United Brotherhood of Carpenters Local No. 1245

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, Local No. 1245, AFL-CIO and New Mexico Properties, Inc. United Brotherhood of Carpenters and Joiners of America, New Mexico District Council of Carpen- ters and Joiners of America, AFL-CIO and New Mexico Properties, Inc. Cases 28-CC-594, 28- CP-167, 28-CC-593, and 28-CP-168 April 22, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On December 7, 1976, Administrative Law Judge James M. Kennedy issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief, and Respondent Union filed a brief in answer thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge: This case was heard before me at Carlsbad, New Mexico, on September 21, 1976,' based on a consolidated complaint issued on August 30 by the Acting Regional Director for Region 28. The consolidated complaint was based on charges filed by New Mexico Properties, Inc. (herein called the Employer) on August 5 and 9 alleging that United Brotherhood of Carpenters and Joiners of America, Local No. 1245, AFL-CIO (herein called Respondent Local), and United Brotherhood of Carpenters and Joiners of America, New Mexico District Council of Carpenters and Joiners of America, AFL-CIO (herein called Respondent District Council and together called Respondents), have I Hereinafter all dates are 1976 unless otherwise noted. violated Section 8(b)(4Xi) and (iiXB) and Section 8(b)(7)(C) of the National Labor Relations Act, as amended, by picketing one of the Employer's jobsites located in Carlsbad, New Mexico. Issues The principal issues are whether or not: (1) The picketing had an organizational or recognitional objective and (2) was conducted in such a fashion as to enmesh neutral employers in the Respondents' primary dispute with the Employer. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondents. The Charging Party did not file a brief. Upon the entire record 2 of the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Employer is a New Mexico corporation, headquar- tered in Carlsbad, New Mexico, where it is engaged as a general contractor in the building and construction industry. During the past year, a representative period, the Employer has purchased goods and materials valued in excess of $50,000 which were transported and delivered directly to its places of business in New Mexico from other States. Respondents admit that, at all times material, the Employer has been and is a person and an employer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(1), (2), (6), and (7) and Section 8(b)(4) of the Act. Il. THE LABOR ORGANIZATIONS INVOLVED Respondents admit, and I find, that at all material times they have been labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Participants and Background Evidence The Employer's president is Odell Spurlin, its general superintendent is Alton "Al" Timberlake, and its job superintendent is Otis D. "Red" Maloney. The Employer, at the time of the incidents alleged to be unfair labor practices, was acting as the general contractor for the construction of a small shopping center located at the corner of Canal and Church Streets in Carlsbad, New Mexico. The project, which consisted of the construction of an Albertson's supermarket, a Revco drugstore, a small bookshop, and a large parking lot, is located on the northeast corner of that intersection. The Employer's corporate headquarters were adjacent to the jobsite, and 2 Both the General Counsel and Respondents have moved to correct certain errors in the transcnpt. They are hereby noted and corrected. 229 NLRB No. 38 236 UNITED BROTHERHOOD OF CARPENTERS, LOCAL NO. 1245 were housed in a preexisting office building on Canal Street approximately 375 feet north of the intersection, and approximately 25 feet behind the building under construc- tion and across an access alley. Respondent District Council's president is Marlin James and its executive secretary is Luther Sizemore. It maintains its offices in Albuquerque. Respondent Local's business representative is David S. Sikes, and its office is located in Carlsbad. Spurlin, who has been a commercial real estate developer for a number of years, testified that in 1970 he was a partner in a development company known as Silver City Properties, Ltd., which was engaged in a commercial construction project near Silver City, New Mexico. At that time he was also half-owner of The Marker Company, which was the general contractor on that particular project. He testified that the Carpenters local union in Las Cruces, a member of Respondent District Council, was then headed by James. He also testified that in 1970 the Las Cruces local picketed Marker at the Silver City jobsite demanding that Marker sign a collective-bargaining con- tract with that local. As James has since become Respon- dent District Council's president, the Charging Party and the General Counsel contend that the 1970 picketing by James' Las Cruces local should be considered as evidence of recognitional objective in the instant dispute because, as shown below, James participated in the decision to picket the Carlsbad jobsite in 1976. B. Respondent Local's Recognitional Overtures The Employer's general