinson nor the picket- ing violated Section 8(b)(4)(B),5 we find that both the remarks and the picketing were in violation of Section 8(b)(4)(D) of the Act. Unlike the Administrative Law Judge, we believe that Byrd's remarks to Thomlinson were in the nature of a threat proscribed by Section 8(b)(4)(ii) of the Act.' It is undisputed that Byrd approached Thomlin- son to inquire when ironworkers would be needed at the jobsite. Upon learning that the work was to be performed by employees who were not members of Local 10, Byrd asked Thomlinson to have Essary pre- vail upon the employer, Vincent, to assign the work to ironworkers instead. When Thomlinson protested that he had no control over the assignment of the work, Byrd threatened to discontinue referral of ironworkers to Essary at that project site. These facts clearly estab- lish that Respondent's agent, Byrd, threatened Essary it would discontinue the practice of referring workers to Essary unless Essary influenced Vincent to assign the work in dispute to members of Local 10 rather than to sheet metal workers. Such conduct violates Section 8(b)(4)(ii)(D) of the Act. The fact that Local 10 did not thereafter engage in the conduct which it threatened does not negate the coercive and unlawful effect of the threat itself.' Having thus found that an object of Byrd's threat to Thomlinson was to force a reassignment of work to the Respondent, we believe it would be unrealistic to con- 5 While we are finding herein that Respondent threatened Essary to induce Essary to influence or pressure Vincent to assign the disputed work to Respondent's members rather than to the sheet metal workers, and that it picketed to force Vincent's reassignment of the work, in violation of Sec 8(b)(4)(D) of the Act, we do not believe that the facts warrant a finding that any of Respondent's conduct was designed to force or require Essary to "cease doing business" with Vincent within the meaning of Sec 8(b)(4)(B) of the Act Cf NL.R B. v Local 825, International Union of Operating Engineers, AFL-CIO [Burns & Roe, Inc ], 400 U S 297 (1971) 6 Columbus Building and Construction Trades Council, AFL-CIO (The Kroger Co), 149 NLRB 1224 (1964) r The record reflects that the Regional Director for Region 17 had made an administrative determination that, while there existed an agreed-upon method for the voluntary adjustment of the dispute , the effectuation of that method had broken down and, thus, the conduct of a 10(k) hearing was not a prerequisite here See Operating Engineers Local Union No 3, Interna- tional Union of Operating Engineers, AFL-CIO (Hansen's Incorporated), 192 NLRB 139, 142-143 (1971) clude that the picketing, ostensibly directed only to- ward the preservation of area standards, did not have a similar object. During his conversation with Thom- linson, Byrd said nothing about the erosion of area standards. He was then simply seeking the work which had been given to the sheet metal workers, and he made an unlawful threat to achieve that purpose. The picket- ing followed on the heels of that threat. If it is assumed that the information Respondent obtained before the picketing began regarding Vincent's lower wage rates in fact played a part in Respondent's decision to picket, we cannot believe that the Respondent's desire for the work, conveyed to Essary even before it investigated wage rates, did not also prompt it to picket for the purpose of forcing Vincent's reassignment of the work to its members. We find that such an unlawful object was present and that Respondent violated Section 8(b)(4)(i) and (ii)(D) of the Act by its picketing at the construction site in this case. Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(D) of the Act, we shall order that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , Interna- tional Association of Bridge, Structural and Ornamen- tal Iron Workers, Local 10, AFL-CIO, Springfield, Missouri, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Engaging in or inducing or encouraging any in- dividual employed by Luther L. Essary Construction Company, Vincent Metal Works, or by any other per- son engaged in interstate commerce, or in an industry affecting such commerce, to engage in a strike or refusal in the course of such individual 's employment to use, manufacture, process, transport, or otherwise handle or work on any goods , articles, materials, or commodities, or to perform any services , where an ob- ject thereof is to force or require Vincent Metal Works to assign the work of erecting structual steel to em- ployees who are represented by Local 10, rather than to employees who are represented by Sheet Metal Workers Local Union No. 146. (b) Threatening , coercing, or restraining Luther L. Essary Construction Company , Vincent Metal Works, or any other person engaged in interstate commerce, or in an industry affecting such commerce, for such an objective. 