Local 492, Carpenters

LOCAL 492, CARPENTERS 263 Local Union No. 492, United Brotherhood of Carpen- ters and Joiners of America (Richard H. Lawrence) and Thomas E. Waters, Jr. Case 4-CP-219 December 4, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS ployees or acceptance by these employees as their bargaining agent, without filing a petition for an election within 30 days after the commencement of the picketing. At the close of the hearing, the parties waived oral argument but subsequently filed briefs supporting their respective positions. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS On June 28, 1974, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a support- ing brief, and General Counsel filed cross-exceptions and an answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Local Union No. 492, United Brother- hood of Carpenters and Joiners of America, Reading, Pennsylvania, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge. This proceed- ing, with all the parties represented, was heard on March 14 and May 1, 1974, in Reading, Pennsylvania, on the complaint of the General Counsel issued on February 11, 1974,' as subsequently amended, and the answer of Local Union No. 492, United Brotherhood of' Carpenters and Joiners of America, herein called the Respondent or the Union. In issue is the question whether the Respondent, admittedly not the certified bargaining representative of the employees of Rich- ard H. Lawrence, a general building contractor, in violation of Section 8(b)(7)(C) of the National Labor Relations Act, as amended, picketed Lawrence's jobsite at the Berks County Campus of Pennsylvania State University to gain recognition as the collective-bargaining representative of Lawrence's em- ' The complaint is based on a charge filed by Thomas E Waters, Jr., attorney for Richard H Lawrence, on January 23, 1974, a copy of which was duly served on the Respondent by registered mail on the same day I THE BUSINESS OF LAWRENCE Lawrence, an individual proprietor with his principal office in Reading, Pennsylvania, is a general contractor engaged in the building and construction industry. In the regular course and conduct of his business during the past year, Lawrence purchased goods and services from sources outside the State valued in excess of $50,000. It is conceded, and I find, that Lawrence is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; the Question Presented In April 1973,2 as a result of competitive bidding, Law- rence, a nonunion general contractor, was awarded by the General State Authority of Pennsylvania a contract to build a library at the Berks County Campus of Pennsylvania State University in Reading, Pennsylvania. As the general contrac- tor, Lawrence is in charge of general construction, including the coordination of the work of three other prime contractors. In the performance of the construction work he had person- ally undertaken, Lawrence utilizes a total of approximately 14 subcontractors. In addition, he employs on this jobsite carpenters and laborers from his permanent staff, whose number varies from 4 to 10 depending on the amount and kind of work required to be done at a particular time. The wage rates Lawrence pays his employees are regulated by the general state authority and essentially conform with union scales prevailing in the area. These rates are posted in Lawrence's job trailer, as he is obligated to do, so that employees may inspect them and register their complaints with the appropriate governmental authority in the event they are not paid the prevailing rates. As noted above, the Respondent is charged with picketing this jobsite in violation of Section 8(b)(7)(C) of the Act which, insofar as pertinent, makes it an unfair labor practice for a labor organization or its agents . . . to picket . . . any employer where an object thereof is forcing or requiring an employer to recognize or bar- 2 All dates relate to 1973 unless otherwise indicated 215 NLRB No. 57 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gain with a labor organization as the representative of ON THIS JOB his employees, or forcing or requiring the employees of an employer to accept or select such labor organization NO DISPUTE WITH ANY OTHER as their collective bargaining representative, unless such labor organization is currently certified as the represen- EMPLOYER OR OWNER tative of such employees: a CARPENTER UNION ... where such picketing has been conducted with- out a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing . .. . The Respondent admits that it picketed the jobsite for more than 30 days without filing a representation petition and that it was never the certified bargaining representative of Lawrence's employees. The sole question thus to be re- solved is a factual one-whether the picketing had as an object recognition of the Respondent as the bargaining re- presentative of Lawrence's employees ,3 as the