superintendent, Al Timberlake, who was unable to be very specific about dates, testified that sometime during the last three months of 1975 he had a conversation with Respondent Local's business represen- tative, David Sikes, at Timberlake's office north of the jobsite. Sikes said the conversation occurred in December 1975 or January 1976. At that time the project had only recently begun and had not yet reached the stage where carpenters would be required. Because the building was to be constructed of steel frame and masonry and did not even require forms for the footings, carpenters were not needed until after the structure's shell was completed. At the time of this particular conversation that stage had not yet been reached. According to Timberlake, Sikes asked if the Employer would like to put some carpenters to work. Timberlake said that they did not yet need carpenters and asked if hiring carpenters would involve more than merely putting them to work. Sikes said yes, that Respondent Local would ask the Employer to sign a standard contract. Timberlake asked to see a copy of the standard contract so that he could give it to his attorfney for review. Sikes, who did not have an extra copy with him, promised to deliver one to Timberlake on the following day, and within a day or two, did give Timberlake a copy. Timberlake said he immediately reported this conversation to Company President Spurlin. Spurlin testified that sometime during November 1975 he had walked into Timberlake's office and found him sitting with Sikes and another individual, apparently a business agent for Respondent Local. He recalls Sikes saying that the Union wanted to provide jobs for its members. Spurlin said that he told Sikes that the Employer wished to hire local people and would use Respondent Local's carpenters if any were available. He also testified that he told Sikes that he would pay the carpenters union scale, whatever it was, but would not sign a collective-bargaining agreement because he did not wish to jeopardize the job opportunities of anyone, whether they were union members or not. Later, Timberlake had two or three telephone conversa- tions with Sikes. Timberlake could not be specific with regard to when these conversations occurred, saying only that the last one occurred sometime during the first three months of 1976. Timberlake and Sikes agree that in those conversations Sikes asked if the Employer had made any decision on whether or not to sign the agreement. During the last conversation, which Sikes said occurred in late March or early April, Sikes mentioned that the agreement which he had given Timberlake earlier had expired and had been superseded by a new one. Timberlake said that he still had not given his copy to his attorney for review and said that, if a new one was in effect, it would be pointless to give his attorney the old contract. Accordingly, he asked Sikes to send him a copy of the new agreement. Sikes said he would. However, at no time did Sikes or anyone from the Union ever actually send Timberlake or Spurlin a copy of the new agreement. Timberlake also testified that at no time during any of these conversations did Sikes ask him what wages the Employer paid its carpentry employees. Sikes testified that, sometime in March, an individual named Randy McDonald came to Respondent Local's offices to inquire about the apprenticeship program. At that time he spoke to Sikes, and mentioned that he was working for the Employer, doing common laboring and some carpentry work. He did not say he was working at the Albertson's project. Sikes testified that McDonald told him that he was paid $2.75 per hour for the common labor and $3.50 or $4 per hour for the carpentry work. In April, according to Sikes, two members of Respondent Local, Bill Folsom and Roy Beeson, told Sikes that they had been to the Employer's Albertson's project and had spoken to a superintendent named Red3 about obtaining carpentry work. Sikes testified that Folsom reported to him that when Red asked how much he worked for, Folsom replied that he worked for the union scale. When Folsom told him what the union scale was, Red replied, "Well, that's more than I make; we usually pay a lead carpenter, or layout carpenter, $5 an hour." Sikes reported this information to Respondent District Council's officials James and Sizemore. C. The Prevailing Wages At the hearing, it was established that the Employer paid its carpenters employed on the Albertson's jobsite $6.50 per hour and its carpenter helpers $6 per hour. As these employees were residents of El Paso, Texas, the Employer also provided them with free housing, which was valued at $50 per week. The Employer did not have either pension or 3 Undoubtedly Red Maloney, the Employer's project superintendent. 