2. Take the following affirmative actions which, we find, will effectuate the policies of the Act: INTERNATIONAL ASSN OF BRIDGE , IRON WORKERS , LOCAL 10 155 (a) Post at its principal office and usual meeting place copies of the attached notice marked "Appendix."' Copies of said notice, on forms prov- ided by the Regional Director for Region 17, after being signed by Local 10's duly authorized representa- tive, 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. Rea- sonable steps shall be taken by Local 10 to insure that said notices are not altered, defaced, or covered by any other material. (b) Forthwith mail copies of notice to Regional Di- rector for Region 17, after such notice has been signed as provided above, for posting by Luther L. Essary Construction Company and Vincent Metal Works, if they so agree, in places where they customarily post notices to their employees. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Decision what steps the Respondent has taken to comply there- with. MEMBER JENKINS, dissenting in part: I agree with my colleagues in dismissing the 8(b)(4)(B) allegation. For the reasons set forth in the decision of the Administrative Law Judge, I would dismiss, as he did, the 8(b)(4)(D) allegation. 8 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 POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government TO ALL EMPLOYEES OF LUTHER L. ESSARY CONSTRUCTION COMPANY, AND VINCENT METAL WORKS TO ALL MEMBERS OF INTERNATIONAL ASSO- CIATION OF BRIDGE , STRUCTURAL AND ORNAMENTAL IRON WORKERS , LOCAL 10, AFL-CIO We hereby notify our members that: WE WILL NOT engage in or induce or encourage any individual employed by Luther L. Essary Construction Company, or Vincent Metal Works, or by any other person engaged in interstate com- merce, or in any industry affecting such com- merce, to engage in a strike or refusal in the course of such individual's employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, commodi- ties, or to perform any services, where an object thereof is forcing or requiring Vincent Metal Works to assign the work of erecting structural steel to employees who are represented by us rather than to employees who are represented by Sheet Metal Workers Local Union No. 146. WE WILL NOT threaten, coerce, or restrain Luther L. Essary Construction Company, Vincent Metal Works, or any other person for such an object. INTERNATIONAL ASSOCIATION OF BRIDGE STRUCTURAL AND ORNAMENTAL IRON WOKERS, LOCAL 10, AFL-CIO DECISION STATEMENT OF THE CASE ARNOLD ORDMAN, Administrative Law Judge: On Septem- ber 13, 1973, Vincent Metal Works filed unfair labor practice charges against the labor organization named in the caption, herein called Respondent, and against Grover C. Byrd, as agent of Respondent. Pursuant to these charges the General Counsel of the National Labor Relations Board issued a com- plaint, dated November 30, 1973, alleging that Respondent and its agent, Byrd, had violated Section 8(b)(4)(i) and (ii)(B) and Secion 8(b)(4)(i) and (u)(D) of the National Labor Rela- tions Act, as amended, by engaging in a proscribed secondary boycott and by seeking to compel an assignment of certain work to Respondent's own members rather than to other employees. Respondent, while admitting its status as a labor organization within the meaning of the Act and further ad- mitting that Byrd was its officer and/or agent, entered its denial as to virtually all other material allegations of the complaint. Hearing was conducted in this matter in Springfield, Mis- souri, on February 28, 1974. At the conclusion of the hearing counsel for Respondent presented oral argument, and Gen- eral Counsel submitted a written brief on March 28, 1974. Upon the entire record, upon my observation of the wit- nesses, and after due consideration of the argument and brief, I make the following: FINDINGS AND CONCLUSIONS I JURISDICTION Vincent Metal Works, a sole proprietorship, has an office in Springfield, Missouri, and is engaged in the business of performing metal contracting services in the construction industry.-1,uther L. Essary Construction Company, herein called Essary, is a Missouri corporation with an office in Springfield, Missouri, and is a general contractor in the con- struction industry. On the basis of allegations in the com- plaint that Essary made interstate purchases in excess of $50,000 and that both Essary and Vincent Metal Works were employers engaged in commerce within the meaning of the Act, all parties at the hearing stipulated, for purposes of the instant proceeding that both enterprises are respectively en- 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in interstate commerce within the meaning of the Act and that the National Labor Relations Board has jurisdiction herein. I so find. I find further, as alleged and admitted in the pleadings, that Respondent is a labor organization within the meaning of the Act, and that Grover'C. Byrd, its business representative, is an officer and/or agent of Respondent. II THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence All the events relevant here occurred during the month of September 1973 at a construction site in Springfield, Mis- souri, where Essary as general contractor was constructing a library