General Counsel and the Charging Party contend, or whether the only purpose of the picketing was to publicize that Lawrence's wages and other conditions of employment did not conform with the Union's prevailing area standards, as the Respond- ent vigorously maintains. B. The Evidence 1. The picketing of the jobsite About May 21, the Respondent began picketing Law- rence's jobsite. This activity, which was directed and supervised by the Union's business agent, Joseph D Covely, continued until it ceased in March 1974 when a 10(1) injunction was issued by the United States District Court for the Eastern District of Pennsylvania. The picket signs carried initially and for most of the time read: INFORMATIONAL RICHARD R LAWRENCE IS PAYING SUB-STANDARD WAGES & CONDITIONS 3 No specific evidence was adduced to establish an independent organiza- tional objective. LOCAL 492 In December, the wording of these signs was changed to show that the Union was protesting "Sub-Standard Area Condi- tions and Wages and Fringes." The picketing was apparently peaceful. Covely testified that before he instituted the picket line he visited the jobsite where he observed that the same men were performing both laborers' and carpenters' functions in pre- paring the footings for the foundation of the building. He admitted that he did not know whether these men who per- formed these dual functions were carpenters or laborers or whether they were paid carpenters' or laborers' rates. He further admitted that he made no effort to ascertain the ac- tual facts but, instead, relied on his trade experience in mak- ing'the'assumption that these men were paid laborers' rates in performing the carpentry work. On the basis of this as- sumption, Covely testified, he concluded that Lawrence was paying substandard wages and operating under substandard working conditions thereby gaining an unfair competitive advantage over union contractors to the detriment of union carpenters. For this reason, Covely further testified, he de- cided to picket Lawrence. According to Covely, he observed that the practice of the commingling of functions also con- tinued after the inception of the picketing.' Clarifying the substandard conditions mentioned on the picket signs, Covely testified that they referred to the fact that carpenters were not doing carpenters' work at carpenters' rates. He also testified that substandard conditions included Lawrence's practice of beginning the workday at 7 instead of 8 in the morning, as is customary on union jobs, unless the carpenters are paid double time for the hours worked before 8 a.m. Covely, however, conceded that Lawrence's failure to comply with the area starting time standard began subse- quent to the institution of the picketing. Finally, Covely in- dicated in his testimony that the concept of area standards encompassed fringe benefits, such as the Union's health and welfare and pension programs to which unionized contrac- ' Covely testified that his observation of the commingling of functions was subsequently confirmed in the meeting of the parties held during a recess in the state court proceeding for a preliminary injunction which will later be discussed LOCAL 492, CARPENTERS tors contribute and which benefits Lawrence's carpenters do not enjoy. Despite Covely's assumption that Lawrence was not com- plying with area wages and standards, no union representa- tive communicated with Lawrence to discuss this situation before the picketing was initiated. Nor, for that matter, does it appear that any union representative ever bothered to in- spect the posted wage rates. In June, Lawrence telephoned Covely and inquired why he was being picketed. Covely sim- ply responded that Lawrence should read the picket signs. Lawrence replied that he had read the signs and they were wrong because he was paying his employees the prevailing wage rates. Covely retorted that Lawrence would have to prove it. At this point, Lawrence suggested that the problem could perhaps be resolved by them and an agreement reached to terminate the picketing which was hurting union contrac- tors on the job. Covely concurred in the view that an agree- ment was possible. On this note, the conversation ended, leaving Lawrence with the impression that Covely would communicate with him. Several weeks later Lawrence received a telephone call from Leon Ehrlich, the Union's attorney, who inquired why Lawrence wanted a meeting. Lawrence answered that lthe picketing was interfering with the progress of the job andiwas causing him and other contractors financial loss. He also indicated that an agreement could possibly be reached at such a meeting. Although Ehrlich originally seemed to be amena- ble to a meeting, he rejected the idea when he and Lawrence became involved in a controversy as to who should call Covely to arrange a date for the meeting. 