237 DECISIONS OF NATIONAL LABOR RELATIONS BOARD health insurance plans, nor did it have a vacation program for which the Albertson's project employees were eligible. The newly negotiated statewide contract between Res- pondents and the multiemployer group contained the following wage and fringe scales as of April 1, 1976: Journeyman carpenters-$8.50 per hour wages, plus $2.20 for fringe benefit programs including vacations, health insurance, and pension plans-a total of $10.70 per hour. Apprentices received, depending upon their level of experience, an hourly wage scale ranging from $5.10 per hour to $8.08 per hour plus the $2.20 fringe contributions, for a total package ranging from $7.30 per hour to $10.28 per hour. The New Mexico State Labor Commission, during 1976, issued, pursuant to the state prevailing wage law, minimum wage rates for public works projects. In March, the commission determined that the prevailing journeyman carpentry rate for the Carlsbad area was $8 per hour plus $2.10 per hour fringe benefits covering vacations, health insurance, and pension plans. Later, in July, that office issued two other decisions in which it determined that the prevailing scale for journeyman carpenters in that area had increased to $8.50 per hour plus fringe benefit contribu- tions of $2.20 an hour. Thus it is clear that, in June, the Employer was paying its carpentry employees significantly less than the wages prevailing in the area. D. The Commencement of Picketing On approximately June 25, Respondent District Council President James told Sikes by telephone to make hotel reservations in Carlsbad for himself and for Marcial Rey, a retired business agent, because Respondent District Coun- cil had determined to picket the Employer's Albertson's project. Sikes did so and, on the morning of June 28, James and Rey arrived in Carlsbad. James brought with him a letter to Spurlin. The letter had been drafted by representa- tives of the District Council, and Sikes had not seen it before. Shortly thereafter, James, Sikes, and Rey went to the Employer's headquarters. James and Sikes delivered the letter to Spurlin, while Rey waited outside in an automo- bile. The meeting between the two union officials and Spurlin took place in a conference room. Aside from greetings, the individuals said little to each other. James explained to Spurlin that he had a letter to give him. While James and Sikes waited, Spurlin read it in its entirety. The letter stated that Respondent District Council had investigated the Employer's wages being paid its carpentry employees at the Albertson's project and had determined that the wages were substandard "i.e., below the wage rates and benefits prevailing in [theJ area. In short, your labor costs do not meet the area standards. We seek only the equalization of competitive advantage between you and other contractors who do meet area standards." The letter then referred to the prevailing wage scales as determined by the U.S. Department of Labor and the State Labor Commission. It went on to say that its information was based on verbal reports and that Respondents had been unable to obtain copies of the Employer's payroll reports. It asked the Employer to supply the Union with appropri- ate documents "to verify or disprove" its present informa- tion. The letter then asserted that the Union did not seek to represent or organize the Employer's employees or to obtain a collective-bargaining agreement; rather, it was concerned only with the payment of substandard wages and benefits. Finally, the letter stated that Respondents intended to engage in peaceful picketing to inform the public of that fact. Sikes testified that, after Spurlin read the letter, he said "O.K." and James then told Spurlin that if he had any questions he could contact the individuals listed in his letter - either Respondent District Council's attorneys or its executive secretary, Sizemore. Immediately thereafter, James and Sikes left Spurlin's offices and instructed Rey to begin picketing. Spurlin decided to notify Job Superintendent Red Maloney that Respondents might picket the job. However, by the time he left his office to find Maloney, Rey had already begun patroling the sidewalks bordering the project on the west and south. The placard carried by Rey read: NOTICE TO PUBLIC NEW MEXICO PROPERTIES, INC. PAYS SUBSTANDARD WAGES & BENEFITS NEW MEXICO DISTRICT COUNCIL OF CARPENTERS That evening the Employer constructed a 36-inch high wire mesh fence around the property and established two reserve gates. The primary gate, known as gate 1, was located on the western border of the property on Canal Street and was immediately adjacent to the Employer's permanent office building. This gate also controlled the alley entrance to the building under construction. The Employer placed a sign at that gate stating that it was for the use of the Employer and its employees as well as its suppliers, and that all other persons must use gate 2. The Employer hired a high school student, Von Burba, to monitor gate 1. The distance from gate I to the corner of Church and Canal was 340 feet. Gate 2 was located on the southern border of the property on Church Street, approximately 225 feet east of the intersection of Church and Canal. Witnesses, however, estimated that gate 2 appeared to be as much as 500 feet from the intersection. The sign at gate 2 stated that it was for the use of all employers, employees, and persons and suppliers other than the Employer and its employees and 238 UNITED BROTHERHOOD OF CARPENTERS, LOCAL NO. 1245 suppliers. It directed persons having business with the Employer to enter through gate 1. 