McCarthy Heating & Air Conditioning Services, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers Union Local No. 3 and Mc- Carthy Heating & Air Conditioning Services, Inc. Case 17-CP-230 November 17, 1980 DECISION AND ORDER BY Ml MBI:RS P'I-Nl. I .I, TRUIESI)AI , ANI) ZIMMI:RMAN On July 30, 1980, Administrative Law Judge William L. Schmidt issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegatd its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,l and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Sheet Metal Workers Union Local No. 3, Omaha, Nebraska, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. Resplponldent has cxcpted to cert ain credibility fildilgs nade hy the Admiulistratie ILaw Judge It i the Itareld's etlahlished plicy not to ove rule ;I ;n administratllve law Judgesc resolutions wtllh respect to creli hility unlessll tie clcear preprtllderance of all if the rlei ant eidelce coln- vinccs us that the resolutiorls are incorrect Staundard )rv Wall I'roducl. Ino.. 91 NLRFB 544 (1 9 51)). enfd 188 tF2d 362 (3d Cir 19511. e h;lave carefully examined the record and find nod basis for reversing his findiigs DECISION STATI-MI NI OF1 HI: CASI WIL I.AM L. ScIMIm)I, Administrative Law Judge: This matter was heard before me on June 17 and 18, 1980, at Omaha, Nebraska. The proceeding is based upon a complaint issued on behalf of the General Counsel by the Regional Director of Region 17 on April 29, 1980,' and an answer filed by Sheet Metal Workers Union Local No. 3 (hereinafter called the Respondent) on May 7.2 The action was commenced pursuant to a charge H lcrelalfter, dates which do rtt designate the year refer t 1980( In Itl iuss-cr, the Respondent alleged as an affirmative defense it, belief that a;lly rlief shuould bh withhcld because McCarth t Charging Iarly, engages il racial discriminratiorn Prior to the opening olf hie hear- ing, the I)epuly Chief Administrative l.aw Judge granted the (iceeral 253 NLRB No. 53 filed by McCarthy Heating & Air Conditioning Services. Inc. (hereinafter called McCarthy), on April 14. The complaint alleges that the Respondent violated Section 8(b)(7)(C) of the National Labor Relations Act, herein called the Act, by picketing at three construction projects where McCarthy's services were utilized. The Respondent admitted all of the preliminary allegations of the complaint in its answer but denied the substantive al- legations concerning the commission of the alleged unfair labor practice. Based upon the entire record and my observation of the witnesses in this matter, and after due consideration of the briefs filed by all parties, I make the following:: FINI)IN(is OI F( I 1. JURISI)I IlION The complaint alleges and the answer admits that Mc- Carthy, a Nebraska corporation engaged in sheet metal construction work and the installation of heating, air- conditioning, and refrigeration units at various construc- tion sites in the State of Nebraska, annually purchases goods and services valued in excess of $50,0(X) from sup- pliers located within the State of Nebraska which suppli- ers, in turn, purchased said goods and services directly from other suppliers located outside the State of Nebras- ka. Accordingly, I find, in accord with the allegation of the complaint, that McCarthy is an employer engaged in commerce ithin the meaning of Section 2(2). (6), and (7) of the Act. I further find that it would effectuate the purposes of the Act to assert jurisdiction in connection with this dispute. II. I ABOR ORGANI/ATION SAIUS The Respondent admits, and I find, that it is a labor organization within the meaning of Section 2(5) of the Act. Clunsel's l lltion to trikc thi alffilnalive defense At the hearing, tle Responlident renewed its opposition t the General Counsel's mtilon to strike relying on n LR.B . % Mu4antion IHouse C(tentl; Manugeni'ent (orp., 423 F 2d 471 (th Cir 1973) On the basis of the Respondent's argument at that lime. I declined to vacate the aforemenlioned order- of the D)eputy C(hief Admilnisrative Law Judge Consistent with that ruling, I precluded tile Respondent fromnl decp:lopg evidence at the hearing concerning the employment practices of McCarthy. In its brief, the Respondent asserted that the foregoing action violated the due-process clause f the fifth amendment Whatever else may be said of the merits of the Respondent' s argument concerning .funsuon lous', it miscoinceisc a fundamental prinl- ciple l'his action is not a private action by McCarthy against the Re- spondent; nor does the fundmental interest of this agency lie in seeing that McCarthy obtains relief Rather, the interest of this Agency i to assure that the channelts f commerce are nt -lgged by a accumula- tion of unfair labor practices. N LRB v J, & Laughlin Steel Corp., 301 U S I (19371 As a consequence, the Bi.d has historically prceed- cd onl merilorious charges regardless of the charging party)' private inter- est or lack If interest. il the dispute I'resumahly, the Respondent's thelry would permit the disruption itf conlmerce vahere t ciiuld be showvn hat the Clharging Party or any other person benefiting friimn this agency's remedial actio), directly r indirectly, engaged in racial discrim- maltion. I see ino basis inttl ausion luse or its progerny to permit the tail to wag thec dog Accordingly myin rulings with respect t Ihis issue are hrebh ralfirned : Tiec (itenral Cotlllel's uopposed lotion o correct the tralscript is gralted. 