2. The state lawsuit; settlement negotiations to remove the picket line On August 27, Lawrence's attorney, Lawrence Sager, filed a complaint against the Union in the Court of Common Pleas of Berks County, Pennsylvania, alleging a trade libel based on the asserted falsity of the picket signs' and requesting that the picketing be enjoined and damages be awarded. A Motion for Preliminary Injunction was also filed.6 The Union chal- lenged the jurisdiction of the state court on the ground that "the parties are subject to the jurisdiction of the National Labor Relations Board, and the picketing 'arguably' may constitute an unfair labor practice under Section 7 or 8 of the National Labor Relations Act, as amended." As of the time of hearing this contention was undetermined in the pending state case. On September 4, a hearing on Lawrence's application for a preliminary injunction was held in the Court of Common Pleas before Judge Warren K. Hess. At this hearing, Union Business Agent Covely was called by Lawrence as an adverse 5 Par 8 of the state court complaint alleges that the "statements on said signs are libelous and false in that Richard H Lawrence has been and is paying the base union salary plus an amount that would cover health and welfare benefits and all other benefits that comparable union employees obtain " 6 According to Lawrence's undisputed testimony, which I credit, when he served the legal papers in the state court action on Covely, he unsuccessfully attempted to discuss an agreement with Covely for the removal of the pickets Lawrence quoted Covely as saying that "if he could give the an- swers himself, it might be deferent, but he had other people he had to answer to 11 265 witness. Under questioning by Attorney Sager, Covely testi- fied, in substance, that the substandard conditions the Union was protesting were Lawrence's failure to pay the prevailing carpenter wage rates for carpentry work; the commingling of job functions whereby the same employees would perform both laboring and carpentry work and on one occasion car- penters were doing higher-paid ironworkers' jobs when they placed rods in concrete; and Lawrence's practice of starting work before 8 a.m., as required by the Union's expired area contract However, he testified that he assumed that Law- rence's carpenters were not receiving the prevailing area rates, even though Lawrence had informed him that he was complying with area rates and that the picket signs misstated the facts. While Covely was being further ex- amined concerning the Union's terms for removing the pickets, Judge Hess posed the following question to Covely and received the following answer: THE COURT.. . If you are satisfied that this contrac- tor [Lawrence] in all respects . . was treating all his employees as Union contractors are required to do under the contract, then would you cease picketing? THE WITNESS. This, I believe would be it. THE COURT: That covers everything. At this point, Sager requested a few minutes to confer with his client and a recess was declared. Thereupon, Lawrence, Covely, Attorneys Sager and Ehrlich, and two of Lawrence's employees met in an adjoining room . During the ensuing discussions, Ehrlich questions the two employees concerning their wages, the nature of their jobs,' their hours of employ- ment, and their regular starting time. Also mentioned were the Union's complaints against Lawrence for failing to meet area standards, the Union's recently negotiated raise of 55 cents an hour, and the establishment of an escrow fund into which union contractors were obligated to pay the increase pending its approval by the Federal wage board for the con- struction industry. In addition, the Union stated that it would send Lawrence a copy of its contract with other employers which would indicate what he was required to do to be in compliance with area standards and to have the pickets removed. This meeting concluded with the understanding that, besides this contract, the Union would submit to Law- rence and Sager a list of area standards and conditions for the removal of the picket line.' Upon their return to the court- room, the parties reported to Judge Hess that they were trying to resolve their differences. The transcript of this hear- ing shows that "the Court stated that the case was continued, hopefully pending settlement " Subsequent to the state court proceeding, Attorneys Sager and Ehrlich were in telephone communication with each other. On September 12, Ehrlich wrote Sager the following letter, enclosing a copy of the Union's contract: Pursuant to our agreement, I am sending you a copy of the Carpenter contract which will give the basic de- tails of working conditions in the area that your client 7 Sager testified that Ehrlich was interested in the fact that one of the employees, who was related to Lawrence , was doing carpenter's work, al- though he was classified and paid as a laborer 8 According to the transcript of testimony in the state action, this recess lasted approximately 