4 The Employer did not place a monitor at gate 2. Respondents' picketing continued until August 16, when it ceased because the Employer no longer had carpenters employed at the jobsite. During the 49 days that Respon- dents picketed the project, there were a number of subcontractors present and performing work. These includ- ed Grinnell Fire Protection, Alameda Electric, Elms Roofing, Greer Construction, Summers Sign Co., Taber Painting, and Woodall Services. Albertson's also hired an electrical contractor, Image National, from Boise, Idaho, to erect a large electric "Albertson's" sign in the parking lot near the corner of Church and Canal Streets. On June 28, the first day of picketing, at separate times, managerial representatives of Grinnell and Sullivan asked Sikes if they should leave the job. Sikes gave them a copy of the letter James had given Spurlin, and told them "No, we are picketing New Mexico Properties only." Spurlin said that the representatives of both firms attempted to contact the unions which represented their employees to find out what to do. Sullivan's employees remained on the job. When the Grinnell employees went to lunch, they did not return until the following day. Thereafter they continued working at the site until they were finished with their portion of the job.5 Also on June 28, the Employer's own carpenters left the job and did not return for several weeks.6 The Employer had ordered some precut doors from Dennison Door Company, and when they were brought to gate I by a common carrier, Whitfield Transportation, the driver refused to enter and make the delivery. As a result, the Employer asked the Whitfield driver to drop the doors at anotherjobsite, where they were picked up and delivered by the Employer's own employees. 7 The single picket, usually Rey, generally confined his patroling to gate I. However, from his vantage point at gate I, he could neither see gate 2, nor the stores' interiors as the west side of the building consisted of a windowless 18-foot- high masonry wall. He could only see 2 or 3 feet into the back doorways of the building because of the oblique angle of vision from the alley driveway. In order to see gate 2, the picket had to walk south on Canal Street to a point approximately even with the southern edge of the building. Even that view was partially obstructed by equipment and supplies stored in the parking lot. To see into the stores themselves, the picket, several times a day, walked to the corner of Canal and Church, sometimes remaining there for as long as 15 minutes. At no time did any picket patrol Church Street or gate 2. They never were closer to gate 2 than 225 feet, the distance between the gate and the corner. However, at some time during the course of the picketing, the Image National employee, under contract 4 On approximately July 30, another union having a separate and distinct dispute with a subcontractor, Alameda Electric, began picketing the project. At that time, the signs were changed to require Alameda also to utilize gate I and to refrain from using gate 2. This change has no beanng on the instant case. 5 The General Counsel does not allege the Grinnell incident to be violative of the Act, undoubtedly because the June 28 picketing was in conformance with the Board's common situs picketing rules and because the publicity proviso to Sec. 8(b)(7)C) is not involved herein. I These were the pnmary's employees and accordingly no violation of vwith Albertson's to install their large electric sign at the southwest corner of the parking lot, the corner in question, decided not to perform that work. The record is unclear regarding what caused his refusal to install the sign. I note, however, that some portion of his work involved electrical connections, and that there was a labor dispute involving Alameda Electric and another union, which occurred during the instant dispute. It may be that the other union's picketing caused Image National to leave the job. Certainly no evidence was adduced tending to show that Respon- dents' activity was responsible. Later, the sign installation was let to Summers Sign Company and, on one occasion, one of Respondents' pickets (not Rey) was seen talking to a Summers employee at the corner. There is no evidence regarding the substance of that conversation. Whatever the conversation was, it had no effect on the Summers employees, because they completed the erection of the sign without interruption. During the entire period of the picketing, the Employer made no complaint to the Respondent that the picketing was in any way improper, although Respondent District Council's letter delivered to Spurlin on June 28 urged him to advise Sizemore if the rules regarding primary picketing were not being followed. Analysis and Conclusions A. The Alleged Recognitional Objective The General Counsel contends that the 1970 recognition- al picketing by another affiliate of Respondent District Council in another city involving another employer should be taken as evidence of a current recognitional object here. He argues that since James was the executive officer of that local union and since Spurlin was a principal of that employer, it is likely that