33( SI ETI MITAIl. WO()RKERS I OCA 3 A. 'hc E:'iddncc' 1. The picketing and other undisputed matters As noted above, McCarthy is, in essence, a sheet metal contractor McCarthy's principal business office is locat- ed in Omaha, Nebraska. but, as is typical i the construc- tion industry, most of its services are performed at the jobsites of its customers. Early this year, McCarthy was utilized as a subcontractor at three construction projects in the Omaha area known as tile Long John Silver Res- tuarant, Bud Olsen's Bar. and The Yellow Building. The evidence established that the Union caused McCarthy to be picketed at the aforementioned jobsites. 4 In this con- nection, the parties stipulated that the picketing at the Long John Silver Restaurant occurred on February 25 and 28; the picketing at Bud Olsen's Bar occurred on March II; arid the picketing at The Yellow Building began on April 9 and continued through April 18 with the exception of Saturday. April 12, and Sunday. April 13." It was also stipulated by the parties that the Re- spondent has never been certified by the National l.abor Relations Board pursuant to the provisions of the Act as the collective-bargaining representative of any of McCarthy's employees. Likewise, the Respondent en- gaged in the picketing activities described above without a valid petition being filed pursuant to Section 9(c) of the Act wherein the Respondent sought to represent any of McCarthy's employees. By letters dated May 3, 1979, and November 28, 1979, the Respondent's business manager, Bernard W. Preis, advised McCarthy that the Respondent was in possession of information which indicated that McCarthy's wages and benefits were "below or substandard to the area standards which [the Respondent] has been successful in negotiating."" The letters go on to demand that McCar- thy pay the cost equivalent of the area standard or the Respondent would publicize the fact that McCarthy did not pay the alleged area standard. There is no evidence concerning the nature or source of information in the possession of the Union in May 1979 or November 1979 which led the Respondent to believe that McCarthy was paying substandard wages. Likewise, there is no evi- dence that any picketing or other publicity occurred after the May 1979 letter was sent. There is, however, no dispute that, at the time of the aforementioned picketing, the economic cost of the wages and benefits which Mc- Carthy paid its employees was significantly lower than similar costs to employers who were bound to agree- ments with the Respondent. Both of the aforementioned letters disclaim any recognitional or organizational objec- tive on the part of the Respondent and undertake to pro- vide McCarthy with information as to the Respondent's i In the complallnt the General (Counsel alleged that the pickeling woas citnducted hy ja Mr X" At the oulti of he hearing, Ihe parties stipu- lated that "Mr X" is )uane I ebsack lito is described In further detail heii,.s t I.leh ack Ietsillfi Illhat he plcketed for about 15 minlules rn I chrular 25 and mot Iof ih i da1 o1t March I a, wc ll as Ihe days ti picketed in April t ibt,k rad le rn lention of pickicling On February 28 i the oil> differcrio. til e l on(ein o the Ma arid N eniher letters is the Respondent's alculatiolll Ot' the s(il I the Atandard sag illand benefit package I he cost had gonie up h Nember calculation of the economic cost of the wage and benefit package alleged to constitute the area standard. According to Preis, Lichbsack was employed by the Respoindlett to conduct an investigation of the wage and benefit programs which were being paid by various con- tractors in the area and to engage in the picketing activi- ties which are the subject of the instant dispute. Lieb- sack, who has been a member of the Respondent for 10 or I I years but who has never been an official of the Re- spondent was paid a weekly salary and worked full time on this project. Preis testified that he instructed Liebsack concerning his duties and that from time to time Lieb- sack reported orally to him concerning the contacts he had made during the investigation. In addition. Liebsack was required to report his activities on written reports which Preis would utilize in explaining Liebsack's activi- ties to the Respondent's executi\e board. Although