18 minutes 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD will meet. The wages have been increased by 55 cents per hour, which moneys representing 45 cents in wages and 10 cents in fringes are being held in escrow pending ruling by the Wage Board. Of course the conditions as set forth in the agreement as to other conditions of employment are important: tool storage, sanitary measures, safety measures, room on job site for tools and lunch, existence of a grievance proce- dure. We point out, in addition, the following: As to the ratio of journeymen to apprentices, if your client uses laborers, that ratio can't be any greater. We have an excellent health and welfare and pension program. Any work performed before 8 a.m. is paid at double rate. The letter then proceeded to list the "area of work of the journeyman" which "laborers may not perform" and closed with the statements: We shall, of course, have the opportunity to visit the job site to observe compliance and, further should have the opportunity to see time and wage records. We hope this information is sufficient for us to imple- ment the agreement reached in Judge Hess' courtroom. The next day, Sager responded by letter in which he stated: I have reviewed your letter of September 12, 1973, with my client. He will pay his employees the amounts that the Union is paying, in accordance with his agreement with the General State Authority. As to the conditions of employment, with regard to tool storage, sanitary measures, safety measures, room on job site for tools and lunch, and existence of grievance proce- dure, I do not know what you are talking about. I do not know specifically what your client's objections are as to the way we handle the matters, and I would ask you to specify in detail these problems. As to the categorization of work set forth in your letter, my client is making arrangements to take care of the same. I have also advised my client to start work at 8:00 a.m. or pay a double rate. As to investigation of the time and wage records, we will agree to the same, only at the mutual convenience of both attorneys and one representative. With regard to visiting the job site to observe compliance, we agree to the same, subject to arranging mutual times, manners, and so forth. - Please be advised that, as of this date, my client has taken the necessary steps, without prejudice, to "meet" the demands of the Union. Even though we do not have a formal agreement (and it is to be noted that everything we are doing is without prejudice) there seems to now be no reason whatsoever for the pickets. Accordingly, since there is compliance with the demands of the Union, again without prejudice to our position, you should have the pickets removed forthwith. After Sager's above response, there were additional tele- phone conversations' between him and Ehrlich culminating in Sager's advice to Ehrlich on September 19 that "everything was ok . . . as far as wages . . . the job situation . . . toilets, tool storage, ice cooler" were concerned. Ehrlich then "in- dicated that a formal agreement would be signed, that inspec- tion was to be mutually agreed upon but there was to be no grievance procedure, no pension, but the sums equivalent were to be paid to the people." On September 22.Sager told Ehrlich that they had an agreement . Thereupon, Ehrlich drafted a proposed agreement between the Union and Law- rence which he transmitted to Sager by letter dated October 2 for Lawrence's signature. Referring to Lawrence's inquiry concerning the pickets, the covering letter noted that "[t]hey will be removed when the agreement has been signed" and the case pending in the state court "was taken care of." The enclosed agreement contained the following provisions: 1. The Union agrees not to picket the job site of the library at the Berks County Campus of Penn State Uni- versity so long as Lawrence complies with the commit- ments made herein. 2. For carpenters and carpenter apprentices, Law- rence agrees to observe all of the conditions of the Union contract and addendum attached hereto as Exhibit "A"10 and made a part hereof and pay the rates therein set out. However, Lawrence shall not be obliged to insti- tute a pension program but the contributions in lieu thereof shall be paid directly to employees as additional wages; also, Lawrence shall not be obliged to institute a grievance procedure. For work which would be covered by union contracts for other craft Lawrence shall pay the union rates and observe the conditions of the area for those craft. 3. Lawrence shall pay for each hour for each employee the sum of Fifty-five Cents ($.55) per hour in addition to the wage rates shown in Exhibit "A", these sums being retroactive to June 1, 1973, that figure now having been approved by the C.I.S.C. [Construction Industry Stabilization Committee]. 