Respondent District Council has continued to have an interest in obtaining recognition from Spurlin and his various businesses. I recognize that there are cases, such as that cited by the General Counsel, United Brotherhood of Carpenters and Joiners of America, Local 745, AFL-CIO (James W. Glover, Ltd.), 178 NLRB 684 (1969), which provide that such remote evidence is admissible as background. Nonetheless, even in that case it does not appear that either the Trial Examiner or the Board relied to any great degree on that evidence. Because the union was engaged in apparent area standards picketing, the Board and the Trial Examiner relied on evidence demonstrating that the union was not really interested in the wages actually being paid by the employer and would not be satisfied until the employer met every term and condition in that union's area collective- bargaining agreement, including recognition and union security. Neither of those factors is present in this case, and Sec. 8(bX4)B) is alleged as to them. In explanation of their departure from the job, I note that the record contains some hearsay evidence that they may have been members of a sister local in El Paso. If so, I speculate that they may have feared some sort of internal union discipline. I The General Counsel does not allege the Whitfield incident to be violative of the Act, undoubtedly because Whitfield was not a neutral, but a supplier of the primary. N. LR.B. v. International Rice Milling Co., Inc., 341 U.S. 665 (1951); N.LR.B. v. United Steelworkers of America [Carrier Corporation], 376 U.S. 492 (1964). 239 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fact that 8-year-old evidence was admissible in Glover does not persuade me that the 6-year-old evidence here should be considered of any probative value, particularly where the earlier dispute occurred in another city, involved another local and another employer. Accordingly, I give no weight whatsoever to the 1970 picketing in Silver City. I do, however, agree with the General Counsel that, in late 1975 and in early 1976, Sikes' approaches to the Employer regarding the Employer's hiring Respondent Local's members and signing a collective-bargaining agreement are conclusive evidence that Respondent Local had a recognitional object at that time. Yet, no such approaches were made after late March or early April when, in response to Timberlake's request, Sikes said that he would forward him a copy of the new agreement. However, Sikes never did so and 3 months passed before the picketing began. Moreover, during the intervening period Sikes learned that Respondent was paying wages and fringe benefits inferior to those negotiated by Respon- dents and inferior to those prevailing in public works projects as set by the State Labor Commission. It was the presentation of this knowledge to Respondent District Council by Sikes that triggered the picketing. In fact, Sikes testified, and there is no evidence to contradict his assertion, that he played no part in Respondent District Council's decision to picket the Employer. As the Board said in Local Union No. 741, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Keith Riggs Plumbing and Heating Contractor), 137 NLRB 1125, 1125-26 (1962): A labor union normally seeks to organize the unorganized and to negotiate collective-bargaining contracts with employers; but it also has a legitimate interest apart from organization or recognition that employers meet prevailing pay scales and employee benefits, for otherwise employers paying less than the prevailing wage scale would ultimately undermine the area standards. Indeed the importance of maintaining area standards as a matter of public as well as union interest was long ago endorsed by Congress by its enactment of the Davis-Bacon Act (40 U.S. Code, Sec. 276a, et seq.) relating to public contracts. It has application, of course, whether or not employees of public contractors are organized or have a collective- bargaining contract. Hence, if a union pickets and says to an employer, "We only want you to pay the prevailing wage scale, but don't want to bargain with you or organize your employees," and there is no independent evidence to controvert this statement of objective, the Board cannot find that the picketing has organization, recognition, or bargaining objectives.' As the Board stated in the reconsidered Calumet Contractors case: 2 Respondent's admitted objective to require the Association ... to conform standards of employ- ment to those prevailing in the area, is not R Even before receipt of this information it had reason to suspect that the Employer was paying inferior wages because of the low wage being paid to McDonald, even though McDonald was not a skilled employee. tantamount to, nor does it have an objective of, recognition or bargaining. A union may legiti- mately be concerned that a particular employer is undermining area standards. It may be willing to forego recognition and bargaining provided sub- normal working conditions are eliminated from area considerations. The question of objectives in every case is one of fact and not of assumptions or presumptions. I McLeod v. Chefs, Cooks, Pastry Cooks and Assistants, Local 89, et at. (Stock Restaurant), 280 F.2d 760 (C.A. 2). 