building for Central Bible College. Essary subcon- tracted the job of erecting the basic metal structure for the building to Vincent Metal Works. The complaint alleges that ` all times material herein Respondent had a labor dispute with Vincent Metal Works arising out of the latter's assign- ment of the metal work at the construction site to employees who are not members of the Respondent. The complaint further alleges that at no time material herein did Respondent have any labor dispute with Essary. The gravamen of the alleged unfair labor practices is that Respondent by picketing at the construction site and by related conduct sought unlaw- fully to enmesh neutral employers in its dispute with Vincent Metal Works, and sought also to compel Vincent Metal Works to assign its work to members of Respondent rather than to its own employees. Respondent's position is that it did not engage in proscribed conduct and that its sole object was to protect the area standards relating to wages and working conditions of employees in the industry from erosion. It is uncontroverted, and all parties admit, that the employees of Vincent Metal Works received substantially less pay than employees doing the same work who are represented by Re- spondent. The bulk of the evidence, much of which is documentary, is undisputed. Essary has for some years had a collective- bargaining relationship with Respondent. Respondent refers ironworkers to Essary as needed. Among the provisions in the contractual arrangement between Essary and Respondent is a clause precluding Essary from sub-contracting construc- tion site work covered by the contract to anyone other than "a person, firm, partnership or corporation that is party to an executed current contract with the [Respondent]."' Vincent Metal Works does not have a contractual arrangement or collective-bargaining relationship with Respondent. Vincent Metal Works employees are represented exclusively by Sheet Metal Workers Local Union No. 146. Both the sheet metal workers here and the ironworkers represented by Respondent do the kind of work involved in the present controversy Early in September Grover C. Byrd, aware that Essary had a building to erect on the construction site, came to the site and talked to Gerald Thomlinson, superintendent for Essary, who was on the premises. Minor discrepancies in the tes- timony of Byrd and Thomlinson aside, it appears that Byrd asked Thomlinson when he would need ironworkers to do the metal work, that Thomlinson told Byrd the metal work had ' No contention is made that this clause is unlawful been subcontracted to Vincent Metal Works, and that Essary had no control in the matter. Byrd observed that such sub- contracting was violative of the subcontracting clause in the bargaining agreement. Thomlinson responded that Byrd would have to take that matter up with Luther Essary di- rectly. According to Thomlinson, a witness for General Counsel, Byrd then requested that Essary ask Vincent to use ironwork- ers to do the work. Thomlinson reiterated that he had no control. There is conflict in the testimony as to what if any- thing, Byrd said at this point about further referral of em- ployees by Respondent to Essary. Thomlinson, whose mem- ory in this regard was less than precise, testified that Byrd told him Respondent would no longer feel obligated, in view of Essary's breach of the subcontracting clause, to furnish "any help for this job." Further questioning by General Counsel in an effort to elicit testimony from Thomlinson that Byrd made more sweeping or truculent statements failed.' In any event, it is clear, as General Counsel concedes, that "notwithstanding Byrd's above-related statements to Thom- linson the Respondent Union did not fail or refuse to refer men in response to Essary's later requests." (Bnef, p. 2). Instead, a week or so following the conversation between Byrd and Thomlinson, Byrd on September 11, 1973, at about 8:30 a.m. placed a picket at the entrance to the construction site. The picket carried a sign bearing the following legend: Vincent Metal Works breaking established working con- ditions of Iron Workers Local 10, AFL-CIO, 1000 East 10th Street, Kansas City, Missouri, VI 2-8917 or 866- 3132. The picketing did not come wholly as a surprise. Following his conversation with Thomlinson, Byrd had instituted inqui- ries and verified that the wage rates of the Vincent Metal Works employees were substantially less than those paid ironworkers, a fact known also to Vincent Metal Works. Accordingly, Byrd wrote to Vincent Metal Works, under date of September 5, as follows: Our organization has investigated the wages and benefits received by your employees. We find your wages and benefits are inferior to those that prevail in this area. Our organization has worked hard for years to get a fair and dust prevailing wage for our members and local citizens of this area. We believe when the prevailing wage in the 2 In furtherance of this effort, General Counsel introduced an affidavit given by Thomlinson to a Board agent on September 20, 