4. The following work rules shall apply: (a) As to the ratio of journeymen to apprentices, if Lawrence uses laborers, that ratio cannot be any greater. (b) Any work performed before 8 a.m. is paid at dou- ble time. (c) The area of work of the journeyman is as follows and laborers may not perform such work. . . .11 5. Union shall have the right at reasonable times to visit the job site to see that all conditions herein provided for have been met but shall not in any way interfere with or cause any disturbance. 6. At reasonable times and upon due notice to him by Union, Lawrence shall permit Union to see payroll re- 9 It appears that in one of these conversations Ehrlich suggested the possibility of Including another Lawrence construction lob in any agreement reached by the parties. 10 Exh A consisted of the expired collective-bargaining agreement be- tween Berks Constructor Associates , Inc, and the Respondent and a Memo- randum of Agreement dated June 1, 1973, extending the expired contract with modifications set forth in the Memorandum I I The particular job functions were then listed in the proposed agreement LOCAL 492, CARPENTERS cords to determine that provisions are being complied with. 7. In the event that any provisions herein are violated by Lawrence, Union shall have the right to reinstate informational picketing without any liability. 8. Further, in addition to any other remedies, in the event that there is a violation of these undertakings by Lawrence as to the wage rates, Union shall have the right to institute action on behalf of Lawrence employees to collect sums not paid and Lawrence shall be liable for costs, counsel fees and any other expenses attendant upon such litigation. 9. Lawrence shall furnish to Union a certificate stating that the foregoing has been made known to all his em- ployees. 10. The suit pending in the Court of Common Pleas of Berks County, Pennsylvania to No. 3800 Equity Docket, 1973 in which Richard H. Lawrence is the plaintiff and Carpenter's Union, Local 492 is the defend- ant shall be withdrawn "with prejudice" and costs paid by Lawrence. On October 5, Ehrlich met Sager who assured him that "everything was ok but that there should be no retroactivity," evidently referring to the 55-cent hourly wage increases. A few days later, Sager informed Ehrlich that he was sending him a letter proposing some changes in the Union's drafted agreement. Such a letter dated October 12 was subsequently received by Ehrlich. In the early part of November, Ehrlich spoke to Sager's law associate mentioned in the October 12 letter and told him to make the suggested changes in the agreement and have the agreement signed and returned to him. Thereafter, about November 13, Sager advised Ehrlich that Lawrence refused to sign the agreement, attributing this development to a lack of communication between Sager and his client. C. Concluding Findings The General Counsel and the Charging Party contend, in substance, that the Respondent 's failure to investigate Lawrence's labor costs before picketing his jobsite and the conditions the Respondent subsequently offered for re- moving the pickets, as related above, clearly reveal that at least one of the objects of the picketing was to secure recognition and to bargain with Lawrence as the represen- tative of his employees . Since admittedly the Respondent picketed the jobsite for more than 30 days without filing a representation petition and was not currently the certified representative of Lawrence's employees, they argue that the picketing violated Section 8(b)(7)(C) of the Act. The Respondent, however, denies that its picketing had any other objective than the permissible one of publicizing Lawrence's substandard wages and working conditions. As noted above, Section 8(b)(7)(C) of the Act prohibits a labor organization not currently the certified representative of the employees from picketing an employer with "an" ob- ject of forcing or requiring recognition , bargaining, or organi- zation of the employees, without filing a petition for an elec- tion within 30 days of the commencement of such picketing. The Board has held that picketing does not fall within this 267 statutory proscription if its only purpose is to publicize that the employer's wages and fringe benefits are below those established in the union's area contracts.12 In so holding, the Board has acknowledged a union's legitimate interest to pro- tect its negotiated standards from being undermined by an employer operating under inferior conditions and therefore to picket such employer to induce him to conform with its standards. However, it is clear from the decisions that the area standards thus protected are only those related to labor costs which, if not observed, give the nonobserving employer an unfair competitive advantage over those who pay the pre- vailing wage scales and fringe benefits." If, on the other hand, the purpose of the picketing also encompasses the ac- ceptance by the picketed employer of noneconomic working