Local Union No. 2362, Carpenters

LOCAL UNION NO. 2362, CARPENTERS 899 Local Union No. 2362, Lumber, Production and In- agreement with the Paperworkers and, when dustrial Workers, United Brotherhood of Car- Draper asked if they had agreed to $21 an hour, penters and Joiners of America, AFL-CIO and Rubin said, "Not to my knowledge." Phost Construction, Inc. Case 19-CC-1285 Even if Draper thought that Rubin continued to January 4, 1982 represent Phost in certain matters, it does not follow that he intended to threaten Phost on Octo- DECISION AND ORDER ber 16. Rubin's principal role was as attorney for MEMBERS FANNING, JENKINS, ANDALP, and Draper had dealt with him in the past in B M ZIMMB F RMAN, J , AD that capacity. The main focus of the negotiations, and especially of the October 16 meeting, was the On March 27, 1981, Administrative Law Judge proposed contract between Respondent and ALP. Burton Litvack issued the attached Decision in this Draper's threat to picket was calculated to apply proceeding. Thereafter, the General Counsel filed economic pressure on ALP-the only party that exceptions and a supporting brief. could meet Draper's demand-and in these circum- Pursuant to the provisions of Section 3(b) of the stances we conclude that Draper was communicat- National Labor Relations Act, as amended, the Na- ing that threat to ALP through its representative, tional Labor Relations Board has delegated its au- Rubin. We therefore conclude that Draper's threat thority in this proceeding to a three-member panel. did not have as an object that Phost cease doing The Board has considered the record and the at- business with ALP, and thus we find that the Gen- tached Decision in light of the exceptions and brief eral Counsel has failed to show that Respondent and has decided to affirm the rulings, findings, and violated Section 8(b)(4)(ii)(B) of the Act. conclusions of the Administrative Law Judge as modified herein and to adopt his recommended ORDER Order. Pursuant to Section 10(c) of the National Labor We agree with the Administrative Law Judge Relations Act, as amended, the National Labor Re- that, at the time of the October 16 meeting be- lations Board adopts as its Order the recommended tween Michael Draper, representative of Respond- Order of the Administrative Law Judge and ent Carpenters, and Jerome Rubin, attorney for hereby orders that the complaint be, and it hereby Alaska Lumber and Pulp Company (ALP), Rubin is, dismissed in its entirety. was not an agent of Phost Construction, Inc., the Charging Party. More importantly, we think that DECISION the same circumstances that indicate lack of agency status also demonstrate that Draper's threat to STATEMENT OF THE CASE picket was aimed at ALP, not at Phost. BURTON LITVAK, Administrative Law Judge: This In addition to the persuasive evidence with case was heard before me in Seattle, Washington, on De- regard to agency cited by the Administrative Law cember 18, 1980, based upon a charge filed by Phost Judge, we rely on the following facts. At the July Construction, Inc., herein called Phost, on October 27, 21 meeting where Rubin presented a proposed con- 1980, and a complaint and notice of hearing, which was tract between Respondent and Phost, he did so in issued by the Regional Director for Region 19 of the Na- the presence of a Phost officer. When Respondent tional Labor Relations Board, herein called the Board, presented its counterproposal to Rubin on August on November 28, 1980. The complaint, in substance, al- 21, it does not appear that any negotiations oc- leges that agents of Local Union No. 2362, Lumber, Pro- 21, it does not appear that any negotiations oc- duction and Industrial Workers, United Brotherhood of curred; rather, Rubin simply agreed to transmit the Carpenters and Joiners of America, AFL-CIO, herein proposal to Phost. After that, there were apparent- called Respondent, engaged in acts and conduct violative ly no further negotiations between Respondent and of Section 8(bX4)(ii)(B) of the National Labor Relations Phost, through Rubin or otherwise. Rather, Phost Act, as amended, herein called the Act, by threatening a entered into a collective-bargaining agreement with common representative of Alaska Lumber and Pulp Co., another union. Draper testified that, at the meeting Inc., herein called ALP, and Phost that it would picket a of October 16, he "assumed" that Rubin represent- Phost construction site in an attempt to shut down con- ed Phost as well as ALP, but it does not appear struction work, with objects thereof to force Phost and that Draper said so at the meeting. Moreover, his other persons engaged in commerce to cease doing busi- assumption should have been dispelled when Rubin ness with ALP; or to force ALP to recognize or bargain with Respondent. Respondent filed an answer which, in was unable to answer questions on Phost's behalf. substance, denied that it engaged in any conduct viola- By Rubin's own testimony and that of Kurt Sach- tive of the Act. At the hearing the General Counsel, the nitz, an officer of ALP, Rubin said only that he Charging Party (Phost), and Respondent were represent- had heard "rumors" that Phost had signed an ed by counsel and were afforded full opportunity to 259 NLRB No. 120 LOCAL UNION NO. 2362, CARPENTERS 899 Local Union No. 2362, Lumber, Production and In- agreement with the Paperworkers and, when dustrial Workers, United Brotherhood of Car- Draper asked if they had agreed to $21 an hour, penters and Joiners of America, AFL-CIO and Rubin said, "Not to my knowledge." Phost Construction, Inc. Case 19-CC-1285 Even if Draper thought that Rubin continued to January 4, 1982 represent Phost in certain matters, it does not follow that he intended to threaten Phost on Octo- DECISION AND ORDER ber 16. Rubin's principal role was as attorney for BY MEMBERS FANNING, JENKINS, AND A L P, a n d D rap er h a d d e a l t w i t h h im i n t h e past in ZIMMERMAN that capacity. The main focus of the negotiations, and especially of the October 16 meeting, was the On March 27, 1981, Administrative Law Judge proposed contract between Respondent and ALP. Burton Litvack issued the attached Decision in this Draper's threat to picket was calculated to apply proceeding. Thereafter, the General Counsel filed economic pressure on ALP-the only party that exceptions and a supporting brief. could meet Draper's demand-and in these circum- Pursuant to the provisions of Section 3(b) of the stances we conclude that Draper was communicat- National Labor Relations Act, as amended, the Na- ing that threat to ALP through its representative, tional Labor Relations Board has delegated its au- Rubin. We therefore conclude that Draper's threat thority in this proceeding to a three-member panel. did not have as an object that Phost cease doing The Board has considered the record and the at- business with ALP, and thus we find that the Gen- tached Decision in light of the exceptions and brief eral Counsel has failed to show that Respondent and has decided to affirm the rulings, findings, and violated Section 8(b)(4)(ii)(B) of the Act. conclusions of the Administrative Law Judge as modified herein and to adopt his recommended ORDER O r d e r. Pursuant to Section 10(c) of the National Labor We agree with the Administrative Law Judge Relations Act, as amended, the National Labor Re- that, at the time of the October 16 meeting be- lations Board adopts as its Order the recommended tween Michael Draper, representative of Respond- Order of the Administrative Law Judge and ent Carpenters, and Jerome Rubin, attorney for hereby orders that the complaint be, and it hereby Alaska Lumber and Pulp Company (ALP), Rubin is, dismissed in its entirety. was not an agent of Phost Construction, Inc., the Charging Party. More importantly, we think that DECISION the same circumstances that indicate lack of agency status also demonstrate that Draper's threat to STATEMENT OF THE CASE picket was aimed at ALP, not at Phost. BURTON LITVAK, Administrative Law Judge: This In addition to the persuasive evidence with case was heard before me in Seattle, Washington, on De- regard to agency cited by the Administrative Law cember 18, 1980, based upon a charge filed by Phost Judge, we rely on the following facts. At the July Construction, Inc., herein called Phost, on October 27, 21 meeting where Rubin presented a proposed con- 1980, an d a complaint and notice of hearing, which was tract between Respondent and Phost, he did so in issu ed by th e Regional Director for Region 19 of the Na- the presence of a Phost officer. When Respondent tio n al L ab o r Relations Board, herein called the Board, presented its counterproposal to Rubin on August on N ov ember 28, 1980. T he complaint, in substance, al- 21, it does not appear that any negotiations oc- leges that agents of Local Union No. 2362, Lumber, Pro- duction and Industrial Workers, United Brotherhood of curred; rather, Rubin simply agreed to transmit the Carpenters and Joiners of America, AFL-CIO, herein proposal to Phost. After that, there were apparent- called Respondent, engaged in acts and conduct violative ly no further negotiations between Respondent and of Section 8(bX4)(ii)(B) of the National Labor Relations Phost, through Rubin or otherwise. Rather, Phost Act, as amended, herein called the Act, by threatening a entered into a collective-bargaining agreement with common representative of Alaska Lumber and Pulp Co., another union. Draper testified that, at the meeting In c., herein called ALP, and Phost that it would picket a of October 16, he "assumed" that Rubin represent- Ph o st construction site in an attempt to shut down con- ed Phost as well as ALP, but it does not appear struction work, with objects thereof to force Phost and that Draper said so at the meeting. Moreover, his o th er persons engaged in commerce to cease doing busi- assumption should have been dispelled when Rubin ness w ith A L P; o r to fo rce A L P to recognize or bargai n with Respondent. Respondent filed an answer which, in was unable to answer questions on Phost's behalf. substance, denied that it engaged in any conduct viola- By Rubin's own testimony and that of Kurt Sach- tive of the Act. At the hearing the General Counsel, the nitz, an officer of ALP, Rubin said only that he Charging Party (Phost), and Respondent were represent- had heard "rumors" that Phost had signed an ed by counsel and were afforded full opportunity to 259 NLRB No. 120 LOCAL UNION NO. 2362, CARPENTERS 899 Local Union No. 2362, Lumber, Production and In- agreement with the Paperworkers and, when dustrial Workers, United Brotherhood of Car- Draper asked if they had agreed to $21 an hour, penters and Joiners of America, AFL-CIO and Rubin said, "Not to my knowledge." Phost Construction, Inc. Case 19-CC-1285 Even if Draper thought that Rubin continued to January 4, 1982 represent Phost in certain matters, it does not follow that he intended to threaten Phost on Octo- DECISION AND ORDER ber 16. Rubin's principal role was as attorney for BY MEMBERS FANNING, JENKINS, AND A L P, a n d D rap er h a d d e a l t w i t h h im i n t h e past in ZIMMERMAN that capacity. The main focus of the negotiations, and especially of the October 16 meeting, was the On March 27, 1981, Administrative Law Judge proposed contract between Respondent and ALP. Burton Litvack issued the attached Decision in this Draper's threat to picket was calculated to apply proceeding. Thereafter, the General Counsel filed economic pressure on ALP-the only party that exceptions and a supporting brief. could meet Draper's demand-and in these circum- Pursuant to the provisions of Section 3(b) of the stances we conclude that Draper was communicat- National Labor Relations Act, as amended, the Na- ing that threat to ALP through its representative, tional Labor Relations Board has delegated its au- Rubin. We therefore conclude that Draper's threat thority in this proceeding to a three-member panel. did not have as an object that Phost cease doing The Board has considered the record and the at- business with ALP, and thus we find that the Gen- tached Decision in light of the exceptions and brief eral Counsel has failed to show that Respondent and has decided to affirm the rulings, findings, and violated Section 8(b)(4)(ii)(B) of the Act. conclusions of the Administrative Law Judge as modified herein and to adopt his recommended ORDER O r d e r. Pursuant to Section 10(c) of the National Labor We agree with the Administrative Law Judge Relations Act, as amended, the National Labor Re- that, at the time of the October 16 meeting be- lations Board adopts as its Order the recommended tween Michael Draper, representative of Respond- Order of the Administrative Law Judge and ent Carpenters, and Jerome Rubin, attorney for hereby orders that the complaint be, and it hereby Alaska Lumber and Pulp Company (ALP), Rubin is, dismissed in its entirety. was not an agent of Phost Construction, Inc., the Charging Party. More importantly, we think that DECISION the same circumstances that indicate lack of agency status also demonstrate that Draper's threat to STATEMENT OF THE CASE picket was aimed at ALP, not at Phost. BURTON LITVAK, Administrative Law Judge: This In addition to the persuasive evidence with case was heard before me in Seattle, Washington, on De- regard to agency cited by the Administrative Law cember 18, 1980, based upon a charge filed by Phost Judge, we rely on the following facts. At the July Construction, Inc., herein called Phost, on October 27, 21 meeting where Rubin presented a proposed con- 1980, an d a complaint and notice of hearing, which was tract between Respondent and Phost, he did so in issu ed by th e Regional Director for Region 19 of the Na- the presence of a Phost officer. When Respondent tio n al L ab o r Relations Board, herein called the Board, presented its counterproposal to Rubin on August on N ov ember 28, 1980. T he complaint, in substance, al- 21, it does not appear that any negotiations oc- leges that agents of Local Union No. 2362, Lumber, Pro- duction and Industrial Workers, United Brotherhood of curred; rather, Rubin simply agreed to transmit the Carpenters and Joiners of America, AFL-CIO, herein proposal to Phost. After that, there were apparent- called Respondent, engaged in acts and conduct violative ly no further negotiations between Respondent and of Section 8(bX4)(ii)(B) of the National Labor Relations Phost, through Rubin or otherwise. Rather, Phost Act, as amended, herein called the Act, by threatening a entered into a collective-bargaining agreement with common representative of Alaska Lumber and Pulp Co., another union. Draper testified that, at the meeting In c., herein called ALP, and Phost that it would picket a of October 16, he "assumed" that Rubin represent- Ph o st construction site in an attempt to shut down con- ed Phost as well as ALP, but it does not appear struction work, with objects thereof to force Phost and that Draper said so at the meeting. Moreover, his o th er persons engaged in commerce to cease doing busi- assumption should have been dispelled when Rubin ness w ith A L P; o r to fo rce A L P to recognize or bargai n with Respondent. Respondent filed an answer which, in was unable to answer questions on Phost's behalf. substance, denied that it engaged in any conduct viola- By Rubin's own testimony and that of Kurt Sach- tive of the Act. At the hearing the General Counsel, the nitz, an officer of ALP, Rubin said only that he Charging Party (Phost), and Respondent were represent- had heard "rumors" that Phost had signed an ed by counsel and were afforded full opportunity to 259 NLRB No. 120 LOCAL UNION NO. 2362, CARPENTERS 899 Local Union No. 2362, Lumber, Production and In- agreement with the Paperworkers and, when dustrial Workers, United Brotherhood of Car- Draper asked if they had agreed to $21 an hour, penters and Joiners of America, AFL-CIO and Rubin said, "Not to my knowledge." Phost Construction, Inc. Case 19-CC-1285 Even if Draper thought that Rubin continued to January 4, 1982 represent Phost in certain matters, it does not follow that he intended to threaten Phost on Octo- DECISION AND ORDER ber 16. Rubin's principal role was as attorney for BY MEMBERS FANNING, JENKINS, AND A L P, a n d D rap er h a d d e a l t w i t h h im i n t h e past in ZIMMERMAN that capacity. The main focus of the negotiations, and especially of the October 16 meeting, was the On March 27, 1981, Administrative Law Judge proposed contract between Respondent and ALP. Burton Litvack issued the attached Decision in this Draper's threat to picket was calculated to apply proceeding. Thereafter, the General Counsel filed economic pressure on ALP-the only party that exceptions and a supporting brief. could meet Draper's demand-and in these circum- Pursuant to the provisions of Section 3(b) of the stances we conclude that Draper was communicat- National Labor Relations Act, as