there is evidence that Liebsack's investigation ivolved the employees of other persons, there is no evidence that an, other person or employer other than McCarthy was picketed by Liebsack throughout the period of time in- volved here. According to Liebsack, the decision to engage in picketing as made after he called the Re- spondent's office and discussed the matter with the Re- spondent's officials. Notwithstanding the fact that Lieb- sack has never been an official of the Respondent, I find on the basis of the record before me that he was an agent of the Respondent for all matters relevant herein and an agent within the meaning of Section 2(13) of the Act, as alleged in the complaint. On each occasion when Liebsack was engaged in the picketing, which is described above, he carried a picket sign which bore the following legend: FOR INFORMATION ONLY, EMPLOYEES OF McCARTHY HTG. & A.C. DOES NOT RECEIVE WAGES & BENEFITS EQUIVALENT TO THOSE ESTABLISHED BY SHEET METAL WORKERS LOCAL #3 THIS DISPUTE WITH ABOVE NAMED EMPLOYER ONLY. The evidence shows that, on the second day of picket- ing at the The Yellow Building, employees of other per- sons engaged in a work stoppage. In addition, Robert Rhatigan, one of McCarthy's employees, honored the picketing at The Yellow Building. As a consequence of the work stoppage by other crafts, a reserved gate system was established at The Yellow Building jobsite on the second day of the picketing. Although the gate system had a salutary effect on the willingness of the 7 The cost informatlion supplied by the Respondent il Ihe letters is net- thcr ufficiently complete nor ullmhlbiguolls as to permit McCarthy to comply with the demand h the Respoindeti that it pal Ihe "tist cquiva len " Ihis is especlally true in the instance of apprenlice ernplileesl who are not mrleltioned in their letters However. in slew ,of he conclusiot rceached herein, I find it uninccessarN to consider hether r r lit the Re- spOInl(eilt las, in f;tc, seekirng to engllgge in proi rfl bargaining in the subject of ctst equivalency 331 DECISIONS OF NATIO()NAL LABOR RELA(IONS BOARD other employees to report to work, Rhatigan remained off work for approximately 5 days. 2. The object The evidence discloses that, in addition to Liebsack's picketing activities, he also contacted several of McCarthy's employees in an effort, ostensibly, to obtain information as to their wages and benefits. The General Counsel and McCarthy contend that the true object of the Respondent's picketing activities described above are disclosed by the nature of Liebsack's face-to-face activi- ties with McCarthy's employees. Paul A. Terry, who was employed by McCarthy at the times described below as an apprentice mechanic-in- staller, was contacted by Liebsack on several occasions. According to Liebsack's records, he first approached Terry on February 18.H At the time, Terry had been em- ployed by McCarthy for approximately a month. Ac- cording to Terry, Liebsack approached him while he and another employee, Roger Trent, were working at the Northwest Fabric Building in Omaha. Terry testified that Liebsack asked them for the identity of their em- ployer and what they were being paid. Both men refused to supply Liebsack with the latter information at that time. Terry testified that, approximately a week later, Lieb- sack approached him at a Wendy's restaurant in Omaha and again sought to learn what he was being paid by McCarthy. This brief conversation resulted in Terry tell- ing Liebsack that he was paid somewhere between $5 and $8 per hour. No one else known to either man was present on this occasion. As noted above, picketing first occurred at a McCar- thy jobsite on February 25. Terry and a fellow employ- ee, Robert Gebhardt, were working at the picketed job- site on that day. On February 28, Terry and Gebhardt again reported for work at the same jobsite. As they were unloading their tools and materials in preparation for commencing work, Liebsack approached them and inquired as to whether or not he could ask them some questions. According to the two McCarthy employees, they agreed and the three men proceeded inside the building under construction." Once inside, Liebsack asked Terry and Gebhardt if they would fill out a paper about their wages. According to Gebhardt, Liebsack re- moved two papers from a manila envelope and laid them down on an adjacent work bench for the two men to see. Gebhardt told Liebsack that if he would leave two copies they would take them to John McCarthy, the Re- spondent's president, to have them approved and then would give them back. Liebsack declined to follow that procedure because, according to Terry's testimony, they belonged to the Respondent and he had to hang on to them. An inquiry was made of Liebsack as to whether or not he was the individual who had been picketing the jobsite on February 25. Liebsack acknowledged