conditions, such as seniority or a grievance procedure, or even the method of allocation of benefits," this might well betray the recognitional objective of the picketing. Finally, it is equally well settled that, notwithstanding the language of the picket signs, where evidence discloses that the picketing was really not directed at the elimination of substandard wages and fringe benefits or was additionally aimed at achiev- ing recognition or organization of the employees, the Union would be in violation of Section 8(b)(7)(C).15 To be sure, it may not be a simple matter to distinguish between the differ- ent objects and, as in any case involving motive, this question must, of necessity, be determined on the basis of the union's total conduct. Reviewing the entire record, I am not persuaded that the Respondent's picketing was limited to advertising Law- rence's alleged substandard wages and fringe benefits, as the Respondent vigorously insists. Rather, I find that the picket- ing also had recognitional and bargaining objectives. Thus, the Respondent made no genuine or substantial effort to ascertain the actual wage rates paid by Lawrence to his em- ployees or the fringe benefits available to them before institut- ing its picketing 16 Admittedly, no union representative in- spected the posted wage rates or contacted Lawrence to secure the information, as would be expected would be done were the Respondent solely interested in maintaining area 12 Houston Building and Construction Trades Council (Claude Everett Construction Company), 136 NLRB 321, 322-323 (1962), Local Union No 741, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Keith Riggs Plumbing and Heating Contractor), 137 NLRB 1125, 1126 (1962), Centralia Building & Construction Trades Council (Pacific Sign & Steel Building Co., Inc.), 155 NLRB 803, 806 (1965), enfd 363 F 2d 699, 701 (C A D C, 1966), Retail Clerks International Association , Local Union No. 899, AFL-CIO (State-Mart, Inc., d/b/a Giant Food), 166 NLRB 818, 823 (1967), Sales Delivery Drivers, Warehousemen and Helpers Local 296 of Santa Clara and San Benito Counties, California (Alpha Beta Acme Mar- kets, Inc.), 205 NLRB 462 (1973), Automotive Employees, Laundry Drivers & Helpers, Local No 88, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America (West Coast Cycle Supply Co), 208 NLRB 679 (1974) 13 Ibid 14 Sales Delivery Drivers, supra Retail Clerks International Associa- tion, supra 15 Operative Plasterers' and Cement Masons' International Association, Local Union No 44, AFL-CIO (Penny Construction Company, Inc), 144 NLRB 1298, 1298-1300 (1963), Centralia Building & Construction Trades Council, supra, Sales Delivery Drivers, supra 16 Centralia Building and Construction Trades Council, supra, Construc- tion, Shipyard and General Laborers Local 1207, AFL-CIO (Austin Con- struction Company, Inc), 141 NLRB 283, 284 (1963), Retail Clerks Inter- national Association, supra, 822, Sales Delivery Drivers, supra 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standards. Indeed, to justify the picketing, Business Agent Covely testified that he relied on his observation that the same men were performing laborers' and carpenters' func- tions. Although admitting that he did not know whether these men who performed the dual functions were carpenters or laborers or what rates they were being paid, Covely simply assumed that these men were receiving laborers' rates for doing carpentry work and that therefore Lawrence was pay- ing substandard wages and operating under substandard con- ditions. Manifestly, such an assumption is an inadequate basis on which to justify area standards picketing Moreover, if the maintenance of area standards were the Respondent's sole concern, it is incomprehensible why it did not communicate with Lawrence to apprise him of the specific standards with which he was required to comply before subjecting him to a picket line. It is not without significance that, even when Lawrence telephoned Covely after the picketing started and asked him why he was being picketed, Covely only responded that he should read the signs and, when Lawrence stated that the signs were wrong because he was paying his employees prevailing rates, Covely retorted that Lawrence would have to prove it. However, Covely still did not define for Lawrence what were the area standards he was failing to observe. It thus appears that, whatever solicitude Lawrence's alleged inferior working conditions caused the Respondent, I do not believe that its picketing objectives were confined to protecting area standards and excluded recognition as the bargaining re- presentative of Lawrence's employees. Further indicating a recognitional objective is the fact that included in the substandard conditions that the Respondent was protesting was Lawrence's practice of beginning work at 7 o'clock in the morning, instead of 8, which, under the Union's contracts, required