Local 388, United Association Of Journeymen And Apprentices Of The Plumbing And Pipe Fitting Industry Of The United States And Canada, Afl-Cio

1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 388, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fi*.ting Industry of the United States and Canada, AFL-CIO and Daily Heating and Air Condi- tioning, Inc. Cases 7-CB-5225 and 7-CC-1172 30 July 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 12 March 1982 Administrative Law Judge Robert G. Romano issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-excep- tions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 11 and conclusions and to adopt the recommended Order. In addition to the reasons explicated by the judge, we find that the Respondent's picketing of the Employer was unlawful because it was done to enforce a contract clause which, if alleged, we would find to be violative of Section 8(e) of the Act. The clause at issue prohibits the Employer from assigning any employee to work on a job on which a person is performing work within the Re- spondent's jurisdiction for wages or under condi- tions which are less favorable than those estab- lished in the Respondent's contract with the Em- ployer. Because this provision attempts to influence labor relations policies not within the Employer's control and does not preserve jobs for the Employ- er's own employees, it clearly is a secondary clause which falls within the general prohibition of Sec- tion 8(e).2 While the construction industry proviso permits employers and unions in that industry to enter into union signatory subcontracting clauses that would be unlawful secondary agreements absent the proviso, it is an unfair labor practice for unions to resort to self-help measures such as strikes or picketing to enforce those clauses.3 By 1 The Respondent and the General Counsel have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Or. 1951). We have carefully examined the record and find no basis for reversing the findings. 8 See, e.g., Muskegon Bricklayers Union 5 (Greater Muskegon Contrac- tors), 152 NLRB 360 (1965). 0 Operating Engineers Local 12 (Griffith Ca), 243 NLRB 1121, 1124 (1979), enfd. 660 F 2d 406 (9th Cit. 1981), cert. denied 457 U S. 1105 (1982). extension, a secondary clause that itself purports to sanction such self-help is unlawful notwithstanding the proviso.4 Accordingly, the Respondent errs in its contention that the clause in question here is a "work preservation" provision that provided a lawful basis for its picketing . To the contrary, the picketing was unlawful because it was aimed at en- forcing the clause; and to the extent the clause pur- ported to sanction self-help, it offered merely a basis for an additional unfair labor practice allega- tion, not a basis for immunizing the picketing. Ac- cordingly, the Respondent's picketing to enforce the clause violated Section 8 (b)(4)(i) and (iiXA) of the Act, and the fine assessed against Thomas Benner violated that section as well as Section 8(bXl)(A) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , Local 388, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Lansing, Michigan, its officers, agents, and representatives, shall take the action set forth in the Order. ' See, e.g., Tn-State Building Trades Council (Stark Electric), 262 NLRB 672 (1982). John Ciaromitaro Esq., and George Alexander, Esq., for the General Counsel. Roger A. Rapaport, Esq. (Sablich, Ryan, Rapaport Bobay and Pollolc P.C.), of Lansing, Michigan, for the Re- spondent. DECISION STATEMENT OF THE CASE ROBERT G. ROMANO, Administrative Law Judge. These consolidated cases came on for hearing before me at Lansing, Michigan, on October 5 and 6, 1981.1 The original charges in Cases 7-CC-1172 and 7-CB-5225 were filed on July 10 against Local 388, United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Respondent or Local 388) by Daily Heating and Air Conditioning, Inc. (Daily Heating or the Charging Party). The consolidated complaint issued on July 21, alleging certain violations of Section 8(b)(4)(i) and (ii)(B) and Section 8(bx1XA) of the Act. Respondent filed its answer on August 6, in which it has, inter alia, denied the commission of any unfair labor practices. On the entire record, including the demeanor of the witnesses, and after due consideration of the briefs of the 1 All dates are in 1981 unless indicated otherwise. 280 NLRB No. 141 PLUMBERS LOCAL 388 (DAILY HEATING) General Counsel and Respondent, received respectively on November 17 and 18, I make the following FINDINGS OF FACT 1. JURISDICTION Elizabeth S. Upjohn, doing business as Kalamazoo Artcrafts (Kalamazoo Artcrafts), is a sole proprietorship, engaged in the business of developing various real estate holdings, and Kalamazoo Artcrafts thereafter acts as holding company for the developed (commercial) prop- erties, which it leases. Hoffman Construction Company (Hoffman), with its principal office and place of business in Kalamazoo, Michigan, is engaged in the construction business as a general contractor. Kalamazoo Artcrafts contracted with Hoffman for the construction of a cer- tain building in Lansing, Michigan, to be constructed to specifications of its prospective lessee, Pitney-Bowes, at a cost of some $615,000. Hoffman provided the construc- tion superintendent for such construction, but Hoffman has essentially otherwise subcontracted all aspects of the construction work to some 20 subcontractors, inter alia, to Quality Plumbing, Inc. (Quality Plumbing) for the plumbing and sewer work; to Daily Heating for certain heating and cooling supplies, equipment, installation (ini- tially), and service, as discussed further infra; and to Capital Excavating & Paving Co. (Capital Excavating) for certain stabilized gravel fill and paving work.2 Kala- mazoo Artcrafts has retained ownership of the building on construction completion in July, and in the same month Pitney-Bowes occupied the building as lessee. During material times, Kalamazoo Artcrafts has had annual gross rental revenues of some $430,000, in excess of $400,000 of which revenues were derived from rentals on similar developed commercial properties held outside the State of Michigan. Charging Party Daily Heating, a Michigan corporation, has during calendar year ending December 31, 1980, a representative period, purchased goods valued in excess of $50,000 from points located outside the State of Michigan, which goods were then shipped directly to Daily Heating jobsites located in the State of Michigan. The complaint alleges and/or I find that Hoffman, Daily Heating, Quality Plumbing, Capital Excavating, and the other subcontractors engaged in the construction of the building (Pitney-Bowes building) in Lansing, Michigan, for Kalamazoo Artcrafts, are each, respectively, an employer and/or person engaged in commerce, or in an industry affecting commerce, within the meaning of Section 2(2), (6), and (7) and Section 8(b)(4) of the Act. The complaint further alleges, Re- spondent admits, and I find that Local 388 is a labor or- ganization within the meaning of Section 2(5) of the Act. I further find that Douglas W. Griffith, business manager of Local 388, and Pitney-Bowes jobsite picket Jack Ciucci, during times and for purposes material, were agents of Local 388. 8 Not to be confused with Granger Excavating Co, contracted to per- form certain excavation work II. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Statement of Scope of the Issues 1261 The complaint alleges that Local 388 has since No- vember 1, 1980, had a labor dispute with Quality Plumb- ing, but that at no time has it had a labor dispute with Daily Heating, Hoffman, or any other contractor on the Pitney-Bowes jobsite, and further that commencing on June 11, Respondent Union began (ostensible) area stand- ards picketing of Daily Heating , with whom it had an es- tablished collective-bargaining relationship and did so at a neutral gate reserved, inter alia, for Daily Heating; that on the same day, Griffith threatened Daily Heating with a work stoppage if Daily Heating did not pull its em- ployees off the job; that Griffith at the jobsite also in- duced individuals employed by Daily Heating to engage in a work stoppage ; that as a result of the above, em- ployees of other neutral subcontractors (persons), includ- ing Capital Excavating, have stayed off the jobsite since June 11 and as well that since that time Daily Heating has not returned to the jobsite to complete its work there; and that the conduct of Respondent Union in the above particulars was undertaken with an object to force or require Hoffman, Daily Heating, Capital Excavating, and other persons to cease doing business with Quality Plumbing in violation of Section 8(bX4)(i) and (ii)(B) of the Act. The complaint further alleges that on June 11, Local 388's agents, Griffith and Ciucci, threatened Thomas Benner, a member of Local 388 and an employ- ee of Daily Heating, (a) that Respondent Local 388 would no longer perform its responsibilities as collective- bargaining representative for Benner ; (b) that Benner, if Daily Heating's doors were closed, would never work in the trade in the Lansing, Michigan area; (c) that Griffith has subsequently brought internal union charges against Benner; and that all the above conduct taken against Benner was accomplished by Respondent Local 388 be- cause Benner had crossed (its picket line) or attempted to enter the (Pitney-Bowes) jobsite at a neutral gate, and because Benner had refused to participate in a strike, work stoppage, or boycott, itself alleged to have been unprotected in being in violation of a contractual no- strike clause. The complaint also alleges that such con- duct (the threats and internal charges) under the above circumstances constituted not only restraint and coercion of Daily Heating employees in the exercise of their Sec- tion 7 rights in violation of Section 8(b)(1)(A), but also constituted conduct further violative of Section 8(b)(4)(i) and (ii)(B) of the Act. Finally, contending that Respond- ent Local 388 has a demonstrated record of recividism, or proclivity to violate Section 8(bX4) and (1XA) of the Act, though apparently contention thereon is refined in brief as more precisely to be argued on contended prior 8(bX4) violation, broad remedy is sought. 3 8 For example, of the documents on which the General Counsel would thus rely, they being: G.C Exh. 20, composed of a (1975) formal settle- ment and consent decree , and two (1980) informal settlements; G.C Exh. 21, a third (1981) informal settlement approved on May 22; Board hold- ing in Plumbers Local 388 (Featherly Construction), 252 NLRB 452 (1980); and Case 7-CC-1171, Plumbers Local 388 (Barton Marlow), 262 NLRB Continued 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Local 388 by answer filed herein, howev- er, has denied the commission of any of the unfair labor practices alleged herein, and at hearing its agents have further essentially specifically denied having made un- lawful threats to Daily Heating at its shop, or to Benner at the picket line, thus raising major credibility issue on remarks (central to certain 8(bXl)(A), and indeed 8(bx4Xixii) contentions) attributed to Respondent. Respondent readily concedes that it had a longstand- ing labor dispute with Quality Plumbing over the latter's payment of asserted substandard wages, and further that it had regularly picketed that Company at the Pitney- Bowes jobsite on that account for months earlier, and that it had done so exclusively up until June 11. Local 388 specifically defends that its change at that time to a picketing of Daily Heating at the Pitney-Bowes jobsite commencing June 11 (and carried on for some 7 days) was accomplished because of Daily Heating's breach of contract, and accordingly its picketing of Daily Heating is not to be concluded as violative of Section 8(b)(4Xi) and (ii)(B) of the Act, but rather, so it argues, is well shown of record to have been primary picketing directed openly (and also without having generated any confu- sion) against Daily Heating which had caused their con- flict to arise that day. Local 388 contends that it has conducted all its picket- ing of Daily Heating at the Pitney-Bowes jobsite in full compliance with the Board's previously established re- quirements or criteria for common situs picketing de- signed to insulate secondaries from all but incidental pri- mary picketing effect, as expressed in Moore Dry Dock.4 Respondent contends as well that with the totality of the case's circumstances reviewed, its picketing of Daily Heating was conducted within the purview of the statu- torily prescribed "dual" objective of preserved primary strike or primary picketing activities by a union.5 Thus Local 388 contends that it began its picketing of Daily Heating at the Pitney-Bowes jobsite on June 11 be- cause it was on that day, and in direct violation of an ex- isting contractual obligation then owed to Local 388 that it would not do so, that Daily Heating had instructed an employee (represented by Local 388) to report for work at the Pitney-Bowes jobsite at which Local 388 was cur- rently picketing an employer (Quality Plumbing) for paying substandard wages. Consequently, so argues Local 388, it was only commencing on June 11 that a primary labor dispute (based on breach of contract) exist- ed with Daily Heating. Local 388 initially and promptly sought clarification of the situation which it immediately viewed as a breach of contract from some managerial au- thority of Daily Heating, though to no avail. Contrary to the General Counsel's "no strike" contentions Respond- 126 (1982), an asserted 8(bx4) matter raised as presently pending before another administrative law judge, all the above documents related to 8(bx4), but only the 1975 formal settlement and consent order related to Sec. 8(bx1XA), the latter alone being hardly a basis to support such con- tentions in regard to that section. * Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950); and see New Orleans Building Trades Council (Markwell A Hartz), 155 NLRB 319 (1965), enfd. 387 F.2d 79 (5th Cir. 1967), cert. denied 391 U.S. 914 (1968) s Linbeck Construction Corp. v NLRB, 550 F.2d 311 (5th Cit. 1977); and Mississippi Gulf Building Trades Council (Bay C Anderson Jr.), 222 NLRB 649 (1976), enfd. 542 F.2d 573 (5th Cir. 1976). ent contends that it exercised its guaranteed right as a labor organization to informationally picket a common situs of a valid labor dispute, and that it also promptly pursued contractual justification of its position that the contract had been violated through a grievance commit- tee hearing (with Daily Heating in attendance) afforded the Union under the contract, and that there it prevailed. In addition to denying that unlawful threats were made either to Daily Heating at its shop, or to Benner on the picket line, Local 388 also contends that its member Benner, who was instructed by Daily Heating to report for work on the picketed Pitney-Bowes jobsite and who did so, was not subsequently internally disciplined be- cause he crossed a picket line. However, in its brief, and candidly coming straight at it, Respondent contends that Benner was charged with violation of his oath and obli- gation under Section 162 of the United Association's constitution and bylaws, and that after a fair hearing Benner was found guilty of the charge of working on a jobsite where other nonunion plumbing work was per- formed at substandard wages, hours, and working condi- tions, than those applicable to Local 388, a contended in- ternal union matter; and for which he was disciplined by fore, the reasonableness of which amount it contends is not a relevant factor to Section 8(bXl)(A) consideration. Finally Respondent argues that for any violation of the statute that may be ultimately found to exist herein, such broad remedial relief sought by the General Counsel is wholly unwarranted as generally such a remedy is to be reserved for egregious cases. It is observed that there is no 8(e) allegation charged or raised in the instant complaint and hearing thereon. Nonetheless, the General Counsel does contend in brief, i.e., concerning Section 8(b)(4) that no contractual clause or union bylaw can legalize Respondent's secondary object revealed by the record of forcing a boycott of the Pitney-Bowes jobsite because a nonunion plumbing con- tractor had at one time worked there. 