1973, some 5 months before the hearing In that affidavit, Thomlinson said, in relevant part Byrd did not threaten to picket the job if Ironworkers were not used to erect the building, but he did say he couldn't work with us (Essary) anymore, if we permitted Sheet Metal Workers to erect the steel build- ing Byrd did explain that he meant the CBC job only Grover Byrd further explained to me that his reason for saying the above was that he thought that we (Essary) would be violating our contract if we didn't use ironworkers to erect the green metal On all the evidence I conclude that the tenor of Byrd's remarks to Thomlin- son, assuming they were made as Thomlinson testified, does not rise to the status of conduct proscribed by Section 8(b)(4) of the Act INTERNATIONAL ASSN. OF BRIDGE , IRON WORKERS, LOCAL 10 157 area is reduced the local employees, merchants and professional men are all hurt. The entire community suffers. We believe it is our obligation, along with the other local citizens and residents of this area to maintain the standard of living presently prevailing in this area. Accordingly, this organization intends to inform the public and citizens of this area by means of peaceful picketing and other forms of publication that you are breaking down the prevailing wage rates and working conditions in this area. Our only intention throughout the course of this dispute is to inform the public and citizens of this area that your employees receive inferior wages and benefits. We wish to inform you this organization does not intend to inter- fere with any of your employees' rights guaranteed by the National Labor Relations Act to either become or refrain from [sic] any union activities. We are not de- manding your employees to become union members, nor are we demanding you recognize us or sign a contract with our union. We expressly disclaim any such de- mands. As stated, our only intention is to inform the public and citizens of this area that your employees re- ceive wages and benefits that are inferior to those estab- lished in this area. Vincent Metal Work admittedly received this letter on or about September 7. It did not answer the letter or make contact with Respondent. As noted, the single picket bearing the sign already described appeared on September 11 at the Grant Street entrance to the construction site which was the main entrance then being used by all who worked on the site. It is undisputed that the picketing, on that day and thereafter, was at all times performed by single picket and was at all times peaceful. On the day the picketing began, September 11, Vincent Metal Works employees were working on the construction site. They continued to work on that day and for the duration of the picketing. Essary was also operating on the site on September 11 but had no ironworkers on the job at that time. Subsequently, Essary did call upon Respondent for ironwork- ers and they were supplied. Whether this occurred while the picketing was going on or after the picketing had ceased is not clear on the record Another enterprise engaged in operations on the construc- tion site on September 11 was John Drennon & Sons, to which Vincent Metal Works has assigned the job of hoisting the steel Vincent Metal Works was going to erect. John Dren- non & Sons had two employees on the site at that time, David Drennon and Gary Montgomery, who were operating a crane to hoist the steel. Both had reported to work that morning. Upon the appearance of the picket, they stopped work As David Drennon testified, "we were trying to figure out what was going on with that picket there, we didn't know whether we should go ahead and work, or honor the picket line or what. We were in a tizzy right then, to tell you the truth." The Drennon work stoppage lasted only 1 day. The following day, September 12, John Drennon & Sons resumed opera- tions at the site and continued until its work was completed.' James A. Vincent, operator and manager of Vincent Metal Works, was also on the site on the morning of September 11. Disturbed by the appearance of the picket and the Drennon work stoppage Vincent called and went to see his attorney Don Jones. On advice of counsel, Vincent personally hand- painted two sign. One sign read, "Main entrance. Vincent Metal Work employees use rear entrance"; the other read, "Vincent Metal Works employees use this entrance." At I p.m. Vincent posted the first sign at the Grant Street entrance through which theretofore all employees had entered and where the picket was patrolling. The second sign was posted at the rear entrance on Norton Road.