that he I.ichbsack's records refer to Terry as Paul McCarthy I lbhsack ex- plained Ihat h misunlderstood 'Tcrry's name because a Ilhl)vw emrployec shouled, "McCarthy get up here," at 'erry in the course of their firs! conversatllonl ! Uless otherwise noted, the report of this conversation which ti llows immediately herein is based on the testimony of Terry and Gehhardt was. Gebhardt asked if he were trying to harrass McCar- thy arid, according to Terry, Liebsack responded by saying, "No, I'm just picketing to do you a favor to get your sages up.""' Gebhardt asked Liebsack if he were trying to organize McCarthy. Liebsack responded by saying, "I'm not trying to organize you now, but I'm not saying I won't ill the future." Gebhardt then expressed his opinion that he thought McCarthy was too small to be organized. Liebsack stated that he knew of a three- man shop in Omaha that was union and that, if McCar- thy was big enough to bid on union-size jobs, he should be able to become a union shop and pay union wages. According to Gebhardt, the conversation continued for some period of time and from time to time Liebsack re- newed his request to complete the survey form Liebsack had requested. In addition, the two employees persisted in their refusal to inform Liebsack concerning their hourly rate of pay. At one point, Liebsack asked Geb- hardt how long he had been working in the industry and when Gebhardt responded, Liebsack produced a second sheet of paper listing the Responident's apprentice scale and told him that he would be making $6.17 per hour if he were working for a union shop. Liebsack asked if Gebhardt were making that much, but Gebhardt still re- fused to answer that question. Gebhardt testified that Liebsack asked questions concerning their insurance and, at one point in this portion of the conversation, Liebsack remarked that he knew they had insurance but did not know how good it was. Then, according to Gebhardt. Liebsack went on to explain in detail the insurance pro- gram available in the union shops including the fact that dental insurance is provided. Gebhardt testified that Liebsack inquired about the trade school sponsored hby the nonunionl shops aid if McCarthy employed any women or minorities. Gebhardt stated that Liebsack asked the two men about jury duty pay and explained to them that the Respondent had earned this benefit for em- ployees. When the conversation concluded, Liebsack left the building but returned to where the two men were working inside shortly thereafter. According to Geb- hardt, Liebsack asked if they had performed the sheet metal work on the outside of the building. Liebsack was informed that they had not because that was not a part of their contract. According to Gebhardt, Liebsack told the two men that if McCarthy were a union shop they would have the right to do all of the sheet metal work on the jobsite. Following this conversation, Gebhardt had no further contact with Liebsack. However, Terry was contacted by Liebsack one further time which he estimated to be approximately a month later in Bellevue, Nebraska. On this occasion, Terry just arrived at a residence where he had been assigned to wvork when Liebsack approached him and again requested that he complete Liebsack's survey form. Terry declined again to do so and Liebsack persisted in his request. Finally, Terry told Liebsack not to bother him at work-to contact him at home if he wanted to speak with him about the Union. Liebsack re- sponded, "I'll do that, I have your phone number." G' Oebhart's ers5in o his slatemni tl by ichsack as "n'm pickeyiag fIr you hecause McCarthy Comnpany pays sub-standard wages." 332 SIHEET METAL NW()RKERS LOCAL 3 Robert Rhatigan, another of McCarthy's employees, testified that he was approached hy Liebsack while he worked on The Yellow Building jobsite and requested to complete a survey form. According to Rhatigan, Lieb- sack handed him the form which he completed and signed. On the basis of the documents in evidence, it ap- pears that Liebsack was successful in securing the coop- eration of at least two other McCarthy employees in completing the survey. In general, both Preis and Liebsack asserted that the sole object of the picketing was to advertise the fact that McCarthy was paying its employees substandard wages and benefits. As previously noted, the May and Novem- ber 1979 letters from Preis to McCarthy recited that the Respondent was in possession of information that Mc- Carthy was paying substandard wages and benefits. Nev- ertheless. when Liebsack was initially hired for the pur- pose of conducting the Respondent's investigation, he immediately undertook to contact the McCarthy employ- ees. Liebsack testified that his first contact among the Mc- Carthy employees was with Terry and Trent and that this occurred on February 18, the day he was hired, at approximately 12:30 p.m. Liebsack