the payment of double time for the hours worked before 8. While it is true that overtime rates enter into an employer's labor costs and therefore justify the pressure of picketing to force a nonunion employer to pay area overtime rates, it appears to me that working hours are noneconomic in nature and do not justify picketing to force a nonunion employer to change his working hours to suit a union. Since the employees' working hours are a normal subject for collective bargaining, the Respondent's picketing in protest of the Respondent's practice of starting work before 8 o'clock supports an inference that the picketing had recog- nitional and bargaining objectives. Similarly revealing a recognitional objective is Covely's affirmative response to Judge Hess' question during the State Court hearing for a preliminary injunction whether he would terminate the picketing if he were satisfied that Lawrence was treating his employees in all respects as union contractors were required to treat their employees under the contractors' agreement with the Union. Covely' s willingness to remove the pickets under such terms, which were not restricted to labor costs, but which encompassed the entire gamut of col- lective-bargaining subjects, including noneconomic terms, implies that at least one of the objectives sought to be achieved by the picketing was recognition of the Respondent as the bargaining representative of Lawrence's employees. Indeed, this became apparent in the discussions during the recess in the state court hearing and in the September 12 letter and the October 2 proposed agreement, which the Respon- dent's attorney subsequently sent to Lawrence's attorney. Without repeating the details of these documents, which are fully set forth above, it is sufficient to note that they contain both labor cost items and noneconomic terms whose accept- ance the Respondent required as the price of withdrawing the pickets While the October 2 proposed agreement made some changes in the proposals embodied in the September 12 letter, the nature of the contractual relationship sought to be estab- lished was essentially the same. Significantly, the October 2 proposed agreement obligated Lawrence among other things, "to observe all of the conditions of the Union contract and addendum attached" to the agreement," except for the pen- sion program and grievance procedure. Moreover, provision was made in the agreement for the Respondent's right to institute a lawsuit on behalf of Lawrence's employees to en- force the wage rates prescribed in the agreement. In addition, the agreement obligated Lawrence to advise his employees of its terms and provided for the withdrawal of the state court action. To borrow the Board's language in the Centralia case:18 ... With such an agreement in effect, very little would be left in the field of collective bargaining to a represen- tative chosen by [the employer's] employees, and there- fore the will and choice of employees when and if exerted with respect to a bargaining agent would be thwarted and nullified. I think the freedom of employees to make their own choice in such matters cannot lawfully be foreclosed in this manner. Challenging the sufficiency of the evidence to support a finding of a recognitional objective, the Respondent contends that the September 12 letter and the October 2 proposed agreement, as well as other documents, were improperly re- ceived in evidence. It argues that these documents were part of settlement negotiations which developed out of the above- mentioned state court proceeding brought by Lawrence to enjoin the picketing at his jobsite and that for this reason the documents were inadmissible. As shown above, the discus- sions were undertaken principally to explore the terms under which the Respondent was willing to withdraw the pickets. I have given further thought to my ruling made at the hearing and find no merit in the Respondent's contention It is true that an offer of settlement or compromise is generally not admissible in evidence to establish liability in subsequent litigation between the parties.19 However, it is equally well settled that this rule is not without qualification and does not "exclude evidence of statements of fact or of opinion, even those conceding liability, though made in negotiations for compromise . . .."20 In the present case, it is clear that the documents were introduced as an admission of fact for the very narrow purpose of establishing that the 17 The September 12 letter enclosed a copy of the Respondent's ,contract "which will give the basic details of working conditions in the area that your client will meet " 18 Centralia Building & Construction Trades Council (Pacific Sign & Steel Building Co, Inc), 155 NLRB 803, 806 (1965), enfd 363 F 2d 699, 701 (CAD C, 1966) 19 4 Wigmore, Evidence §1061 (Chadbourn rev. 1972), Model Code of Evidence, American Law Institute, Rule 309, Comment a, pp 192-194 