` At or about the same time Attorney Jones appeared at the construction site and together with Vincent gave the picket a copy of a paper called "Notice to All Construction Personnel" which had been pre- pared by Attorney Jones. Copies were also given by Vincent to all the employees. The text of the notice was to the effect that all construction personnel on the site would "immedi- ately and henceforth" enter and leave the construction site only through the gate or entrance specifically designed for them. Vincent Metal Works employees were instructed to use the rear entrance, and all other employees the Grant Street or main entrance. The notice further stated a demand that all unions having a dispute with Vincent Metal Works or having a right to picket Vincent Metal Works refrain from picketing the main entrance since such picketing would improperly coerce and restrain employees of other enterprises not to perform their services, and that picketing against Vincent Metal Works be conducted at the latter's separate entrance. The notice closed with a statement that Ironworkers Local 10, Respondent herein, was being given copies of the notice both at its office address and through its picket carrier. Vincent testified that upon distribution of the notice, the Vincent Metal Works employees immediately left the site through the front entrance and reentered through the rear entrance. He acknowledged that apart from giving a copy of the notice to the picket, lie made no effort, contrary to the recital in the notice, to contact the Respondent and did not give a copy of the notice to Byrd He acknowledged also that when the picket was given a copy of the notice, the picket left for a brief interval but then returned and resumed picketing at the main entrance Grover Byrd confirmed that the picket was not at his post for a brief period during the early afternoon of September 11. Byrd testified that he came to the construction site at about 2:30 p.m. on that day and found no picket on the premises. However, the individual who had been picketing saw Byrd arrive, came over to Byrd's car, told Byrd he had a letter and gave it to Byrd. Byrd, without reading the "letter," which was in fact the notice previously described, ordered the picket back to the place he had previously been picketing.' 3 The substance of a conversation between David Drennon and Grover C Byrd, which I am satisfied occurred on the afternoon of September 11, will be discussed later in this Decision On the following day, September 12, the handpainted signs were re- placed by professionally painted signs to the same effect 5 Vincent testified that Byrd arrived on the scene at or about 1 30 p in Considering all the intervening events including the posting of the hand- painted signs, the arrival of Jones, the distribution of the notices to the employees and to the picket, and the temporary absence of the picket thereafter, to all of which Vincent testified and which he stated occurred beginning at or about 1 p in , I am satisfied and find that Vincent's estimate (Continued) 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Byrd, he did not read the "letter" handed him by the picket until his return to Respondent's office. Immediately after reading it, Byrd called Respondent's attor- ney who told Byrd to station the picket at the rear gate. Byrd concluded that since the working day was about over, it was too late to do anything. On the next morning, however, Sep- tember 12, Byrd stationed the picket at the rear entrance used exclusively by Vincent Metal Works employees. There the picket remained through September 18 when the structural ironwork was completed. No further incidents occurred dur- ing the period from September 12 to 18 and no allegation of unfair labor practice is predicated on conduct during this period. There is some conflict in the evidence concerning precisely when the picketing at the main entrance ceased on September 11. Vincent testified that it ceased about 4:30 p.m. but conceded that he really couldn't "pinpoint the time." Byrd testified that the picketing ceased about 3:45 p.m. when the picket called him to tell him he was through picketing for the day.' B. The Conversation Between Byrd and David Drennon told him not to go to work, Drennon replied that the only thing anyone said to him was, "It's up to your discretion," that Byrd "didn't really say yes or no. He said, 'you better not."' Only brief reference was made to Grover C. Byrd's exten- sive testimony as to his encounter with Drennon. According to Byrd the encounter took place shortly after he arrived at the construction site at 2:30 on the afternoon of September 11 and discovered that his picket was not patrolling. Byrd testified that Drennon came to Byrd's car, opened the door and asked Byrd "What's the deal?" Byrd, who had seen Attorney Jones in the area, told Drennon that he (Byrd) did not want to talk because Jones was coming over to the car and Byrd had nothing to say. Drennon, according to Byrd, said "Okay" and left. In the meantime Attorney Jones reached the car. Byrd refused to talk to him also and drove off. Byrd's testimony as to this incident was unshaken on cross examina- tion by General Counsel. For reasons stated more fully hereunder, I believe that Grover C. Byrd's account of his interchange with Drennon on September 11 more accurately reflects what actually oc- curred. General Counsel places special emphasis on a conversation between Grover Byrd and David Drennon which, as noted, I believe to have occurred on the