testified that he was unable to obtain any information from either of the two individuals at this time. On February 22, at approximate- ly 2 p.m., Liebsack contacted Robert Rhatigan in person and informed Rhatigan that he was taking a survey for the Respondent. According to Liebsack, Rhatigan insist- ed on completing the survey form himself so Liebsack covered the materials on the form which pertained to noneconomic items and the benefits under the Respond- ent's agreement with two sheets of paper and paper clips to hide them from Rhatigan's view. As a result of the in- formation obtained from Rhatigan and subsequently from Terry, Liebsack was satistied that the Respondent was paying substandard wages at the time that the picketing began on February 25. According to Liebsack's version of his activities, he continued his efforts to survey the McCarthy employees after the February 25 picketing for the purpose of deter- mining whether or not McCarthy adjusted the economic package paid to its employees. With one exception, Lieb- sack steadfastly maintained that his inquiry of the Mc- Carthy employees was limited to questions pertaining to the economic benefits they received. The exception was Liebsack's inquiry of McCarthy's employees as to wheth- er or not McCarthy employed any minorities or females. Preis explained the purpose of this inquiry in his testimo- ny as follows: "If we became aware of any minority or female that [sic] qualified in the trade, we would most certainly approach them about coming into the union." Liebsack acknowledged that, although he generally in- quired as to what benefits the McCarthy employees re- ceived, he made no inquiry as to whether or not they re- ceived such benefits as holiday pay or vacation pay be- cause-according to Liebsack-such benefits were not common in the industry. Moreover, with respect to health and life insurance, there appears to have been no effort to inquire as to the cost of such benefits. Thus. Liebsack testified that he inquired as to whether or not the employee or the employer paid for the insurance benefit and assumed that the cost of the plan provided to McCarthy's employees was the same or greater than the cost of the Respondent's insurance. Although Liebsack recalled talking to Terry and Geb- hardt on February 28 and further recalled that there was a discourse between Gebhardt and himself, he acknowl- edged that he could only recall some of the details of their conversation. In this respect, Liebsack testified that when he approached Terry and Gebhardt he asked them to tell him what their wages and monetary benefits were and they informed him that John McCarthy had instruct- ed them not to talk to him. Liebsack then asked if they were making over 5 per hour and Terry told him that he was making between $5 and $8 per hour. The only recollection of the comments by Gebhardt which Lieb- sack recalled in his testimony was that Gebhardt re- marked that he did not think McCarthy was big enough for a union. Liebsack testified that he responded to that remark by saying that he was not trying to organize Mc- Carthy at that time and that he did not know of any time when the Respondent would try to organize McCarthy. Although Liebsack acknowledged that he removed the survey form from his briefcase in the presence of Terry and Gebhardt on this occasion, he asserted that he did not display it to them. Liebsack specifically denied stat- ing to Terry and Gebhardt that, if McCarthy were union, the outside sheet metal would have been included in their contract or that, if McCarthy were big enough to bid on jobs of that size, it was big enough to be union- ized or any other words to the effect of those two state- ments attributed to him by Terry and Gebhardt. There is absolutely no evidence that Liebsack or any other agent of the Respondent specifically asked any of McCarthy's employees to become a member of the Re- spondent or to execute an authorization card. Liebsack specifically denied that he ever did so. Apart from the survey form previously referred to, two other types of forms which were utilized by Lieb- sack during his investigation of McCarthy are in evi- dence. One form (G.C. Exh. 4) is designed to summarize information pertaining to all of the employees. It con- tains columns and space to list the employee's name, wage rate, and classification, and a final column for gen- eral remarks. In the remarks column, Liebsack noted after Trent's name the following: Ex-union member Anti Union Emotion 2/18 More Co-op 3/11/80 In the same column Liebsack noted that employees Ja- cobsen and Rhatigan were also former members. Follow- ing Terry's name, Liebsack noted that there was no rela- tion presumably with John McCarthy but, after Keith McCoy's name, Liebsack noted that he was one of the boss' sons. I The other type of form utilized by Liebsack was de- signed to maintain