amended, the Na- ing that threat to ALP through its representative, tional Labor Relations Board has delegated its au- Rubin. We therefore conclude that Draper's threat thority in this proceeding to a three-member panel. did not have as an object that Phost cease doing The Board has considered the record and the at- business with ALP, and thus we find that the Gen- tached Decision in light of the exceptions and brief eral Counsel has failed to show that Respondent and has decided to affirm the rulings, findings, and violated Section 8(b)(4)(ii)(B) of the Act. conclusions of the Administrative Law Judge as modified herein and to adopt his recommended ORDER O r d e r. Pursuant to Section 10(c) of the National Labor We agree with the Administrative Law Judge Relations Act, as amended, the National Labor Re- that, at the time of the October 16 meeting be- lations Board adopts as its Order the recommended tween Michael Draper, representative of Respond- Order of the Administrative Law Judge and ent Carpenters, and Jerome Rubin, attorney for hereby orders that the complaint be, and it hereby Alaska Lumber and Pulp Company (ALP), Rubin is, dismissed in its entirety. was not an agent of Phost Construction, Inc., the Charging Party. More importantly, we think that DECISION the same circumstances that indicate lack of agency status also demonstrate that Draper's threat to STATEMENT OF THE CASE picket was aimed at ALP, not at Phost. BURTON LITVAK, Administrative Law Judge: This In addition to the persuasive evidence with case was heard before me in Seattle, Washington, on De- regard to agency cited by the Administrative Law cember 18, 1980, based upon a charge filed by Phost Judge, we rely on the following facts. At the July Construction, Inc., herein called Phost, on October 27, 21 meeting where Rubin presented a proposed con- 1980, an d a complaint and notice of hearing, which was tract between Respondent and Phost, he did so in issu ed by th e Regional Director for Region 19 of the Na- the presence of a Phost officer. When Respondent tio n al L ab o r Relations Board, herein called the Board, presented its counterproposal to Rubin on August on N ov ember 28, 1980. T he complaint, in substance, al- 21, it does not appear that any negotiations oc- leges that agents of Local Union No. 2362, Lumber, Pro- duction and Industrial Workers, United Brotherhood of curred; rather, Rubin simply agreed to transmit the Carpenters and Joiners of America, AFL-CIO, herein proposal to Phost. After that, there were apparent- called Respondent, engaged in acts and conduct violative ly no further negotiations between Respondent and of Section 8(bX4)(ii)(B) of the National Labor Relations Phost, through Rubin or otherwise. Rather, Phost Act, as amended, herein called the Act, by threatening a entered into a collective-bargaining agreement with common representative of Alaska Lumber and Pulp Co., another union. Draper testified that, at the meeting In c., herein called ALP, and Phost that it would picket a of October 16, he "assumed" that Rubin represent- Ph o st construction site in an attempt to shut down con- ed Phost as well as ALP, but it does not appear struction work, with objects thereof to force Phost and that Draper said so at the meeting. Moreover, his o th er persons engaged in commerce to cease doing busi- assumption should have been dispelled when Rubin ness w ith A L P; o r to fo rce A L P to recognize or bargai n with Respondent. Respondent filed an answer which, in was unable to answer questions on Phost's behalf. substance, denied that it engaged in any conduct viola- By Rubin's own testimony and that of Kurt Sach- tive of the Act. At the hearing the General Counsel, the nitz, an officer of ALP, Rubin said only that he Charging Party (Phost), and Respondent were represent- had heard "rumors" that Phost had signed an ed by counsel and were afforded full opportunity to 259 NLRB No. 120 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present oral and written evidence and argument and to was known as the 6-mile mill or AWP mill.2 This saw- examine and cross-examine witnesses. Post-trial briefs mill employed approximately 50 to 55 persons, who were have been filed on behalf of all parties and have been represented for purposes of collective bargaining by Re- carefully considered. Upon the entire record, careful ob- spondent, and cut primarily "baby squares" or four-by- servation of the demeanor of the witnesses, and post- four lumber pieces. hearing briefs, I make the following: James Rynearson, a senior vice president of ALP, tes- tified that, due to expected environmental problems FINDINGS OF FACT caused by the proposed Alaska Lands Bill which, by its terms, restricted the quality and quantity of timber avail- I ~. JURISDICTION^ able for cutting in certain areas of the State, the decision The parties stipulated that Phost is an Alaska corpora- was made by ALP in 1977 to study the feasibility of con- tion, with an office and place of business near Wrangell, structing a new type of sawmill, which would use a Alaska, where it is engaged in the business of construct- lesser type and quality log and which would continue to ing a sawmill, and that during the past 12-month period permit ALP to be operational in Wrangell. As a result, immediately preceding issuance of the complaint, which the company officials concluded that this new mill period is representative, in the course and conduct of its should have the same production capacity as the two ex- business operations, Phost provided services valued in isting sawmills combined and that, inasmuch as the AWP excess of $50,000 to customers within the State of site encompassed a greater physical area and as there Alaska, which customers were engaged in interstate was no room for expansion of the Wrangell mill, it commerce by other than indirect means. Accordingly, should be constructed on the AWP millsite. According- Respondent admits, and I find, that Phost is now, and ly, Rynearson testified, in early 1980 with passage of the has been at all times material herein, an employer and new legislation imminent, ALP decided to implement its person engaged in commerce and in industries affecting aforementioned plans. Both Respondent and the UPIU commerce within the meaning of Section 2(2), (6), and were receptive to the proposed consolidation of oper- (7) of the Act. ations, agreeing that such was essential if ALP was to remain competitive. II. LABOR ORGANIZATION INVOLVED As an initial step, ALP commenced negotiations with Respondent admits, and I find, that at all times materi- Phost regarding the latter becoming the general contrac- al herein, it has been a labor organization within the tor for the anticipated construction operations. While meaning of Section 2(5) of the Act. said discussions were ongoing, ALP commissioned engi- neering plans for the project and, in view of weather A. Issue problems, concluded that construction work on the pro- ject had to commence no later than July 15. Therefore- Did Respondent engage in acts and conduct violative and to apparently have sufficient time to prepare the site of Section 8(b)(4)(ii)(B) of the Act by, on or about Octo- for said work, production operations at the AWP mill ber 16, 1980,' through its agent Michael Draper, threat- were "closed down" on April 1, and a portion of the ening a representative of both ALP and Phost that it work force was given jobs on a new second shift at the would picket a Phost construction site in an attempt to Wrangell mill. 3 Also at approximately the same time, shut down construction work, with objects thereof to pursuant to the terms of the existing collective-bargain- force Phost and other persons to cease doing business ing agreement between ALP and Respondent, which with ALP; or to force or require ALP to recognize and was due to expire on May 31, Respondent sent a letter bargain with Respondent? requesting that ALP enter into negotiations on a succes- sor contract. However, no such negotiations ensued. The record establishes that ALP's construction plans ALP is a subsidiary of Alaska Pulp America, Inc., and at the AWP site entailed initially increasing the physical is engaged in the production of dissolving pulp and area of the entire facility, then demolishing the existing lumber in the State of Alaska, with its products shipped sawmill, and, finally, constructing a new and significant- primarily to Japan. In furtherance of its operations ALP ly larger mill building. Left standing and untouched by maintains a dissolving pulp plant in Sitka and, until April the construction work were to be a planer shed and sort- 1, utilized two sawmills in a small town called Wrangell ing area in which the lumber is surfaced, a dock area, a which is located on remote Wrangell Island. Regarding powerhouse building, and a maintenance shed. As to the the two sawmills, one is located inside the town and em- first aspect of ALP's construction plans-increasing the ploys approximately 65 to 70 workers who are represent- available physical area, ALP contracted with Berg Con- ed for purposes of collective bargaining by a local of the struction Company for a landfill operation which would United Paperworkers International Union, herein called extend the AWP area into Zimovia Strait. Said work the UPIU. The downtown sawmill, herein called the Wrangell mill, is used by ALP primarily for the cutting 'ALP purchased the sawmill from another company, Alaska Wood of larger spruce logs. The other sawmill was located 6 Products, and apparently assumed the existing collective-bargaining miles outside Wrangell on the Zimovia Highway and agreement, covering the production and maintenance employees, with 3 Those employees who transferred to the Wrangell mill were required 'Unless otherwise stated herein, all dates are in 1980. to become members of the UPIU. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present oral and written evidence and argument and to was known as the 6-mile mill or AWP mill. 2 This saw- examine and cross-examine witnesses. Post-trial briefs mill employed approximately 50 to 55 persons, who were have been filed on behalf of all parties and have been represented for purposes of collective bargaining by Re- carefully considered. Upon the entire record, careful ob- spondent, and cut primarily "baby squares" or four-by- servation of the demeanor of the witnesses, and post- four lumber pieces. hearing briefs, I make the following: James Rynearson, a senior vice president of ALP, tes- tified that, due to expected environmental problems FINDINGS OF FACT caused by the proposed Alaska Lands Bill which, by its terms, restricted the quality and quantity of timber avail- able for cutting in certain areas of the State, the decision The parties stipulated that Phost is an Alaska corpora- was made by ALP in 1977 to study the feasibility of con- tion, with an office and place of business near Wrangell, structing a new type of sawmill, which would use a Alaska, where it is engaged in the business of construct- lesser type and quality log and which would continue to ing a sawmill, and that during the past 12-month period permit ALP to be operational in Wrangell. As a result, immediately preceding issuance of the complaint, which the company officials concluded that this new mill period is representative, in the course and conduct of its should have the same production capacity as the two ex- business operations, Phost provided services valued in isting sawmills combined and that, inasmuch as the AWP excess of $50,000 to customers within the State of site encompassed a greater physical area and as there Alaska, which customers were engaged in interstate was no room for expansion of the Wrangell mill, it commerce by other than indirect means. Accordingly, should be constructed on the AWP millsite. According- Respondent admits, and I find, that Phost is now, and ly, Rynearson testified, in early 1980 with passage of the has been at all times material herein, an employer and new legislation imminent, ALP decided to implement its person engaged in commerce and in industries affecting aforementioned plans. Both Respondent and the UPIU commerce within the meaning of Section 2(2), (6), and were receptive to the proposed consolidation of oper- (7) of the Act. ations, agreeing that such was essential if ALP was to remain competitive. II. LABOR ORGANIZATION INVOLVED As an initial step, ALP commenced negotiations with Respondent admits, and I find, that at all times materi- Ph o s t regarding the latter becoming the general contrac- al herein, it has been a labor organization within the t o r f o r the anticipated construction operations. While meaning of Section 2(5) of the Act. s aid discussions were ongoing, ALP commissioned engi- neering plans for the project and, in view of weather A. Issue problems, concluded that construction work on the pro- ject had to commence no later than July 15. Therefore- Did Respondent engage in acts and conduct violative and to apparently have sufficient time to prepare the site of Section 8(b)(4)(ii)(B) of the Act by, on or about Octo- for said work, production operations at the AWP mill ber 16, 1980,' through its agent Michael Draper, threat- were "closed down" on April 1, and a portion of the ening a representative of both ALP and Phost that it work force was given jobs on a new second shift at the would picket a Phost construction site in an attempt to Wrangell mill. 3 Also at approximately the same time, shut down construction work, with objects thereof to pursuant to the terms of the existing collective-bargain- force Phost and other persons to cease doing business ing agreement between ALP and Respondent, which with ALP; or to force or require ALP to recognize and was due to expire on May 31, Respondent sent a letter bargain with Respondent? requesting that ALP enter into negotiations on a succes- sor contract. However, no such negotiations ensued. The record establishes that ALP's construction plans ALP is a subsidiary of Alaska Pulp America, Inc., and at the AWP site entailed initially increasing the physical is engaged in the production of dissolving pulp and area of the entire facility, then demolishing the existing lumber in the State of Alaska, with its products shipped sawmill, and, finally, constructing a new and significant- primarily to Japan. In furtherance of its operations ALP ly larger mill building. Left standing and untouched by maintains a dissolving pulp plant in Sitka and, until April the construction work were to be a planer shed and Sort- 1, utilized two sawmills in a small town called Wrangell ing area in which the lumber is surfaced, a dock area, a which is located on remote Wrangell Island. Regarding powerhouse building, and a maintenance shed. As to the the two sawmills, one is located inside the town and em- first aspect of ALP's construction plans-increasing the ploys approximately 65 to 70 workers who are represent- available physical area, ALP contracted with Berg Con- ed for purposes of collective bargaining by a local of the struction Company for a landfill operation which would United Paperworkers International Union, herein called extend the AWP area into Zimovia Strait. Said work the UPIU. The downtown sawmill, herein called the Wrangell mill, is used by ALP primarily for the cutting ALP purchased the sawmill from another company, Alaska Wood of larger Spruce logs. The Other sawmill was located 6 Products, and apparently assumed the existing collective-bargaining miles outside Wrangell on the Zimovia Highway and ^ '^ c ov er I l p r luc ion R nd eso e nde l n c t. h I Those employees who transferred to the Wrangell mill were required 'Unless otherwise stated herein, all dates are in 1980. to become members of the UPIU. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present oral and written evidence and argument and to was known as the 6-mile mill or AWP mill. 2 This saw- examine and cross-examine witnesses. Post-trial briefs mill employed approximately 50 to 55 persons, who were have been filed on behalf of all parties and have been represented for purposes of collective bargaining by Re- carefully considered. Upon the entire record, careful ob- spondent, and cut primarily "baby squares" or four-by- servation of the demeanor of the witnesses, and post- four lumber pieces. hearing briefs, I make the following: James Rynearson, a senior vice president of ALP, tes- tified that, due to expected environmental problems FINDINGS OF FACT caused by the proposed Alaska Lands Bill which, by its terms, restricted the quality and quantity of timber avail- able for cutting in certain areas of the State, the decision The parties stipulated that Phost is an Alaska corpora- was made by ALP in 1977 to study the feasibility of con- tion, with an office and place of business near Wrangell, structing a new type of sawmill, which would use a Alaska, where it is engaged in the business of construct- lesser type and quality log and which would continue to ing a sawmill, and that during the past 12-month period permit ALP to be operational in Wrangell. As a result, immediately preceding issuance of the complaint, which the company officials concluded that this new mill period is representative, in the course and conduct of its should have the same production capacity as the two ex- business operations, Phost provided services valued in isting sawmills combined and that, inasmuch as the AWP excess of $50,000 to customers within the State of site encompassed a greater physical area and as there Alaska, which customers were engaged in interstate was no room for expansion of the Wrangell mill, it commerce by other than indirect means. Accordingly, should be constructed on the AWP millsite. According- Respondent admits, and I find, that Phost is now, and ly, Rynearson testified, in early 1980 with passage of the has been at all times material herein, an employer and new legislation imminent, ALP decided to implement its person engaged in commerce and in industries affecting aforementioned plans. Both Respondent and the UPIU commerce within the meaning of Section 2(2), (6), and were receptive to the proposed consolidation of oper- (7) of the Act. ations, agreeing that such was essential if ALP was to remain competitive. II. LABOR ORGANIZATION INVOLVED As an initial step, ALP commenced negotiations with Respondent admits, and I find, that at all times materi- Ph o s t regarding the latter becoming the general contrac- al herein, it has been a labor organization within the t o r f o r the anticipated construction operations. While meaning of Section 2(5) of the Act. s aid discussions were ongoing, ALP commissioned engi- neering plans for the project and, in view of weather A. Issue problems, concluded that construction work on the pro- ject had to commence no later than July 15. Therefore- Did Respondent engage in acts and conduct violative and to apparently have sufficient time to prepare the site of Section 8(b)(4)(ii)(B) of the Act by, on or about Octo- for said work, production operations at the AWP mill ber 16, 1980,' through its agent Michael Draper, threat- were "closed down" on April 1, and a portion of the ening a representative of both ALP and Phost that it work force was given jobs on a new second shift at the would picket a Phost construction site in an attempt to Wrangell mill. 3 Also at approximately the same time, shut down construction work, with objects thereof to pursuant to the terms of the existing collective-bargain- force Phost and other persons to cease doing business ing agreement between ALP and Respondent, which with ALP; or to force or require ALP to recognize and was due to expire on May 31, Respondent sent a letter bargain with Respondent? requesting that ALP enter into negotiations on a succes- sor contract. However, no such negotiations ensued. The record establishes that ALP's construction plans ALP is a subsidiary of Alaska Pulp America, Inc., and at the AWP site entailed initially increasing the physical is engaged in the production of dissolving pulp and area of the entire facility, then demolishing the existing lumber in the State of Alaska, with its products shipped sawmill, and, finally, constructing a new and significant- primarily to Japan. In furtherance of its operations ALP ly larger mill building. Left standing and untouched by maintains a dissolving pulp plant in Sitka and, until April the construction work were to be a planer shed and Sort- 1, utilized two sawmills in a small town called Wrangell ing area in which the lumber is surfaced, a dock area, a which is located on remote Wrangell Island. Regarding powerhouse building, and a maintenance shed. As to the the two sawmills, one is located inside the town and em- first aspect of ALP's construction plans-increasing the ploys approximately 65 to 70 workers who are represent- available physical area, ALP contracted with Berg Con- ed for purposes of collective bargaining by a local of the struction Company for a landfill operation which would United Paperworkers International Union, herein called extend the AWP area into Zimovia Strait. Said work the UPIU. The downtown sawmill, herein called the Wrangell mill, is used by ALP primarily for the cutting ALP purchased the sawmill from another company, Alaska Wood of larger Spruce logs. The Other sawmill was located 6 Products, and apparently assumed the existing collective-bargaining miles outside Wrangell on the Zimovia Highway and ^ '^ c ov eri s lhe p r luc ion R nd eso e nde l n c t. h I Those employees who transferred to the Wrangell mill were required 'Unless otherwise stated herein, all dates are in 1980. to become members of the UPIU. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present oral and written evidence and argument and to was known as the 6-mile mill or AWP mill. 2 This saw- examine and cross-examine witnesses. Post-trial briefs mill employed approximately 50 to 55 persons, who were have been filed on behalf of all parties and have been represented for purposes of collective bargaining by Re- carefully considered. Upon the entire record, careful ob- spondent, and cut primarily "baby squares" or four-by- servation of the demeanor of the witnesses, and post- four lumber pieces. hearing briefs, I make the following: James Rynearson, a senior vice president of ALP, tes- tified that, due to expected environmental problems FINDINGS OF FACT caused by the proposed Alaska Lands Bill which, by its terms, restricted the quality and quantity of timber avail- able for cutting in certain areas of the State, the decision The parties stipulated that Phost is an Alaska corpora- was made by ALP in 1977 to study the feasibility of con- tion, with an office and place of business near Wrangell, structing a new type of sawmill, which would use a Alaska, where it is engaged in the business of construct- lesser type and quality log and which would continue to ing a sawmill, and that during the past 12-month period permit ALP to be operational in Wrangell. As a result, immediately preceding issuance of the complaint, which the company officials concluded that this new mill period is representative, in the course and conduct of its should have the same production capacity as the two ex- business operations, Phost provided services valued in isting sawmills combined and that, inasmuch as the AWP excess of $50,000 to customers within the State of site encompassed a greater physical area and as there Alaska, which customers were engaged in interstate was no room for expansion of the Wrangell mill, it commerce by other than indirect means. Accordingly, should be constructed on the AWP millsite. According- Respondent admits, and I find, that Phost is now, and ly, Rynearson testified, in early 1980 with passage of the has been at all times material herein, an employer and new legislation imminent, ALP decided to implement its person engaged in commerce and in industries affecting aforementioned plans. Both Respondent and the UPIU commerce within the meaning of Section 2(2), (6), and were receptive to the proposed consolidation of oper- (7) of the Act. ations, agreeing that such was essential if ALP was to remain competitive. II. LABOR ORGANIZATION INVOLVED As an initial step, ALP commenced negotiations with Respondent admits, and I find, that at all times materi- Ph o s t regarding the latter becoming the general contrac- al herein, it has been a labor organization within the t o r f o r the anticipated construction operations. While meaning of Section 2(5) of the Act. s aid discussions were ongoing, ALP commissioned engi- neering plans for the project and, in view of weather A. Issue problems, concluded that construction work on the pro- ject had to commence no later than July 15. Therefore- Did Respondent engage in acts and conduct violative and to apparently have sufficient time to prepare the site of Section 8(b)(4)(ii)(B) of the Act by, on or about Octo- for said work, production operations at the AWP mill ber 16, 1980,' through its agent Michael Draper, threat- were "closed down" on April 1, and a portion of the ening a representative of both ALP and Phost that it work force was given jobs on a new second shift at the would picket a Phost construction site in an attempt to Wrangell mill. 3 Also at approximately the same time, shut down construction work, with objects thereof to pursuant to the terms of the existing collective-bargain- force Phost and other persons to cease doing business ing agreement between ALP and Respondent, which with ALP; or to force or require ALP to recognize and was due to expire on May 31, Respondent sent a letter bargain with Respondent? requesting that ALP enter into negotiations on a succes- sor contract. However, no such negotiations ensued. The record establishes that ALP's construction plans ALP is a subsidiary of Alaska Pulp America, Inc., and at the AWP site entailed initially increasing the physical is engaged in the production of dissolving pulp and area of the entire facility, then demolishing the existing lumber in the State of Alaska, with its products shipped sawmill, and, finally, constructing a new and significant- primarily to Japan. In furtherance of its operations ALP ly larger mill building. Left standing and untouched by maintains a dissolving pulp plant in Sitka and, until April the construction work were to be a planer shed and Sort- 1, utilized two sawmills in a small town called Wrangell ing area in which the lumber is surfaced, a dock area, a which is located on remote Wrangell Island. Regarding powerhouse building, and a maintenance shed. As to the the two sawmills, one is located inside the town and em- first aspect of ALP's construction plans-increasing the ploys approximately 65 to 70 workers who are represent- available physical area, ALP contracted with Berg Con- ed for purposes of collective bargaining by a local of the struction Company for a landfill operation which would United Paperworkers International Union, herein called extend the AWP area into Zimovia Strait. Said work the UPIU. The downtown sawmill, herein called the Wrangell mill, is used by ALP primarily for the cutting ALP purchased the sawmill from another company, Alaska Wood of larger Spruce logs. The Other sawmill was located 6 Products, and apparently assumed the existing collective-bargaining miles outside Wrangell on the Zimovia Highway and ^ '^ c ov er I ~u l r duc ion R nd eso e nde l n c t. h I Those employees who transferred to the Wrangell mill were required 'Unless otherwise stated herein, all dates are in 1980. to become members of the UPIU. LOCAL UNION NO. 2362, CARPENTERS 901 commenced shortly after April 1 and was concluded sented ALP; Attorney Kenneth S. Klarquist represented prior to July. ALP's planning did not escape the notice Phost; and Draper and another official, Robert West- of the Alaskan construction unions, and shortly after brook, represented Respondent. While there is no dispute production ceased at the AWP mill in April, representa- as to the subject matter discussed, there is a slight vari- tives of the Alaska Building Trades Council, which com- ance in the record as to what was specifically said at the prises those unions engaged in representing employees in meeting. According to Rynearson, Respondent, repre- the building and construction industry, approached ALP, sented by Draper, demanded a 3-year collective-bargain- stating that they understood a new mill was to be con- ing agreement with ALP to become effective immediate- structed at the AWP location and demanding jurisdiction ly, while Rubin counteroffered to Respondent a I-year over all the work. Negotiations began with the construe- agreement with Phost, covering the construction work. tion unions and lasted until early June, with ALP insist- Specifically, Draper proposed a contract identical to the ing that a portion of the work be nonunion to ensure that industrywide agreement. Rubin replied that "he thought Wrangell residents, former ALP employees, would be [a 3-year contract] was highly illegal . . . when we had able to work on the project. Finally, agreement was no production, no members working. . . ." Attorney reached that 65 percent of the work, including the actual Rubin corroborated Rynearson, adding that Draper said construction, electrical, landfill, and ducting work, that a 3-year contract was essential to preserve a "con- would be performed by employees of union-signatory tract bar" argument before the Board and that he could subcontractors and that 35 percent of the work, includ- not deviate from such a contract term whatever the eco- ing demolition and machine installation work, could be nomics. Draper testified that two contract proposals nonunion. Moreover, this latter portion of the work was were on the table-Rubin's proposal for a contract to to be undertaken by Phost, and ALP and the unions cover the "remodernization of the sawmill," between Re- reached a further understanding that, while the Phost spondent and Phost, and Respondent's proposal for a employees were to be local Wrangell residents and pre- new collective-bargaining agreement between ALP and sumably nonunion, it (ALP) would attempt to persuade Respondent. The meeting, according to Draper, ended Phost to negotiate a labor contract, covering said em- after he set forth Respondent's economic conditions both ployees, to ensure labor peace on the jobsite. for a Phost agreement and the successor ALP contract. Meanwhile, while engaging in the aforementioned ne- The parties next met on or about August 21. Draper gotiations, ALP was continuing construction contract and Westbrook again represented Respondent; Rubin, discussions with Phost. According to ALP's attorney, Rynearson, and two others represented ALP; no repre- Jerome L. Rubin, ALP officials notified Phost about the sentatives from Phost were present.6 The meeting lasted former's agreement with the Building Trades Council, for just a few minutes. According to Rynearson, Draper and Phost consented to abide by it. More specifically, stated that he did not want a 1-year contract with Phost; ALP requested that Phost negotiate a labor agreement, rather, he wanted a 3-year contract with ALP. Rubin an- and Phost agreed to do so. Phost and ALP reached swered that he did not think such a contract was legal- agreement on the construction contract in late June. Said "that we had no production workers out there, we were agreement, which was not executed by the parties until not producing anything ... ." Corroborating Rynearson, October 22, provides that Phost supply all necessary Rubin added that he asked Draper to consult with his labor, equipment, and services for completion of the pro- lawyers concerning the legality of a 3-year contract with ject and perform all work in accordance with ALP's ALP in such circumstances. Draper testified that he instructions. 4 As to the hiring of subcontractors, the made an economic counterproposal to the 1-year Phost agreement grants to ALP and Phost the right to do so; proposal, and as to the 3-year ALP proposal, Rubin however, once on the project, subcontractors were to stated that there was not a problem regarding the eco- work under the direction of Phost. As to the work, nomics but that he questioned the legality of the contract Phost was to be responsible for the engineering work, term. According to Draper, Rubin asked that the parties demolition work, the installation of new machinery, and "enter into a voluntary submission" to the Board con- ensuring that the newly installed machinery was oper- cerning the legality of a 3-year contract with ALP. ational. 