afternoon of September 11, the first day of the picketing. Drennon's testimony concerning this conversation was not altogether clear. On direct examination by General Counsel, Drennon stated that in the early part of September while working at the construction site he had conversation with Byrd in the latter's car on Grant Street in front of the site. According to Drennon, he asked Byrd what was going on because he (Drennon) wanted to go ahead and do his work and Byrd replied, "You better not because the Sheet Metal was doing our workers' work" Drennon testified further that he then asked Byrd if Byrd was "bullshitting" or whether it was really legal and that Byrd replied, "You dam right it's legal." The conversation then ended, according to Drennon, because another individual started walking up to the car and Byrd did not want to talk to the other individual. On cross-examination Drennon stated that he could not recall what day this conversation with Byrd took place al- though the context to which he testified would indicate that the day was September 11. Drennon stated that he went over to talk to Byrd because "being kind of friends . . . I just went over to talk to him, shoot the bull." Drennon denied that Byrd stated at the outset that he did not want to talk to Drennon or that Byrd made any mention of wages or working conditions. Drennon stated that he was aware at this time that an ironworker was picketing but that he (Drennon) did not read the sign although he had "talked to the guy who was carrying it." Drennon repeated on cross-examination that Byrd said "the Sheet Metal people was doing his work" and that the picketing was legal. The whole conversation accord- ing to Drennon consumed "a very short minute or two." In response to final questioning, however as to whether anyone of time is not likely to be accurate and that Byrd ;s arrival was closer to 2 30 p in. as Byrd testified 6 I deem it unnecessary to speculate as to which of the two estimates is more nearly correct I am satisfied that the picketing on September 11 did cease sometime between 3 45 p in . and 4 30 p in C. Analysis and Concluding Findings Picketing to preserve area standards is lawful and permissi- ble. United Brotherhood of Carpenters and Joiners ofAmerica, Local 480, AFL-CIO (National Mill Designs, Inc.,) 209 NLRB 921 (1974). On the other hand, such picketing "may be unlawful if there is additionally an unlawful objective as revealed by contemporaneous statements of union agents or other pertinent evidence." Local No. 441, International Brotherhood of Electrical Workers, AFL-CIO (Rollins Com- munications, Inc.), 208 NLRB 942 (1974). The foregoing principles state the respective positions of the parties. Respondent maintains that all its efforts here were devoted to preventing the erosion of the wage standards it had established in the area for the particular work being done, that it lawfully picketed for that purpose and for that purpose only, and that it engaged in no other proscribed conduct. General Counsel, on the other hand, while not dis- puting the legality of area standards picketing, argues that Respondent was nonetheless guilty of unfair labor practices because Respondent's conduct had "the concurrent objects of forcing or requiring Essary and John Drennon & Sons to cease doing business with Vincent Metal and/or forcing or requiring Vincent Metal to assign the performance of the controverted erection work duties to members of the Re- spondent Union." In support of this position General Coun- sel asserts, first, that Respondent's picketing was not solely confined to the area reserved for the use of the primary employer, Vincent Metal Works. On this point General Counsel cites Moore Dry Dock Company, 92 NLRB 547 (1950). Second, General Counsel relies for further evidence of illicit objectives on two conversations in'which Grover C. Byrd, Respondent's agent, engaged-one conversation with Essary's superintendent, Gerald Thomlinson; the other with David Drennon who was on the payroll of John Drennon & Sons. The issue here, as in National Mill Designs, Inc., supra, is one of fact. INTERNATIONAL ASSN. OF BRIDGE, IRON WORKERS , LOCAL 10 159 First, as to the picketing . It is not necessary to recapitulate all the evidence to demonstrate that on its face the situation here would appear to fall in the classic pattern of area stand- ards picketing . The short of the matter is that Respondent after making appropriate inquiry verified the fact, also known to Vincent Metal Works, that the latter's employees were being paid $2 to $3 less per hour than employees represented by Respondent received for doing like work . Respondent so informed Vincent Metal Works by letter which the latter received on or about September 7. The letter declared Re- spondent's intention to publicize "by means of peaceful pick- eting and other forms of publication" the erosion of the wage standards Respondent has established . The letter further ex- pressly disclaimed any intention to interfere with statutory rights of employees and any demand that Vincent