20 Model Code of Evidence, supra, 194, see also 4 Wigmore, Evidence, supra, Factor v Commissioner of Internal Revenue, 281 F 2d 100,125 (C A 9, 1960), cert denied 364 U S 933 (1960), Nauv Commissioner ofInternal Revenue, 261 F 2d 362, 364-365 (C A 6, 1958) LOCAL 492, CARPENTERS picketing had a recognitional objective as indicated in the terms the Respondent imposed as a condition for removing the pickets." Moreover, the documents were admissible to contradict the Respondent's position taken in the Board case that an object of its picketing was not recognitional.22 Ac- cordingly, I find that the rule of exclusion of an offer of settlement or compromise is inapplicable to the situation here involved. In any event, were Ito find that the documents in question were inadmissible and not entitled to any probative weight, I would, nevertheless, find a sufficient evidentiary basis in the events preceding the discussions for the removal of the picket line for a determination that an object of the picketing was recognitional. In short, I conclude that, despite the Respondent's pro- testations to the contrary and the legend on the picket signs, an important object of the picketing was to force Lawrence to recognize and bargain with the Respondent as the representative of his employees. As the Respondent was not the certified representative and failed to file a petition for an election under Section 9(c) of the Act, I find that it violated Section 8(b)(7)(C) of the Act IV THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and to take certain affirmative action designed to effectuate the policies of the Act Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following- CONCLUSIONS OF LAW 1. Lawrence is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By picketing Lawrence's jobsite where he is engaged as general contractor in the building of a library at the Berks County Campus of Pennsylvania State University, with an object of forcing or requiring Lawrence to recognize and bargain with the Respondent as the representative of his em- ployees, although the Respondent was not currently certified as such representative and failed to file a petition under Sec- tion 9(c) of the Act within 30 days from the commencement of the picketing, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 21 Cf Factor v Commission ofInternal Revenue, supra, 125, where,the Court of Appeals noted Independent statements of facts made during the course of such negotiations are, however, admissible This is especially true if "the party making the proposal apparently intended to make no concession but to exact all that he deemed himself entitled to " [Citations omitted ] 22 Cf NLR.B v Gotham Industries, Inc, 406 F 2d 1306, 1313 (C A 1, 1969) 269 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issued the following recom- mended: ORDER23 The Respondent, Local Union No 492, United Brother- hood of Carpenters and Joiners of America, its officers, agents, and representatives, shall: 1. Cease and desist from picketing or causing to be pick- eted, or threatening to picket or to cause to be picketed, the jobsite of Richard H. Lawrence at the Berks County Campus of Pennsylvania State University, Reading, Pennsylvania, un- der conditions prohibited by Section 8(b)(7)(C) of the Act, where an object thereof is forcing or requiring Lawrence to recognize or bargain with the Respondent as the representa- tive of his employees. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its business and meeting halls copies of the attached notice marked "Appendix."24 Copies of said no- tice, to be furnished by the Regional Director for Region 4, after being duly signed by an authorized representative of the Respondent, shall be posted immediately thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Forthwith mail to the Regional Director for Region 4 signed copies of the aforementioned notice for posting at Lawrence's jobsite at the Berks County Campus of Pennsyl- vania State University, Reading, Pennsylvania, in places where notices to Lawrence's employees are customarily posted, if Lawrence is willing to do so. (c) Notify the Regional Director for Region 4, in writing, within 20 days from the date of receipt of this Order, what steps the Respondent has taken to comply herewith 23 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 24 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket or cause to be picketed, or threaten to picket or cause to be picketed, the jobsite of Richard H. Lawrence at the Berks County Campus of Pennsylvania State University, Reading, Pennsylvania, under conditions prohibited by Section 8(b)(7)(C) of the 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Act, as amended, where an LOCAL UNION No 492, UNITED object thereof is forcing or requiring Lawrence to recog- BROTHERHOOD OF CARPENTERS AND nize or bargain with us as the representative of his em- JOINERS OF AMERICA ployees.