5 Draper agreed to consult with his attorney, and the Subsequent to the agreement between ALP and the meeting ended. Alaskan Building Trades Council and Phost's acceptance While these negotiations continued, Phost commenced thereof, representatives of ALP, Phost, and Respondent work on constructing the new sawmill building at the met in Portland, Oregon, on July 21. There is some dis- AWP site. Thus, site preparation work began on July 7, pute as to which party requested the meeting-Rynear- and demolition of the original mill was accomplished a son testified that ALP called for the session, while Re- few days later. Next, in early October work on erecting spondent's agent, Michael Draper, stated that Respond- the new sawmill started, with such performed by em- ent requested the meeting to negotiate a new contract ployees of subcontractors, all of whom were union mem- with ALP. In any event, Rubin and Rynearson repre- ' While Rubin appears to have been the management spokesman at this ' As to ALP's intentions, the signed contract states: "Whereas the and the earlier meeting, there is no evidence that such was ever commu- Owner desires to renovate its sawmill which is approximately six (6) nicated to Respondent or that Rubin ever represented himself as the miles from Wrangell, Alaska ... " agent of Phost. In fact, at the hearing, Rubin identified himself as the at- ' Other than as owner and general contractor, there is no evidence in torney for ALP. Despite this, because he spoke at the July 21 meeting, the record of any sort of business or other financial relationship between Rubin was considered, by Draper, to be the bargaining agent for Phost at ALP and Phost. the August meeting. LOCAL UNION NO. 2362, CARPENTERS 901 commenced shortly after April 1 and was concluded sented ALP; Attorney Kenneth S. Klarquist represented prior to July. ALP's planning did not escape the notice Phost; and Draper and another official, Robert West- of the Alaskan construction unions, and shortly after brook, represented Respondent. While there is no dispute production ceased at the AWP mill in April, representa- as to the subject matter discussed, there is a slight vari- tives of the Alaska Building Trades Council, which com- ance in the record as to what was specifically said at the prises those unions engaged in representing employees in meeting. According to Rynearson, Respondent, repre- the building and construction industry, approached ALP, sented by Draper, demanded a 3-year collective-bargain- stating that they understood a new mill was to be con- ing agreement with ALP to become effective immediate- structed at the AWP location and demanding jurisdiction ly, while Rubin counteroffered to Respondent a 1-year over all the work. Negotiations began with the construc- agreement with Phost, covering the construction work. tion unions and lasted until early June, with ALP insist- Specifically, Draper proposed a contract identical to the ing that a portion of the work be nonunion to ensure that industrywide agreement. Rubin replied that "he thought Wrangell residents, former ALP employees, would be [a 3-year contract] was highly illegal . . . when we had able to work on the project. Finally, agreement was no production, no members working. . . ." Attorney reached that 65 percent of the work, including the actual Rubin corroborated Rynearson, adding that Draper said construction, electrical, landfill, and ducting work, that a 3-year contract was essential to preserve a "con- would be performed by employees of union-signatory tract bar" argument before the Board and that he could subcontractors and that 35 percent of the work, includ- not deviate from such a contract term whatever the eco- ing demolition and machine installation work, could be nomics. Draper testified that two contract proposals nonunion. Moreover, this latter portion of the work was were on the table-Rubin's proposal for a contract to to be undertaken by Phost, and ALP and the unions cover the "remodernization of the sawmill," between Re- reached a further understanding that, while the Phost spondent and Phost, and Respondent's proposal for a employees were to be local Wrangell residents and pre- new collective-bargaining agreement between ALP and sumably nonunion, it (ALP) would attempt to persuade Respondent. The meeting, according to Draper, ended Phost to negotiate a labor contract, covering said em- after he set forth Respondent's economic conditions both ployees, to ensure labor peace on the jobsite. for a Phost agreement and the successor ALP contract. Meanwhile, while engaging in the aforementioned ne- The parties next met on or about August 21. Draper gotiations, ALP was continuing construction contract and Westbrook again represented Respondent; Rubin, discussions with Phost. According to ALP's attorney, Rynearson, and two others represented ALP; no repre- Jerome L. Rubin, ALP officials notified Phost about the sentatives from Phost were present." The meeting lasted former's agreement with the Building Trades Council, for just a few minutes. According to Rynearson, Draper and Phost consented to abide by it. More specifically, stated that he did not want a 1-year contract with Phost; ALP requested that Phost negotiate a labor agreement, rather, he wanted a 3-year contract with ALP. Rubin an- and Phost agreed to do so. Phost and ALP reached swered that he did not think such a contract was legal- agreement on the construction contract in late June. Said "that we had no production workers out there, we were agreement, which was not executed by the parties until not producing anything. . . ." Corroborating Rynearson, October 22, provides that Phost supply all necessary Rubin added that he asked Draper to consult with his labor, equipment, and services for completion of the pro- lawyers concerning the legality of a 3-year contract with ject and perform all work in accordance with ALP's ALP in such circumstances. Draper testified that he instructions.' As to the hiring of subcontractors, the made an economic counterproposal to the 1-year Phost agreement grants to ALP and Phost the right to do so; proposal, and as to the 3-year ALP proposal, Rubin however, once on the project, subcontractors were to stated that there was not a problem regarding the eco- work under the direction of Phost. As to the work, nomics but that he questioned the legality of the contract Phost was to be responsible for the engineering work, term. According to Draper, Rubin asked that the parties demolition work, the installation of new machinery, and "enter into a voluntary submission" to the Board con- ensuring that the newly installed machinery was oper- cerning the legality of a 3-year contract with ALP. ational. 5 Draper agreed to consult with his attorney, and the Subsequent to the agreement between ALP and the meeting ended. Alaskan Building Trades Council and Phost's acceptance While these negotiations continued, Phost commenced thereof, representatives of ALP, Phost, and Respondent work on constructing the new sawmill building at the met in Portland, Oregon, on July 21. There is some dis- AWP site. Thus, site preparation work began on July 7, pute as to which party requested the meeting-Rynear- and demolition of the original mill was accomplished a son testified that ALP called for the session, while Re- few days later. Next, in early October work on erecting spondent's agent, Michael Draper, stated that Respond- the new sawmill started, with such performed by em- ent requested the meeting to negotiate a new contract ployees of subcontractors, all of whom were union mem- with ALP. In any event, Rubin and Rynearson repre- - While Rubin appears to have been the management spokesman at this 4 As to ALP's intentions, the signed contract states: "Whereas the and the earlier meeting, there is no evidence that such was ever commu- Owner desires to renovate its sawmill which is approximately six (6) nicated to Respondent or that Rubin ever represented himself as the miles from Wrangell, Alaska. . . ."agent of Phost. In fact, at the hearing, Rubin identified himself as the at- ' Other than as owner and general contractor, there is no evidence in torney for ALP. Despite this, because he spoke at the July 21 meeting, the record of any sort of business or other financial relationship between Rubin was considered, by Draper, to be the bargaining agent for Phost at ALP and Phost. the August meeting. LOCAL UNION NO. 2362, CARPENTERS 901 commenced shortly after April 1 and was concluded sented ALP; Attorney Kenneth S. Klarquist represented prior to July. ALP's planning did not escape the notice Phost; and Draper and another official, Robert West- of the Alaskan construction unions, and shortly after brook, represented Respondent. While there is no dispute production ceased at the AWP mill in April, representa- as to the subject matter discussed, there is a slight vari- tives of the Alaska Building Trades Council, which com- ance in the record as to what was specifically said at the prises those unions engaged in representing employees in meeting. According to Rynearson, Respondent, repre- the building and construction industry, approached ALP, sented by Draper, demanded a 3-year collective-bargain- stating that they understood a new mill was to be con- ing agreement with ALP to become effective immediate- structed at the AWP location and demanding jurisdiction ly, while Rubin counteroffered to Respondent a 1-year over all the work. Negotiations began with the construc- agreement with Phost, covering the construction work. tion unions and lasted until early June, with ALP insist- Specifically, Draper proposed a contract identical to the ing that a portion of the work be nonunion to ensure that industrywide agreement. Rubin replied that "he thought Wrangell residents, former ALP employees, would be [a 3-year contract] was highly illegal . . . when we had able to work on the project. Finally, agreement was no production, no members working. . . ." Attorney reached that 65 percent of the work, including the actual Rubin corroborated Rynearson, adding that Draper said construction, electrical, landfill, and ducting work, that a 3-year contract was essential to preserve a "con- would be performed by employees of union-signatory tract bar" argument before the Board and that he could subcontractors and that 35 percent of the work, includ- not deviate from such a contract term whatever the eco- ing demolition and machine installation work, could be nomics. Draper testified that two contract proposals nonunion. Moreover, this latter portion of the work was were on the table-Rubin's proposal for a contract to to be undertaken by Phost, and ALP and the unions cover the "remodernization of the sawmill," between Re- reached a further understanding that, while the Phost spondent and Phost, and Respondent's proposal for a employees were to be local Wrangell residents and pre- new collective-bargaining agreement between ALP and sumably nonunion, it (ALP) would attempt to persuade Respondent. The meeting, according to Draper, ended Phost to negotiate a labor contract, covering said em- after he set forth Respondent's economic conditions both ployees, to ensure labor peace on the jobsite. for a Phost agreement and the successor ALP contract. Meanwhile, while engaging in the aforementioned ne- The parties next met on or about August 21. Draper gotiations, ALP was continuing construction contract and Westbrook again represented Respondent; Rubin, discussions with Phost. According to ALP's attorney, Rynearson, and two others represented ALP; no repre- Jerome L. Rubin, ALP officials notified Phost about the sentatives from Phost were present." The meeting lasted former's agreement with the Building Trades Council, for just a few minutes. According to Rynearson, Draper and Phost consented to abide by it. More specifically, stated that he did not want a 1-year contract with Phost; ALP requested that Phost negotiate a labor agreement, rather, he wanted a 3-year contract with ALP. Rubin an- and Phost agreed to do so. Phost and ALP reached swered that he did not think such a contract was legal- agreement on the construction contract in late June. Said "that we had no production workers out there, we were agreement, which was not executed by the parties until not producing anything. . . ." Corroborating Rynearson, October 22, provides that Phost supply all necessary Rubin added that he asked Draper to consult with his labor, equipment, and services for completion of the pro- lawyers concerning the legality of a 3-year contract with ject and perform all work in accordance with ALP's ALP in such circumstances. Draper testified that he instructions.' As to the hiring of subcontractors, the made an economic counterproposal to the 1-year Phost agreement grants to ALP and Phost the right to do so; proposal, and as to the 3-year ALP proposal, Rubin however, once on the project, subcontractors were to stated that there was not a problem regarding the eco- work under the direction of Phost. As to the work, nomics but that he questioned the legality of the contract Phost was to be responsible for the engineering work, term. According to Draper, Rubin asked that the parties demolition work, the installation of new machinery, and "enter into a voluntary submission" to the Board con- ensuring that the newly installed machinery was oper- cerning the legality of a 3-year contract with ALP. ational. 5 Draper agreed to consult with his attorney, and the Subsequent to the agreement between ALP and the meeting ended. Alaskan Building Trades Council and Phost's acceptance While these negotiations continued, Phost commenced thereof, representatives of ALP, Phost, and Respondent work on constructing the new sawmill building at the met in Portland, Oregon, on July 21. There is some dis- AWP site. Thus, site preparation work began on July 7, pute as to which party requested the meeting-Rynear- and demolition of the original mill was accomplished a son testified that ALP called for the session, while Re- few days later. Next, in early October work on erecting spondent's agent, Michael Draper, stated that Respond- the new sawmill started, with such performed by em- ent requested the meeting to negotiate a new contract ployees of subcontractors, all of whom were union mem- with ALP. In any event, Rubin and Rynearson repre- - While Rubin appears to have been the management spokesman at this 4 As to ALP's intentions, the signed contract states: "Whereas the and the earlier meeting, there is no evidence that such was ever commu- Owner desires to renovate its sawmill which is approximately six (6) nicated to Respondent or that Rubin ever represented himself as the miles from Wrangell, Alaska. . . ."agent of Phost. In fact, at the hearing, Rubin identified himself as the at- ' Other than as owner and general contractor, there is no evidence in torney for ALP. Despite this, because he spoke at the July 21 meeting, the record of any sort of business or other financial relationship between Rubin was considered, by Draper, to be the bargaining agent for Phost at ALP and Phost. the August meeting. LOCAL UNION NO. 2362, CARPENTERS 901 commenced shortly after April 1 and was concluded sented ALP; Attorney Kenneth S. Klarquist represented prior to July. ALP's planning did not escape the notice Phost; and Draper and another official, Robert West- of the Alaskan construction unions, and shortly after brook, represented Respondent. While there is no dispute production ceased at the AWP mill in April, representa- as to the subject matter discussed, there is a slight vari- tives of the Alaska Building Trades Council, which com- ance in the record as to what was specifically said at the prises those unions engaged in representing employees in meeting. According to Rynearson, Respondent, repre- the building and construction industry, approached ALP, sented by Draper, demanded a 3-year collective-bargain- stating that they understood a new mill was to be con- ing agreement with ALP to become effective immediate- structed at the AWP location and demanding jurisdiction ly, while Rubin counteroffered to Respondent a 1-year over all the work. Negotiations began with the construc- agreement with Phost, covering the construction work. tion unions and lasted until early June, with ALP insist- Specifically, Draper proposed a contract identical to the ing that a portion of the work be nonunion to ensure that industrywide agreement. Rubin replied that "he thought Wrangell residents, former ALP employees, would be [a 3-year contract] was highly illegal . . . when we had able to work on the project. Finally, agreement was no production, no members working. . . ." Attorney reached that 65 percent of the work, including the actual Rubin corroborated Rynearson, adding that Draper said construction, electrical, landfill, and ducting work, that a 3-year contract was essential to preserve a "con- would be performed by employees of union-signatory tract bar" argument before the Board and that he could subcontractors and that 35 percent of the work, includ- not deviate from such a contract term whatever the eco- ing demolition and machine installation work, could be nomics. Draper testified that two contract proposals nonunion. Moreover, this latter portion of the work was were on the table-Rubin's proposal for a contract to to be undertaken by Phost, and ALP and the unions cover the "remodernization of the sawmill," between Re- reached a further understanding that, while the Phost spondent and Phost, and Respondent's proposal for a employees were to be local Wrangell residents and pre- new collective-bargaining agreement between ALP and sumably nonunion, it (ALP) would attempt to persuade Respondent. The meeting, according to Draper, ended Phost to negotiate a labor contract, covering said em- after he set forth Respondent's economic conditions both ployees, to ensure labor peace on the jobsite. for a Phost agreement and the successor ALP contract. Meanwhile, while engaging in the aforementioned ne- The parties next met on or about August 21. Draper gotiations, ALP was continuing construction contract and Westbrook again represented Respondent; Rubin, discussions with Phost. According to ALP's attorney, Rynearson, and two others represented ALP; no repre- Jerome L. Rubin, ALP officials notified Phost about the sentatives from Phost were present." The meeting lasted former's agreement with the Building Trades Council, for just a few minutes. According to Rynearson, Draper and Phost consented to abide by it. More specifically, stated that he did not want a 1-year contract with Phost; ALP requested that Phost negotiate a labor agreement, rather, he wanted a 3-year contract with ALP. Rubin an- and Phost agreed to do so. Phost and ALP reached swered that he did not think such a contract was legal- agreement on the construction contract in late June. Said "that we had no production workers out there, we were agreement, which was not executed by the parties until not producing anything. . . ." Corroborating Rynearson, October 22, provides that Phost supply all necessary Rubin added that he asked Draper to consult with his labor, equipment, and services for completion of the pro- lawyers concerning the legality of a 3-year contract with ject and perform all work in accordance with ALP's ALP in such circumstances. Draper testified that he instructions.' As to the hiring of subcontractors, the made an economic counterproposal to the 1-year Phost agreement grants to ALP and Phost the right to do so; proposal, and as to the 3-year ALP proposal, Rubin however, once on the project, subcontractors were to stated that there was not a problem regarding the eco- work under the direction of Phost. As to the work, nomics but that he questioned the legality of the contract Phost was to be responsible for the engineering work, term. According to Draper, Rubin asked that the parties demolition work, the installation of new machinery, and "enter into a voluntary submission" to the Board con- ensuring that the newly installed machinery was oper- cerning the legality of a 3-year contract with ALP. ational. 