Metal Works become members of Respondent or that Vincent Metal Works recognize or enter into a contract with Re- spondent. On the morning of September 11 Respondent , as indicated in its letter to which Vincent Metal Works made no reply, stationed a picket at the Grant Street entrance to the con- struction site, the entrance used in common by employees of Vincent metal works and by employees of other contractors working on the site. The picket bore a sign stating that Vin- cent Metal Works was breaking established conditions of Ironworkers Local 10. It is undisputed that the picketing was preacful and no claim is made that the picketing at its inception violated any precept enunciated in Moore Dry Dock True, two employees of John Drennon & Sons, who had started to work that morning, stopped working when they saw the picket However, as the Board has frequently held, the fact that picketing to protest substandard conditions may have an im- pact on deliveries or working operations does not in and of itself supply evidence of a prohibited objective. See National Mill Designs, Inc., supra. Vincent Metal Works employees continued to work on the morning of September 11. However, in an effort to confine the impact of the picketing, Vincent Metal Works, after con- sultation with counsel , established a separate gate at the rear of the site for its own employees, and designated the Grant Street entrance for the use of all other employees and contrac- tors working on the site . Appropriate signs so indicating were posted at the respective entrances and copies of a notice were given to all employees stating the action taken . The notice also stated a demand that any further picketing directed against Vincent Metal Workers be restricted to the rear en- trance designated for the use of its employees. Vincent Metal Works took the foregoing actions including service of a copy of the notice upon the picket-no copy was furnished Re- spondent although the face of the notice indicated that this was being done-in the early afternoon of September 11 just a few hours before quitting time. On the following morning September 12, Respondent moved its picket to the rear en- trance as requested. Operations on the construction site con- tinued thereafter without interruption. On September 18, the metal work which gave rise to the dispute was completed and Respondent withdrew its picket. On this state of the record the only ground on which General Counsel posits the claim that the picketing, itself disclosed that it was for an illegal objective or for illegal objectives rests on its assertion that the picket was not removed from the Grant Street entrance forthwith on the afternoon of September 11 when the separate gates were es- tablished. The evidence in that regard can be succinctly stated. The picket received the notice already described shortly after 1 p in. He immediately stopped picketing. Some- time between 1:30 and 2 .30 p.m.-for reasons already in- dicated, I believe the later estimate to be more accurate-Grover C. Byrd arrived at the site and directed the picket to resume his picketing The picket was resumed for a period of about 2 hours when the workday ended. The following morning, as noted, the picket was moved to the rear entrance where Vincent Metal Works employees entered and left the site. Relevant here is the question as to why Byrd did not relo- cate the picket forthwith upon his arrival at the site on the afternoon of September 11. Byrd explained that he had not seen the signs newly posted at the entrance and that he did not read the notice given him by the picket until he (Byrd) reached his office later that afternoon . By that time the work- day was about over and Byrd decided to take no action. Byrd's testimony in this regard was unshaken and uncon- tradicted . However, even assuming, arguendo, that Byrd was aware, or should have been aware , shortly after his arrival at the site that afternoon that separate gates had been estab- lished, his failure to make immediate arrangements to trans- fer the location of the picketing does not warrant a finding of illicit objectives. The fact of the matter is that with the exception of the few hours on the afternoon of September 11, the picketing throughout the entire period from September 11 through September 18 was scrupulously peaceful and correct, that it was conducted with an equally scrupulous regard for the Moore Dry Dock criteria, and that it was publicly and expressly directed against the erosion of wage standards. Ex- cept for the fact that John Drennon and his coworker volun- tarily elected to respect the picket line and withhold their services on the very first day of the picketing, there appears to have been no other interruption of operations at the site and Respondent at no time withheld its furnishing of em- ployees to Essary with whom it had a contractual relation- ship. Against this total background it strains credulity to draw an inference that underlying Respondent 's totally legiti- mate effort to preserve area standards were "concurrent