6 Thus in her brief, the General Counsel additionally has contended that on the evidence fording is warranted that Local 388 viewed the (entire) Pitney-Bowes jobsite as "hot" because Qual- ity Plumbing had previously worked there and that (con- trary to Griffith's assertion that Benner could have worked if Quality Plumbing were not there) Local 388 actually did not want Daily Heating or any of Respond- ent's members to work there. The General Counsel also contraargues that internal union discipline for crossing a picket line constitutes a violation of Section 8(b)(1)(A), whether such picket line be lawful or unlawful.? I now 6 Here presumably contention is being advanced based on evidence that Quality Plumbing was not on the job on June 11. In that regard it may be observed Respondent has contracontended at the hearing that it was given to understand that it would be notified when Quality Plumbing would be off the job and in brief that in any event, with intermittent work performance by Quality Plumbing (as is contended was the case), inference should be (only) that the picketing of Daily Heating, at the gate regularly used by Daily Heating, was primary picketing of Daily Heating over their dispute, as Local 388 acted reasonably in view of the fact that Quality Plumbing was also still on the job 7 The General Counsel's reliance is placed on Painters Local 1621 (Ala- meda Glass), 242 NLRB 1011, 1012 (1979); and Mississippi Gulf Building Trades Council, 222 NLRB 649, 650 (1976). PLUMBERS LOCAL 388 (DAILY HEATING) turn to the evidence offered by the parties in support of these various and conflicting contentions. B. Background 1. The construction period Construction on the Pitney-Bowes building began about mid-October 1980. Hoffman supplied the construc- tion project superintendent, Ralph Veld. Veld had been employed by Hoffman for some 7-1/2 years and during that period had been its construction superintendent on some 11 or 12 projects. However, Veld had not previ- ously been superintendent on a project on which a picket line had appeared. Hoffman performed some limited car- pentry service, viz. to enclose windows (because of a late delivery of windows) to seal off snow and inclement weather, but essentially Hoffman subcontracted all the required construction to other companies . Construction was completed in July; and the building was occupied by the lessee, Pitney-Bowes, earlier in July. 2. The jobsite characteristics The project site is essentially one located on a corner lot, bounded on the south by Keystone Street and on the east by Enterprise Street with which Keystone Street perpendicularly intersects at the southeast corner of the lot. The building, as constructed, is approximately 65 feet by 110 to 112 feet, and it runs in its (greater) length south to north. The building's east wall is set off 60 feet from the curb of Enterprise Street, and its south wall is set off 80 feet from the curb of Keystone Street. As of October 30, 1980, there was but one established entrance, an (unfinished) driveway leading from Keystone Street (the Keystone entrance). The Keystone entrance drive- way is located on the west side of the lot, and it is laid out in an essentially northernly direction. It leads into a parking lot area (west of the building) which abuts on the southwest corner of the building where there is lo- cated in the lower west wall a main building entrance which leads to the lobby of the building. There is also an entrance to the building on the east side, but approxi- mately two-thirds up the length of the east wall (north), facing Enterprise Street. Veld's trailer offices were locat- ed on the property, just west of the Keystone entrance. There was a loading ramp constructed on the northern part of the building, but no driveway to it directly from Enterprise Street. There was also a jobsite supply trailer located just north of the northernmost property line, thus off the property. The only access to the above ramp from Enterprise Street would be to go around the supply trailer. It does not appear such an approach was ever used. 3. The prior picketing Quality Plumbing, which employees are not represent- ed by a union, was awarded and has subsequently per- formed the plumbing and sewer work. Quality Plumbing commenced its work in late October 1980. It was on the job initially for 2 weeks in a row, but thereafter, and for unspecified times, was to be found on the job for a few 1263 days, and off for a few days , though it might also be gone from the job for weeks at a time. Doug Griffith, Local 388's business manager for 19 years, and a member of Local 388 for 25 years, was per- sonally aware that Quality Plumbing 's wages and fringe benefits were significantly less than those which had been negotiated by Local 388 with the Lansing Mechani- cal Contractors Association.8 On October 29, 1980, Veld observed Griffith standing by his trailer office , near the Keystone Street entrance. Griffith identified himself to Veld, and according to Veld's uncontradicted testimony at that time said: "I notice you don't have any union plumbers on the job." Veld replied: "Oblviously not." Griffith turned away , saying as he did: "You'll have pickets out here tomorrow." On the next day Local 388 established its picket line by the Keystone entrance. Jack Ciucci, 14 years a plumber and a member of Local 388, regularly per- formed the picket line duty during the period from Octo- ber 1980 through the more material period of June 1981. Ciucci would normally arrive at 7:30 a.m. and picket the jobsite until 4 p.m.9 The picket sign used by Local 388 was 18 inches by 24 inches, and from October 1980 until June 11 it had identified that the Union's labor dispute was with Quality Plumbing. Basis of dispute was infor- mationally stated on the picket sign to be that wages, hours, and working conditions of Quality Plumbing were substandard to the wages, hours, and working conditions negotiated by Local 388, herein referred to as an area standards picketing sign. A few days after the Local 388 picketing started, prob- ably in early November, pursuant to Hoffman home office decision and instruction, Veld established what he described was to be a two (reserve) gate system.' ° He established gate 1 at the Keystone entrance to serve all the "union trade" companies. Gate 2 was established 360 feet away (as measured east along Keystone Street and north along Enterprise Street) to serve the "non-union trade" companies. The gate 2 sign identified an entrance for Quality Plumbing as well as for Anderson Concrete, P & K Steel Service, Clark Foundation, Inc., and Spar- tan Roofing Co. Veld acknowledged that there was no driveway to the building from gate 2, and indeed also ac- s According to Griffith's uncontradicted testimony he had been called by Bob Guthrie, Quality Plumbing's president, and an earlier meeting was arranged at a neutral location in October 1980. Griffith relates that although they did not discuss the Pitney-Bowes project , there was an ex- tensive discussion between them about wages , hours, and working condi- tions as Quality Plumbing was considering signing an agreement. 9 In October 1980, and for some period thereafter, Ciucci was suffering some residual effects from a prior leg injury. Then, and throughout his picketing, Ciucci would normally set a pipe in the ground , place the picket sign in the pipe, and spend his time basically in his parked car, observing the jobsite. Pursuant to union attorney instruction, Ciucci at some point in time began keeping a log of all truck and vehicle visitation to the jobsite, including taking pictures frequently of the vehicles of sub- contractors working the jobsite, inter alia, Quality Plumbing, Daily Heat- ing, and Capital Excavating. io Although all parties are in agreement that the subject of the legality of Local 388's prior picketing (subject of Hoffman's charge, Case 7-CC-- 1162, settled informally May 22) is not an issue herein, nor unfair labor practice finding sought thereon, some facts of the earlier site picketing arrangements are a desirable background for the understanding and eval- uation of the actions of the parties in June 1981 which are in issue. 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knowledged that the site area near gate 2 was left un- graded and impassible by truck or car." However, Veld relates, with some corroboration from Ciucci, that the "non-union trade" employees would park their cars on Enterprise Street and walk from some 50 feet (or more) south of the placed gate 2 to the building entrance on the east side, such entrance being located about 100 feet south of gate 2. Veld has also testified that his idea of the reserve gate 2 was that it permitted entry from all of En- terprise Street and that he so informed the contractors, whose affected employees would walk to work in that general fashion, unless the ground was muddy. Veld also testified that the southeast section of the lot was essen- tially level, and Ciucci credibly confirmed that Quality Plumbing trucks (at least in material time) would enter the jobsite over the curb of Enterprise Street and drive in front of the building, to the west side, but even then not always.12 In late May and early June, Ciucci was carrying on his picket activity at that location, on Enter- prise Street, apparently flowing from an adjustment of earlier charges and if not pursuant thereto, acceptable thereunder which brings us to the Union's renewed pick- eting at gate 1 on June 11, but this time against Daily Heating. C. The Evidence 1. Daily Heating's bargaining history with Local 388 Michael J. Hamilton is currently the president of Daily Heating having been employed for 20 years and served for 5 years as vice president. Stu Hulce, former presi- dent, is currently vice president. There is conflict about when they exchanged corporate positions. Is Daily Heat- r i The area between the building and Enterprise Street was not finally graded until late June. Veld asserted that the area near gate 2 was not graded due to the picketing. However, Granger Excavating was on the jobsite as early as December 1980 and as late as May 1981. I do not find such assertions convincing. ra The General Counsel has established that despite the establishment of gate 2 for, inter alia, Quality Plumbing, Local 388 had until May pre- viously conducted its picketing at gate 1 , and Respondent Union (in turn) contended gate 2 was ineffectively established and maintained . Ciucci tes- tified credibly (with log and pictures contemporaneously taken) that a Quality Plumbing truck entered (or left) the jobsite at Keystone entrance on November 12 and 26 and December 4, 1980, March 20 and 30, 1981, and June 1, 1981, as well as testifying that he did not take pictures of all the times that Quality Plumbing had used the gate 1 entrance in a given week, and being unable to place the date of one additional picture taken while it did so. Again, the legality of Local 388's pre-June picketing is not in issue . However, the foregoing is background rendering plausible Local 388's contention that an arrangement was made for a new location of picketing Quality Plumbing, where it entered normally from Enter- prise Street. Nevertheless, the credible evidence reveals that a Quality Plumbing truck had again entered the jobsite at gate 1 on June 1. Re- spondent did not on that occasion seek to reestablish its picketing of Quality Plumbing at gate 1, but rather had continued to picket on Enter- prise Street near the arranged entrance point normally used by the Qual- ity Plumbing trucks. la Hamilton related (as of the hearing in October) that he had been president for 6 months, which would place him in office as president as early as April. I credit Hamilton's recollection, and find that Kretzinger was simply mistaken in her testimony thereon. (In contrast, Sheila Ann Kretzinger, a dispatcher for Daily Heating, had related that as of June 11 Hamilton was then vice president and Hulce president.) ing is a member of Lansing Mechanical Contractors As- sociation and a party to the current collective -bargaining agreement negotiated by the latter with Local 388, effec- tive June 1, 1980, through May 31, 1982. Both Griffith and Hamilton have testified that all of Griffith's business contacts with Daily Heating were through Hulce. Daily Heating apparently has been continuously signatory, from the earliest times, to contracts with Local 388. In any event Griffith confirms that he has had a business re- lationship with Daily Heating for 15 years, but uncontes- tedly in that period had dealt exclusively with Hulce. 2. Current collective-bargaining provisions, in regard to work preservation and fabrication a. Work preservation clause The current agreement provides in part in article II, section 12, "Work Preservation," as follows: (A) No employee covered by this Agreement will be expected to work or be required to work on any job or project on which a worker or person is performing any work within the said jurisdiction of the contracting Union if said worker or person is performing such work for wages or hours or under any conditions of employment which are less favor- able to employees than those established by this Agreement; provided further that the Employer shall receive notice twenty-four (24) hours before any employeee asserts any right herein contained. The parties hereto agree to meet immediately on re- quest with respect to any matter arising under this paragraph. b. Fabrication Article II, section 13, "Fabrication," in part provides as follows: (A) Refusal to pass through a lawfully permitted picket line will not constitute a violation of this Agreement. (B) As a primary working condition, it is agreed that the following items and work shall be fabricat- ed or performed on the job site or in the shop of the Employer signatory hereto by employees cov- ered by this Agreement. c. Grievance and work stoppage Article XIX provides for a standing grievance commit- tee composed of three members from the Association and three members from the Union, whose declared pur- pose "shall be to adjust any difference which might arise between the two parties" and that the grievance commit- tee shall meet within 48 hours on written notice and (normally) render a decision within 24 hours thereafter. Article XIX, section 5(A), specifically provides: Any violation of this Agreement or any other griev- ance shall not be cause for stoppage of work until PLUMBERS LOCAL 388 (DAILY HEATING) 1265 said violation or grievance has been considered and acted on by the Committee.14 d. Exclusive referral system Article III provides for the Union's operation of an ex- clusive nondiscriminatory referral system with out-of- work applicants registering in three groups and , insofar as pertinent herein, group I covering: All applicants for employment who are qualified journeymen and who have employed as such for five (5) or more years in the area constituting the normal construction labor market. not install the equipment because of the Local 388 picket on the job. Hoffman in the interim made other arrange- ments with Thomas Heating of Grand Rapids to perform the installation. (The record does not reveal precisely when.) According to Hamilton, Daily Heating has per- formed no installation work at the jobsite, and the instal- lation was deducted from the original purchase order from Hoffman. Hamilton was aware the Daily Heating field superintendent had visited the job (only) once, but asserted he was unaware of any deliveries or other visits to that jobsite by his company, though he repeated that Hulce had handled that job and would have been the one to be contacted. (Hulce did not testify herein.) e. The plumbing and sheet metal work involved Griffith has testified, without contradiction that sheet metal work, as well as plumbing and pipefitting work, is involved in the installation of air -conditioning systems and that when there is a plumbing and pipefitting con- tractor and a separate sheet metal constractor , a compos- ite crew is utilized, and that if there is one contractor who has a combination shop , one classification may do it all. Daily Heating has two plumbers, Tom Benner and Dan Alexander, each of whom is a member of Local 388. Daily Heating also employs a (sheet metal) superin- tendent and separate sheet metal workers who would, however, be covered by another contract. According to Griffith's uncontradicted testimony, in regard to the heating and air-conditioning units herein, all the piping work and the work related to the freon , compressors, and pumps was fitters' work. Griffith acknowledged that all the duct work would properly be performed by sheet metal workers. It was uncontested that certain work being performed by Quality Plumbing would be included within "any work within the said jurisdiction of the con- tracting Union." 3. Daily Heating's construction contracts on the Pitney-Bowes jobsite It was in March, according to Hamilton, that Daily Heating had first made its arrangements to perform cer- tain work for Hoffman. Daily Heating was initially to supply, install, and service the heating and air-condition- ing system for the Pitney-Bowes Building, Hamilton did not know if Local 388 had (subsequently) ever contacted Daily Heating to advise that working plumbers inside the job alongside nonunion plumbers who made less wages and hours would be in violation of the collective-bar- gaining agreement, but he did know that Daily Heating had subsequently informed Hoffman that Daily Heating would not be able to install the systems per their original contract. Hamilton also testified that though they did subsequently supply all the materials, Daily Heating did 14 In connection therewith, it may be observed that the preamble to the agreement recites that the agreement, inter alia: .. is for the purpose of preventing strikes, lockouts , sitdowns, or any other method of interfering with or delaying the progress of any work, and facilitating peaceful adjustments of all grievances and dis- putes which may arise from time to time between the parties of this Agreement, and for the further purpose of advancing and promoting the best interest of all persons engaged in the plumbing , heating and piping industry within the jurisdiction of Local Union No. 388. 4. The Union's supported observations Griffith testified that in early spring he was made aware (through a friendly operating engineer) that two big air-conditioning units on the roof had been supplied by Daily Heating. Ciucci testified that on May 20 a Daily Heating truck parked at the curb , and a man then came up to him and asked Ciucci if it was alright if he went on the jobsite. Ciucci told the man that it was fine as far as he was concerned, that he did not care what he did. Ciucci related that he observed the man go onto the jobsite, first into the building, and then to Veld's trailer office. The man remained about an hour on the jobsite and then left. Ciucci had observed that the man had car- ried no tools onto the jobsite. Ciucci also did not see the man do any work, though Ciucci could not observe the inside of the building because of the window barricades. Ciucci further relates that the Daily Heating superintend- ent came to the jobsite on May 22 and went into the trailer. Again he saw no tools brought on the job, nor did he observe work done. Ciucci could not recall how long the Daily Heating superintendent had stayed on the job on that occasion. However, on May 26, Ciucci ob- served a Daily Heating 1 -ton white van with blue cab (a Daily Heating deliver truck) enter the jobsite via Key- stone gate 1 entrance and park by the southwest comer of the building. Ciucci, from a distance of 100 feet, ob- served Daily Heating deliverymen unload sheet metal material for about an hour. Again Ciucci observed no tools were brought on the job. On May 29 a Daily Heat- ing van again came to the jobsite and entered at gate 1. Ciucci relates he figured it was the superintendent, but Hamilton testified that the superintendent regularly drove a pickup not a van. Again Ciucci observed no tools, and no work performed . On June 8 Ciucci again observed a Daily Heating van had entered the jobsite, and the man went to the trailer (Ciucci presumed) check- ing the job out as previously, and then left the site. Again no tools or work performance was observed. Grif- fith confirmed personal awareness that the Daily Heating sheet metal superintendent was on the job several times. Griffith presumed therefrom that Daily Heating was going to do the sheet metal work. The Union was not notified to the contrary. 15 In any event, there was no picketing change in this period. 