5 Draper agreed to consult with his attorney, and the Subsequent to the agreement between ALP and the meeting ended. Alaskan Building Trades Council and Phost's acceptance While these negotiations continued, Phost commenced thereof, representatives of ALP, Phost, and Respondent work on constructing the new sawmill building at the met in Portland, Oregon, on July 21. There is some dis- AWP site. Thus, site preparation work began on July 7, pute as to which party requested the meeting-Rynear- and demolition of the original mill was accomplished a son testified that ALP called for the session, while Re- few days later. Next, in early October work on erecting spondent's agent, Michael Draper, stated that Respond- the new sawmill started, with such performed by em- ent requested the meeting to negotiate a new contract ployees of subcontractors, all of whom were union mem- with ALP. In any event, Rubin and Rynearson repre- - While Rubin appears to have been the management spokesman at this 4 As to ALP's intentions, the signed contract states: "Whereas the and the earlier meeting, there is no evidence that such was ever commu- Owner desires to renovate its sawmill which is approximately six (6) nicated to Respondent or that Rubin ever represented himself as the miles from Wrangell, Alaska. . . ."agent of Phost. In fact, at the hearing, Rubin identified himself as the at- ' Other than as owner and general contractor, there is no evidence in torney for ALP. Despite this, because he spoke at the July 21 meeting, the record of any sort of business or other financial relationship between Rubin was considered, by Draper, to be the bargaining agent for Phost at ALP and Phost. the August meeting. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bers. By early December, work on the buiding skeleton that he knew, and Draper then stated that he was not had been completed; all outside sheeting was affixed to there for the purpose of bargaining about Phost but the structure; and the roof was in place. Further, all con- rather "for the specific purpose of renewing our existing crete had been poured. The record discloses that, while labor agreement between 2362 and Alaska Wood Prod- all this work was done, other than supervisory personnel ucts." Rubin then stated that economics were not the who may have observed the project from time to time, issue; the major issue was the duration of the agreement. there have been-and will be-no ALP employees at all Draper replied that Respondent believed its demand was on the site during the construction work. Also, accord- unlawul. Rubin responded that such was an area of con- ing to Rynearson, no ALP employees have visited the troversy but that ALP would be willing to enter into a project to maintain equipment in the left-standing struc- I-year agreement. Draper replied that a 3-year contract tur es. r A 1 Iwas Respondent's final position inasmuch as the industry At some point after August 21, Phost and UPIU en- was structured in such a manner. Rubin asked where tered into a collective-bargaining agreement, covering they could go from there and Draper responded "If we construction work at the AWP site. On or about October t consummate an agreemnd Dr r ree years durati 14, Agent Draper telephoned Rubin's office in Seattle, d o not consummate an agreement of three years duration Washington, and requested a meeting. Such was sched- I would conclude that we are at impasse .... I wil uled for October 16 at Rubin's Seattle office, and Rubin picket the AWP mill wth pickets f we do not get a 3- asked Kurt Sacknitz, the vice president and treasurer of year agreement." After this statement, Draper again vol- Alaska Pulp America, Inc., to be present. According to unteered the information that he was not there to negoti- Sacknitz, he, Rubin, and another attorney from Rubin's ate for a Phost agreement. At that point, the ALP repre- law firm were present along with Draper and West- sentatives left the room to caucus. Rubin returned after brook.7 Draper began by asking if Rubin was aware of 15 minutes and said that there would be nothing further the Phost-UPIU contract. Rubin acknowlegded that he and that he had to confer with higher corporate officials. knew about that agreement, and Draper asked if ALP The meeting ended with Rubin saying he would contact was now willing to enter into a 3-year collective-bargain- Draper by the following Friday.' ing agreement with Respondent. Rubin replied that such Robert Westbrook gave rather sketchy testimony re- was a contract would be unlawful. "Mr. Draper respond- garding this meeting. However, he did recall that Draper ed that if we were unwilling to sign a contract, that the began by asking whether the ALP people knew that union would then file an unfair labor practice claim and Phost had agreed on a collective-bargaining agreement that they would picket the construction site." Rubin with the UPIU and by stating that he was there to nego- asked time for a caucus and, after he and Sacknitz re- tiate a 3-year agreement with ALP. Further, he recalled turned, Rubin asked if it was true that Respondent in- that Draper said, "[W]e'll picket AWP mill." tended to picket the site. "Mr. Draper indicated that At the time of the hearing, work on the new sawmill that's what would happen." Rubin replied that he would had not been completed. Although unclear, it appears speak to ALP officials about Draper's comments; Draper that, at least, some ducting and electrical work remain to gave Rubin until the following Friday to answer. The be done as well as the installation and testing of the mill meeting ended at this point. machinery. Draper admitted knowledge that portion of Rubin testified that Draper asked if he knew that the remaining work was to be done by employees of sub- Phost's employees had been organized by the UPIU and contractors and that they were to be union-signatory that Phost had signed a contract. Rubin said that he subcontractors. To date, there has been no picketing at knew. Draper said that Respondent continued to insist h the AWP jobsite. on a 3-year contract with ALP, and Rubin reiterated his doubts as the legality of that approach to a production C. Anlysis agreement. Draper replied "that we either signed a [3-] year extension of the labor contract . . . or they would Both counsel for the General Counsel and for Phost picket the construction site." The management repre- contend that Draper's statement to Attorney Rubin, that sentatives then left in order to caucus and, after return- either ALP enter into a 3-year collective-bargaining ing, Rubin asked Draper to repeat the last statement. agreement with Respondent or the latter would picket "He said, yes, 'ALP either signs a [3-] year extension of the construction site, constituted a threat to picket Phost the labor contract, or else we will picket the construc- to force it to cease doing business with ALP or to force tion site."' Rubin replied that he had to discuss the ALP to enter into an agreement with Respondent. They matter with ALP officials, and the meeting ended. Fol- further contend that such a threat is blatantly violative of lowing this meeting Rubin telephoned Klarquist, and Section 8(b)(4)(ii)(B) of the Act when, as herein in- "we discussed the threat." volved, ALP has no presence at the AWP jobsite. Con- Draper testified that he began the meeting by asking trary to this position, Respondent argues that Draper's Rubin if he knew that the UPIU had been organizing statement to Rubin, that Respondent would picket the Phost's employees and that Phost had recognized and AWP mill if ALP did not enter into a 3-year agreement, 9 bargained to an agreement with that union. Rubin replied ' As of the date of this meeting, according to Draper, he had no direct No Phost representatives appeared at this meeting. Nevertheless, knowledge as to the state of the work being done at the AWP site. Draper testified that Rubin was the spokesman for ALP "and. I assume, 'All parties concede that whether one credits the version of Respond- Phost Construction, at that time." There is no evidence that Rubin ever ent's witnesses or that of the General Counsel's witnesses, the legal effect so represented his status at this meeting. would be the same. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bers. By early December, work on the buiding skeleton that he knew, and Draper then stated that he was not had been completed; all outside sheeting was affixed to there for the purpose of bargaining about Phost but the structure; and the roof was in place. Further, all con- rather "for the specific purpose of renewing our existing crete had been poured. The record discloses that, while labor agreement between 2362 and Alaska Wood Prod- all this work was done, other than supervisory personnel ucts." Rubin then stated that economics were not the who may have observed the project from time to time, issue; the major issue was the duration of the agreement. there have been-and will be-no ALP employees at all Draper replied that Respondent believed its demand was on the site during the construction work. Also, accord- unlawul. Rubin responded that such was an area of con- ing to Rynearson, no ALP employees have visited the troversy but that ALP would be willing to enter into a project to maintain equipment in the left-standing struc- I-year agreement. Draper replied that a 3-year contract ture s . was Respondent's final position inasmuch as the industry At some point after August 21, Phost and UPIU en- was structured in such a manner. Rubin asked where tered into a collective-bargaining agreement, covering wte c ul dg fo t h a D a p e r r e s pn e d w e construction work at the AWP site. On or about October don c o u ld m° f ro m ane, and Draper respondeda "If we 14, Agent Draper telephoned Rubin's office in Seattle, Id o not consummate an agreement of three years duration Washington, and requested a meeting. Such was sched- I would conclude that we are at impasse .... I wil uled for October 16 at Rubin's Seattle office, and Rubin p'^ 1 t h e A W P m i11 w t h p'^^ l f w e d o not get a [3-] asked Kurt Sacknitz, the vice president and treasurer of year agreement." After this statement, Draper again vol- Alaska Pulp America, Inc., to be present. According to unteered the information that he was not there to negoti- Sacknitz, he, Rubin, and another attorney from Rubin's a t e f o r a Phost agreement. At that point, the ALP repre- law firm were present along with Draper and West- sentatives left the room to caucus. Rubin returned after brook. 7 Draper began by asking if Rubin was aware of 15 minutes and said that there would be nothing further the Phost-UPIU contract. Rubin acknowlegded that he and that he had to confer with higher corporate officials. knew about that agreement, and Draper asked if ALP The meeting ended with Rubin saying he would contact was now willing to enter into a 3-year collective-bargain- Draper by the following Friday.' ing agreement with Respondent. Rubin replied that such Robert Westbrook gave rather sketchy testimony re- was a contract would be unlawful. "Mr. Draper respond- garding this meeting. However, he did recall that Draper ed that if we were unwilling to sign a contract, that the began by asking whether the ALP people knew that union would then file an unfair labor practice claim and Phost had agreed on a collective-bargaining agreement that they would picket the construction site." Rubin with the UPIU and by stating that he was there to nego- asked time for a caucus and, after he and Sacknitz re- tiate a 3-year agreement with ALP. Further, he recalled turned, Rubin asked if it was true that Respondent in- that Draper said, "[W]e'll picket AWP mill." tended to picket the site. "Mr. Draper indicated that At the time of the hearing, work on the new sawmill that's what would happen." Rubin replied that he would had not been completed. Although unclear, it appears speak to ALP officials about Draper's comments; Draper that, at least, some ducting and electrical work remain to gave Rubin until the following Friday to answer. The be done as well as the installation and testing of the mill meeting ended at this point. machinery. Draper admitted knowledge that portion of Rubin testified that Draper asked if he knew that the remaining work was to be done by employees of sub- Phost's employees had been organized by the UPIU and contractors and that they were to be union-signatory that Phost had signed a contract. Rubin said that he subcontractors. To date, there has been no picketing at knew. Draper said that Respondent continued to insist , ,,*»!. A m jn i-. *. . -i the AWP jobsite. on a 3-year contract with ALP, and Rubin reiterated his t doubts as the legality of that approach to a production C. Analysis agreement. Draper replied "that we either signed a [3-] year extension of the labor contract ... or they would Both counsel for the General Counsel and for Phost picket the construction site." The management repre- contend that Draper's statement to Attorney Rubin, that sentatives then left in order to caucus and, after return- either ALP enter into a 3-year collective-bargaining ing, Rubin asked Draper to repeat the last statement. agreement with Respondent or the latter would picket "He said, yes, 'ALP either signs a [3-] year extension of the construction site, constituted a threat to picket Phost the labor contract, or else we will picket the construc- to force it to cease doing business with ALP or to force tion site."' Rubin replied that he had to discuss the ALP to enter into an agreement with Respondent. They matter with ALP officials, and the meeting ended. Fol- further contend that such a threat is blatantly violative of lowing this meeting Rubin telephoned Klarquist, and Section 8(b)(4)(ii)(B) of the Act when, as herein in- "we discussed the threat." volved, ALP has no presence at the AWP jobsite. Con- Draper testified that he began the meeting by asking trary to this position, Respondent argues that Draper's Rubin if he knew that the UPIU had been organizing statement to Rubin, that Respondent would picket the Phost's employees and that Phost had recognized and AWP mill if ALP did not enter into a 3-year agreement," bargained to an agreement with that union. Rubin replied ' As of the date of this meeting, according to Draper, he had no direct No Phost representatives appeared at this meeting. Nevertheless, knowledge as to the state of the work being done at the AWP site. Draper testified that Rubin was the spokesman for ALP "and. I assume, IAll parties concede that whether one credits the version of Respond- Phost Construction, at that time." There is no evidence that Rubin ever ent's witnesses or that of the General Counsel's witnesses, the legal effect so represented his status at this meeting,.would be the same. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bers. By early December, work on the buiding skeleton that he knew, and Draper then stated that he was not had been completed; all outside sheeting was affixed to there for the purpose of bargaining about Phost but the structure; and the roof was in place. Further, all con- rather "for the specific purpose of renewing our existing crete had been poured. The record discloses that, while labor agreement between 2362 and Alaska Wood Prod- all this work was done, other than supervisory personnel ucts." Rubin then stated that economics were not the who may have observed the project from time to time, issue; the major issue was the duration of the agreement. there have been-and will be-no ALP employees at all Draper replied that Respondent believed its demand was on the site during the construction work. Also, accord- unlawul. Rubin responded that such was an area of con- ing to Rynearson, no ALP employees have visited the troversy but that ALP would be willing to enter into a project to maintain equipment in the left-standing struc- I-year agreement. Draper replied that a 3-year contract ture s . was Respondent's final position inasmuch as the industry At some point after August 21, Phost and UPIU en- was structured in such a manner. Rubin asked where tered into a collective-bargaining agreement, covering wte c ul dg fo t h a D a p e r r e s pn e d w e construction work at the AWP site. On or about October don c o u ld m° f ro m ane, and Draper respondeda "If we 14, Agent Draper telephoned Rubin's office in Seattle, Id o not consummate an agreement of three years duration Washington, and requested a meeting. Such was sched- I would conclude that we are at impasse .... I wil uled for October 16 at Rubin's Seattle office, and Rubin p'^ 1 t h e A W P m i11 w t h p'^^ l f w e d o not get a [3-] asked Kurt Sacknitz, the vice president and treasurer of year agreement." After this statement, Draper again vol- Alaska Pulp America, Inc., to be present. According to unteered the information that he was not there to negoti- Sacknitz, he, Rubin, and another attorney from Rubin's a t e f o r a Phost agreement. At that point, the ALP repre- law firm were present along with Draper and West- sentatives left the room to caucus. Rubin returned after brook. 7 Draper began by asking if Rubin was aware of 15 minutes and said that there would be nothing further the Phost-UPIU contract. Rubin acknowlegded that he and that he had to confer with higher corporate officials. knew about that agreement, and Draper asked if ALP The meeting ended with Rubin saying he would contact was now willing to enter into a 3-year collective-bargain- Draper by the following Friday.' ing agreement with Respondent. Rubin replied that such Robert Westbrook gave rather sketchy testimony re- was a contract would be unlawful. "Mr. Draper respond- garding this meeting. However, he did recall that Draper ed that if we were unwilling to sign a contract, that the began by asking whether the ALP people knew that union would then file an unfair labor practice claim and Phost had agreed on a collective-bargaining agreement that they would picket the construction site." Rubin with the UPIU and by stating that he was there to nego- asked time for a caucus and, after he and Sacknitz re- tiate a 3-year agreement with ALP. Further, he recalled turned, Rubin asked if it was true that Respondent in- that Draper said, "[W]e'll picket AWP mill." tended to picket the site. "Mr. Draper indicated that At the time of the hearing, work on the new sawmill that's what would happen." Rubin replied that he would had not been completed. Although unclear, it appears speak to ALP officials about Draper's comments; Draper that, at least, some ducting and electrical work remain to gave Rubin until the following Friday to answer. The be done as well as the installation and testing of the mill meeting ended at this point. machinery. Draper admitted knowledge that portion of Rubin testified that Draper asked if he knew that the remaining work was to be done by employees of sub- Phost's employees had been organized by the UPIU and contractors and that they were to be union-signatory that Phost had signed a contract. Rubin said that he subcontractors. To date, there has been no picketing at knew. Draper said that Respondent continued to insist , ,,*»!. A m jn i-. *. . -i the AWP jobsite. on a 3-year contract with ALP, and Rubin reiterated his t doubts as the legality of that approach to a production C. Analysis agreement. Draper replied "that we either signed a [3-] year extension of the labor contract ... or they would Both counsel for the General Counsel and for Phost picket the construction site." The management repre- contend that Draper's statement to Attorney Rubin, that sentatives then left in order to caucus and, after return- either ALP enter into a 3-year collective-bargaining ing, Rubin asked Draper to repeat the last statement. agreement with Respondent or the latter would picket "He said, yes, 'ALP either signs a [3-] year extension of the construction site, constituted a threat to picket Phost the labor contract, or else we will picket the construc- to force it to cease doing business with ALP or to force tion site."' Rubin replied that he had to discuss the ALP to enter into an agreement with Respondent. They matter with ALP officials, and the meeting ended. Fol- further contend that such a threat is blatantly violative of lowing this meeting Rubin telephoned Klarquist, and Section 8(b)(4)(ii)(B) of the Act when, as herein in- "we discussed the threat." volved, ALP has no presence at the AWP jobsite. Con- Draper testified that he began the meeting by asking trary to this position, Respondent argues that Draper's Rubin if he knew that the UPIU had been organizing statement to Rubin, that Respondent would picket the Phost's employees and that Phost had recognized and AWP mill if ALP did not enter into a 3-year agreement," bargained to an agreement with that union. Rubin replied ' As of the date of this meeting, according to Draper, he had no direct No Phost representatives appeared at this meeting. Nevertheless, knowledge as to the state of the work being done at the AWP site. Draper testified that Rubin was the spokesman for ALP "and. I assume, IAll parties concede that whether one credits the version of Respond- Phost Construction, at that time." There is no evidence that Rubin ever ent's witnesses or that of the General Counsel's witnesses, the legal effect so represented his status at this meeting,.would be the same. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bers. By early December, work on the buiding skeleton that he knew, and Draper then stated that he was not had been completed; all outside sheeting was affixed to there for the purpose of bargaining about Phost but the structure; and the roof was in place. Further, all con- rather "for the specific purpose of renewing our existing crete had been poured. The record discloses that, while labor agreement between 2362 and Alaska Wood Prod- all this work was done, other than supervisory personnel ucts." Rubin then stated that economics were not the who may have observed the project from time to time, issue; the major issue was the duration of the agreement. there have been-and will be-no ALP employees at all Draper replied that Respondent believed its demand was on the site during the construction work. Also, accord- unlawul. Rubin responded that such was an area of con- ing to Rynearson, no ALP employees have visited the troversy but that ALP would be willing to enter into a project to maintain equipment in the left-standing struc- I-year agreement. Draper replied that a 3-year contract ture s . was Respondent's final position inasmuch as the industry At some point after August 21, Phost and UPIU en- was structured in such a manner. Rubin asked where tered into a collective-bargaining agreement, covering wte c ul dg fo t h a D a p e r r e s pn e d w e construction work at the AWP site. On or about October don c o u ld m f ro m t h e r e e a n d Draper respondeda "If we 14, Agent Draper telephoned Rubin's office in Seattle, Id o not consummate an agreement of three years duration Washington, and requested a meeting. Such was sched- I would conclude that we are at impasse .... I wil uled for October 16 at Rubin's Seattle office, and Rubin p'^ 1 t h e A W P m i11 w t h p'^^ l f w e d o not get a [3-] asked Kurt Sacknitz, the vice president and treasurer of year agreement." After this statement, Draper again vol- Alaska Pulp America, Inc., to be present. According to unteered the information that he was not there to negoti- Sacknitz, he, Rubin, and another attorney from Rubin's a t e f o r a Phost agreement. At that point, the ALP repre- law firm were present along with Draper and West- sentatives left the room to caucus. Rubin returned after brook. 7 Draper began by asking if Rubin was aware of 15 minutes and said that there would be nothing further the Phost-UPIU contract. Rubin acknowlegded that he and that he had to confer with higher corporate officials. knew about that agreement, and Draper asked if ALP The meeting ended with Rubin saying he would contact was now willing to enter into a 3-year collective-bargain- Draper by the following Friday.' ing agreement with Respondent. Rubin replied that such Robert Westbrook gave rather sketchy testimony re- was a contract would be unlawful. "Mr. Draper respond- garding this meeting. However, he did recall that Draper ed that if we were unwilling to sign a contract, that the began by asking whether the ALP people knew that union would then file an unfair labor practice claim and Phost had agreed on a collective-bargaining agreement that they would picket the construction site." Rubin with the UPIU and by stating that he was there to nego- asked time for a caucus and, after he and Sacknitz re- tiate a 3-year agreement with ALP. Further, he recalled turned, Rubin asked if it was true that Respondent in- that Draper said, "[W]e'll picket AWP mill." tended to picket the site. "Mr. Draper indicated that At the time of the hearing, work on the new sawmill that's what would happen." Rubin replied that he would had not been completed. Although unclear, it appears speak to ALP officials about Draper's comments; Draper that, at least, some ducting and electrical work remain to gave Rubin until the following Friday to answer. The be done as well as the installation and testing of the mill meeting ended at this point. machinery. Draper admitted knowledge that portion of Rubin testified that Draper asked if he knew that the remaining work was to be done by employees of sub- Phost's employees had been organized by the UPIU and contractors and that they were to be union-signatory that Phost had signed a contract. Rubin said that he subcontractors. To date, there has been no picketing at knew. Draper said that Respondent continued to insist , ,,*»!. A m jn i-. *. . -i the AWP jobsite. on a 3-year contract with ALP, and Rubin reiterated his t doubts as the legality of that approach to a production C. Analysis agreement. Draper replied "that we either signed a [3-] year extension of the labor contract ... or they would Both counsel for the General Counsel and for Phost picket the construction site." The management repre- contend that Draper's statement to Attorney Rubin, that sentatives then left in order to caucus and, after return- either ALP enter into a 3-year collective-bargaining ing, Rubin asked Draper to repeat the last statement. agreement with Respondent or the latter would picket "He said, yes, 'ALP either signs a [3-] year extension of the construction site, constituted a threat to picket Phost the labor contract, or else we will picket the construc- to force it to cease doing business with ALP or to force tion site."' Rubin replied that he had to discuss the ALP to enter into an agreement with Respondent. They matter with ALP officials, and the meeting ended. Fol- further contend that such a threat is blatantly violative of lowing this meeting Rubin telephoned Klarquist, and Section 8(b)(4)(ii)(B) of the Act when, as herein in- "we discussed the threat." volved, ALP has no presence at the AWP jobsite. Con- Draper testified that he began the meeting by asking trary to this position, Respondent argues that Draper's Rubin if he knew that the UPIU had been organizing statement to Rubin, that Respondent would picket the Phost's employees and that Phost had recognized and AWP mill if ALP did not enter into a 3-year agreement," bargained to an agreement with that union. Rubin replied ' As of the date of this meeting, according to Draper, he had no direct No Phost representatives appeared at this meeting. Nevertheless, knowledge as to the state of the work being done at the AWP site. Draper testified that Rubin was the spokesman for ALP "and. I assume, IAll parties concede that whether one credits the version of Respond- Phost Construction, at that time." There is no evidence that Rubin ever ent's witnesses or that of the General Counsel's witnesses, the legal effect so represented his status at this meeting,.would be the same. LOCAL UNION NO. 2362, CARPENTERS 903 does not constitute a threat within the meaning of Sec- Rubin identified himself at the hearing as a partner in the tion 8(b)(4)(ii)(B) of the Act as such was "merely inform- law firm which represents ALP and testified that he rep- ative of a dispute which extended to the jobsite," that resented the interest of ALP in contract negotiations ALP has, indeed, maintained a presence on the jobsite with Phost and labor negotiations with the Alaska Build- during the construction work, and that rather than being ing Trades Council. Moreover, Rubin's conduct at the an unoffending neutral party to the dispute, Phost and negotiating sessions with Respondent on July 21 and ALP are allies herein. August 21 does not warrant a contrary conclusion as to Section 8(bX4)(ii)(B), insofar as is relevant herein, pro- his status. Thus, I believe that ALP desired these meet- hibits a union or its agents from threatening, restraining, ings in order to resolve its own lingering contractual or coercing secondary employers, where objects of such problems with Respondent and, in the process, to assure conduct are to force or require a secondary employer to that the construction work at the AWP site proceeded cease doing business with the primary (or disputing) em- free of labor-related disputes. Viewed in this light, it ployer; or to force or require the primary to recognize seems clear that the real bargaining parties were ALP and/or bargain with the union. As stated by a United represented by Rubin, and Respondent, with Phost as an States circuit court of appeals, Section 8(bX4) ". .. was interested observer, and that Rubin was representing the not meant to prohibit primary activity. [It was] directed interests of ALP, and only peripherally those of Phost, only at secondary boycotts whose 'core concept' is unien he offered to Respondent, as a counterproposal to when he offered to Respondent, as a counterproposal to pressure directed at a neutral employer." Griffith Compa- the latters demand for a 3-year production agreement the latter's demand for a 3-year production agreement ny, et al. v. N.L.R.B., 545 F.2d 1194, 1199 (9th Cir. with ALP, a I-year construction contract with Phost. with ALP, a l-year construction contract with Phost. 