2 International Hod Carriers, Building and Common Laborers' Union of America, Local No. 41, AFL-CIO (Calumet Contractors Association et al.), 133 NLRB 512 (1961) (Members Rodgers and Leedom dissenting); Houston Building and Construction Trades Council (Claude Everett Construction Company), 136 NLRB 321 (1962) (Members Rodgers and Leedom dissenting). However, the Board has also held that, where a union's avowed area standards objective can be shown to be false or otherwise unsupportable, then an organizational or recognitional object can be inferred. See Sales Delivery Drivers, Warehousemen and Helpers Local 296 of Santa Clara and San Benito Counties, California; et al. (Alpha Beta Acme Markets, Inc.), 205 NLRB 462, 469 (1973), and Automotive Employees Laundry Drivers & Helpers Local 88 (West Coast Cycle Supply Co.), 208 NLRB 679, 680 (1974). I cannot conclude, based on the record evidence, that Respondents' picketing here was a pretext and not a legitimate protest against the Employer's payment of inferior wages. Certainly, the General Counsel's citation of Judge Penfield's assertion in Alpha Beta Acme (at 471) that "there must have been an investigation and an evaluation of comparative standards carried out with as great a degree of thoroughness as the circumstances will permit" does not answer the question. The nature and extent of the investigation, in my opinion, need only to be sufficient to accomplish the purpose. Steamfitters Local Union No. 614, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Trumbo Welding and Fabricating Company), 199 NLRB 1026, 1031 (1972). In this particular instance, Respondent Local obtained wage information about the Employer from two of its members, who had dealt directly with the Employer's job superintendent. s There is no obligation, so far as I am aware, that a union in these circumstances is required to verify that information by other means, and that a failure to make such a verification is tantamount to no investigation at all, or that a proscribed object should be presumed because the investigation could have been improved upon. But cf. General Service Employees Union Local No. 73, AFL-CIO (A-I Security Service Co.), 224 NLRB 434 (1976). Accord- ingly, I am not persuaded by the General Counsel's argument that a recognitional or organizational object should be presumed from Respondents' failure to verify the information reported to it by its members. Certainly Spurlin did not tell James and Sikes, on June 28, that their 240 UNITED BROTHERHOOD OF CARPENTERS, LOCAL NO. 1245 information was wrong. Moreover, as I noted above, their information was in fact reasonably correct. However, even if one of the Respondents' objectives was the lawful protest of the Employer's failure to meet the prevailing wage standards, the picketing may be found unlawful if it can be shown by other evidence that another object is proscribed. 9 It is clear that, beginning in the latter part of 1975 and continuing until the latter part of March 1976, Sikes' conduct demonstrated an interest in obtaining a collective-bargaining agreement from the Employer. In view of the 3-month hiatus between Sikes' last inquiry and Respondents' picketing, the question which is presented is whether or not the earlier recognitional object continued through that hiatus period and attached to the picketing. The General Counsel argues that the object of the picketing should be determined by an analysis of all the circumstances surrounding and leading up to the picketing. In his view, such an analysis demonstrates that the picketing had recognition as at least one of its objects. I agree that all the surrounding circumstances should be closely scrutinized and that the objects of the picketing will be discerned from such a scrutiny. The difficulty with the General Counsel's analysis of the surrounding circumstances is that he does not take into proper account the hiatus and the avowed object of the picketing. In order to conclude, as the General Counsel urges, that Sikes' prehiatus statements are evidence of a posthiatus object, I must presume that the Union's object remained the same after the hiatus. Both the courts and the Board have cautioned against this approach. In fact, the concept of a presumption of continued unlawful object, absent evidence to support the presumption, has been clearly rejected. It was first rejected by the U.S. Court of Appeals for the Second Circuit in 1957. See N.LR.B. v. Local 50, Bakery and Confectionary Workers International Union, AFL-CIO, 245 F.2d 542 at 547 (1957). Later, the same circuit adhered to the rule in a 100) case, McLeod v. Chefs, Cooks, Pastry Cooks and Assistants, Local 89 (Stork Club), 280 F.2d 760 at 764 (1960). See also Kaynard v. Knitgood Workers Union, Local 155, International Ladies' Garment Workers' Union, AFL-CIO, No. 67, 64 LRRM 2838 (E.D.N.Y., 1967). The Board, though at first having doubts about this approach, accepted the logic in Local 344, Retail Clerks International Association, AFL-CIO (Alton Myers Brothers, Inc.), 136 NLRB 1270, 1273 (1962), and recently specifically adopted an Administrative Law Judge's decision following those cases, Building and Construction Trades Council of Philadelphia and Vicinity, AFL-CIO (AItemose Construction Co.), 222 NLRB 1276, fn. 2(1976). See also San Francisco Local Joint Executive Board of Culinary Workers, Bartenders, Hotel, Motel and Club Service Workers, AFL-CIO (ABP Enterprises, Inc. d/b/a Perry's), 207 NLRB 199, 204 (1973). Thus, it is fair to say that, in a situation where a union's object is initially unlawful, and it subsequently renounces the unlawful object in favor of a lawful one, there is no presumption that 9 N.L.R.B. v. Denver Building & Construction Trades Council [Gould & Preisnerl, 341 U.S. 675. 