information about each individual em- O n)1 this form rerr is lis'.d a Paiul McCarih for Ihe ,hamc rea. on a, explllned i1 fn 7 Keith McCo','s father was decrlhed onl) as a "partnelrt of John McCarilh: 333 I)ICISI()NS OF NATIONAL LA()OR RLATIONS l3()ARI) ployee. Among other items on this form, space is pro- vided thereon to show the date and location of the con- tacts with the particular employee. With respect to Rha- tigan, there are five entry dates between February 22- when Rhatigan completed the survey form-and March 14. One includes a telephone call on February 24 at 8:45 p.m. Liebsack testified, however, that some of the entries in this space are for occasions when he observed individ- uals on particular jobsites. The so-called survey form which Rhatigan completed is attached hereto as Appendix A [Appendix A is omit- ted from publication]. In his testimony, Liebsack referred to the form as a comparative analysis sheet. Liebsack as- serted that he prepared the form himself as an aid in his investigation. He asserted further that the Respondent's benefits are listed on the form solely to assist him in comparing the Respondent's benefits with those of the employee being interviewed. There is no evidence that the Respondent ever solicted McCarthy for recognition as the representative of McCarthy's employees. In fact, both Preis and Liebsack disclaimed any desire on the part of the Respondent to represent McCarthy's employees in their testimony. 13. Concluding Finding.s In general, Section 8(b)(7)(C) prohibits the picketing of an employer by a labor organization which is not rec- ognized or certified as the representative of the employ- er's employees beyond a reasonable period not to exceed 30 days from the date when the picketing commenced for a recognitional or organizational object without a pe- tition being filed pursuant to Section 9(c) of the Act. Picketing solely for an area standards objective is not within the purview of Section 8(b)(7). Houston Building and Construction Trades Council (Claude Everett Con- struction company), 136 NLRB 321 (1962). However, as a labor organization normally seeks to or- ganize the unorganized, it must make clear in unmistak- able terms that its immediate goal is limited to protecting area standards. Painters Local 272, Brotherhood of Paint- ers, Decorators, and Paperhangers of America, AFL-CIO (Charles R. Curtiss, an Individual), 183 NLRB 933 (1970). As the Respondent has never been recognized by Mc- Carthy or certified as the representative of any of its em- ployees and as no petition was filed within the 30-day period following February 25-the date when the Re- spondent commenced its picketing activities against Mc- Carthy-the only remaining question is whether or not an objective of the Respondent was recognitional or or- ganizational in its purpose. In every case this question is one of fact and not of assumptions and presumptions. Sales Delivery Drivers. Warehousemen and Helpers Local 296 of Santa Clara and San Benito Counties, California, t al. (Alpha Beta Acme Markets Inc.), 205 NLRB 462 (1973). In the testimony of its representatives and by the asser- tions contained in the letters sent to McCarthy and the legend displayed on its picket signs, the Respondent as- serts that its sole objective was to publicize the fact that McCarthy pays its employees substandard wages and benefits. 12 However, in determining the true objective of conduct alleged to violate section 8(b)(7) of the Act, the trier of fact must weight all the facts and circumstances. Having done so, I have concluded that the Respondent did not limit its goal to protecting the area standard. Rather, I find the preponderance of the credible evi- dence establishes that the true objective of the Respond- ent's conduct was to pressure McCarthy to recognize the Respondent and to compel McCarthy's employees to accept the Respondent as their representative. In reaching the foregoing conclusion, I do not credit testimony of Liebsack where it conflicts with the testi- mony of Terry, Gebhardt, and Rhatigan. Liebsack's ex- planation of the laborious procedure he allegedly fol- lowed with blank sheets of paper and paper clips to hide portions of the survey form which obviously have noth- ing to do with the Respondent's investigation of the eco- nomic conditions of McCarthy's employees as well as his admittedly incomplete recollection of his exchange with Ciebhardt is sufficient to cast a pall over any of his testi- mony which contradicts the testimony of the aforenamed employee witnesses By contrast, Terry, Gebhardt, and Rhatigan all impressed me during the course of their tes- timony as being forthright and making an honest effort to describe what they heard and observed. Moreover, as Rhatigan appears to have supported the Respondent's ef- forts by honoring its picket line for a few days and openly providing the Respondent