1976). In concluding that a union has engaged in conduct violative of Section 8(bX4)(ii)(B), the Board considers violative of Section 8(b)(4)Xii)(B), the Board considers at the August 21 session wherein he refused to accede to two elements as crucial to the violation: A cease doing Draper's demand inasmuch as "we" have no production business objective and coercion of the secondary em- ployer to achieve the proscribed object. Local 399 Inter- workers at the jobsite. Finally, my view of Rubin's status national Brotherhood of Electrical Workers (Illinois Bell as only acti as an agent for ALP is supported by the Telephone Company), 235 NLRB 555, 559 (1978); Interna- entire circumstances herei-based on its own self-nter- tional Brotherhood of Electrical Workers AFL-CIO: Local ests, ALP consented to attempt to persuade Phost to sign 134 international Brotherhood of Electrical Workers, a labor agreement for work at the AWP site; ALP, in AFL-CIO; Local 165, International Brotherhood of Electri- fact, persuaded Phost to do so; and in view of its desire cal Workers, AFL-CIO (Illinois Bell Telephone Company), to have the project completed expeditiously, ALP was in 179 NLRB 202, 204 (1969). Regarding the latter point, a position to gain the most by having the sawmill project the Act reaches only threats, restraints, or coercion of a completed free of labor strife. secondary employer. N.L.R.B. v. Servette, Inc., 377 U.S. However, assuming that Rubin was the "common rep- 46, 55, fn. 12 (1964); International Hod Carriers, Building resentative" of Phost and ALP at the earlier bargaining and Common Laborers' Union of America, Local No. 1140, sessions, a point about which I remain unconvinced, AFL-CIO (Gilmore Construction Company), 127 NLRB Rubin clearly represented only the interests of ALP 541, 545, fn. 6 (1960). during the October 16 meeting with Draper. Thus, prior Herein, as expostulated by counsel for the General to said date, Phost had, independently, recognized and Counsel, the major premise of the complaint-and, bargained to an agreement with the UPIU covering the indeed, the basis for much, if not all, of the legal argu- construction work, and at the meeting Draper, on at ments in the post-hearing briefs-is the alleged unlawful least two occasions, told Rubin that he (Draper) was not and coercive effect of picketing by Respondent at the there to negotiate about Phost but only regarding a new AWP jobsite, if such occurred as threatened by Re- collective-bargaining agreement with ALP. Further, the spondent. What appears to have been overlooked by this subject matter discussed pertained only to ALP and in- approach are the circumstances of Draper's threat. Was volved whether ALP would accept Draper's demand for it directed, as required for a violation of Section a contract with a 3-year term and Rubin's counterpro- 8(b)(4XiiXB) of the Act, to an unoffending neutral party posal of an agreement with ALP for 1 year. Hence, (Phost), to the dispute between ALP and Respondent or while Draper again "assumed" that Rubin also represent- was said threat directed toward the primary or disputing ed Phost at this meeting, it is clear that the only parties party-ALP? In asserting that Draper's conduct was sec- to this meeting were ALP (Rubin) and Respondent. Ac- ondary and directed at Phost, without citing any record cordingly, I believe that, when Draper uttered his threat testimony or other supporting facts, counsel for the Gen- to engage in picketing at the AWP jobsite, he did so to eral Counsel alleges that Attorney Rubin's status was Attorney Rubin as the representative of ALP after that of the "common representative" of both Phost and Rubin, as the representative of ALP, refused Draper's ALP at the October 16 meeting. I do not think that the demand for a 3-year contract. I believe that the forego- record warrants such a conclusion. ing, in the circumstances of this case, constituted nothing At the outset, there exists not a scintilla of record evi- more than a threat of potentially unlawful picketing di- dence as to the specific authority of Attorney Rubin to rected to a primary or disputing party-conduct which is act as an agent or spokesman for Phost or as to whether not proscribed by Section 8(bX4)(iiXB) of the Act. Cf. such authority was ever represented to Respondent. At Local 399 (Illinois Bell Telephone Company), supra; Gil- most, the record reflects a mere "assumption" by Draper more Construction Company, supra. I do not believe that, that Rubin was the bargaining agent for Phost. Indeed, in any sense of the meaning of that section of the Act, LOCAL UNION NO. 2362, CARPENTERS 903 does not constitute a threat within the meaning of Sec- Rubin identified himself at the hearing as a partner in the tion 8(b)(4)(ii)(B) of the Act as such was "merely inform- law firm which represents ALP and testified that he rep- ative of a dispute which extended to the jobsite," that resented the interest of ALP in contract negotiations ALP has, indeed, maintained a presence on the jobsite with Phost and labor negotiations with the Alaska Build- during the construction work, and that rather than being ing Trades Council. Moreover, Rubin's conduct at the an unoffending neutral party to the dispute, Phost and negotiating sessions with Respondent on July 21 and ALP are allies herein. August 21 does not warrant a contrary conclusion as to Section 8(bX4)(ii)(B), insofar as is relevant herein, pro- his status. Thus, I believe that ALP desired these meet- hibits a union or its agents from threatening, restraining, ings in order to resolve its own lingering contractual or coercing secondary employers, where objects of such problems with Respondent and, in the process, to assure conduct are to force or require a secondary employer to that the construction work at the AWP site proceeded cease doing business with the primary (or disputing) em- free of labor-related disputes. Viewed in this light, it ployer; or to force or require the primary to recognize seems clear that the real bargaining parties were ALP, and/or bargain with the union. As stated by a United represented by Rubin, and Respondent, with Phost as an States circuit court of appeals, Section 8(bX4) ". . was interested observer, and that Rubin was representing the not meant to prohibit primary activity. [It was] directed nterests of ALP, and only peripherally those of Phost, only at secondary boycotts whose 'core concept' is union wen he offered to Respondent, as a counterproposal to pressure directed at a neutral employer." Griffith Compa- telte' eadfra -erpouto gemn ^T al^ ^ T "545 T&Tm ^ (S~~~~r t h e lat""' 8 d e m a nd f o r a 3-ea Production agrement ny, et al. v. N.L.R.B., 545 F.2d 1194, 1199 (9th Cir. wt La1ya osrcincnrc ihPot ?% Incond~ng-fht aun~ha^ ^^ I~i w it h A LP, a I-ea c o n s tr u c t lo n c o n t ra c t wit Phs 1976). In concluding that a union has engaged in conduct ThtRbnsoefrAPialocarrmhscndt violative of Section 8l(bX4Xii)(B), the Board considers~ h t R b 1 s o e f r A P I"cerfo i odc violtiv ofSecton (b)4Xii(B) th Boad cnsiers at the August 21 session wherein he refused to accede to two elements as crucial to the violation: A cease doing a pe r' sd a inas m u "we" h av e no produeto business objective and coercion of the secondary em Draper s demand inasmuch as "we" have no production ployer to achieve the proscribed object. Local 399. Inter w o r k er s at t h e jo b s it e. Finally, my v iew o f Rubin's status national Brotherhood of Electrical Workers (Illinois Bellr as only acting as an agent for ALP is supported by the nTeleponal Brotherhoodpn) 235 ELectRical 555 (IllinoisBell entire circumstances herein-based on its own self-inter- Telephone Company), 235 NLRB 555, 559 (1978); Interna- etAPcnetdt tep oprud hs osg tional Brotherhood of Electrical Workers. AFL-CIO; Local ests, ALP consented to attempt to persuade Phost to sign 134 International Brotherhood of Electrical WorkersAL a lab o r agreement for work at the AWP site; ALP, in AFL-CIO; Local 165. International Brotherhood of Electric f ac t, persuaded Phost to do so; and in view of its desire cat Workers, AFL-CIO (Illinois Bell Telephone Company), t o h av e t he project completed expeditiously, ALP was in 179 NLRB 202, 204 (1969). Regarding the latter point, a pcompete to gain the most by having the sawmill project the Act reaches only threats, restraints, or coercion of acompleted free of labor strife. secondary employer. N.L.R.B. v. Servette, Inc., 377 U.S. However, assuming that Rubin was the "common rep- 46, 55, fn. 12 (1964); International Hod Carriers. Building resentative" of Phost and ALP at the earlier bargaining and Common Laborers' Union of America, Local No. 1140, sessions, a point about which I remain unconvinced, AFL-CIO (Gilmore Construction Company), 127 NLRB R u b in clearly represented only the interests of ALP 541, 545, fn. 6 (1960). during the October 16 meeting with Draper. Thus, prior Herein, as expostulated by counsel for the General to said date, Phost had, independently, recognized and Counsel, the major premise of the complaint-and, bargained to an agreement with the UPIU covering the indeed, the basis for much, if not all, of the legal argu- construction work, and at the meeting Draper, on at ments in the post-hearing briefs-is the alleged unlawful least two occasions, told Rubin that he (Draper) was not and coercive effect of picketing by Respondent at the there to negotiate about Phost but only regarding a new AWP jobsite, if such occurred as threatened by Re- collective-bargaining agreement with ALP. Further, the spondent. What appears to have been overlooked by this subject matter discussed pertained only to ALP and in- approach are the circumstances of Draper's threat. Was volved whether ALP would accept Draper's demand for it directed, as required for a violation of Section a contract with a 3-year term and Rubin's counterpro- 8(b)(4XiiXB) of the Act, to an unoffending neutral party posal of an agreement with ALP for 1 year. Hence, (Phost), to the dispute between ALP and Respondent or while Draper again "assumed" that Rubin also represent- was said threat directed toward the primary or disputing ed Phost at this meeting, it is clear that the only parties party-ALP? In asserting that Draper's conduct was sec- to this meeting were ALP (Rubin) and Respondent. Ac- ondary and directed at Phost, without citing any record cordingly, I believe that, when Draper uttered his threat testimony or other supporting facts, counsel for the Gen- to engage in picketing at the AWP jobsite, he did so to eral Counsel alleges that Attorney Rubin's status was Attorney Rubin as the representative of ALP after that of the "common representative" of both Phost and Rubin, as the representative of ALP, refused Draper's ALP at the October 16 meeting. I do not think that the demand for a 3-year contract. I believe that the forego- record warrants such a conclusion,.ing, in the circumstances of this case, constituted nothing At the outset, there exists not a scintilla of record evi- more than a threat of potentially unlawful picketing di- dence as to the specific authority of Attorney Rubin to rected to a primary or disputing party-conduct which is act as an agent or spokesman for Phost or as to whether not proscribed by Section 8(bX4)(iiXB) of the Act. Cf. such authority was ever represented to Respondent. At Local 399 (Illinois Bell Telephone Company), supra; Gil- most, the record reflects a mere "assumption" by Draper more Construction Company, supra. I do not believe that, that Rubin was the bargaining agent for Phost. Indeed, in any sense of the meaning of that section of the Act, LOCAL UNION NO. 2362, CARPENTERS 903 does not constitute a threat within the meaning of Sec- Rubin identified himself at the hearing as a partner in the tion 8(b)(4)(ii)(B) of the Act as such was "merely inform- law firm which represents ALP and testified that he rep- ative of a dispute which extended to the jobsite," that resented the interest of ALP in contract negotiations ALP has, indeed, maintained a presence on the jobsite with Phost and labor negotiations with the Alaska Build- during the construction work, and that rather than being ing Trades Council. Moreover, Rubin's conduct at the an unoffending neutral party to the dispute, Phost and negotiating sessions with Respondent on July 21 and ALP are allies herein. August 21 does not warrant a contrary conclusion as to Section 8(bX4)(ii)(B), insofar as is relevant herein, pro- his status. Thus, I believe that ALP desired these meet- hibits a union or its agents from threatening, restraining, ings in order to resolve its own lingering contractual or coercing secondary employers, where objects of such problems with Respondent and, in the process, to assure conduct are to force or require a secondary employer to that the construction work at the AWP site proceeded cease doing business with the primary (or disputing) em- free of labor-related disputes. Viewed in this light, it ployer; or to force or require the primary to recognize seems clear that the real bargaining parties were ALP, and/or bargain with the union. As stated by a United represented by Rubin, and Respondent, with Phost as an States circuit court of appeals, Section 8(bX4) ". . was interested observer, and that Rubin was representing the not meant to prohibit primary activity. [It was] directed nterests of ALP, and only peripherally those of Phost, only at secondary boycotts whose 'core concept' is union w he o Respondent, as a counterproposal to pressure directed at a neutral employer." Griffith Compa- telte' eadfra -erpouto gemn ^T al^ ^ T "545 T&Tm ^ (S~~~~r t h e lat""' 8 d e m a nd f o r a 3-ea Production agrement ny, et al. v. N.L.R.B., 545 F.2d 1194, 1199 (9th Cir. wt La1ya osrcincnrc ihPot ?% Incond~ng-fht aun~ha^ ^^ I~i w it h A LP, a I-ea c o n s tr u c t lo n c o n t ra c t wit Phs 1976). In concluding that a union has engaged in conduct ThtRbnsoefrAPialocarrmhscndt violative of Section 8l(bX4Xii)(B), the Board considers~ h t R b 1 s o e f r A P l"cerfo i odc violtiv ofSecton (b)4Xii(B) th Boad cnsiers at the August 21 session wherein he refused to accede to two elements as crucial to the violation: A cease doing a pe r' sd a inas m u "we" have no produeto business objective and coercion of the secondary em Draper s demand inasmuch as "we" have no production ployer to achieve the proscribed object. Local 399. Inter w o r k er s at t h e jo b s it e. Finally, my v iew o f Rubin's status national Brotherhood of Electrical Workers (Illinois Bellr as only acting as an agent for ALP is supported by the nTeleponal Brotherhoodpn) 235 ELectRical 555 (IllinoisBell entire circumstances herein-based on its own self-inter- Telephone Company), 235 NLRB 555, 559 (1978); Interna- etAPcnetdt tep oprud hs osg tional Brotherhood of Electrical Workers. AFL-CIO. Local ests, ALP consented to attempt to persuade Phost to sign 134 International Brotherhood of Electrical WorkersAL a lab o r agreement for work at the AWP site; ALP, in AFL-CIO; Local 165. International Brotherhood of Electric f ac t, persuaded Phost to do so; and in view of its desire cat Workers, AFL-CIO (Illinois Bell Telephone Company), t o h av e t he project completed expeditiously, ALP was in 179 NLRB 202, 204 (1969). Regarding the latter point, a pcompete to gain the most by having the sawmill project the Act reaches only threats, restraints, or coercion of acompleted free of labor strife. secondary employer. N.L.R.B. v. Servette, Inc., 377 U.S. However, assuming that Rubin was the "common rep- 46, 55, fn. 12 (1964); International Hod Carriers. Building resentative" of Phost and ALP at the earlier bargaining and Common Laborers' Union of America, Local No. 1140, sessions, a point about which I remain unconvinced, AFL-CIO (Gilmore Construction Company), 127 NLRB R u b in clearly represented only the interests of ALP 541, 545, fn. 6 (1960). during the October 16 meeting with Draper. Thus, prior Herein, as expostulated by counsel for the General to said date, Phost had, independently, recognized and Counsel, the major premise of the complaint-and, bargained to an agreement with the UPIU covering the indeed, the basis for much, if not all, of the legal argu- construction work, and at the meeting Draper, on at ments in the post-hearing briefs-is the alleged unlawful least two occasions, told Rubin that he (Draper) was not and coercive effect of picketing by Respondent at the there to negotiate about Phost but only regarding a new AWP jobsite, if such occurred as threatened by Re- collective-bargaining agreement with ALP. Further, the spondent. What appears to have been overlooked by this subject matter discussed pertained only to ALP and in- approach are the circumstances of Draper's threat. Was volved whether ALP would accept Draper's demand for it directed, as required for a violation of Section a contract with a 3-year term and Rubin's counterpro- 8(b)(4XiiXB) of the Act, to an unoffending neutral party posal of an agreement with ALP for 1 year. Hence, (Phost), to the dispute between ALP and Respondent or while Draper again "assumed" that Rubin also represent- was said threat directed toward the primary or disputing ed Phost at this meeting, it is clear that the only parties party-ALP? In asserting that Draper's conduct was sec- to this meeting were ALP (Rubin) and Respondent. Ac- ondary and directed at Phost, without citing any record cordingly, I believe that, when Draper uttered his threat testimony or other supporting facts, counsel for the Gen- to engage in picketing at the AWP jobsite, he did so to eral Counsel alleges that Attorney Rubin's status was Attorney Rubin as the representative of ALP after that of the "common representative" of both Phost and Rubin, as the representative of ALP, refused Draper's ALP at the October 16 meeting. I do not think that the demand for a 3-year contract. I believe that the forego- record warrants such a conclusion,.ing, in the circumstances of this case, constituted nothing At the outset, there exists not a scintilla of record evi- more than a threat of potentially unlawful picketing di- dence as to the specific authority of Attorney Rubin to rected to a primary or disputing party-conduct which is act as an agent or spokesman for Phost or as to whether not proscribed by Section 8(bX4)(iiXB) of the Act. Cf. such authority was ever represented to Respondent. At Local 399 (Illinois Bell Telephone Company), supra; Gil- most, the record reflects a mere "assumption" by Draper more Construction Company, supra. I do not believe that, that Rubin was the bargaining agent for Phost. Indeed, in any sense of the meaning of that section of the Act, LOCAL UNION NO. 2362, CARPENTERS 903 does not constitute a threat within the meaning of Sec- Rubin identified himself at the hearing as a partner in the tion 8(b)(4)(ii)(B) of the Act as such was "merely inform- law firm which represents ALP and testified that he rep- ative of a dispute which extended to the jobsite," that resented the interest of ALP in contract negotiations ALP has, indeed, maintained a presence on the jobsite with Phost and labor negotiations with the Alaska Build- during the construction work, and that rather than being ing Trades Council. Moreover, Rubin's conduct at the an unoffending neutral party to the dispute, Phost and negotiating sessions with Respondent on July 21 and ALP are allies herein. August 21 does not warrant a contrary conclusion as to Section 8(bX4)(ii)(B), insofar as is relevant herein, pro- his status. Thus, I believe that ALP desired these meet- hibits a union or its agents from threatening, restraining, ings in order to resolve its own lingering contractual or coercing secondary employers, where objects of such problems with Respondent and, in the process, to assure conduct are to force or require a secondary employer to that the construction work at the AWP site proceeded cease doing business with the primary (or disputing) em- free of labor-related disputes. Viewed in this light, it ployer; or to force or require the primary to recognize seems clear that the real bargaining parties were ALP, and/or bargain with the union. As stated by a United represented by Rubin, and Respondent, with Phost as an States circuit court of appeals, Section 8(bX4) ". . was interested observer, and that Rubin was representing the not meant to prohibit primary activity. [It was] directed interests of ALP, and only peripherally those of Phost, only at secondary boycotts whose 'core concept' is union w he o Respondent, as a counterproposal to pressure directed at a neutral employer." Griffith Compa- telte' eadfra -erpouto gemn ^T al^ ^ T "545 T&Tm ^ (S~~~~r t h e lat""' 8 d e m a nd f o r a 3-ea Production agrement ny, et al. v. N.L.R.B., 545 F.2d 1194, 1199 (9th Cir. wt La1ya osrcincnrc ihPot ?