's Griffith testified in that regard that he had not asked Hulce about the sheet metal work, indeed, that he had never called Hulce to find out Continued 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The questioned extent of Hamilton's awareness Hamilton initially testified about awareness of only one jobsite contact by his superintendent. However, Hamil- ton acknowledged the described 1-ton white blue cab, white box as his company's delivery truck, but asserted he was unaware that it had made a delivery through gate 1 on May 26, and asserted he was unaware also that a Daily Heating truck was sent there on May 20 or 22, or what they contained, or if they delivered. Hamilton ac- knowledged that his plumbers do not drive the above 1- ton truck delivery truck. Although Hamilton testified that Daily Heating did no installation at the jobsite, he only belatedly acknowledged that all the sheet metal ma- terials for the job had been fabricated at the Daily Heat- ing shop for Hoffman; though he elsewhere relates the contract arrangement was that Thomas Heating would bring to Daily Heating the list of materials that were to be fabricated. According to Hamilton the fabricated parts were generally picked up by Hoffman or Thomas Heating. Hamilton continued to assert his own lack of knowledge about any Daily Heating delivery of the fab- ricating parts. There is no evidence that the Union was aware, or had reason to know of the fabrication arrange- ments made by Daily Heating. Hamilton categorically denied that his company has any relationship to Quality Plumbing. Hamilton otherwise testified that he had no subcontract with Thomas Heating, possessed no right to control the method of installation, and that he had sent no foreman to give Thomas Heating instructions about how to correctly install the equipment or the fabricated equipment. Hamilton testified that Russell Decess dis- patched and/or made warehouse deliveries (e.g., in regard to sheet metal). Decess was not called to testify. However, Veld has confirmed Hamilton's testimony that prior to June 11, Daily Heating had performed no work on the jobsite, but has not testified concerning deliveries. In any event, it is clear and I find that Daily Heating made several visits and deliveries, prior to June 11, through gate 1, and that throughout the foregoing, Local 388 did not seek contact with Daily Heating, nor change its place of picketing until June 11. 6. The events of June 11 a. The assignment of Thomas Benner Thomas Benner, who has worked 8 years for Daily Heating, has also been a member of Local 388 for 6 years. On the morning of June 11, Benner received an assignment from Service Manager Preston to repair a heating and air-conditioning unit on the roof. (Preston did not testify.) According to Benner the unit was one that had been damaged in shipment . Benner has related his understanding was that Daily Heating had a contract with Carrier Air Conditioning to repair such damaged equipment. However, as noted, Hamilton has testified that Daily Heating had a contract with Hoffman to serv- ice the equipment that it had originally supplied to that what work he had and further that from no source was he ever made aware that Daily had the original instal ation work, but was not going to do it jobsite, but declined to install because of the Local 388 picket, discussed further, infra. Benner recalls that he arrived at the Pitney-Bowes job- site about 9:05 a.m. Benner initially drove to the intersec- tion of Keystone Street and Enterprise Street where he observed that there was a Local 388 picket, seated in his car on Enterprise Street, with a Quality Plumbing picket sign visible in front of the car. Benner immediately re- ported that circumstance back to his home office by radio to find out if it was definitely okay for him to go on the jobsite. Thereafter, Benner parked his van on Keystone Street within 20 feet of the driveway. Benner then entered through Keystone gate 1 , having been told it was a two-gate system and that as long as he went in the Keystone gate 1 , there would be no problem. Benner took his tools up on the roof and began work on the repair of the unit. Benner did not see Griffith that morn- ing until about 11 a.m. when from the roof he observed Griffith standing talking to Ciucci. After a while, he looked again and noticed that Griffith was gone. b. Gucci's observation and report Ciucci testified that he had observed the Daily Heat- ing truck come to the jobsite in the morning of June 11 and park at the curb on Keystone Street. Ciucci ob- served the Daily Heating employee , recognized by Ciucci as being a Local 388 member, take tools out of the truck, and he observed the employee make a couple of trips from the truck to the building. Ciucci also recog- nized a brazing torch, wrenches, and toolbox were taken on the jobsite. Ciucci has described the same, without contradiction, as being a pipefitter-plumber's tools. Ac- cording to Ciucci when Griffith arrived at the jobsite t a (recalled by Ciucci as being between 11 to 11:30 am., but by Griffith, and more likely, between 10 to 11 a.m.), Ciucci reported that there was a member on the jobsite, and shortly after that report, Griffith left the jobsite. Griffith confirmed that when he arrived at the jobsite, that Ciucci had reported to him that Ciucci was pretty sure that one of their members, a plumber, was on the job doing work, though he did not know who it was. However, Ciucci has testified that he knew the man as Tom. I infer and find Ciucci would have reasonably passed that information also on to Griffith. Griffith has otherwise acknowledged that he felt at the time that Daily Heating should not have had someone working on the job, while an employer, doing plumbing work, was not providing the wages, hours, and working conditions that Local 388 had negotiated . However, Griffith relates that Ciucci was not sure what the Daily Heating plumb- er was doing on the job, and they could not see him ac- tually working. c. The Union's notification in regard to Quality Plumbing's presence on the jobsite Veld's testimony was revealing, if not inconsistent, in regard to Quality Plumbing work and departure. Thus, although Veld has testified at one juncture that his office 16 Griffith has corroborated Ciucci that Ciucci did not call him to the jobsite, and Griffith testified that he normally visited this jobsite daily. PLUMBERS LOCAL 388 (DAILY HEATING) had notified the NLRB Regional Office between June 11-17 with intent that the Union be notified that Quality Plumbing was off the job , and more pointedly, at one point, that there was no question in his mind that during the week during which Daily Heating 's name was placed on the picket sign that Quality Plumbing was not work- ing, Veld later testified (from daily records kept of the subcontractors' operations on the jobsite) that Quality Plumbing had worked on the jobsite on June 10 and did so again on June 15. That Quality Plumbing theretofore worked intermittently is not open to serious question. Significantly, the Union was never notified by Veld (or Hoffman or Quality Plumbing) directly of Quality Plumbing's temporary or permanent departures from the jobsite, nor is it affirmatively shown by anyone before the Union's receipt of a certain letter dated June 19 (Friday). 17 d. Griffith 's attempts at an immediate contact of Daily Heating Griffith has testified, also without contradiction, that he had first called Daily Heating on the phone, identified himself, and asked for Stu Hulce, whom Griffith (still) understood to be boss, and who had been the man with whom he had always done business . Griffith was in- formed that Hulce was not in . Griffith asked for some- one else who was responsible for the place , but no one "seemed" to be in. However, Griffith was told that Hulce was expected to come in to the office later. Grif- fith relates that he subsequently went out to Daily Heat- ing's office to pursue discussion of the matter with Hulce. There is much conflict about what actually tran- spired when Griffith arrived there. On Griffith's arrival at Daily Heating (as he recalled), about I1 a.m., Kretzinger asked Griffith if she could help him. Kretzinger's recollection was that Griffith had not asked to speak to anyone, but just demanded to know who was on the job. ' 6 Thus Kretzinger relates that Grif- fith had slammed his fist down and asked her: "Who in the hell do you have working down at Pitney-Bowes?" Kretzinger replied she did not know, but it was probably one of the servicemen . Griffith asked who it was. Kret- zinger replied just a minute, the manager was not in, she would inquire of someone. After the bookkeeper had identified Griffith to Kretzinger at Kretzinger's request, Kretzinger informed Vice President Hamilton that Grif- fith was there, and he wanted to know who was working down at the Pitney-Bowes jobsite. According to Kret- rT Thus in a Regional Office letter to the Union dated June 19, ad- dressed to the Union's attorney of record, the Union was (of record) first advised, only in regard to earlier (settled) Case 7-CC-1162 that "Ac- cording to the Charging Party (therein Hoffman), the primary employer, Quality, is off the job and had been using the entrance designated for it while it was still on the job." In the later regard, I note in passing that Veld has also acknowledged at hearing herein that a Quality Plumbing foreman, driving a marked pickup, had used the Keystone gate I en- trance at least once a month and as often as every 2 weeks. Veld offered as explanation that the Quality Plumbing had not done any work on those occasions. is Kretxinger described her duties as answering the phone and waiting on customers at the counter, though presently she sets up calls for the servicemen (plumbers/fitters) and dispatches them. However, at that time Robert Preston, service manager, regularly dispatched the servicemen. 1267 zinger, Hamilton instucted Kretzinger to tell Griffith (only) that she knew nothing about it; and that Stu Hulce could handle the matter as Hulce knew what was going on with the pickets. (Hamilton belatedly confirmed that Griffith was in the office, but that he directed Kretzinger to tell Griffith to talk to Hulce.) Kretzinger returned to Griffith, and told him that she did not know anything that was going on. Kretzinger relates that Griffith then said that he knew who the man was down on his picket working, that it was Tom Benner who was one of his union employees, and that Benner had no right to be on the picket. Kretzinger repeated she did not know what was going on, and that she would check into it and find out and do what she could about it. According to Kret- zinger, Griffith then said, "[s]omebody better get their head out of their ass and pull the man off the job, or he is going to be fined a thousand dollars." Kretzinger also (though more tentatively) recalled that Griffith said he would close the doors for it. Kretzinger reported back to Hamilton who instructed her to contact Hulce, which she was able to do at noontime. Griffith's version is that he had arrived at Daily Heat- ing some time after 11 a.m. and testified that he first asked the young lady (Kretzinger) for Stu Hule, but that he was told that Hulce was not in. Stating that he had called earlier and that Hulce was supposed to be there, Griffith then asked if there was anybody (else) there with authority. Kretzinger went to the back, returned, and said there was no one there. According to Griffith, the point of his visit to Daily Heating was to talk to Hulce to find out why they were working on that (Pitney-Bowes) jobsite. Griffith admits that by this time he (already) felt that Daily Heating was violating their contract. Confirming that on inquiry he was told that there was no one with authority there, Griffith also ac- knowledged that he was upset, and his version continued that he then told Kretzinger: "Well perhaps if I close this place down, I can find somebody that can tell me what is going on." Griffith explained that he hoped by saying so that he would be able to get to talk to some- body in authority about it. According to Griffith as he left, he also said, "When Stewart [Hulce] comes in, have him call me-." Despite Griffith's visit and noon contact with Hulce by Kretzinger, Griffith gave uncontradicted testimony Hulce did not call him later that day, indeed has not thereafter. Griffith has otherwise denied that he asked Kretzinger who the employee was that was working, though he frankly admits that it was his intention to ask someone else (management) who was on the jobsite, and specifi- cally denied pounding his fist. Griffith has ft r4her denied that he told Kretzinger that he was going to find Benner $1000 (asserting that he has no authority to fine) or that he said that Benner should get his head out of his "ass." Although Griffith at one point appears to have momen- tarily hedged to the extent of assertion that to have the man removed was not exactly or a part of the reason for going down to Daily Heating's shop at that point in time, but to talk to Hulce, I find the more plausible ex- planation was Griffith's otherwise candid acknowledge- ment that it was his normal procedure to make an initial 1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inquiry about the person working on such a jobsite to see if he could get the other side (management) to agree to having the person removed. It is preliminarily concluded and found that Griffith went to Daily Heating's shop on June 11, primarily to talk to Hulce, who was his normal contact with that company, to find out why Daily Heating had sent a plumber to work on the Pitney-Bowes jobsite, in appar- ent breach of their contract, and as well to make a re- quest for the man's removal. Despite having called earli- er and being informed that Hulce would be in later, when Griffith arrived at the shop, he inquired after Hulce and he was again told that Hulce was not there. I am persuaded by the weight of credible evidence that there was a subsequent inquiry by Griffith concerning availability of someone else in management to talk to him on the matter, but that after Kretzinger's departure and return Griffith was told by Kretzinger only that she did not know anything about it, from which Griffith (reasonably) concluded it seemed that no one was there, though Hamilton was present at the time.19 I further conclude and find it to be far more plausible than not that Griffith during the conversation threatened a possi- ble closure of the Daily Heating shop as a stated incen- tive to get management to be available to talk to him about the situation as he relates, rather than as Kret- zinger appears to recall was tied to enforcement of a Benner fine. Nonetheless, I am convinced that Griffith at this time did make inquiry for confirmation of who was on the job, and request for management's removal of the plumber, and gave notice alternatively that a $1000 fine is going to be imposed on Benner, whether Benner was actually named or not.20 I do credit Griffith that he re- 19 Although Kretzinger expressed no recollection of a mention of Hulce being made by Griffith, I view it as simply implausible that Grif- fith, in circumstances of prior uncontested call for Hulce, took notice of Hulce's anticipated return and Griffith's present visit to the shop, and that Griffith would not have made the initial inquiry after Hulce and rea- sonably for someone else with Hulce 's continued absence. Had Griffith been interested in only a confirmation of Ciucci's and Griffith's (I find) already reasonably suspected Tom Benner's presence on the jobsite, it would seem Griffith could as well have made appropriate inquiry over the phone, or observe departure. Moreover, Hamilton's assertion that he had directed Kretzinger to tell Griffith to talk to Hulce was not corrobo- rated by Kretzinger and, with Griffith's credited distress over inability to talk to management, her additional relations about subsequently telling Griffith that she would try to find out about it and do what she could is neither convincing that an instruction by Hamilton had been followed that she tell Griffith to talk to Hulce because he knew about the pickets, nor even indicate a willingness to reveal that Hamilton was there at the time. In short there are simply too many points of inconsistency to fully credit Kretzmger's recollection or Hamilton's account in this area so Finding made is based on facts deemed more supportive of Kret- zinger on this matter, than Griffith's denials which did not squarely meet Kretzinger's testimony. In addition to the latter, Griffith admitted to being upset at the time over the presence of a plumber on the jobsite (long picketed by Local 388) and in his view accomplished by Daily Heating in direct breach of their contract, and Griffith was frustrated as well over his inability to talk to Hulce, or any other member of manage- ment, including thus inability to follow his usual procedure with them of requesting management for the removal of the man from the job. Under all the above circumstances I find it to be more plausible than not that Griffith said to Kretzinger during their conversation, whether or not ac- companied by a fist pounding and actual identification of Benner by name, as she otherwise does credibly relate was more colorfully stated, that someone (management) had better get more reflective, and pull the man off the job, or he is going to be fined $1000 (as is made to appear quested that Hulce call him, and that he gave his tele- phone number to Kretzinger for that purpose. As noted after reporting to Hamilton, Kretzinger made her report to Hulce about noon time. e. The Daily Heating picket line established After Griffith left Daily Heating , he first returned to his office. He received no return call from Hulce. At his office Griffith had cut a new name insert for the Union's area standards sign then in use. Griffith next returned to the jobsite, inserted the name of Daily Heating (and, in so doing, completely obscured the name of Quality Plumbing). Griffith then moved the Union's picket from its Enterprise Street location to gate 1 located by the Keystone driveway entrance . Although Union Contrac- tor Daily Heating (one of several) was not named on the gate I sign captioned "Entrance For All Other Trades," it is uncontested that Daily Heating had been and was to use gate 1 on Keystone Street. Griffith remained on the newly established picket line until 2 p.m. On later checking his office, he still did not hear from Hulce, nor had he as of the date of the hear- ing. Griffith has testified that the reason for the Union's change in picketing of the Employer at this time was be- cause Daily Heating was thought by the Union to be violating its current working agreement in that Daily Heating was allowing or forcing members of Local 388 to perform work on the same jobsite along with people other than members of Local Union 388 who were (known by him to be) doing the same or similar work as Daily Heating does (but for less pay), thereby breaking down Daily Heating employees' working conditions es- tablished in the contract, viz that employees would not be expected or required to do so. Griffith has testified in the latter regard that if Quality Plumbing was not working on the jobsite at the time, there would have been nothing wrong with Benner working on the job. Griffith, however, has testified, and I conclude and find under all the circumstances , credibly so, that it was his understanding at that time that any time Quality Plumbing was not to be on the job, the Union was supposed to be notified by wire, or mail, that Quality Plumbing would not be present on the job.21 The Union has not sought to contest the testimony of Veld to the effect that Quality Plumbing was not work- ing on the Pitney-Bowes jobsite specifically on June 11. However, Veld has also confirmed that Quality Plumb- ing had last worked the jobsite on but the prior workday clear in the record was frequently disciplinary action that had resulted in many prior such cases). 