688-689 (195 1). 10 Such evidence was found in a case relied on by the General Counsel, San Francisco Joint Board International Ladies Garment Workers Union, AFL-CIO (Romay of California), 171 NLRB 761 (1968). but, as demon- strated infra, is not present here. RomaY, is, therefore, inapposite on its facts. the original object continues absent evidence supporting it.10 Applying that rule, it follows that the burden is on the General Counsel to prove that the unlawful object is continuing. Thus, the question I must answer is whether or not the General Counsel has proved that Respondents here continued to have recognition as an object of its conduct after the hiatus. I must conclude that the General Counsel has not met this burden. First, I note that Sikes never sent Timberlake or Spurlin a copy of the newly negotiated area agreement. Second, there was a passage of nearly 90 days. Third, during the intervening 90 days, Respondents learned that the Employer was not paying wages and fringe benefits to its carpentry employees which met either the standards negotiated by the Union with other employers or the standards as found by the State Labor Commission. Fourth, the Union advised the Employer prior to com- mencing picketing that its object was to protest the Employer's payment of substandard wages and fringe benefits, but that, if it could be shown that it did so, the pickets would be removed. The last observation is, of course, not conclusive,'1 but in the context of this case is in my view significant. As the General Counsel has adduced no other evidence tending to show an unlawful object, I conclude that he has not met his burden of proof. Accordingly, I shall recommend that the 8(bX7)(C) portion of the complaint be dismissed. B. The Alleged Enmeshment of Neutrals The General Counsel contends that Respondents violat- ed Section 8(bX4))i) and (iiXB) of the Act when the picket intermittently left the primary gate and walked with his picket sign to the intersection of Canal and Church Streets. This argument is premised on the General Counsel's view that Respondents did not strictly conform to the common situs picketing rules set forth in Moore Dry Dock. 12 That decision holds that common situs picketing will be presumed to be lawful and primary if it meets the following conditions: "(a) the picketing is strictly limited to the times when the situs of dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer." The parties agree that Respondents complied with rules (a), (b), and (d) and that the question is whether or not Respon- dents complied with rule (c), requiring them to picket places reasonably close to the location of the primary disputant, the Employer herein. When it established the reserve gates, the Employer accomplished two things: First, it separated the neutral employers/persons from the situs of the dispute, and placed their entry point to the jobsite a significant distance away from the primary's entry point. Second, it attempted "H Operative Plasterers' and Cement Masons' International Association, Local Union No. 44, AFL-CIO (Penney Construction Company, Inc,), 144 NLRB 1298, 1300, fn. 2 (1963). 12 Sailors' Union of the Pacific (Moore Dry Dock Company), 92 NLRB 547. 549 (1950). 241 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to limit Respondents' picketing to a place adjacent to the primary's offices and at the primary's entry point. The separation of the primary disputants from the neutral persons at the jobsite by reserve gates is merely a refinement of Moore Dry Dock and received the Supreme Court's stamp of approval in the General Electric case.13 Thus the Moore Dry Dock rules must be adhered to at the reserve gate to avoid a presumption of illegal object. But, the Board said in International Brotherhood of Electrical Workers, Local Union 861, and Arneth Lar4 its agent (Plauche Electric, Inc.), 135 NLRB 250, 255 (1962), that the Moore Dry Dock rules are not to be applied on an indiscriminate "per se" se" basis, but are to be regarded as [evidentiary] aids in determining the underlying question of statutory violation.'4 In fact, the Plauche decision was the Board's response to court criticism that the Moore Dry Dock rules were being applied on a wooden and mechani- cal basis. The General Counsel's theory of this case, too, appears to be an attempt to apply the Moore Dry Dock rules in such a fashion. Respondents were no doubt attempting to picket the project as efficiently as possible. They wished to engage in their right to picket the primary gate, but also needed to be aware of two things: (1) whether