with information con- trary to John McCarthy's instructions, I find it most un- likely that he would take the witness stand and fabricate a story about what occurred when he completed the survey form. Having concluded that the testimony of the employee witnesses most accurately comports with what actually occurred, the credible evidence, in my judgment, demon- strates that the Respondent's investigation to determine whether or not McCarthy was paying substandard wages and benefits was a mere charade designed to mask the Respondent's true objective of impressing upon McCarthy's employees the benefits which could be gained by union representation as well as the Respond- ent's willingness to apply pressure through picketing to support that objective. Thus, if the assertion contained in the May and November 1979 letters to the effect that McCarthy's substandard conditions had been reported to the Respondent were true, the investigation conducted by Liebsack was totally unnecessary. Moreover, as Lieb- sack continued to pursue both Rhatigan and Terry after they provided him with information indicating their sub- standard conditions, the inference is warranted that he had some other object in mind. In addition, I find that Liebsack openly displayed the survey form to the Mc- Carthy employees and that he did so for the purpose of demonstrating the disparity between their conditions and the conditions of the employees who were represented by the Respondent, which the format of the form is de- signed to do. That Liebsack's investigation lacked an im- z I here is no isuc hat McCarthy's wage. arni hbenefits ,ar hcbeo those negotiated hby the Respondent the I(; inral ( ounsel and McCarthy do not (ispute he clainl of the Respoindent tIat its negoiated economic package is the standard in he area ilsolvel 334 SIIFF MfF[AI Wl ()RKI'RS OI()CAI. 3 tmediate area stanidards purpose is further demonsiraled by the nature of the notes twhich he maintained concern- iig his contacts with McCarthy's employees. As report- ed above, the notes reflect, where appropriate, the prior union membership of McCarthy's employees and, in the instance of Trent, Liebsack's judgment as to Trent's atti- tuide toward unions. I. ven Preis' explanatlioni concernlinig the reason for iebsack's inquiry concerning minorities and females reflects an organizational intentt. To the extent that any ambiguity remains concrmning l.iebsack's object and thus the Respondent's object, I.ieh- sack's statements on February 28 to Terry and (iebhardt serve to remove all reasonable doubt. Thus apart front telling those two employees that the Responldent's pick- eting was to bentelil them. Liebsack went o to demon- strate by his word hat the Respondent was desirous of representing McCarthy's employees and having McCar- thy among the ranks of the union shops when he con- veyed the following messages: (1) Contrary to Geb- hardt's assertion, McCarthy was not too small to be a union shop; (2) as a union shop, the employees would have more work: and (3) the Uniotn was a leader in oh- taining employee beilefits. 4 In this context, Liebsack's statement to (iebhardt and Terry that he could not say that the Respondenit would not attempt to organize them in the future was, in my judgnlent, a clear invitation to the employees to iniliate an orgaizing effort and the picketing was a clear message to McCarthy that its normal business would be disrupted so long as it re- mained nonunion. Upon considering the foregoing circumstances, I find that the declarations by the Respondent's agent that the Respondent's sole objective in connection with activities directed toward McCarthy in February, March, aind April was to publicize McCarthy's substandard condi- tions are self-serving and lack credence. Accordingly, on the bais of the foregoing and the entire record, I find that the Respondent violated Section X(b)(7)(C) of the Act. C. The .ffi'ct of the UnJair Labor Practices Upon Cort n erce The activities of the Respondent set forth in A and B, above, occurring in connection with the operations of the Respondent described in section , above, have a close, intimate, and substantial relation 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. lt In ils brief, McCarthy argued that Liesack', inscstigation of the cosl factlrs applicable tI, benefils paid by McCarthy s'as st perfunctory as to further demonstrate that Ihe Resporideni's asserted object was pre- text Although I have carefully cltnsidered Liebsack's teslinnony i this regard. the dlsparity in wage rates alonie in many instances hetweern the negoiated standarrd andi that paid hy McCarthy appear so significant as Ilo itake iy reliance n this factor unljustifed. Mretover, it strikes me a, inclriigruous Iti readily coilcedc asl McCarthy did. tha i econoloinc cst for employee wages and helnefils w; s belsow the ngotialed standard ont the oine