91 In this respect, to the extent such may appear to be claimed of record, I find Griffith (as far as this record shows) is unsupported in as- cribing as a basis of his understanding, terms of some written agreement. Nonetheless, I am overall persuaded and convinced from the remainder of his testimony of having obtained to such an understanding from having listened to a related telephone conversation between his attorney (in his presence) and staff of the Regional Office, that a basis for such claimed understanding existed . In any event I credit Griffith that he un- derstood in material times that notice of absence or departure of Quality Plumbing from the jobsite would be afforded the Union , as the same ap- pears both plausible , and credible, under all the circumstances of record. PLUMBERS LOCAL 388 (DAILY HEATING) June 10 and as noted Griffith has testified , without con- tradiction, that the Union was not notified by anyone that Quality Plumbing was not going to be on the jobsite on Thursday, June 11. Quality Plumbing clearly had a jobsite history of intermittent work attendance. The record is also clear that Quality Plumbing had not com- pleted its work as of June 11, as it was established that it was again working in the jobsite (at least) on Monday, June 15. The General Counsel established, and Griffith ac- knowledged, that the picket sign's language on June 11, apart from the change made in the Employer's name from Quality Plumbing to Daily Heating , was otherwise exactly the same as had been theretofore used by the Union to publicize its dispute with Quality Plumbing on that jobsite, in short area standards picketing language, and it is clear that Daily Heating had not altered its wages and hours from contract standard . Griffith con- tends that the sign used was an informational picket sign, that Daily Heating had violated its contract in regard to the employees' (established) working conditions; and with Griffith further asserting that although the sign used did not specify that violation of contract was in- volved, it was the standard sign that the Union used in all such matters and did reference expressly, though inter alia, working conditions, as was specifically therein in- volved. Griffith candidly admitted that one purpose of the Daily Heating picket establishment at gate 1 against Daily Heating probably was so Daily Heating employees would not cross the Union's picket line to go to work on the jobsite, but otherwise contends that was their deci- sion to make, just as would be any (subsequent) removal of its employees by Daily Heating , be a matter up to the Employer. f. The Benner-Griffith confrontation on June 11 Benner testified that about 12 noon on June 11 when he was returning to his truck for more tools he observed Griffith and Ciucci standing in front of his truck with the picket sign naming Daily Heating . Griffith has con- ceded that he already knew that the Daily Heating plumber on the jobsite had to be either Tom Benner or Dan Alexander (both members of the Union); but that the first time he had actually known for sure that it was Benner who was on the jobsite was when he observed Benner come out the front door of the building and walk towards them.22 Benner testified that, as he approached, Griffith asked him what the "hell" he thought he was doing on the job and that he told Griffith that he had been sent there by Daily Heating to repair a unit on the roof. Griffith's ver- sion of the commencement of their conversation was that when Benner had first approached him, he had initially aY I do not view it as thereby rendered implausible or inconsistent that Griffith had earlier asked Kretzmger during their conversation who was on the job, and then stated that he knew it was Tom Benner as Kret- zinger has recalled, in the light of Ciucci testimony that he had recog- nized the man as a member he knew by first name Tom only, and Grif- fith's knowledge of the two union members employed by Daily Heating. Veld's recollection of not having seen the new picket sign naming Daily Heating until some 2 hours later does not warrant discredit of Griffith, Gucci, and Benner relative to an earlier display. 1269 greeted Benner. Griffith also confirmed essentially that he had then asked Benner, and that he did so snappily, what in the "hell" are you doing in there ; with Griffith offering an explanation, at hearing, that the latter had just been an impulse question on his part, as he really could not understand (at that time) what Benner was doing in there. Griffith's further recollection was that Benner had replied that he was working; and that Benner had then asked Griffith: "Are you gonna tell me not to work in there?" Griffith has testified that he specifically told Benner at that time that he was not going to tell Benner (to do) anyting. Although Benner's recollection disclaims that he asked Griffith if he should work or not, he has (regarding the remainder) essentially confirmed Griffith in that Benner has testified that Griffith did not tell him to leave the job . Benner has however also testi- fied that Griffith did tell him that it was illegal for Benner to be working behind the picket line, though ac- knowledged Griffith did not specify to him a claim that it was a violation of the collective-bargaining agreement for him to work on a jobsite where there were plumbers working who were making less than scale in regard to wages, hours, and working conditions (below area stand- ards). Griffith has acknowledged that Benner did not tell Griffith that he was forced or coerced. I do not credit Griffith's denial that Benner had said he thought he could work because it was a two-gate system. Ciucci, at least at one juncture, has revealed that Benner had told Griffith that he had thought it was okay to work on the job. Although Benner does not specifically affirm same as said to Griffith, Benner has testified compatibly there- with that before going on the job he had checked his office and his understanding was it was okay because it was a two-gate system. Benner did testify that Griffith told Benner that Benner should get it into his head that he was working for Local Union 388 and not Daily Heating, and that Benner should have called Griffith before going on that job, the latter assertion being one not specifically denied by Griffith, though the former was. I conclude it to be more probable than not that Benner, having made the prior inquiry of his own home office, early on in the conversation told Griffith that he had thought it was okay to work the job , as Ciucci has at least momentarily revealed;23 probably did ask Grif- fith (essentially), "are you going to tell me now I shouldn't work" as Griffith recalls; that during the dis- cussion Griffith told Benner that he should have called the Union before going on the job, but that he also told Benner that he was not going to tell Benner what to do at that point. There is major testimonial conflict and difficulty with resolution of the remainder of their conversation urged as 8(bXl)(A) threats and 8(bX4XiiXB) inducements. First, only with a recollection refreshed, had Benner testified, and Griffith, with corroboration of Ciucci, has subse- quently firmly denied that Griffith also told Benner at this time that there had been some $9000 spent previous- ly in attorney's fees and for picketing on that jobsite. 99 I do not extend finding (despite plausibleness thereof) that Benner stated the reason (because it was a two-gate system) only inasmuch as no one appears to have testified affirmatively thereto. 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Ciucci has testified that he has recieved no pay for pick- eting.) According to Benner, Griffith also told him that Local 388 h.d been good to Benner , but at this time ev- erylg was over;84 and that if Daily Heating's doors ever closed, Benner could not work any place else in Lansing. Griffith has categorically denied making the threat to Benner that if Daily Heating closed its doors Benner would not work again in Lansing , and Ciucci has firmly corroborated that there was no such statement ever made. In further support of his denial of having made such a threat to Benner, Griffith also testimonially pointed out that the contract explicitly provides for operation by the Union of a nondiscriminatory exclusive referral system, and he testified as well that he cannot in anyway, shape, form, or manner keep a laid-off plumber from obtaining employment under the terms of that contract. In con- trast, on this very aspect, Benner's testimony was that he was familiar how the Union's hiring hall system worked, describing it as being that the name is put on a list of un- employed at Local 388. However, he testified that he was not aware that it is mandatory that his name be put on the list because he did not have control over the list. According to Benner he asked Griffith if he could get his tools off the job and relates that in response thereto, Griffith then told Benner that he did not give a "damn" what Benner did. Benner thereafter went back to the roof, gathered his tools, and returned them to his truck, leaving the jobsite with the repair work he had been as- signed to do uncompleted. According to Benner, as he left, he said to Griffith: "I will probably be hearing from you"; and he relates that Griffith responded, "You sure will." Griffith denied that anything more was said as Benner left in the truck. However, Griffith otherwise confirmed that Benner had earlier asked him if it was al- right if Benner picked up his tools and that Griffith had again told Benner, "Tom, I am not telling you anything." Griffith offered an explanation of his position as being that Benner had already worked on the job, and at that point he did not care what Benner did, and that he was not about to tell Benner not to work then and he did not. Griffith also has confirmed that Benner subsequently made two or three trips back on to the jobsite and re- moved his tools, doing so with a circumstantial appear- ance of not having finished the job. Benner otherwise re- lates that he had not been previously assigned to work sa Time is some plausible basis for this remark. Thus, Benner has in this regard testified that Daily Heating normally performs 90-percent res- idential work, and 10-percent commercial work. Benner was clearly qualified to do residential work. (Griffith confirmed that Benner was a residential ale-adiYOitioning journeyman which covered single and multi- story sircond#doning and heating work, but not commercial work.) Benner asserts that he was also qualified to do commercial work and indeed Benner has testified, without subsequent contradiction, that after a Daily Heating pipefitter who did commercial work had earlier left Daily Heating's employment, Benner had specifically inquired of Griffith whether he should upgrade his own card in order to perform Daily Heat- ing's commercial work, but was at that time informed by Griffith that it was unnecessary for him to do so. On the other hand, Griffith not only confirmed that he had allowed Benner to perform such work, but that he had taken no action (to date) to prevent it (as he asserts he contractually could) nor was such action contemplated, and Benner has testified to no direct threat made in that regard, other than the indefinite or ambiguous remark last related. on the Pitney-Bowes jobsite nor was he thereafter, until the picket line was removed. 25 7. Subsequent events a. The continued picketing of June 12 (Friday) and 15 (Monday) Local 388 continued to picket Daily Heating at gate 1, on June 12 and 15, with Quality Plumbing conceded as back on premises, working on June 15 . Employees of other union contractors who regularly used gate 1 con- tinued to work without any work cessation in the period June 11 and thereafter except for employees of Capital Excavating on June 16, to be discussed , infra. b. The Grievancefiled by Local 388 Griffith testified without contradiction that he prompt- ly (within a few days of June 11 ) sent a wire to the presi- dent of the contractual grievance committee , requesting a meeting of that committee and inviting Daily Heating officers to attend. Griffith did not attend, but a repre- sentative of the Union did. According to Griffith, whose testimony was unobjected to at the time given and whose testimony I credit, the grievance committee acted thereon in approximately 14 days, concluding that Daily Heating had violated the agreement, but that there was no sanction imposed and that the president of the Local had the meeting proceeding in writing, which it kept.26 Hamilton related that he was aware that Hulce was con- tacted by the grievance committee, and did not deny that Hulce attended, though Hamilton asserts he did not know whether the agreement was violated, nor if there was any remedial action thereon. I credit Griffith's ac- count in the above particulars. ss Benner related that in the interim a nonunion company was hired to do the repair of the unit, though it did not complete it, and that Benner had to eventually complete the repair himself in August . The record oth- erwise reveals that Thomas Heating was initially contracted to do also this repair on June 12. However, Veld recalled that some thermostat (control) work was done by Daily Heating after the lessee moved in but he was not sure if it was accomplished before or after the building was turned over as completed I conclude it was more likely that it was com- pleted before the building was completed and probably in July rather then August as Benner recalled, but after picketing of the jobsite had ceased. Ya Nonetheless, opportunity was afforded the General Counsel for view of the referenced union document, with the hearing ordered closed on October 6 only contingently; that is, with provision made for both counsels' review of the document that evening, and for a report that evening to the administrative law judge that production of the document in evidence would be by stipulation of counsel, or the evidence on review, elected to be foregone; but failing such, and either counsel notify- ing intent to pursue same that the hearing then be continued for such lim- ited purpose. Transcript herein of date of October 7 reflects counsel for Respondent's statement of understanding of both counsels ' report to me thereon on October 6, principally, that the document was to be handled by stipulation, which in that respect comports with my own recollection of their joint report made the evening before. A document purporting to be minutes of Local 388 in regard to grievance committee meeting, June 29, 1981, has been subsequently forwarded by the reporter, marked as A. Exh. I for identification. However, as no perfecting joint stipulation ap- pears to have been later forwarded, nor it appear that either counsel has requested independent pursuit thereof, A. Exh. 1 for identification is re- jected and placed in the rejected exhibit file. I PLUMBERS LOCAL 388 (DAILY HEATING) c. The picketing of June 16 and 17 Superintendent Veld relates that Capital Excavating was awarded the subcontract to put in the driveways and parking lot. The work involved providing stabilized gravel fill and grading. According to Veld, on June 16, Capital Excavating trucks came to the jobsite at 9 a.m., drove up to the Local 388 picket sign, and then backed up and parked behind Ciucci's car, some 75 feet from the picket sign. Veld observed the drivers subsequently con- verse with Ciucci. Ciucci moved the picket sign from the entrance back to the middle (apparently) of Keystone Street. One of the drivers then went into Hoffman's trail- er and called his business agent. Veld observed that the business agent arrived later about 10 a.m. and conversed with the drivers and Ciucci, which conversations he did not hear. Veld relates that thereafter the Capital Exca- vating drivers departed at 10:30 a.m. without working. Ciucci confirmed that on June 16 two Capital Exca- vating trucks (one hauling a bulldozer and another a sand hauler) arrived at the jobsite, and parked at the curb, and a driver came up to him. According to Ciucci the driver first asked Ciucci if it was a legal picket and when Ciucci replied it was a legal and formal picket, the driver said that he did not want to cross the picket line and that before he crossed it he was going to contact his business agent. Ciucci confirms that when the business agent arrived he first spoke to the drivers and then came up and conversed with Ciucci. According to Ciucci the business agent first introduced himself and asked about the picket. Ciucci testified that he told the business agent on this occasion that he was picketing the jobsite because there was nonunion work going on there. The business agent informed Ciucci that he would contact Griffith. Then the business agent asked the drivers to take the trucks back to the yard. On the following day, the record reveals that Local 388 moved its picket back on to Enterprise