primary employees were on the job and (2) whether the neutral gate was being observed. Since, for the most part, Respondents utilized only one picket at the project, it was impossible for the single picket to accomplish all three jobs at once. Certainly, Respondents had the right, if not the obligation under Moore Dry Dock rules (a) and (b), to determine whether or not primary employees were inside the building.15 In order to accomplish that purpose, the picket had to walk to a point where he could see into the building. Second, in order to determine if the neutral gate was being observed by primary employees, he had to walk to approximately the same point. When he did so, however, he lost immediate contact with the primary gate which was being utilized by the Employer and its suppliers. In order to best accomplish all three purposes, the picket chose to walk to the corner with his picket sign. The General Counsel argues that, although Respondents may have had a legitimate need either to see into the building or to see the neutral gate, nonetheless, the picket should have left his sign at gate I. Such an analysis, in my view, is at best unrealistic. First, at no time did Respon- 1S Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO [General Electric Company] v. N.LR.B., 366 U.S. 667 (1961). 14 Accord: N.L.R.B. v. Northern California District Council of Hod Carriers and Common Laborers of America, AFL-CIO; Construction and General Laborers Union Local No. 185, AFL-CIO, 389 F.2d 721, 725 (C.A. 9, 1968). 1S In International Union of Operating Engineers, Local Union No. 450, AFL-CIO (Linbeck Construction Corporation), 219 NLRB 997 (1975), the union tried very hard to comply with Moore Dry Dock, and though it was ultimately vindicated still had to defend against a charge of noncompliance. 16 Local Union No. 227, Amalgamated Meat Cutters and Butcher Workmen of North America, A FL-CIO (Iowa Beef Packers, Inc), 185 NLRB 858 (1970); N.LR.B. v. Associated Musicians, Local 802, AFL [Gotham Broadcasting Corp. (Station WINS)], 226 F.2d 900 (C.A. 2, 1955). 17 The Board, in dealing with alleged transgressions of other Moore Dry Dock rules, such as rule (b), the requirement that the primary employer be present at the site, has treated minor literal transgressions realistically. See cases such as International Union of Operating Engineers, Local 675, AFL- CIO (Industrial Contracting Co.), 192 NLRB 1188 (1971) and International dents' pickets come nearer than 225 feet to the neutral gate (some witnesses thought the gate was even farther away) and no neutrals were enmeshed there. Second, while I recognize that the effectiveness of the picket is not necessarily a measure of its legality,l6 nonetheless there is no evidence that while at the corner the picket had any impact on neutrals either entering the neutral gate or working inside the building. Third, the General Counsel's theory would require a union to go either to the additional expense and trouble of placing a permanent nonpicketing observer at the site or to require a union to temporarily abandon its right to picket while making the necessary observations of the neutral gate and the site. I am aware of no rule of law imposing such a burden on a picketing union. Finally, there is no independent evidence that Respondents attempted to induce neutrals from perform- ing work at the jobsite. Accordingly, I am unable to apply the Moore Dry Dock rules as requested by the General Counsel, for such an application would be, in the circumstances of this case, wooden, mechanical, and unrealistic.' 7 I shall, therefore, recommend that the 8(b)(4)(i) and (ii)(B) portion of the complaint be dis- missed. 18 Upon the foregoing findings of fact and upon the entire record, I hereby make the following: CONCLUSIONS OF LAW 1. New Mexico Properties, Inc., is an employer within the meaning of Sections 2(1), (2), (6), and (7) and 8(b)(4) of the Act. 2. Respondents are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondents have committed no unfair labor prac- tices within the meaning of either Section 8(b)(7XC) or 8(b)(4Xi) and (ii)(B) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 19 The consolidated complaint is dismissed in its entirety. Union of Operating Engineers, Local Union No. 450, AFL-CIO (Linbeck Construction Corporation), 219 NLRB 997 (1975). In those cases the primary's presence at the site was intermittent and unpredictable, in one instance a "cat and mouse" game, and the Board refused to hold the union to strict Moore Dry Dock standards, because of the physical difficulty of doing so. 1i In view of my decision here, it is unnecessary to pass on Respondents' alternative defense that the "related-work" doctrine privileged noncompli- ance with Moore Dry Dock. See General Electric, supra, Oil, Chemical and Atomic Workers International Union, AFL-CIO, and its Local Union No. 4- 23 (Firestone Synthetic Rubber & Latex Company), 173 NLRB 1244 (1968), and the dissenting opinion of Members Fanning and Jenkins in Carpenters Local Union No. 470, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Mueller-A nderson, Inc.), 224 NLRB 315 (1976). 1i In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 242