hanld arid. in the tither hand. fault the Respolndcnli fr not going It great difficully in deermining this fact precisely '4 There is no teslirnmony that iebsack eer explained to McCarthy's employees that the Respondenit's real interest in pi,.ketig was the exist- ing member, alleged to hlae been put ut !of work h tIhe substandard condiio,ns if McCarthy's enliploy c Till Rit M )Y Having found that the Respondent has engaged in cer- tain unfair labor practices, it is recommended that the Responden at be ordered to cease and desist therefrom and to take certain affirmative action set forth in the recom- mcinded Order, below, designed to effectualte the policies of the Act. CoNCI usIoNS )ot L\ W 1. McCarthy Hcating & Air Conditioning Services, Inc., is an employer engaged in commerce withini the meaning of Section 2(2), (6), and (7) of the Act. 2. Sheet Metal Workers Union Local No. 3 is a labor organization within the meaning of Section 2(5) of the Act. 3. Sheet Metal Workers Union ocal No. 3 has never been recognized or certified as the collective-bargaining representative of any of the employees of McCarthy Heating & Air Conditioning Services. Inc.. at any time material hereto. 4. By picketing McCarthy Heating & Air Conditioning Services, Inc., for a period beyond 30 days from the commencement of said picketing without filing a petition under Section 9(c) of the Act, and with an object of forcing or requiring said McCarthy to recognize or bar- gain collectively with it or forcing or requiring said McCarthy's employees to accept or select it as their col- lective-bargaining representative, Sheet Metal Workers Union Local No. 3 has engaged in an unfair labor prac- tice within the meaning of Section 8(b)(7)(C) of the Act. 5. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein and pursuant to Section 10(c) of the Act I make the follow ing recom- mended: ORDER ', The Respondent, Sheet Metal Workers Union Local No. 3, Omaha, Nebraska, its officers, agents, successors, and assigns, shall: I. Cease and desist from picketing McCarthy Heating & Air Conditioning Services, Inc., or causing said Mc- Carthy to be picketed, with an object of forcing or re- quiring said McCarthy to recognize or bargain collec- tively with it, or forcing or requiring employees of said McCarthy to accept or select it as their collective repre- sentative in circumstances violative of Section 8(b)(7)(C) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its business office and meeting hall copies of the attached notice marked "Appendix B. " Copies of :' In te (sent no excvptions are filed as preosided bh Section 112 46 of he Rules and Regulations of the National I ahbor Relation IBoard Ihe findings, coincl usions and recommended Order herein shall. as prodided ill Sec 1)2.48 of he Rules and Regulations, be adopted by the itBoard and hec(lines its findings, concluionlll, alld ()rdl, and all objections theret(i shall be deemed waived for all purpose, i I e cticrr Ihal is () Order is enforced by a Judgmenll of a Inilled Slates Cl)tIr of Appeal,,. the words i the notice reading "'Posted by ('ontnu ed It5 DECISI()NS OF NAII()NAI. I AIB¢)R R.AIIO()NS I()AIRI) said notice, to be furnished by the Regional Director for Region 17, after being duly signed by a representative of the Respondent, shall be posted by the Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are cLs- tomarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 17 signed copies of said notice for posting McCarthy Hleat- ing & Air Conditioning Services, Inc., if willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Re- gional Director, after being signed by the Respondent, shall be forthwith returned to the Regional Director for distribution by him. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply here- with. Order o.f Ihe National Lahor Relatilons lBoard" hall read "'o,tled I'lru- ant to a Judgmenl ,of the Uniited Slates Cour of Appeals Tlfolrcing all Order f the Nationall I.abor Relallion, Board." APPENDIX No I I( t, ) I t1'I ()y l:.S AND1 M lI:K RS Po'Si I Yi ()tRI)IR Ittt NA IONA LiOR RTIAI IONS BOARI) An Agency of the United States Government Wi ll WI NOI picket or cause to be picketed Mc- Carthy Heating & Air Conditioning Service, Inc., at jobsites and other locations where McCarthy Heat- ing & Air Conditioning Service, Inc.. is engaged in its normal business activity, under conditions pro- hibited by Section (b)(7)(C) of the National Labor Relations Act, as amended, where an object thereof, is forcing or requiring McCarthy Hleating & Air Conditioning Service, Inc.. to recognize or bargain with us as the representative of McCarthy Heating & Air Conditioning Service's employees, or forcing or requiring McCarthy tleating & Air Conditioning Service's employees to accept or select us as their collective-bargaininlg representative. Sl l I MI xI WORKIRS UNION LOC(I? No, 3 336