Street. (Al- though Ciucci's testimony was at one point confused in this area, I rely additionally on Veld's confirmation for clarification thereof. Confusion otherwise is probably at- tributable on Ciucci's part to imprecision in regard to the initial picketing continuance of picketing at gate I this date and its early removal and, on Veld's part, in regard to no picketing on June 17 at gate 1, to his later arrival.) Local 388 had not been asked to do so by Hoffman nor had Hoffman changed Daily Heating's entrance. There is no direct evidence offered why Local 388 did so. The only thing that appears of record is the effect of that re- moval, accomplished early in the morning of June 17. Thus, what is clear of record is that along with Local 388's early removal of its picket line on June 17 from the Keysotne gate 1 to the Enterprise Street location where it had more recently routinely picketed Quality Plumb- ing the Capital Excavating drivers, on returning to the jobsite on June 17 about 8:30 a.m., entered and complet- ed their work without any further work stoppage in their succeeding workdays. Nor, as noted, has there been any other work stoppage on this job, other than Daily Heat- ing's (as described above) and Capital Excavating on June 16, only. 1271 d. The remaining picketing It appears to be uncontested that Local 388's picket sign had named Daily Heating for about a week, thus from June I1 to 18. Although Veld did not recall seeing a subsequent change of name, Ciucci has related that pursuant to a Griffith instruction on the matter, the name of Daily Heating had been changed back to Quality Plumbing, though he could not recall the exact date. Veld could not recall the last day that Quality Plumbing had worked on the job, though the last day it is clear of record that it did work is June 15. On the other hand Veld testimony thereon (from daily records of work on the jobsite) is left ambiguous by additional testimony elicited by Respondent from Veld that his office had no- tified the Regional Office in that week's period (e.g., June 11-18) that Quality was off the job, but not that it was back on. Griffith was able to credibly confirm that the change of picket sign back to naming Quality Plumb- ing had occurred in the week before June 26.27 Veld also could place the end of all picketing only generally about mid-July, Ciucci placed it earlier about the end of June or early July. As evidenced herein the Union was sent a letter from the Regional Office staff, dated June 19 (Friday), though date of receipt is not shown, to the effect that Hoffman had reported informally, inter alia, that the Respondent had resumed picketing at the "union" entrance, and that Qulaity Plumbing is off the job and had been using the entrance designated for it, though the letter also disclaims knowledge at the time about what the true facts were. (R. Exh. 11 is received, discussed infra.) e. The internal union charges Griffith brought internal union charges dated June 24 against Benner charging Benner with having violated the oath and obligation, section 162, of the Union's constitu- tion and by laws.ZB With description of the nature of the offense specified as: "Working on the Pitney-Bowes job located on Keystone Drive, Lansing, Michigan, behind the picket line of Plumbers and Pipefitters Local 388." Local 388 procedurally accepted the charges and the same were served by letter dated June 25, with notice of hearing scheduled on July 13. (On July 10 the instant charges in Cases 7-CC-1172 and 7-CB-5255 charging, inter alia, the inducing of individuals not to work at Pitney Bowes job and the bringing of internal charges, etc., as being violative of Section 8(b)(4)(i) and (ii)(B) and Section 8(b)(1)(A).) The record reveals that Benner attended the hearing on July 13 before the Respondent's executive board. Griffith and Ciucci relate that Benner pled guilty to the charges, and according to Griffith in mitigation only pled ignorance. However Benner relates that he pled guilty to being on the job and that he did not feel that he 27 Griffith thus recalled it as occurring under personal family loss cir- cumstances (of record) culminating on June 26, which I find wholly credible. Ss Inter alts, see sec. 162 which provides that the member "will not perform any act in anyway prejudical to the best interest of the United Association, but will at all tunes endeavor to promote its prosperity and usefulness " 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was wrong in being there . Benner also testified that he told the Local board that he had been sent there by Daily Heating, there was an injunction posted,29 it was a two-gate system, there were other unions working the jobsite, and he felt it was within his rights to go on the job. In the light of the partial recollections of Ciucci of record, and the plausibilities of Benner's testimony, I credit Benner's account. Benner also testified and con- firmed that he said at the time that he felt he had a fair hearing. Benner was subsequently fined $2000. In due course, on July 28, Respondent notified Benner that it was petitioning the general executive board (Internation- al) for approval of Respondent's disciplinary action taken against Benner. By letter dated August 20 the Interna- tional confirmed receipt of same and , inter alia, notified Benner of his right to appeal, which Benner did by state- ment filed with International which the Respondent did not see until the instant hearing. In the interim on Sep- tember 30 a further investigation or hearing was held by an International representative , and the outcome thereof was still pending as of the instant hearing. D. Analysis, Findings, and Conclusions Basic contentions of the parties presented in the scope of the issues section need not be repeated; though addi- tionally noted is that at hearing the General Counsel had also contended that by virtue of Local 388 having picket Daily Heating with the same "area standards" sign as it had used to picket Quality Plumbing, with only Daily Heating name change, and at a time when Daily Heating had a current collective-bargaining agreement with Local 388 and was paying employees the wages and fringes as provided in the agreement, that (area stand- ards) could not have been the real reason for Local 388's picketing of Daily Heating. Because all along the true primary was and continued thereafter to be Quality Plumbing, the picketing of Daily Heating commencing on June 11 was, so argues the General Counsel , with the purpose to get Daily Heating, Hoffman, and others to cease doing business with Quality Plumbing. From October 1980, and extending through material times in June, Quality Plumbing, a nonunion subcontrac- tor, worked intermittently on the Pitney-Bowes jobsite, and it there performed work of a nature traditionally performed by employees represented by Local 388. Prior to the outset of the Union's picketing, Business Manager Griffith was aware that Quality Plumbing had estab- lished for its employees who performed the above work, wages, hours, and working conditions which were less than those negotiated by Local 388 with the Lansing Mechanical Contrators Association . From late October 1980 through June 11, 1981 , and from June 19 or shortly thereafter to date of total cessation of picketing occur- ring, as I have found, in late June or early July, Local 388 engaged in continuous picketing of Quality Plumbing with picket signs which definitively stated that its labor dispute was with Quality Plumbing and that the nature 29 There is no evidence that a district court injunction was ever ob- tained on either Daily Heating, or earlier Hoffman charges , though the earlier Hoffman charges were adjusted by informal settlement agreement with appropriate posting of notice. of its dispute was specifically over the latter's payment of wages, hours, and working conditions which were substandard to those negotiated by Local 388. There is no question that there has been a longstanding and con- tinuous dispute thereover existing between Local 388 and Quality Plumbing during the entire period of Local 388's picketing of Quality Plumbing. The "area standards" picketing by Local 388 conduct- ed against Quality Plumbing was well within legitimate primary union activity of seeking, by the picketing publi- cation of its labor dispute, to cause the offending em- ployer, Quality Plumbing, to adopt employment terms more compatible with those which Local 388 had previ- ously established for such work, for the employees it represented in Lansing . Local 388's "area standards" picketing of Quality Plumbing at the Pitney-Bowes job- site, a common situs, and considered alone, would be no less lawful, despite any incidental effect the conduct of primary picketing might have on any neutral or second- ary employers (here the general contractor, Hoffman, and all its other subcontractors, etc.) who might also be working at that jobsite. Local 388's picketing of Quality Plumbing would remain viewed as lawful so long as its picketing was not also shown by all the circumstances to have been conducted with an unlawful secondary objec- tive as well. As to the latter, the Board's common situs evidentiary principles are useful to identify presence of, but are not mechanistically to be applied to reveal such purpose, Sailors Union (More Dry Dock), 92 NLRB 547 (1950); New Orleans Building Trades Council (Markwell & Hartz), 155 NLRB 319 (1965), enfd. 387 F.2d 79 (5th Cir. 1967), cert. denied 391 U.S. 914 (1968); Operating Engineers Local 450 (Linbeck Construction), 219 NLRB 997 (1975), affd. 550 F.2d 311 (1977); and see Electrical Workers IBEW Local 761 v. NLRB, 366 U.S. 667, 672- 674 (1965). The question for ultimate discernment thus is whether with fair allowance for the statutorily preserved dual-purpose primary strike or primary picketing, a pres- ence of a union's intended object to embroil neutrals is no less reasonably revealed from all the attendant cir- cumstances. However, as noted earlier, not raised as an issue before me for unfair labor practice determination herein is the question of whether Local 388's picketing of Quality Plumbing prior to May 22 (the same being date of an informal settlement agreement of certain 8(bx4)(B) charges earlier brought thereon by Hoffman in a prior Case 7-CC-1162) was with a proscribed second- ary object in violation of Section 8(b)(4XB); nor is a claim alleged or advanced before we that Local 388's subsequent (post-May 22) picketing of Quality Plumbing was ever continued with such a secondary objective. In- sofar as picketing is concerned, only Local 388's picket- ing of Daily Heating (in June) has been alleged to be violative of Section 8(b)(4)(B). Nonetheless, the General Counsel presented certain presettlement evidence that in late October 1980 Local 388 had initially expressed a motivational concern to Hoffman that there were nonunion plumbers on this job- site as not only revealing its subsequent picketing of the nonunion subcontractor, Quality Plumbing, was also with an object to cause Hoffman to cease doing business PLUMBERS LOCAL 388 (DAILY HEATING) with Quality Plumbing , but contending therefrom (infer- entially) that the same is also useful proof that one of Local 388's motivations behind its present June picketing of Daily Heating was with an object to presently cause Daily Heating to cease doing business with Hoffman and in turn to have Hoffman cease doing business with Qual- ity Plumbing. Whatever might be the warranted conclu- sion therefrom (in its own circumstances) that certain of the subsequent picketing of Quality Plumbing (viz that from October 1980 through May 22) had been with an object of putting secondary pressure on the neutral gen- eral contractor to cease doing business with its nonunion subcontractor Quality Plumbing with whom the Union had its primary dispute in this period and although such evidence may serve as background evidence establishing the motive or object of a Respondent in its postsettle- ment activities, cf. Laborers Local 185 (Joseph's Landscap- ing), 154 NLRB 1384 fn. 1 (1965); even when in nature pre-10(b) period, Machinists (Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960), I am not as readily persuaded that such evidence has significant and certainly not controlling probative force in the circumstances presented herein. Though I have had clear reservation under the hold- ing of the Bryan Mfg. case, supra, and readily do not as- cribe to the Griffith-Veld pre-10(b) statement a status of controlling proof independent of substantial evidence of objective appearing within 10(b) period, I have some ad- ditional difficulty, under all the circumstances present in this case, in assessing whether there is any significant degree of probative value to be attached to it in estab- lishing that the picketing of Daily Heating conducted some 7-8 months later against a different employer, was with the same object, and otherwise given that the thus urged evidence, by time passage, was not only well out- side 10(b) period, but also has predated an intervening settlement agreement which has resolved all issues there- on presented at the time, and which settlement has re- mained viable; and finally, given the additional circum- stance herein that lawful, primary "area standards" pick- eting of Quality Plumbing continued thereafter (postset- tlement) unabatedly through June 11, the same being see- mily but further indicative there had been an acknowl- edged, effective cessation of Quality Plumbing picketing by Local 388 with any such illegal secondary boycott, such as was previously charged. If I have had any occasion of hesitation in the above respect, it is solely in connection with consideration of Ciucci's (additional) statement that on June 16 he had told the business agent of the Capital Excavating drivers, inter alia, that he was picketing because there was some nonunion work going on in there . On the one hand Qual- ity Plumbing was not on the job at the time, and Ciucci was carrying a picket sign at the time which named (only) Daily Heating whom the Union then clearly re- garded as having breached employees ' established work- ing conditions set forth in the Union's contract and in their eye to have caused Benner earlier to work under nonunion conditions; and by that time the drivers had al- ready expressed to Ciucci their unwillingness to cross a lawful picket line, and had been told by Ciucci that picket line was legal and formal. On the other hand, I am also persuaded by the evidence presented herein 1273 (considered infra), that the Union at this time might also reasonably view Quality Plumbing, though temporarily absent that day, in view of its presence there the day before, and its regular coming and going without notice as having a continued, or anticipatable presence on the jobsite, such that Ciucci's remark could as well be argu- ably viewed as having been made as applicable to the latter. However, the additional facts of record are that the Capital Excavating drivers' business agent first re- plied that he would contact Griffith and then asked the drivers to take the trucks back; and he did so without any demonstrable awareness on his part at the time of an earlier dispute Local 388 had with Quality Plumbing. Even more significantly bearing on Loal 388's objective, it appears on the weight of the evidence that on the very next day, without any employer urging in the interim, whether contact, or so far as this record warrants con- clusion, on its own, Local 388 removed it picketing of Daily Heating to former location of picketing on Enter- prise Street, which, in either event, resulted in Capital Excavating employees, on early arrival, performing their work without any additional interruption, thus a seeming antithesis of Local 388 having an object in its picketing at the time to unlawfully embroil Capital Excavating or the latters' employees in Local 388's contended dispute with Daily Heating. Additionally, other circumstances are noted that all other union (excepting Daily Heating) employees had previously, and continued thereafter to work the picketed jobsite despite Local 388 picketing. In these circumstances, to utilize the October 1980 pre-10(b) statement of Griffith to paramountly persuade of illegal objective in Ciucci's statement and thus in Local 388 picketing of Daily Heating would be, in my view, not to arguably use pre-10(b) evidence permissibly to explain an independent unlawful act charged as occurring within 10(b), but in these particular circumstances to use it to controllingly provide, thus constitute, a required element of the unfair labor practice itself, namely, the statutorily defined specific object of the charged unfair labor prac- tice in 10(b) period, which I am thus unconvinced should be done herein under the above authority in the above circumstances. To the extent the General Counsel would seek to rely on additional presettlement evidence offered (even that limitedly within 10(b) period) that Local 388 had con- ducted its picketing of nonunion contractor Quality Plumbing in presettlement period exclusively at (union) gate 1, the same would seemingly fare probatively no better. This would appear so given the noted continued viability of the aforementioned informal settlement agree- ment covering all such issue(s) similarly; given the addi- tional circumstances of the subsequent and ocntinued presumably lawful "area standards" picketing of Quality Plumbing at a new (arranged) entrance location, con- ducted thereafter, in compliance with Moore Dry Dock, supra, evidentiary principles. Finally, given the addition- al evidenced restraint of Local 388 in conducting all its postsettlement picketing of Quality Plumbing at the new location, despite clear instance(s) of continued violation 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of gate I by Quality Plumbing.S° Under all the above circumstances, all the postsettlement picketing of Quality Plumbing as appears on this record is to be presumed lawful. The case for the General Counsel's contention that Local 388's June picketing of Daily Heating was with secondary object must then, in final analysis, stand or fall essentially on the evidentiary conclusion to be drawn from its own circumstances. Local 388's picketing of union subcontractor Daily Heating commenced June 11, appropriately at union gate 1 on Keystone Street; its picketing was removed early June 17 to a location on Enterprise Street, which since postsettlement agreement Quality Plumbing had normally used when on the jobsite; and Local 388 ceased its pick- eting of Daily Heating totally sometime in the week prior to June 26, I fmd, probably by June 19 (Friday) or shortly thereafter; though the same occurred contempo- raneously with a resumption of picketing of Quality Plumbing at that same (arranged) location. Respondent essentially defends that it commenced its picketing of Daily Heating on June 11 because Daily Heating breached the contract it had with the Union by the dis- patch of Benner on June 11, though conceding that if Quality Plumbing were no longer on the jobsite there would have been no contract breach by Daily Heating in its dispatch of Benner that day to the Pitney -Bowes job- site. Quality Plumbing was not on the jobsite on June 11 (Thursday) though it had been on the jobsite the day before, June 10. During the period June 11-19, from all that appears clearly of record , Quality Plumbing was again on the jobsite only on June 15 (Monday). In the above regard, however, the record convincingly reveals both that Quality Plumbing had long intermittently worked this jobsite, and more pointedly had continued to do so in more recent times material to Local 388's pick- eting of Daily Heating. General Contractor Hoffman had never notified the Union directly that Quality Plumbing was to be (temporarily) off the jobsite and would not return until a certain date; nor did Hoffman ever advise Local 388 directly that Quality Plumbing was perma- nently off the jobsite. Indeed, and aside from any effect emanating from Griffith's credited understanding at the time that the Union was to receive some notice thereof, while Veld has testified that Hoffman had at some indefi- nite point in time, but identified as being in the period of June 11 (Thursday) to June 17 (Wednesday), notified the Board's Regional Office staff that Quality Plumbing was off the jobsite, with intent that the Union be in turn noti- fied thereof, Veld also has admitted that Hoffman had not again notified the Regional Office staff when Quality Plumbing had thereafter returned to the jobsite. Even the indirect notice and/or alert, such as arguably came to the Union subsequently via Regional Office staff letter dated June 19 (and aside from any resulting misleading informational aspect), did not clearly assert either that so There is accordingly no need to reach or evaluate Respondent's still further urged position (itself notably involving presettlement evidence), or cases advanced in support thereof, that gate 2 was otherwise too loosely maintained, if not, as urged, of such initial unreasonable function and design to have been ineffectively established. The time for resolving such contentions was prior to a settlement of the earlier matter. Quality Plumbing was off the job permanently or would be off the job today certain. Nor did the Regional Office staff letter vouch the reported facts. Under all these cir- cumstances, and particularly the background of general and recent intermittent work performances by Quality Plumbing, insofar as Quality Plumbing's presence on this jobsite is a factor for consideration, I conclude and find that during all times material to Local 388's picketing of Daily Heating, Local 388 was entitled to anticipate that Quality Plumbing might return to this jobsite any day, any time. a 1 It follows that insofar as Quality Plumbing's presence on the job was a necessary element of Respond- ent's contention regarding breach of contract by Daily Heating, Quality Plumbing's temporary absence on June 11 (or thereafter) was not itself a defeating consideration. It also would appear to readily follow that the General Counsel's additional argument that the Pitney-Bowes jobsite was "hot" because Quality Plumbing had previ- ously or at one time worked there is rendered much less persuasive. One of the Moore Dry Dock, supra, evidentiary guide- lines for a discernment of a secondary objective in common situs picketing is whether the primary employer is engaged in its normal business at the situs . Although Ciucci recalled a return of a Daily Heating employee to the jobsite he did so as very possibly after he had re- turned the picketing to Enterprise Street; and the Gener- al Counsel in any event established that Ciucci was aware that there was no Daily Heating employee at the jobsite on Friday, June 12, and from Monday, June 15 through (at least) June 17, Wednesday (early morning). On the other hand, Local 388 had observed recent visits of the Daily Heating sheet metal superintendent (or other Daily Heating employee) on May 20, 22, and 29 and June 8, and it earlier had observed a substantial de- livery of sheet metal materials to the jobsite by Daily Heating employees on May 26. From all the foregoing, Local 388 might reasonably conclude, as it did, that Daily Heating was going to perform the installation work. Both Hamilton and Veld had testified that Daily Heating performed no actual work on the job prior to Benner's dispatch on June 11; and both have testified that the installation contract was renegotiated to Thomas Heating, but it is unclear concerning when this was done. Testimony of pickup of fabricated parts by Hoff- man and Thomas Heating for delivery to the jobsite was alone by Hamilton and left indefinite. In that connection, Hamilton's testimony of his own very limited awareness of Daily Heating's visits to the jobsite asserted nonawar- eness of delivery and belated testimony concerning Diarly Heating's fabrication of parts in which he was neither initially open or candid, occasion his testimony in these areas (as in regard to his awareness of the griev- ance) to be very unconvincing. Neither Hoffman nor Daily Heating ever notified Local 388 of any of the above, nor after picket line was established on June 11 did it notify Local 388 that Daily Heating was off the job either permanently or temporarily. But in final analy- 31 Local 388, in such circumstances, would appear not to be required to play "bide and seek" with Quality Plumbing its suppliers, etc. Cf. Lin- beck Construction Corp. v. NLRB, 550 F.2d 311, 318-319 (5th Cir. 1977). PLUMBERS LOCAL 388 (DAILY HEATING) sis it is readily apparent that when Local 388 established its picket line against Daily Heating, after repeated and unsuccessful attempt at earlier contact to learn the cir- cumstances, that Daily Heating employee Benner was on the job doing work, which, with picket line establish- ment, he left uncompleted, itself persuasively indicative that Daily Heating was engaged in normal operations at the situs, or would have been engaged there , but for the picket line's effect. Cf. Electrical Workers IBEW Local 3 (New Power Wire), 144 NLRB 1089, 1094 (1963), enfd. 340 F.2d 71 (2d Cir. 1965). The same is seemingly fur- ther supported with the observed return of Benner to the jobsite to complete work he left uncompleted , only after the picket line was removed. Respondent's central defensive contention about the basis for its commencement of picketing of Daily Heat- ing on June 11 was that Daily Heating's dispatch of Benner on June 11 to the Pitney-Bowes jobsite, at which Quality Plumbing had been long picketed for its payment of substandard wages paid for work it was there pre- forming of a nature traditionally done by employees that Local 388 represented, was in claimed direct breach of the work-preservation (contractually so identified) clause contained in their collective-bargaining agreement, which provided that no employee covered by that agree- ment: ... will be expected to work or be required to work on any job or project on which a worker or person is performing any work within the said juris- diction of the contracting union if said worker or person performing such work for wages and hours or under any conditions of employment which are less favorable to employees than those established by this Agreement. Whatever is to be ultimately concluded concerning the legal sufficiency of the above contractual provision as justification for Respondent's prompt picketing of Daily Heating on its claimed breach, the existence of the refer- enced contractual provision, coupled with credited evi- dence that Griffith had immediately, and prior to Local 388's establishment of the picketing of Daily Heating, made effort by successive phone calls, and visit to Daily Heating's office, to first discuss the matter of an apparent contract breach with Hulce, and failing that with other Daily Heating authorities, as well as coupled with obser- vation of Griffith's reasonably prompt grievance pursuit of the claim of breach of contract, serves to convince me wholly that the intervening picketing of Daily Heating at the Pitney-Bowes jobsite was not a subterfuge as initially claimed by the General Counsel. This remains my view even with consideration of the deficiencies in the picket sign used. Thus, despite the "area standards" sign's un- based and erroneous reference to substandard wages and hours paid, inasmuch as the sign was a standard sign used and it did explicitly address substandard working conitions which were protested, it seems to me, that the sign used, being in substantial part supported, though not as precisely stated as would appear desirable, that error or overstatement contained therein does not itself con- nect, or persuade to inference of presence of a secondary 1275 object. Although essentially contending that it has there- by engaged in nothing but an 8 (b)(4XB) preserved pri- mary strike, or primary picketing, Respondent does not supply authority directly on point. In contrast, the General Counsel's central remaining contentions are essentially as advanced in its brief, viz, that no contractual clause or union bylaw can legalize Respondent's secondary objective of forcing a boycott of the Pitney-Bowes jobsite; though also noted as being without specific authority cited relative to the contract's work-preservation clause raised, other than such as may be derived from cited Board holding in Glass Workers Local 1612 (Alameda Glass), 242 NLRB 1011 (1979) (Ala- meda Glass case); and Mississippi Building Trades Council (Roy C. Anderson), 222 NLRB 649, 650 (1976) (Anderson case). The same were cases cited by the General Counsel in support of complaint allegations that the bringing of charges, and finding of Benner guilty (with fine im- posed), the latter being unalleged , but a matter deemed fully litigated, were violative of Section 8(bXIXA) and Section 8(bX4)(i) and (ii)(B) whether or not the picket line was lawful.32 In regard to the subject of the charges brought against Brenner and the fine imposed by Local 388 on finding made of Benner's guilt of working behind Local 388's picket line in violation of union member as charged, Respondent would rely in defense essentially on NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 811 (1967), and Scofield v. NLRB, 394 U.S. 423 (1969), for support- ing the principle that a labor organization has a right to manage its own internal affairs, and that the bringing of charges on the above oath violation was strictly an inter- nal disciplinary matter; and it would also rely on Oak- land Machinists (Morton Salt), 190 NLRB 208 (1971) (and other cited cases), in support of the additional contention that the reasonableness of the amount of a fine imposed by a union is a factor that is immaterial to an 8(b)(1XA) consideration, regarding which position there appears to have been no issue joined by the General Counsel herein. The Supreme Court has upheld the Board view taken that a contractual sentence which provided that no mem- bers of the Union "will handle ... any doors ... which have been fitted prior to being furnished on the job" was an agreement with a permissible primary object of "preservation of work traditionally performed by job- site carpenters." National Woodwork Mfrs. Assn. V. NLRB, 386 U.S. 612, 614-615, 646 (1967). The basic question there involved was determined to be whether under all the circumstances the union 's objective was preservation of work for the employees of the struck em- ployer, or "whether the agreement and boycott were tactically calculated to satisfy union objectives else- where." The "touchstone" was stated to be "whether the 32 However to the extent contention is advanced that there was also a threat to bring charges that is similarly violative of these sections, such was not only not alleged, it remains insufficiently identified whether as resting on intended base of the Griffith-Kntzinger remark (as found) that someone better become reflective and pull the man off the job , or he is going to be fined $1000, which in context is a remark seemingly more aimed at relay for management consumption; or Griffith's terse confirma- tion to Benner that Benner would be hearing from him which followed the initial inquiry thereon by Benner, or a combination. In such -definite complaint and contention circumstances, I shall make no finding thereon. 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees." Id. 644-645. The court went on to affirm the Board's holding that maintenance of the above provi- sion was not a secondary boycott in violation of Section 8(b)(4)(B), nor did it view the making of the agreement to have been violative of Section 8(e). Id . at 646.35 The clause under present review , although contrac- tually identified also as a work-preservation clause, is clearly different in its subject addressment than that which was considered in National Woodwork, supra, and of course the parties' description of the clause as a work- preservation clause may not operate to alter its real nature. The clause in question explicitly relates that cov- ered employees will not be expected to work, or be re- quired to work, on a jobsite where another worker or person performed work within the Union's work juris- diction for wages, hours, or under any conditions of em- ployment less favorable to those employees than are es- tablished for covered employees by the agreement. The clause thus does not appear to describe an intended direct preservation on any specific jobsite work tasks tra- ditionally performed by covered employees for covered employees, but has its ostensible direct thrust at ensuring certain working conditions for covered employees, e.g., for Daily Heating employees, at all their potential work locations. I conclude and find that the clause in question in its essence does not constitute a work-preservation clause preserving work traditionally performed by jobsite plumbers, etc.34 Rather the clause ostensibly presents ap- pearance of being more in the nature of being a "stand- ards," or more precisely a working-condition preserva- tion clause. However the working conditions of the cov- ered employees sought contractually to be thus ensured also carry an indirect thrust at the employment "stand- ards" of other workers on the jobsite, viz, that the other workers receive the "area standards" before covered em- ployees are to be expected or required to work there. The receipt of such "area standards" by other workers on the jobsite was not a matter within the control of Daily Heating. Dispatch or nondispatch of its employees to the jobsite is a matter within the control of Daily Heating. However, an inability to dispatch to a jobsite at which other workers did not receive "area standards" meant either a signatory contractor could not bid such a job, or if it had bid the job, it could not subsequently dis- patch covered employees to perform work on the jobsite without a breach of its contract with the Union. Thus in either instance on entering the collective-bargaining so In National Woodwork, supra, the Supreme Court stated in regard to See. 8(e), but pertinently in regard to the reach of Sec. 8(bX4)(B), that (386 U.S. at 635): Although the language of § 8(e) is sweeping, it closely tracks that of § 8(bX4XA), and just as the latter and its successor § 8(bX4XB) did not reach employees' activity to pressure their employer to pre- serve for themselves work traditionally done by them, § 8(e) does not prohibit agreements made and maintained for that purpose. a: See NLRB v. Longshoremen ILA, 447 U.S. 490 (1980), cert. denied 448 U.S. 906 (1980). There it is observed that the test of a lawful work- preservation clause are twofold: first a preservation of traditional work and second power in the contracting employer to give the work , but the focus, it appears, is to be made on the traditional work of bargaining unit employees, and an evaluation then made of the nature , or the relationship thereto, of the contractual effort made to perserve it. agreement, for signatory contractor it was either boycott such a job, or breach its contract. The Supreme Court in National Woodwork, supra, has made reference to a boycott by employees with an "ob- jective relating to pressuring their employers in the matter of their wages, hours, and working conditions" and it has referenced in disjunctive manner: "work pres- ervation or other primary objective related to the union employees' relations with their contractor employers." However, it did so in context of discussion of negative implications of the antitrust reach of Allen-Bradley;85 and perhaps more pointedly, as bearing on the matters to be addressed herein, took seeming early caution to illumi- nate the restricted scope of its present decision in stating (National Woodwork, supra at 630-631): It is arguable that Congress may have viewed the use of the boycott as a sword as different from labor's traditional concerns with wages, hours, and working conditions . But the boycott in the present case was not used as a sword; it was a shield carried solely to preserve the members' jobs. We therefore have no occasion today to decide the questions which might arise where the workers carry on a boycott to reach out to monopolize jobs or acquire new job tasks when their own jobs are not threat- ened by the boycotted product. The instant question might then appear in that percep- tion to be appropriately posed: was the contractual clause here arrived at, with an object to permissibly shield Daily Heating's employees in their established working conditions and thus a primary object, or was the provided jobsite (boycott) action impermissibly a sword tactically calculated to reach out to monopolize jobs, or acquire new job tasks, and thus to be viewed as secondary in its object. My own research also has found no case directly in point.36 There is additional Board precedential holding and/or dictum, however, which ap- pears to point the way of resolution to the question posed. Thus the Alameda Glass case not only presents Board holding that a union's discipline of its members, for working on a jobsite for a neutral employer under 15 Allen Bradley Co. v. Local 3, 325 U.S. 797 (1945); and see and com- pare the more recent case of Connell Construction Co. r. Plumbers Local 100, 421 U.S. 616 (1975), for treatment in similar antitrust law case cir- cumstances, of protection of umonmen from being required to work alongside nonunion men, inapplicable as a consideration there, in terms of the circumstances shown therein, and which , in the light of the contrac- tual provisions to be found herein, would also appear to find no applica- tion herein. so See Electrical Workers IBEW Local 3 (L M. Ericsson Telecommuni- cations), 257 NLRB 1358 (1981), for case circumstance of union 8(bX4Xi) and (it)(B) violation in context of the union's conduct in pursuit of a policy that its subcontractor bid only for "total job" with supporting bylaw and contractual provisions that prohibited union members from giving away, or allowing other tradesmen to do work coming within its jurisdiction, though (distinguishably) the union subcontractor had not (as here) entered contractual obligation, to bid a "total job." But see also Electrical Workers IBEW Local 153 (Belleville Electric), 221 NLRB 345, 353 (1975), a case involving a contractual agreement by an employer to a union's reservation of its (bylaws) right to discipline its members for vio- lation of union rules (e.g., for crossing such a picket line) which did not operate there to excuse the resulting unlawful secondary pressures, in- cluding those from subsequent internal charge and fine discipline. PLUMBERS LOCAL 388 (DAILY HEATING) circumstances (as in case therein cited) in which its own union lawfully pickets another (primary) employer at the jobsite, is violative of Section 8(b)(IXA), but that the same union disciplinary action frustrates the policy of the Act's secondary boycott provisions. Thus the Board there observed (242 NLRB at 1012): Recently, in J. A. Stewart Construction Co.,4 we were confronted with nearly an identical factual sit- uation to that presented here . In Stewart, respondent unions, a district council , and a local disciplined three of their members because they worked for neutral employers at a common situs while respond- ent local was engaged in a primary dispute with an- other employer. There, as here, there was no find- ing that the picket line directed against the primary employer was unlawful . We held that union disci- pline in such circumstances violates Section 8(b)(1XA), and is not sheltered by the proviso to that section, because it "not only frustrates the policy reflected in the secondary boycott provisions of the Act, which forbid labor organizations from enmeshing neutral employers in primary labor dis- putes, but, if alleged, would also require a finding of unlawful secondary boycott activity. 5 242 NLRB 585 (1979). s Id. I am thus in the end persuaded and convinced by the above holding of the Board in regard to a union's disci- pline of its members for work performed behind their union's lawful picket line and by the evaluative expres- sion of resulting boycott effect to be deemed secondary, that just as a union bylaw itself (Alameda Glass), or as may be incorporated in a contract-preserved right (Belle- ville Electric case supra at 353) can not serve to justify or excuse the secondary boycott effect determined thus to result, so too a private (voluntary) contractual agreement can not serve to justify or eliminate the same (deter- mined) resulting secondary boycott effect. That being the case, Local 388's picketing pressures of Daily Heat- ing, for its breach of contract (failure to boycott the Pitney-Bowes jobsite) had to have the effect of inducing or encouraging individuals employed by Daily Heating (and others), and of coercing and restraining Daily Heat- ing (and other persons) to cease doing business with Hoffman, and did cause Daily Heating to cease doing business with Hoffman to the extent of work to be per- formed on the Pitney-Bowes jobsite, for so long as Hoff- man might allow Quality Plumbing , with whom Local 388 had its basic longstanding primary dispute, to contin- ue its normal work operations on this jobsite, itself being with natural and apparent effect of a further object to cause Hoffman to cease doing business with Quality Plumbing. Accordingly, it is concluded and found that Local 388's picketing of Daily Heating commencing on June 11 , and as continued thereafter, which was conced- edly with object of self-help for breach of the above agreement, was itself with object of embroiling Daily Heating in a dispute, in law, not its own, and with object to cause Daily Heating to cease doing business with Hoffman, and with a natural and apparent further object 1277 to cause Hoffman to cease doing business with Quality Plumbing all in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. I further find that the subsequent charges brought by Local 388 against Benner for having worked behind Local 388's picket line on Quality Plumbing, and Local 388's resulting fine of Benner on finding Benner guilty of having done so in violation of member oath, was itself in violation of Section 8(bXIXA) and Section 8(b)(4)(i) and (ii)(B) of the Act.37 I am not similarly persuaded that ad- ditional violations may rest on the "no strike" clause herein, which though valid, was not unambiguous, and/or inasmuch as the same contract made explicit pro- vision that a covered employee's refusal to cross a lawful picket line would not constitute a violation of the agree- ment. The Anderson case, relied on by the General Coun- sel, would thus appear inapposite . I shall accordingly recommend that the related complaint allegations be dis- missed. However, it is observed, additionally, that in the light of Board holding in the Alameda Glass case, supra, the circumstance that a sympathy strike was not preclud- ed was immaterial, as the issue there, as here, was the "validity of Respondent's discipline of members for re- fusing to take part in activity not countenanced by the statute." Accordingly, the same consideration can not prevail as a defense for Respondent. With regard to the remaining alleged 8(b)(4Xi)(B) oral inducements, it may first appropriately be observed as the Supreme Court noted in Electrical Workers IBEW Local 501 v. NLRB, 341 U.S. 694, 701 (1951), that "the words `induce or encourage' are broad enough to include in them every form of influence and persuasion." I thus have little hesitation in reaching a conclusion that Grif- fith effectively additionally induced or encouraged Benner not to work on the Pitney-Bowes jobsite on June 11. This is readily apparent from the obvious displeasure Griffith verbally exhibited toward Benner in their con- frontations as Benner left the jobsite to obtain additional tools; by an essential reminder imparted to Benner that he was working illegally behind Local 388's picket line; and as well by Griffith's confirmation to Benner that Benner would be hearing further from him on it. Cf. Electrical Workers IBEW Local 3 (Eastern States), 205 NLRB 270 (1973). I am also sufficiently convinced by the circumstances of Griffith's indicated disbelief and self-confessed hurt at the time over the fact that Benner had worked the jobsite that I credit Benner and find that Griffith probably did on this occasion tell Benner essen- tially that he had been good to Benner, but that was now over. Such remarks not only constituted additional evi- dence of inducement and encouragement of Benner to cease working on the jobsite , they were also, in my view, clearly coercive in nature. Accordingly, I con- clude and find that by admonishing Benner on this occa- sion that he had been good to Benner, but that was now over, that Griffith essentially coercively told Benner that 87 In view of the concluded presence of an excepting invasion, or frus- tration of an overriding policy of the labor laws, Board restraint of inter- nal union action occasioning that effect is appropriate under Scofield v. NLRB, 394 U.S. 423 (1%9); and it follows as well that other cases ad- vanced by Respondent are thereby rendered inapposite 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 388's future representative of Benner would be less favorable because Benner had worked behind Local 388's picket line, and that thereby Respondent has co- erced employees in violation of Section 8(bXl)(A) of the Act as independently alleged in the complaint. I am not however similarly so persuaded by the weight of credi- ble evidence to further credit Benner's account that Grif- fith explicitly threatened Benner that if Daily Heating's doors ever closed that Benner would not work any place else in Lansing. My reasons for not being persuaded to credit Benner on this matter are as follows: First, Benner's assertion that there was a (concurrent) reference made by Griffith at the time to a $9000 cost to the Union in attorney's fees and picketing associated with the jobsite was not initially recalled by Benner, and on that account is rendered less convincing; and but the more so in the face of Griffith's denial, and Ciucci's corroboration that it was not only not said, but conflicts with the credible, indeed uncontro- verted, additional testimony given by Ciucci that he had not been paid anything by the Union during his long period of picketing. Second, the likelihood of such a threat being made by Griffith to Benner is rendered less plausible, in my view, being wholly inconsistent with the clear and public contract provisions of a nondiscrimina- tory referral system (of which Benner was admittedly aware, and in which he would qualify high in light of his years of employment), as well as being inconsistent with provisions of the Union's constitution and bylaws them- selves. Third, Benner's version of such an explicit threat was, in my view, fundamentally incongruous with the clear tenor of his own affirmations otherwise that Grif- fith had not told him to leave the jobsite, itself essentially confirmatory of Griffith's testimonial assertion, and reas- sertion that Benner at the time having already worked the job, Griffith was not about to tell Benner at that point what to do about continuing to work that jobsite. In ultimate analysis though, I simply have great difficul- ty in accepting Griffith would on the one hand speak with conceded guarded responses to Benner about Ben- ner's continued working on the jobsite for Daily Heat- ing, while contemporaneously engaging in such a fla- grant threat to Benner that because he had worked on the job, if his employer Daily Heating ever closed its doors, Benner would not work in Lansing again. At best, this may have been what Benner interpolated in part from his own anxiety over his perceived lack of control of the Union's referral system and in the background of the above coercive warning that Griffith was not going to be as good to him as he had in the past. I am simply not persuaded by the totality of all credible evidence that Griffith made such remark; and particularly so in the face of Griffith's categorical denial that he did so, and given Ciucci's credible and firm corroboration that no such statement was ever made. Accordingly, I shall rec- ommend that the 8(bX1XA) and 8(b)(4Xi) complaint alle- gations based thereon be dismissed in their entirety. As neither evidence offered nor found will support a conclu- sion that Griffith on June 11 actually threatened Daily Heating with a work stoppage if Daily Heating did not pull its employees off the job, I shall accordingly recom- mend that that complaint allegation also be dismissed. Finally, if I have herein misconstrued the reach of the Alameda Glass case, supra, which does not appear to present contractual obligation element squarely, or if I have overevaluated the restrictive teaching of the Na- tional Woodwork case, supra, viz-a-viz "other primary ac- tivity," and resultingly unduly restricted Respondent's generally raised "dual" preserved primary union activity right; and/or a finer line is simply still to be drawn thereunder on legitimate union effort at contractual pres- ervation of covered employees' working conditions on jobsites to which they are assigned as only inferentially may have been presented herein,38 the error is one easily enough addressed and corrected by the Board with the issue thus squarely presented. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent Local 388 set forth in section II, above, occurring in connection with the oper- ations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent, Local 388, United Association of Journeymen and Apprentices of Plumbing and Pipefit- ting Industry of the United States and Canada, AFL- CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 2. Daily Heating and Air Conditioning , Inc. is an em- ployer and a person engaged in commerce within the meaning of Section 2(6) and (7) and Section 8(bX4)(B) of the Act. 3. By inducing and encouraging employees of Daily Heating and Air Conditioning , Inc., by picketing, threat- ening, and other oral inducements , and by inducing and encouraging employees of Capital Excavating and other persons by the aforesaid picketing , to engage in a strike or refusal in the course of their employment to perform services; and by restraining and coercing Daily Heating and Air Conditioning, Inc., by picketing, any by restrain- ing and coercing, by such picketing, Hoffman Construc- tion Company, Capital Excavating, and others persons, with an object of forcing or requiring Daily Heating and Air Conditioning Inc., Capital Excavating, and other persons to cease doing business with Hoffman, and/or with each other, and with a further natural and apparent object of forcing or requiring Hoffman to cease doing business with Quality Plumbing, Respondent Local 388 has violated Section 8(bX4)(i) and (ii)(B) of the Act. 4. By Local 388's business manager, Douglas W. Grif- fith, telling Thomas Benner that Respondent Local 388's 88 No specific evidence was offered of the contractual clause origin, or policy base, e.g., whether in covered employee protest over being re- quired to work in a workplace where other persons who do not enjoy their prosperity perform work which covered employees traditionally or normally would do. There was direct evidence offered arguably only of the last. See and compare Electrical Workers IBEW Local 3 (Ericsson Telecommunications), 256 NLRB 1358 (1981) PLUMBERS LOCAL 388 (DAILY HEATING) future representation of Benner would be less favorable because Benner had worked on the Pitney-Bowes jobsite behind Local 388's established picket line directed against Quality Plumbing, Respondent Local 388 has re- strained and coerced employees in violation of Section 8(bXl)(A) and engaged in conduct violative of Section 8(b)(4Xi) of the Act. 5. By preferring charges and then imposing union dis- cipline on Thomas Benner as described herein , Respond- ent Local 388 has restrained and coerced employees and otherwise engaged in conduct in violation of Section 8(bx1XA) and Section 8(b)(4)(i) and (ii)(B) of the Act. 6. Respondent has not committed any other unfair labor practices as alleged in the complaint except as have been found herein. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall order that it cease and desist therefrom and that it take certain affirmative action to effectuate the polices of the Act. I shall, among other things, order that Respondent rescind the discipli- nary action taken against Thomas Benner; remove the same from its records; notify the United Association of Journeymen and Apprentices of Plumbing and Pipefit- ting Industry of the United States and Canada, AFL- CIO of its action; and refund to Benner any moneys that may have been held because of fines assessed, with inter- est, in the manner prescribed in Florida Steel Corp.39 I shall also order that Respondent Local 388 not seek to enforce its article II, section 12 work-preservation clause by similar unlawful picketing as found. The General Counsel has essentially additionally sought an imposition of a broad "cease using" and "cease doing business" remedial order that would prohibit the Union from engaging in any secondary boycott conduct. In support of such contention the General Counsel would rely on the certain documents earlier referenced in footnote 3, supra, as in her view evidencing a recivi- dism or proclivity on the part of Local 388 (insofar as remaining pertinent) to violate Section 8(b)(4). The Gen- eral Counsel would essentially rely on Board authority of Teamsters Local 252 (Newark Service), 232 NLRB 1 (1977). Respondent contracontends that a traditional re- medial order addressed to the violations found is alone appropriate, and would rely on Communciation Workers of America v. NLRB, 362 U.S. 479 (1960), which would appear to include practices found "persuasively to be re- lated to the proven unlawful conduct." Prior Board deci- sions against a Respondent at bar based on similar unlaw- ful conduct in the past may demonstrate proclivity. Teamsters Local 70, 191 NLRB 11 (1971), and see cases cited in fn. 2. In support the General Counsel has offered Respond- ent Local 388's prior record for review. The same thus evidenced at 1975 consent judgment of the Sixth Circuit, filed May 13, 1975, enforcing a Board decision and Order dated March 21, 1975, in a consolidated proceed- ing involving six labor organizations, but based on an in- 39 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). 1279 dividual stipulation of Local 388, and in pertinent part, providing for a particularized 8(b)(4)(i) and (ii)(B) cease- and-desist order, unlimited regarding secondaries where object was "to cease using, etc." or "cease doing busi- ness" with a certain general contractor , or any other person when doing business with the latter. There is also referenced Board holding and remedy in Plumbers Local 388 (Featherly Construction), 252 NLRB 452 (1980), in which remedy provided for certain 1979 conduct was an 8(b)(4)(i) and (ii)(B) cease-and-desist order, unlimited re- garding secondaries, where object is "to cease doing business" with a primary at two particularized jobsites. (Reliance on a further advanced matter pending before an administrative law judge's decision , or pending Board view thereof is deemed premature.) The remaining documents as earlier noted are essen- tially three informal settlement agreements , two ap- proved in 1980, and one in 1981. The first 1980 informal settlement agreement was approved September 24, 1980, in Cases 7-CC-1118 and 7-CD-385, involving an 8(b)(4)(B) and (D) charge resolution . This agreement contained a nonadmission clause; but also the following language: Notwithstanding the above, General Counsel of the Board may, in any subsequent proceeding where it is alleged that the Charging Party has violated Sec- tions 8(b)(4)(B) or (D) of the Act, use this settle- ment agreement as evidence of a prior violation of those section(s) to the same effect as a Board deci- sion finding a violation of those section (s) would have. The settlement provided posting of notice that 8(b)(4Xi) and (ii)(B) "cease doing business" object, with unlimited secondaries, and limited primary; and particularized (D) conduct. The second informal settlement approved Octo- ber 14, 1980, in Cases 7-CC-1135 and 7-CD-391 also in- volved an 8(b)(4)(B) and (D) charge resolution . However this agreement contained a nonadmission clause, and was without any future "use" language . Its notice provided an 8(b)(4)(ii)(B) remedy with object of "cease doing busi- ness" with unlimited seocndaries reference, and limited primary, and (D) particularized conduct. All the above documents were received in evidence and/or official notice taken thereof, with question of law, however, re- served concerning the appropriate individual application thereof to be made in any appropriate remedy consider- ation. The third and final informal settlement agreement so advanced is that earlier referenced as approved on May 22 on 8(b)(4)(B) charges brought by Hoffman in regard to Respondent's picketing of Quality Plumbing on the in- stant jobsite. Respondent Local 388's strenuously has ob- jected to its receipt at hearing on the basis that the same had not been set aside and involving a different picketing matter, but relative to the same jobsite, was highly preju- dicial to the resolution of the instant complaint matters. Receipt of same in evidence thereupon was taken under advisement and having now more fully been considered, in the light of the entire record made before me, it (G.C. 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Exh. 21) is now also received.40 This informal settlement agreement was approved May 22 in Case 7-CC-1162. It contains no nonadmission clause . It also contains the fol- lowing language: The General Counsel of the Board may, in subse- quent proceeding where it is alleged that the Charg- ing Party has violated Section 8(b)(4)(B) of the Act, use this settlement agreement as evidence of a prior violation of this Section to the same effect as a Board Decision fording a violation of that Section would have. The notice in this agreement provided an 8(b)(4)(i) and (iiXB) remedy, referencing unlimited secondaries with "cease using, etc." or "cease doing business" object, as to limited primary, Quality Plumbing. On the strength of similar use made in Teamsters Local 252 (Newark Service), supra, the aforementioned 1975 consent judgment (which did not contain a nonadmission clause) would appear to qualify for consideration of bearing on remedial issue. However, here the attendant circumstances thereof also evidence an intervening pas- sage of approximately 4 to 5 years from its entry to the next succeeding Board order event; and probative or supportive significance thereof as bearing on urged dem- onstration of recividism, or proclivity to violate the Act in its particulars, is seemingly much reduced, if not actu- ally contraindicated by such a lengthy time passage. A union's thus effected hiatus in engagement of any illegal activity for 4 to 5 years, in my view, is a significant in- tervening period of indicated compliance with the sta- tuory scheme. Accordingly, I conclude it can add little significance in the assessment of an appropriate remedy on the instant matter. The 1980 Board Order (regarding the 1979 conduct), providing 8(b)(4)(i) the (ii)(B) prior remedy is of course available for such consideration . It is observed that the same was limited in its remedial addressment to two par- ticularized jobsites, neither jobsite (or primary therein) relatedly involved herein. Thus the relation to the instant matter is at best on only broad commonality of 8(bX4)(B) consideration and it is observed that Board approval of the 8(bX4Xi) and (iiXB) picketing findings therein was noted to have been pro forma. Respondent objects to its extended use herein as support for broad remedial order. The remainder are three informal settlement agree- ments. In Teamsters Local 70 (C & T Trucking), 191 NLRB 11 (1971), a case noted in the General Counsel's cited authority, the Board declined to enter a broad sec- ondary boycott order based, inter alia, on 13 previous settlements. The Board there stated that it "has frequent- ly held that settlement agreements and consent decrees 60 The General Counsel specifically stated at the hearing that no unfair labor practice finding would be sought thereon and, as noted, none has been found. The General Counsel has urged receipt of the latter solely for its urged bearing on remedy . Having now more fully considered the matter, and concluding that high prejudice is not reasonably shown to result from its receipt for such limited purpose; and observing that the same appears to be not distinguishable in nature (for such purpose) from earlier settlement agreements received for such consideration as is to be determined appropriate, G.C. Eah. 21 (and related R. Exh. 11) is re- ceived for review. arising therefrom, have no probative value in establishing that violations of the Act have occurred and, hence, they may not be relied on to establish a 'proclivity' to violate the Act." Clearly the above informal settlement agree- ment of October 14, 1980, regarding Section 8(b)(4)(ii)(B) and (D) is necessarily within such category, and it is accordingly to be given no weight whatever herein. Cf. Variety Artists (Harrah's Club), 195 NLRB 416 (1972). It would also at first appear that the two remaining in- formal settlement agreements of September 24, 1980 (with nonadmission clause), and May 22, 1981 (without), also suffer the same infirmity of use, unless the above-re- served "use" language employed by the parties in each is to be deemed a sufficient basis to occasion a different result. It goes without saying that informal settlement proce- dure, generally, is extremely useful in the admistrative process of early voluntary adjustments of various current issues between the parties, and thus the informal proce- dure clearly serves the overall purpose of the Act; and it is clear, as well, that parties who enter such agreements in doing so are generally determined to be held to the terms of their agreement. Thus, absent a showing of a subsequent breach of an agreed settlement's terms (or en- gagement in independent unfair labor practices) an (in- formal) settlement will generally not be set aside, and the underlying charged violations, or former complaint alle- gations not allowed to be renewed and revisited for spe- cific unfair labor practice findings by the Board. Cf. Jackson Mfg. Co., 129 NLRB 460 (1960); and United Dairy Co., 146 NLRB 187, 189 (1964). Notably even when it is established that the latter grounds do exist for setting aside the settlement agreement , the covered viola- tions then must first be established by evidence and spe- cific findings thereon made, before any future remedy is to be effected. The reason heretofore expressed by the Board for denying a use of prior settlement agreements of a respondent in a remedial manner bearing on subse- quently determined violations is to be found in Board view expressed thereon that settlement agreements, and consent decrees arising therefrom, have no probative value in establishing that violations of the Act have occurred. Here under instant review, however, are two informal settlements in which the parties (which include the Re- spondent Union) have entered a prior agreement that the informal settlement terms thereof may be used as evidence of a prior violation (by the Respondent) of this (covered) sec- tion to the same effect as a Board decision finding a viola- tion of that section would have. They have thus seemingly provided by their party agreement (and whether constru- able as involving Respondent admission , or waiver) an addressment and avoidance of evidentiary deficiency noted by the Board as the existing grounds for the Board's denials of such settlements a later remedial appli- cation, or use, heretofore. Whether efficacy is to be ac- knowledged in such attempted substitution of party agreement for heretofore required finding of a violation, is of course a policy matter for the Board's addressment and resolution. PLUMBERS LOCAL 388 (DAILY HEATING) The General Counsel has asserted ;a brief: "While in- formal, two of these settlements contain the clear lan- guage that obviously contemplates that these settlement agreements are to be used as we now seek to use them to obtain a broad order in a subsequent case." The General Counsel does not advance any prior existing Board precedent that is in direct support of the position ad- vanced herein, nor has my own research led me to any. In my own view, although parties should generally be held to their undertaking, including their admissions and waivers (when not otherwise violative of statutory pur- pose), an informal settlement agreement such as that of September 24, 1980, which on its face contains both a nonadmission clause reserving to the Respondent a posi- tion that it has not violated the Act in specific section covered, while at the same time purporting to provide "use" language for a substitutive violation finding, con- tains such latent ambiguities, if not inherent inconsisten- cy, that it is not to be deemed serviceable probatively of the end sought. The last informal settlement agreement of May 22, which contains no nonadmission clause and which does contain the above party agreed "use" lan- guage, would alone appear squarely to present such an issue. Respondent, in contrast, essentially would rely on the Supreme Court holding in Communication Workers of America v. NLRB, supra, which teaches that the Board's remedy is to be directed to unlawful practices found, or such as are shown persuasively related to the proven un- lawful conduct. In the Teamsters Local 252 (Newark Serv- ice), case supra, on which the General Counsel relies, the controlling circumstances appears to have been there that in four recent 8(bX4)(B) cases, in a relatively short timespan (apparently 1 year), it was discernible that the Union had demonstrated proclivity "to engage in second- ary boycott conduct directed against persons doing busi- ness with rubbish removal contractors whom it deems objectionable." Even there, though an order was entered that was broad in nature, the order entered did not pro- scribe all (thus extending to unfound and unrelated) 8(bX4)(B) activity in the future irrespective of object or reasonably demonstrated intendments, but rather was ad- dressed pointedly to all 8(bX4)(B) activity in the future of a nature having an object regarding the "any other rubbish removal contractor" concerning which group the contended "proclivity" to unlawful boycott had thus become discernible. On that perception, it becomes ap- parent that the very broad proscripting order herein sought by the General Counsel is not shown warranted on that authority. Nor can I discern any significant such "proclivity" herein from a consideration of the matters earlier remedied by the Board in its pro forma adoption of the 8(bx4)(i) and (iiXB) findings in the above Feather- ly Construction case, involving Respondent. In compari- son with the above informal settlement adjustment, I would note that party compliance with a trial examiner's decision, standing alone, is inadequate; and, in any event, I am insufficiently persuaded that that which is effective- ly presented herein is sufficient. Cf. Teamsters Local 70 (C & T Trucking), 191 NLRB 11 (1971). Moverover, in the light of the findings of specific violation herein made, and the traditional but tailored remedy herein to be pro- 1281 vided thereon, the same, in my view would have no oc- casion to be enlarged even were I to extend a consider- ation additionally as to the above informal settlement agreement (of May 22) seemingly providing for such use, as is urged by the General Counsel. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend. ed4t ORDER The Respondent, Local 388, United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, AFL- CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Inducing or encouraging by picketing, threatening, or any other means, employees employed by any other persons engaged in commerce or in industries affecting commerce, to engage in a strike or a refusal in the course of their employment to perform services for their respec- tive employers; and from coercing or restraining Daily Heating and Air Conditioning, Inc., or any other em- ployer, where an object thereof is to force or require Daily Heating and Air Conditioning, or any other em- ployer, to cease doing business with Hoffman Construc- tion Company, and/or with each other, and with a fur- ther natural and apparent object of forcing or requiring Hoffman in turn to cease doing business with Quality Plumbing, Inc. (b) Telling employees that their future representation by Local 388 will be less favorable because they work behind a picket line of Local 388 directed against an em- ployer other than their own employer. (c) Seeking to enforce article II, section 12 (work pres- ervation) of our collective-bargaining agreement by un- lawful picketing, or in any manner that would constitute a violation of Section 8(bX4)(i) and (ii)(B) of the Act. (d) Charging, trying, fining, or otherwise disciplining Thomas Benner, or any of its members, to induce or en- courage them to withhold their services from their neu- tral employer with an object or forcing or requiring their neutral employer to cease doing business with a neutral general contractor, and/or with further natural and ap- parent object to force or require a neutral general con- tractor to cease doing business with an employer with whom they have a primary dispute. (e) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the disciplinary action taken against Thomas Benner for working behind a picket line of Local 388 to induce or encourage employees to withhold their services from their neutral employer with an object of forcing or requiring their neutral employer to cease 41 If no exceptions are filed as provided by Sec . 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doing business with a neutral general contractor and/or with further natural and apparent object to force or re- quire a neutral general contractor to cease doing business with an employer with whom they have a primary dis- pute; remove from its records any reference to that disci- pline; and notify United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO of its actions in that regard. (b) Refund to Thomas Benner any moneys that may have been held on account of fine assessed against him in connection with the aforesaid disciplinary action, with interest, as set forth in the remedy section of this deci- sion. (c) Post at its offices and meeting halls copies of the attached notice marked "Appendix."'s Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately on receipt thereof, and be maintained by it for 60 consecutive days thereafter, in consipicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Sign and return to said Regional Director sufficient copies of the attached notice marked "Appendix" for posting by Daily Heating and Air Conditioning, Inc., if willing, in conspicious places, including all places where notices to employees are customarily posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. *' If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage, by picketing, threatening, or any other means, employees employed by Daily Heating and Air Conditioning , Inc., or by any other employer, to engage in a strike, or a refusal in the course of their employment to perform services for their respective employers; and WE WILL NOT coerce or re- strain Daily Heating and Air Conditioning, Inc., or any other employer, where an object thereof is to force or require Daily Heating and Air Conditioning, Inc., or any other employer to cease doing business with Hoffman Construction Company and/or with natural and apparent further object to force or require Hoffman Construction Company to cease doing business with Quality Plumbing. WE WILL NOT tell employees in a manner violative of the Act that future representation by Local 388 will be less favorable because they work behind a picket line of Local 388 directed against an employer other than their own employer; and WE WILL cease seeking to enforce article II, section 12 of our collective-bargaining agree- ment entitled work preservation by unlawful picketing, or in any other manner that would constitute a violation of Section 8(bX4Xi) and (ii)(B) of the Act. WE WILL NOT charge, try, fine, or otherwise discipline Thomas Benner, or any of our members, to induce or en- courage them to withhold their services from a neutral employer with an object of forcing or requiring the neu- tral employer to cease doing business with a neutral gen- eral contractor, and/or with further natural and apparent object to force or require the general contractor to cease doing business with an employer with whom we have a primary dispute. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind the disciplinary action taken by us against Thomas Benner for working behind a picket line of Local 388 to induce or encourage employees to with- hold their services from a neutral employer with an object of forcing or requiring the neutral employer to cease doing business with a neutral general contractor and/or with further natural and apparent object to force or require the neutral general contractor to cease doing business with an employer with whom we have a pri- mary dispute; and WE WILL remove from our records any reference to that discipline, and notify the Interna- tional Union for our action in that regard. WE WILL refund to Thomas Benner any moneys held on account of fines assessed against him in connection with the aforesaid disciplinary action, with interest. LOCAL 388, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIFEITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL- CIO