% Incond~ng-fht aun~ha^ ^^ I~i w it h A LP, a I-ea c o n s tr u c t lo n c o n t ra c t wit Phs 1976). In concluding that a union has engaged in conduct ThtRbnsoefrAPialocarrmhscndt violative of Section 8l(bX4Xii)(B), the Board considers~ h t R b 1 s o e f r A P I"cerfo i odc violtiv ofSecton (b)4Xii(B) th Boad cnsiers at the August 21 session wherein he refused to accede to two elements as crucial to the violation: A cease doing a pe r' sd a inas m u "we" have no produeto business objective and coercion of the secondary em Draper s demand inasmuch as "we" have no production ployer to achieve the proscribed object. Local 399. Inter w o r k er s at t h e jo b s it e. Finally, my v iew o f Rubin's status national Brotherhood of Electrical Workers (Illinois Bellr as only acting as an agent for ALP is supported by the nTeleponal Brotherhoodpn) 235 ELectRical 555 (IllinoisBell entire circumstances herein-based on its own self-inter- Telephone Company), 235 NLRB 555, 559 (1978); Interna- etAPcnetdt tep oprud hs osg tional Brotherhood of Electrical Workers. AFL-CIO. Local ests, ALP consented to attempt to persuade Phost to sign 134 International Brotherhood of Electrical WorkersAL a lab o r agreement for work at the AWP site; ALP, in AFL-CIO; Local 365. International Brotherhood of Electric f ac t, persuaded Phost to do so; and in view of its desire cat Workers, AFL-CIO (Illinois Bell Telephone Company), t o h av e t he project completed expeditiously, ALP was in 179 NLRB 202, 204 (1969). Regarding the latter point, a pcompete to gain the most by having the sawmill project the Act reaches only threats, restraints, or coercion of acompleted free of labor strife. secondary employer. N.L.R.B. v. Servette, Inc., 377 U.S. However, assuming that Rubin was the "common rep- 46, 55, fn. 12 (1964); International Hod Carriers. Building resentative" of Phost and ALP at the earlier bargaining and Common Laborers' Union of America, Local No. 1140, sessions, a point about which I remain unconvinced, AFL-CIO (Gilmore Construction Company), 127 NLRB R u b in clearly represented only the interests of ALP 541, 545, fn. 6 (1960). during the October 16 meeting with Draper. Thus, prior Herein, as expostulated by counsel for the General to said date, Phost had, independently, recognized and Counsel, the major premise of the complaint-and, bargained to an agreement with the UPIU covering the indeed, the basis for much, if not all, of the legal argu- construction work, and at the meeting Draper, on at ments in the post-hearing briefs-is the alleged unlawful least two occasions, told Rubin that he (Draper) was not and coercive effect of picketing by Respondent at the there to negotiate about Phost but only regarding a new AWP jobsite, if such occurred as threatened by Re- collective-bargaining agreement with ALP. Further, the spondent. What appears to have been overlooked by this subject matter discussed pertained only to ALP and in- approach are the circumstances of Draper's threat. Was volved whether ALP would accept Draper's demand for it directed, as required for a violation of Section a contract with a 3-year term and Rubin's counterpro- 8(b)(4XiiXB) of the Act, to an unoffending neutral party posal of an agreement with ALP for 1 year. Hence, (Phost), to the dispute between ALP and Respondent or while Draper again "assumed" that Rubin also represent- was said threat directed toward the primary or disputing ed Phost at this meeting, it is clear that the only parties party-ALP? In asserting that Draper's conduct was sec- to this meeting were ALP (Rubin) and Respondent. Ac- ondary and directed at Phost, without citing any record cordingly, I believe that, when Draper uttered his threat testimony or other supporting facts, counsel for the Gen- to engage in picketing at the AWP jobsite, he did so to eral Counsel alleges that Attorney Rubin's status was Attorney Rubin as the representative of ALP after that of the "common representative" of both Phost and Rubin, as the representative of ALP, refused Draper's ALP at the October 16 meeting. I do not think that the demand for a 3-year contract. I believe that the forego- record warrants such a conclusion,.ing, in the circumstances of this case, constituted nothing At the outset, there exists not a scintilla of record evi- more than a threat of potentially unlawful picketing di- dence as to the specific authority of Attorney Rubin to rected to a primary or disputing party-conduct which is act as an agent or spokesman for Phost or as to whether not proscribed by Section 8(bX4)(iiXB) of the Act. Cf. such authority was ever represented to Respondent. At Local 399 (Illinois Bell Telephone Company), supra; Gil- most, the record reflects a mere "assumption" by Draper more Construction Company, supra. I do not believe that, that Rubin was the bargaining agent for Phost. Indeed, in any sense of the meaning of that section of the Act, 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Draper's threat was made to the unoffending secondary CONCLUSIONS OF LAW employer (Phost) either directly or indirectly through a . Phost is an employer and a person engaged in com- "common representative" of that party."0 Accordingly, merce and in an industry affecting commerce within the given the state of the record, and the factors upon which meaning of Section 2(2), (6), and (7) of the Act. counsel for the General Counsel concentrated, he has not 2. Respondent is a labor organization within the mean- proven, by a preponderance of the evidence, that Re- ing of Section 2(5) of the Act. spondent threatened, restrained, or coerced Phost in 3. Respondent did not violate Section 8(bX4)(iiXB) of order to achieve the proscribed object or objects,' and I the Act by threatening ALP with picketing of the AWP shall, therefore, recommend that the complaint herein be jobsite unless ALP agreed to enter into a 3-year collec- dismissed. tive-bargaining agreement. On the basis of the foregoing findings of fact, conclu- sions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I recommend the issuance of 10 The fact that Rubin communicated Draper's threat to Klarquist im- tSe following: mediately after Draper left the office is not determinative. Thus, unlike the situation in which a threat to an employee could reasonably be ex- pected to be communicated to management officials, there is nothing in ORDERS2 the record from which to draw the inference that Draper should have expected Rubin to communicate his threat to Klarquist. To the contrary,e, and is, dismissed in its entirety. Rubin specifically stated that he would communicate Draper's ultimatum to ALP management officials and never mentioned Phost, which party, " In the event that this Order is enforced by a Judgment of a United of course, was not involved at that time. States Court of Appeals, the words in the notice reading "Posted by " I make no findings herein regarding the legality of Draper's threat Order of the National Labor Relations Board" shall read "Posted Pursu- had it been directed toward a neutral party to the dispute between ALP ant to a Judgment of the United States Court of Appeals Enforcing an and Respondent or regarding the picketing itself, if such had occurred. Order of the National Labor Relations Board." 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Draper's threat was made to the unoffending secondaryCONCLUSIONS OF LAW employer (Phost) either directly or indirectly through a P^ is an employer and a person engaged in com- "common representative" of that party."' Accordingly, merce and in an industry affecting commerce within the given the state of the record, and the factors upon which meaning of Section 2(2), (6), and (7) of the Act. counsel for the General Counsel concentrated, he has not 2. Respondent is a labor organization within the mean- proven, by a preponderance of the evidence, that Re- ing of Section 2(5) of the Act. spondent threatened, restrained, or coerced Phost in 3. Respondent did not violate Section 8(bX4)(iiXB) of order to achieve the proscribed object or objects," and I the Act by threatening ALP with picketing of the AWP shall, therefore, recommend that the complaint herein be jobsite unless ALP agreed to enter into a 3-year collec- dismissed. tive-bargaining agreement. On the basis of the foregoing findings of fact, conclu- sions of law, and the entire record herein, and pursuant ------- act tat Rubn commnicatd Drapr's theat toKlarqust 'I to Section 10(c) of the Act, I recommend the issuance of The fact that Rubin communicated Draper's threat to Klarquist im- the following: mediately after Draper left the office is not determinative. Thus, unlike the situation in which a threat to an employee could reasonably be ex- pccted to be communicated to management officials, there is nothing in ORDERK1 the record from which to draw the inference that Draper should havein its entirety. expected Rubin to communicate his threat to Klarquist. To the contrary, Tecmlitsalbadidsisdi t niey Rubin specifically stated that he would communicate Draper's ultimatum to ALP management officials and never mentioned Phost, which party, " In the event that this Order is enforced by a Judgment of a United of course, was not involved at that time. States Court of Appeals, the words in the notice reading "Posted by " I make no findings herein regarding the legality of Draper's threat Order of the National Labor Relations Board" shall read "Posted Pursu- had it been directed toward a neutral party to the dispute between ALP ant to a Judgment of the United States Court of Appeals Enforcing an and Respondent or regarding the picketing itself, if such had occurred. Order of the National Labor Relations Board." 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Draper's threat was made to the unoffending secondaryCONCLUSIONS OF LAW employer (Phost) either directly or indirectly through a P^ is an employer and a person engaged in com- "common representative" of that party."' Accordingly, merce and in an industry affecting commerce within the given the state of the record, and the factors upon which meaning of Section 2(2), (6), and (7) of the Act. counsel for the General Counsel concentrated, he has not 2. Respondent is a labor organization within the mean- proven, by a preponderance of the evidence, that Re- ing of Section 2(5) of the Act. spondent threatened, restrained, or coerced Phost in 3. Respondent did not violate Section 8(bX4)(iiXB) of order to achieve the proscribed object or objects," and I the Act by threatening ALP with picketing of the AWP shall, therefore, recommend that the complaint herein be jobsite unless ALP agreed to enter into a 3-year collec- dismissed. tive-bargaining agreement. On the basis of the foregoing findings of fact, conclu- sions of law, and the entire record herein, and pursuant ------- act tat Rubn commnicatd Drapr's theat toKlarqust 'I to Section 10(c) of the Act, I recommend the issuance of The fact that Rubin communicated Draper's threat to Klarquist im- the following: mediately after Draper left the office is not determinative. Thus, unlike the situation in which a threat to an employee could reasonably be ex- pccted to be communicated to management officials, there is nothing in ORDERK1 the record fbm c ml The complaint shall be, and is, dismissed in its entirety. expected Rubin to communicate his threat to Klarquist. To the contrary, Tecmlitsalbadidsisdi t niey Rubin specifically stated that he would communicate Draper's ultimatum to ALP management officials and never mentioned Phost, which party, " In the event that this Order is enforced by a Judgment of a United of course, was not involved at that time. States Court of Appeals, the words in the notice reading "Posted by " I make no findings herein regarding the legality of Draper's threat Order of the National Labor Relations Board" shall read "Posted Pursu- had it been directed toward a neutral party to the dispute between ALP ant to a Judgment of the United States Court of Appeals Enforcing an and Respondent or regarding the picketing itself, if such had occurred. Order of the National Labor Relations Board." 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Draper's threat was made to the unoffending secondaryCONCLUSIONS OF LAW employer (Phost) either directly or indirectly through a P^ is an employer and a person engaged in com- "common representative" of that party."' Accordingly, merce and in an industry affecting commerce within the given the state of the record, and the factors upon which meaning of Section 2(2), (6), and (7) of the Act. counsel for the General Counsel concentrated, he has not 2. Respondent is a labor organization within the mean- proven, by a preponderance of the evidence, that Re- ing of Section 2(5) of the Act. spondent threatened, restrained, or coerced Phost in 3. Respondent did not violate Section 8(bX4)(iiXB) of order to achieve the proscribed object or objects," and I the Act by threatening ALP with picketing of the AWP shall, therefore, recommend that the complaint herein be jobsite unless ALP agreed to enter into a 3-year collec- dismissed. tive-bargaining agreement. On the basis of the foregoing findings of fact, conclu- sions of law, and the entire record herein, and pursuant ------- act tat Rubn commnicatd Drapr's theat toKlarqust 'I to Section 10(c) of the Act, I recommend the issuance of The fact that Rubin communicated Draper's threat to Klarquist im- the following: mediately after Draper left the office is not determinative. Thus, unlike the situation in which a threat to an employee could reasonably be ex- pccted to be communicated to management officials, there is nothing in ORDERK1 the record fbm c ml The complaint shall be, and is, dismissed in its entirety. expected Rubin to communicate his threat to Klarquist. To the contrary, Tecmlitsalbadidsisdi t niey Rubin specifically stated that he would communicate Draper's ultimatum to ALP management officials and never mentioned Phost, which party, " In the event that this Order is enforced by a Judgment of a United of course, was not involved at that time. States Court of Appeals, the words in the notice reading "Posted by " I make no findings herein regarding the legality of Draper's threat Order of the National Labor Relations Board" shall read "Posted Pursu- had it been directed toward a neutral party to the dispute between ALP ant to a Judgment of the United States Court of Appeals Enforcing an and Respondent or regarding the picketing itself, if such had occurred. Order of the National Labor Relations Board."