ob- jectives" of forcing or requiring Essary or John Drennon & Sons to cease doing business with Vincent Metal Works or to force or require the latter to assign its metal work to Respon- dent's members. Respondent's letter of. September 5 unam- biguously disclaimed such objectives and the whole pattern of the picketing was consistent with that disclaimer. To apply the Moore Dry Dock criteria here because for a few hours out of an entire week of picketing there was a technical breach of the standards there enunciated would exalt form above substance Certainly, it does not establish that the area standards picketing had concurrent illicit objec- tives. I find a failure of proof in this regard Remaining for consideration , therefore, are the conversa- tions which Grover C. Byrd had with Thomlinson and Dren- non respectively. As already noted Byrd asked Thomlinson when he would need ironworkers. Informed that the metal construction work had been subcontracted to Vincent Metal Works whose workers were represented by a different union, 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Byrd complained that this was violative of the collective- bargaining agreement. Crediting Thomhnson's imprecise recollection herein, it appears that Byrd may also have said that Respondent would not in these circumstances feel obli- gated to furnish Essary with any "help for this job." In point of fact, as General Counsel concedes, Respondent "did not fail or refuse to refer men in response to Essary's later re- quest." Considered alone or in context, nothing in Byrd's remarks addressed to Thomlinson, superintendent for Essary, esta- blishes either the threat, coercion, or restraint proscribed in Section 8(b)(4)(ii) of the Act or the illicit objects defined in subsections (B) and (D) of that section, both of which must be established to justify the unfair labor practices here alleged.' The conversation between Byrd and Drennon likewise fails to support General Counsel's case. On the basis of the evi- dence, already summarized, as to that conversation, I credit Byrd's account to this brief colloquy which in essence was that Byrd approached him on the afternoon of September I 1 and asked what the "deal" was, and that Byrd replied he did not want to talk and that Drennon should leave. Byrd ex- plained that he took this action because he saw Attorney Jones approaching and that he wanted no confrontation with Jones. Drennon confirmed that he went over to Byrd's car and initiated the conversation, stated that he and Byrd were "kind of friends," and that he (Drennon) went over to "shoot the bull." He could not recall at first how long the conversation was and later testified that it took a "very short minute or two." Drennon agreed that Byrd terminated the conversation because a man in a "business suit" was approaching Byrd's car. Drennon gave differing versions of what Byrd said to him. Thus, Drennon stated first that Byrd told him he "better not [work] because the Sheet Metal was doing our workers' work"; later, that the only thing Byrd said to him was "It's up to your discretion" and then, that Byrd "really didn't say yes or no. He said `You better not."' e General Counsel did elicit from Byrd that Respondent would have liked to have had the metal work here involved However, the obvious fact that Respondent would have liked this work does not establish in any sense that Respondent engaged in unlawful conduct to obtain it Further doubt is cast on Drennon's credibility by his ac- knowledgement that he knew the picket carrying the sign was an ironworker because he had talked to the man carrying the sign but that he had not read the sign. It is also clear from the record that Drennon had voluntarily stopped working upon the appearance of the picket hours before his conversa- tion with Byrd and that on the following day when the picket was moved Drennon went back to work. On all the evidence, therefore, and on the basis of my observation of Drennon as a witness, I find his testimony unworthy of credence. Even assuming, however, that cre- dence would be given to his shifting and inconsistent accounts of a very brief conversation, it would still fall short of estab- lishing a violation of the Act. Drennon sought out Byrd not the converse, and the entire course of the picketing argues against the notion that Byrd would have seized on Drennon's appearance to bring illegal pressures to bear. I find and conclude that General Counsel has not sustained the burden of establishing that Respondent or its agent, Byrd, engaged in conduct proscribed by Section 8(b)(4)(B) and/or (D) of the Act. I find, on the contrary, that Respondent was at all times relevant here engaged in permissible and lawful activities to protect its area standards from erosion. CONCLUSIONS OF LAW The evidence does not establish that Respondent or its agent, Grover C. Byrd, engaged in the unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I recommend the following: ORDER' The complaint is dismissed in its entirety. 8 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes