Electrical Workers, Local 453

ELECTRICAL WORKERS, LOCAL 453 International Brotherhood of Electrical Workers, Local 453 and Southern Sun Electric Corpora- tion. Case 17-CP-215 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELL.O On June 24, 1980, Administrative Law Judge Harold A. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, International Brotherhood of Electrical Workers, Local 453, Springfield, Missouri, its officers, agents, and repre- sentatives, shall take the action set forth in the said recommended Order. t In adopting the Administrative L.aw Judge's finding of an 8(b)(7)(A) violation, Member Jenkins does not adopt his reliance on International Brotherhood of Electrical Workers. Local 265 ( RP M Electric), 236 NLRB 1333 (1978), enfd. 604 F.2d 1091 (8th Cir. 1979). As discussed in his dissent therein. Member Jenkins does not find that a union's coupling of "working conditions" with a reference to substandard wages necessar- ily implies a demand that an employer do more than comply with area standards In the instant case, Member Jenkins joins his colleagues in finding that the advertisements placed by Respondent Union in the Springfield Labor Record informing the public that Southern Sun Elec- tric does not employ Respondent's members do indicate an organizational objective proscribed by Sec 8(b)(7)(A) United Brotherhxood Of Carpenter and Joiners, Local 906,.4FL-CIO (Blankenship Builders. Inc.), 204 NLRB 138 (1973). DECISION HAROI.D A. KENNEDY, Administrative Law Judge: Respondent International Brotherhood of Electrical Workers, Local 453, is charged in this proceeding with violating Section 8(b)(7)(A) of the National Labor Rela- tions Act, as amended, in connection with its picketing of various jobsites in the Springfield, Missouri, area where Southern Sun Electric Corporation performs elec- trical work. Southern Sun filed a charge with the Re- gional Director for Region 7 of the National Labor Rela- tions Board on September 14, 1979,' and a complaint was issued thereafter against Local 453 on October 16. Jurisdiction and many other issues are not in dispute. Respondent admits that Southern Sun is a Missouri cor- poration engaged in the construction industry as an elec- trical contractor. Respondent admits that Southern Sun is an employer within the meaning of Section 2(2), (6), and (7) of the Act. The pleadings further establish that Southern Sun purchases in Missouri goods and materials valued in excess of $50,000 from sources that purchase them directly from outside the State of Missouri. It was stipulated at the hearing that Congress of Inde- pendent Unions, referred to herein as CIU, is a labor or- ganization within the meaning of the Act. And see Gen- eral Counsel's Exhibits 7, 8, and 9 and Respondent's Ex- hibit 13. The pleadings establish: 1. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 2. Respondent is not the currently certified bargaining representative of any of Southern Sun's employees. 3. On June 27, 1978. CIU was certified in Case 17- RC-8413 as the exclusive bargaining representative of the following unit of Southern Sun's employees: All full- and regular part-time employees em- ployed at the Employer's East Division Street, Springfield, Missouri, facility, excluding all office clerical and professional employees, guards and su- pervisors as defined in the Act. 4. Southern Sun and CIU are parties to a collective- bargaining agreement which covers the above-described unit of employees and expires on May 31, 1981. 5. Respondent has, since on or about June 22, picketed Southern Sun at jobsites in the Springfield, Missouri, area with picket signs which state: Notice To Public Employees of Southern Sun Electric are doing elec- trical work on this job, receiving wages, benefits, and working conditions that are substandard to [those] received by members of Local Union No. 453 IBEW. We have no dispute with any other Em- ployer. 6. Union Business Manager Jim W. Hensley has been, at all times relevant herein, an agent of Respondent within the meaning of Section 2(13) of the Act.2 Respondent denies that it has demanded that Southern Sun recognize or bargain with it as the representative of Southern Sun's employees as alleged in paragraph 8 of the complaint. Respondent also denies that it has picket- ed in order to force or require Southern Sun to recog- nize or bargain with it as the representative of Southern Sun's employees in the above-described unit or to force or require the employees in such unit to accept or select All dates refer to 1979 unless otherwise stated The General Counsel and Respondent have requested that certain corrections be made in the transcript No objections have been made to the requested changes. and they are therefore ordered as requested 2 The complaint alleged Hensley's title to be business representative. 252 NLRB No. 103 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent as their bargaining representative. Respond- ent's answer concedes that a question concerning repre- sentation of said unit employees could not be appropri- ately raised, but asserts, among other things, the follow- ing: 1. The Board determined in Case 17-CP-198, reported at 242 NLRB 1130 (1979), that the picketing herein is not violative of Section 8(b)(7)(A) of the Act. 2. This matter is res judicata and the picketing in- volved herein resumed after the Board decided Case 17- CP-198 in its favor on June 13, 1979. 3. The Regional Director is collaterally estopped for proceeding while Case 17-CP-198 is pending in the United States Court of Appeals for the Eighth Circuit. 4. This matter "merged" into the Case 17 CP-198 pro- ceeding. 5. Prosecution of this action deprives Respondent of due process. 6. Respondent's activity is "protected free speech." 3 Respondent's answer also sought dismissal of the com- plaint because it failed to specify "the nature of the charges." Respondent also filed, prior to the hearing, a motion for a bill of particulars requesting "that the Gen- eral Counsel be required to specifically state how and in what manner [he] claims that Respondent has demanded and is demanding that the employer recognize or bargain with Respondent, including the names and positions of the persons who allegedly are involved in such de- mands." On November 9 the Board's presiding Adminis- trative Law Judge in San Francisco, having considered Respondent's motion "in the light of the allegations of the complaint and the particulars supplied in the General Counsel's timely filed response," denied the motion. The General Counsel's response to Respondent's motion stated in part: With respect to Respondent's request for more specificity with regard to the complaint allegations of paragraph 8, averring that Respondent has de- manded recognition from the Charging Party, the General Counsel states that it is its contention that the picketing described in paragraph 7 of the com- plaint, viewed in full setting, constitutes a demand for recognition. This, it is to be noted, comports with the position advanced by the Regional Director in the U.S. Dis- trict Court for the District of Missouri, on a petition filed under Section 10(1) of the Act arising out of the instant charge. Here, as there, the allegations of Respondent's violative conduct are predicated upon the following: (a) The testimony of Jim W. Hensley, business manager, at the hearing on August 24, 1979, in Case 17-CC-778 before an Administrative Law Judge of the Board. (b) Advertisements which Respondent has placed in the "Springfield Labor Record" since at least on or about August 10, 1979. 3 Respondent has abandoned the constitutional contentions initially raised. Its brief contains no supporting arguments in support of them. At the hearing Respondent filed a motion to amend its answer herein so as to make reference to the effect of the Board proceeding in Case 17-CC-778, which had been heard on August 24. Respondent makes some of the same arguments in its amended answer with respect to the effect of Case 17-CC-778 as it did in its original answer with respect to the effect of Case 17-CC-198: 1. The Charging Party, the General Counsel, and the Regional Director are estopped from proceeding herein because the charges are based on the same facts that were involved in Case 17-CC-778. 2. The General Counsel has improperly split a cause of action into multiple actions, depriving Respondent of due process. 3. Any action herein has merged into Case 17-CC- 778. The present status of Cases 17-CP-198 and 17-CC- 778 should be noted here. Administrative Law Judge James Kennedy's Decision of November 7, 1978, in Case 17-CP-198, holding that Respondent had picketed Southern Sun at various jobsites in July 1978 with a re- cognitional objective in violation of Section 8(b)(7)(A) of the Act, was reversed by the Board on June 13, 1979, 242 NLRB 1130. However, on April 11, 1980, the Court of Appeals for the Eighth Circuit reversed the Board's holding 620 F.2d 172. (On the same day the same court affirmed another Board Decision Case 17-CC-619, re- ported at 237 NLRB 829 (1978), holding that Respond- ent's picketing of Southern Sun at a shopping center pro- ject did not violate Section 8(b)(4)(i) or (ii)(B) of the Act. 620 F.2d 170.) Administrative Law Judge James Rasbury's Decision of December 28, 1979, in Case 17-CC-778, holding that the General Counsel had not established that Respondent violated Section 8(b)(4)(ii)(B) of the Act by threatening to picket a neutral employer, Empire Bank, if employees of Southern Sun continued to perform work for the bank, was affirmed on May 7, 1980. 249 NLRB 384. At the hearing, the record of the proceeding in Case 17-CC-778 was received by stipulation, including the transcript taken before Administrative Law Judge James Rasbury on August 24, the charges filed, the complaint, the answer, the briefs, the motion to reopen, Respond- ent's answer in opposition to reopening, and the Admin- istrative Law Judge's order denying reopening. (Resp. Exh. 1-12.) Four witnesses testified in Case 17-CC-778. Judge Rasbury succinctly summarized their testimony in five paragraphs, as follows: 4 J. A. Nelson, vice president and assistant treasur- er of Southern Sun, testified that his Company had been employed by the general contractor, Ronnie's Remodeling, to perform certain electrical work at an Empire Bank location in Springfield, Missouri. He testified that the work was being performed but had not yet been completed when they were ad- vised to cease all work. Southern Sun has not per- 4 The General Counsel oered portions of the testimony of three of the witnesses which were also received by stipulation. (G C. Exhs. 2, 3, and 4) 720 ELECTRICAL WORKERS, LOCAL 453 formed any work for the Empire Bank since June 22. Floyd Tucker, a vice president of Empire Bank, testified that on June 22 James Hensley, whom he knew to be business manager of Respondent, was in the bank and they engaged in a conversation. During this conversation, Hensley told Tucker that Hensley had received complaints from his members because there were non-IBEW members performing electrical work on the Empire Bank's drive-in facili- ty, Hensley said he would have to take some action on his members' complaints. Tucker thought the word "pickets" might have been mentioned during the conversation, but said that it could have been his word and not that of Hensley. Tucker testified that he spends a good deal of his time traveling on behalf of the bank and had no knowledge of the work to which Hensley was re- ferring, so he took Hensley to the desk of Billie Reser, a senior vice president of the bank, in order that the matter might be discussed with him. According to Reser, Hensley told him that Hens- ley had received complaints from his members about non-IBEW workers performing electrical work at the drive-in facility of the Empire Bank and that he was going to have to look into the com- plaints. Reser had been out of town on vacation and had no knowledge of the particular work being per- formed, but deemed Hensley's comments to be of sufficient importance that he went immediately to see Mr. Jefferies-president and chairman of the board of the Empire Bank-to advise him of Hens- ley's conversation. Reser testified that Jefferies told him they did not want to get involved in any labor trouble and for Reser to tell Cobb, an employee of the bank, to inform the general contractor, Ronnie's Remodeling, that the non-IBEW workers should be taken off the job immediately. Reser said he went back to his desk and made the call to Cobb. Reser testified that during his conversation with Hensley that there was some mention of pickets, but that it might have been his Reser's own words or his as- sumption. James Hensley, the business manager for Re- spondent, stated that the Union has its vacation trust fund, health and welfare trust fund, pension trust fund, and a checking account with the Empire Bank, and have had said accounts there for a number of years. Hensley testified that he had gone to the Empire Bank on June 22 to check on the va- cation trust fund to make sure that all employers had completed their payments to the said fund, be- cause the moneys from this particular vacation trust fund are distributed to the members on July 1. Hensley parrotted the testimony of Tucker and Reser regarding his informing them of the com- plaints from his members regarding the non-IBEW employees working on the bank job. He denied making any threats or even mentioning the words pickets or picketing. Hensley did acknowledge on cross-examination that he told Tucker and/or Reser that he could not ignore the complaints his mem- bers were making. In addition, the parties stipulated into the record Ad- ministrative Law Judge James Kennedy's Decision in Case 17-CP-198 and the Board's Order dismissing the complaint (later reversed). The parties also stipulated into the record an advertise- ment that had appeared in the Springfield Labor Record, a weekly publication, on August 31. The advertisement, received as General Counsel's Exhibit 5, reads: PLEASE CUT THIS NOTICE OUT AND MAIL TO OR CONTACT-THE BELOW NAMED COMPANIES: -PLEASE DO NOT PATRONIZE- Electrical work at the following listed business and construction projects is not being done by IBE\W Local 453 Electricians. Springfield Boys Club-720 S. Park Ollis & Co.-2274 E. Sunshine Arbys-735 S. Glenstone Hutchens Industries-Patterson St. H&R Block-1046 W. Sunshine Shamrock Shopping Ctr.-3444 S. Campbell Colonel Self Storage--3194 S. Campbell Jim W. Hensley Business Manager Local 453 The parties agree that similar advertisements were run in the Springfield Labor Record at the request of Re- spondent beginning on or about March 1. The advertise- ments varied in that different firm names would be listed in the ads from time to time. Jerry Nelson, vice president of Southern Sun Electric, identified the current collective-bargaining agreement his firm and CIU had executed.5 Nelson testified that his firm did commercial and residential electrical work. He said he had read other advertisements of Respondent in the Springfield Labor Record similar to General Coun- sel's Exhibit 5 over the past several months. His firm had done work for the Springfield Boys Club and Hutchens Industries (firms listed in the August 31 ad) and was picketed at each jobsite by Respondent. The picket signs contained the language set forth in paragraph 7 of the complaint as stipulated to by Respondent. According to Nelson, Respondent picketed "nearly every job we had going." 6 Nelson testified that picketing of his Company had ceased during the pendency of the case before Adminis- trative Law Judge Kennedy, while an injunction was in effect, but picketing resumed after the Board reversed his Decision. The fact that the picketing was to resume was A cost-of-living increase that went into effect the second year is not contained in the agreement. ' Nelson named 10 or so jobsites picketed by Respondent "They suitched around here and there, but they picketed us just about eery day unless it as raining eor something." he said 721 DECISIONS OF NATIONAL LABOR RELATIONS BOARD announced in local newspapers, on TV, and on the radio, he said. Nelson said his firm also performed work briefly for the Empire Bank, but there was no picketing. Jim Hensley, business manager and chief executive of- ficer of Local 453, testified on defense that it was the practice of Respondent to write a letter before picketing a firm. He identified 14 letters he had written to Spring- field, Missouri, concerns between June and October 1979, informing them that the Union would picket be- cause "some electrical work is being performed by Southern Sun Electric." The letters, which are identical in content, state, in part: Our sole purpose in this advertising is to inform the public that employees of Southern Sun Electric are working for wages and under conditions which are substandard to those which our Union has struggled many years to obtain. The letters state that the picketing would be peaceful and not interfere with any of the work deliveries or any other activity. Hensley stated that it is his practice to send letters of this kind to the "owner, the general con- tractor, and the electrical contractor stating our position on substandard wage pay." Hensley said he had not sent any letters to the Empire Bank and had not picketed it. Hensley identified Respondent's Exhibit 15 as the col- lective-bargaining agreement between Local 453 and the Springfield Division, Kansas City Chapter of the Nation- al Electrical Contractors Association, Inc. (NECA). The agreement applied, he said, to "residential, commercial, building wiring, parking lots, and so on." There is, he said, an additional residential IBEW agreement which provides for lower wage rates. On cross-examination, Hensley agreed that his Union had picketed Southern Sun at numerous jobsites in Springfield after June 22. He acknowledged that Re- spondent had sought to represent employees of Southern Sun prior to the IBEW-CIU election and that Local 453 had thereafter protested the conduct of the election. 7 He said he had stated under oath since that time, however, that he would not represent Southern Sun employees and that he would not do so. He said he had refused to talk to Southern Sun employees about the prospect of repre- senting them.8 ' Local 453 won an election and the right to represent Southern Sun employees after picketing the firms in 1976, but no contract was ever ne- gotiated. R Wendell Nelson, Jr., who Hensley had identified as one who had called to say he wanted "out of the CIU and to belong to the IBEW," testified on rebuttal that he had never talked to tlensley Nelson also con- tradicted the testimony of another defense witness, Charlie Howell, an IBEW member who said Nelson had asked "how he could get into Local 453." Nelson said he never asked Howell about joining Local 453, but, on the contrary, had told him that an IBEW Local in Oakland, Califor- nia, had "nearly ruined him" by getting a contractor to lay him off. Hensley also identified a piece of paper, Resp Exh. 30, bearing the name of a Southern Sun employee, Leamon Eden, along with a tele- phone number. which had been handed to one of the Union's pickets Eden testified on rebuttal that he had given the note to a picket carrier after the latter had indicated that he was not allowed to talk Eden said he "could not believe what the sign said," and he wanted to talk to a union official because they were jeopardizing his employment. Asked why Respondent had run the advertisement in the Springfield Labor Record, Hensley replied that it was to inform members "who are using our people" and "who their friends are." Hensley denied that in picketing Southern Sun Respondent was seeking to force its em- ployees either to join Local 453 or quit work.9 Hensley testified that his experience with CIU contrac- tors had indicated to him that they pay substandard wages and that he had picketed such contractors for that reason. He initially claimed that he was familiar with the bargaining contracts of CIU contractors that he had picketed, but he was unable to recall if he had ever seen a CIU agreement before resuming the picketing in June. He then said he did not rely on provisions of such agree- ments. Hensley testified: I saw their paychecks. I have been told by their people what their wages are repeatedly in the past and presently. I know what their wage rates are ba- sically. Whether I have a contract or not, I really can't remember. I have got a stack of papers three feet high. Hensley said he had picketed Southern Sun and B & J Electric with the same picket sign, but that different signs were used in picketing other contractors. The signs used in picketing the other contractors referred, he thought, to the fact that they did not employ Local 453 IBEW members, but he was not sure. He said he did not know what any of their wage rates were. With respect to Southern Sun (and B & J Electric). he said the Union's picketing served to notify the public of the substandard wages being paid as recognition "was no longer an issue." His dispute with Southern Sun, he said, was over the fact that the electrical contracting firm's wages and working conditions were "substandard." He explained that working conditions include many things- such as pension benefits, having "gang bosses on the job site," having "a journeyman there to supervise you at all times," and having two people present when "there is 480 volts-which come under "the protection of a con- tract which Southern Sun doesn't have for their employ- ees." He said he was not sure if grievance and hiring procedures were working conditions, but he opined that Respondent's procedures in these areas were superior to the ones available under the CIU and Southern Sun con- tract. 0 Hensley also stated on cross-exarmination that Southern Sun employees had harassed and intimidated his pickets and that the Union had filed an action in a circuit court of Missouri seeking an injunction and damages against Southern Sun and W. W. Johnson Construction Co. (Resp. Exhs. 32, 33, and 34.) Southern Sun also filed an action in the same court seek- ing injunction and damages against Local 453 and certain of its officers. (Resp. Exh. 31.) a Hensley agreed that Sam Miller, who had been a member of IBEW Local 453, had been fined by the Union after he went to work for South- ern Sun. According to Hensley, Miller was fined for joining another union and working for a non-IBEW contractor. Hensley indicated Miller was not referred to a job by his Union because he "was never around." Miller later appeared as a witness and identified correspondence of Re- spondent indicating that he had been fined $1,000 after being observed working for Southern Sun at a Springfield shopping center. 'o Hensley claimed he knew that Southern Sun's wage rates and work- ing conditions were inferior to those afforded by his Union as he had Continued 722 ELECTRICAL WORKERS, IO()CAL 453 Section 8(b)(7)(A) prohibits a labor organization from picketing or threatening to picket an employer for recog- nitional or organizational purposes if the employer has lawfully recognized another labor organization and a question concerning representation may not be appropri- ately raised. Respondent concedes that it is a labor organization under the Act, that it has picketed Southern Sun at job- sites in the Springfield area since June 22, that it is not currently certified as the representative of Southern Sun's electrical workers, that Southern Sun has lawfully recognized CIU as the representative of such employees, and that a question concerning representation may not be appropriately raised under the Act. The only question I need determine, therefore, is whether Respondent's pick- eting was with "an object" of forcing or requiring Southern Sun to recognize or bargain with it or of forc- ing or requiring Southern Sun's employees to accept or select it as their collective-bargaining representative. Quoting from a recent decision of the United States Court of Appeals for the Eighth Circuit N:L.R.B. v. In- ternational Brotherhood of Electrical Workers, Local 265 [R P & M Electric], 604 F.2d 1091, 1096 (1979): Section 8(b)(7), enacted as part of the 1959 Lan- drum-Griffin amendment to the Act, establishes a comprehensive code governing recognitional and organizational picketing. .... The application of §8(b)(7) is limited to picketing by unions, not cur- rently certified, where an object thereof is either forcing or requiring an employer to recognize or bargain with it or forcing or requiring employees to select it as their bargaining representative. The Supreme Court of the United States stated in N.L.R.B. v. Local Union No. 103, International Associ- ation of Bridge, Structural & Ornamental Iron Workers. AFL-CIO, et al. (Higdon Contracting Co.), 434 U.S. 335, 346-347 (1978), held: As for §8(b)(7), which, along with §8(f), was added in 1959, its major purpose was to implement one of the Act's principal goals-to ensure that em- ployees were free to make an uncoerced choice of bargaining agent. As we recognized in Connell Con- struction Co. v. Plumbers & Steamfitters, 421 U.S. "examined the contracts." Asked if he had gotten the contracts "through these proceedings after the picketing started." Hensley said he could not remember Also, he could not recall whether he had made "any other investigation" to determine if Southern Sun's wage rates or working con- ditions were inferior to Respondent's I Sec. 8(b)(7)(A) makes it an unfair labor practice for a labor organi- zation or its agents: (7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is frcing or requiring an employer to recognize or bargain with a labor organiza- tion as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organi- zation as their collective bargaining representative, unless such labor organization is currently certified as the representative of such em- ployees: (A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question conccrning representation may not appropriately be raised under section 9(c) of this Act 616 (1975), "One of the major aims of the 1959 Act was to limit 'top down' organizing campaigns. in which unions used economic weapons to force rec- ognition from an employer regardless of the wishes of his employees." Id. at 632 and references cited therein. The use of picketing was of particular con- cern as a method of coercion in three specific con- texts: where employees had already selected an- other union representative, where employees had recently voted against a labor union, and where em- ployees had not been given a chance to vote on the question of representation. Picketing in these cir- cumstances was thought impermissibly to interfere with the employees' freedom of choice. It is to be remembered that the prohibitions of Section 8(b)(7) apply even if there are legitimate purposes in the picketing; it only requires that recognition or organiza- tion be "an object." See, for example, Building Service Employees Union. Local No. 87 .4FL-CIO (Liberty House/Rhodes), 223 NLRB 30 (1976). "Area standards picketing"-i.e., picketing to induce an employer to comply with prevailing area wage and benefit stand- ards-is permissible but only if there is no recognitional or organizational purpose. Houston Building and Con- struction Trades Council (Claude Everett Construction Company), 136 NLRB 321 (1962). Language used on the picket signs does not necessarily establish the real object or objects of the picketing. A union's self-serving dis- claimer of picketing for recognitional purposes is not de- terminative. See, for example, General Service Employees Union Local No. 73, affiliated with Service Employees In- ternational Union, AFL-CIO [A-l Security Service Compa- n] v. .L.R.B., 578 F.2d 361 (D.C. Cir. 1978). Whether a union pickets for recognition or organization is a ques- tion of fact (.VL.R.B. v. Local 182, International Brother- hood of Teamsters Chauffeurs. Warehousemen and Helpers of America [Woodward Motors], 314 F.2d 53 (2d Cir. 1963)) to be determined by the organization's "overall conduct." Teamsters Local Union No. 5, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers, Ind. (Barber Brothers Contracting Co., Inc.), 171 NLRB 30 (1968). The Court in R P & M Electric stated (604 F2d at 1097): To establish that an object of picketing is recog- nitional, it need not be established that the union is seeking to gain recognition qua recognition. Rather, Congress proscribed as recognitional picketing any picketing that seeks to establish a union in a con- tinuing relationship with an employer with regard to matters which could substantially affect terms or conditions of employment of his employees and which are or may be subjects of collective bargain- ing by a lawfully recognized exclusive representa- tive... . Therefore, a recognitional object is estab- lished when a union, although purportedly picket- ing to maintain area standards, undertakes to go beyond a legitimate area standard object and de- mands that a picketed employer do more than equal the total cost package of its area contracts. For ex- 723 DECISIONS OF NATIONAL I.ABOR RELATIONS BO()ARD ample, to attempt to dictate to the employer the dis- tribution of benefits paid to his employees between wage and fringe benefits establishes a recognitional object under §8(b)(7) . . . In such circumstances the union's conduct is seen as an attempt to engage in pro tanto bargaining to gain benefits for employ- ees it does not represent.... Similarly, because the rationale for permitting area standards picketing is the recognition of the legitimate concern of unions that the employers with whom they have contrac- tual relationships should not be put at a competitive disadvantage because of the cost of such contracts, a union has no legitimate concern in demanding that a picketed employer observe non-cost benefits which the union obtained for its own members. At- tempts to impose such noneconomic terms of em- ployment on the employees of other employers sounds more in terms of demanding acceptance of the area bargain than adherence to area standards. The record convinces me that the purpose of Re- spondent's picketing was recognitional or organizational and therefore unlawful. I am persuaded that Respond- ent's purpose was to force Southern Sun out of business and its employees out of work unless Southern Sun rec- ognized Respondent and agreed to be bound by the col- lective-bargaining agreement that it had negotiated with NECA. (Resp. Exh. 15.)t " The letters Respondent wrote and the picket signs it used reveal that the Union was picketing for more than area standards. The letters and pickets referred to the "substandard" working conditions of Southern Sun's em- ployees and clearly imply a recognitional and organiza- tional objective. What the court said in R P & M (in en- forcing the Board's Order in 236 NLRB 1333 (1978)) ap- plies in the case at bar (604 F.2d at 1098): That the Union requests extended well beyond a re- quest to merely comply with area standards is readi- ly apparent when one considers that it requested the Company to maintain "the minimum standards of wages, hours, and working conditions" established by the Union for electricians in the area, and includ- ed an offer to furnish the Company with its stand- ard for all three categories mentioned. This lan- guage appears to require the Company to adhere not only to area wages and hours, but also to "other working conditions which may or may not be eco- nomic in nature and which flow from a collective- bargaining agreement." Local 437, IBEW (Dimeo Construction Co.), 180 NLRB 420, 421 (1969). Indeed, the Board's interpretation of the language of the August 9 letter is buttressed by the language of the picket signs which stated that the Company does not pay Union wages and conditions. This ref- erence imports an object of bringing non-Union conditions to an end by causing the Company to recognize the Union as its employees' representa- 2 Respondent had picketed Southern Sun in 1976 and later had won the right to bargain for Southern Sun's employees. No contract was ever negotiated, however. Hensley proposed that the Southern Sun agree to the IBEW agreements that had been previously negotiated tive. This language clearly implies a recognitional and organizational objective. In the underlying case in R P & M, the Board, reject- ing the union's contention that it had abandoned any at- tempt at recognition, had pointed out that the union's letter and picket sign, not unlike those used by this Re- spondent, indicated otherwise. The Board stated (236 NLRB at 1334): [W]e find that the letter was tantamount to a recog- nitional demand constituting a continuation of Re- spondent's efforts to obtain recognition. Respond- ent's requests extended well beyond a request to comply with area standards. Thus, it requested R P & M to maintain the "minimum standards of wages, hours and working conditions" established by the Union for electricians in the area, and included an offer to furnish the Company with its standards for all three categories mentioned. This language ap- pears to require R P & M to adhere not only to area wages and hours, but also to other "working conditions" which may or may not be economic in nature and which flow from a collective-bargaining agreement. 2 Furthermore, Respondent's picket sign stated that "R P & M Electric does not pay union wages and conditions." [Emphasis supplied.] The ref- erence to "union . . . conditions" clearly implies a recognitional and organizational objective. 3 Ac- cordingly, Respondent's use of terminology such as "working conditions" and "conditions" imparts a meaning to Respondent's request which transcends mere compliance with area standards, and instead implies a request that R P & M adopt the terms (or similar ones) of the labor agreements executed be- tween Respondent and other employers in the area. 4 2 Local 437, International Brotherhood of Electrtcal Workers. AFL CIO, et al. (Dimeo Construction Co), 180 NLRB 420, 421 (1969). 3 San Francisco Joint Executive Board of the Culinary Workers. Bartenders. otel, Motel and Club Service Workers. AFL-CIO (Foodmaker. Inc., d/b/a Jack-ln-The-Box), 203 NLRB 744. 746 (1973). 4 Ibid. The same court which enforced the Board's Order in R P & M found that Decision controlling in the Board's later Decision in Case 17-CP-198 and held Respondent's picketing of Southern Sun in 1978 to be unlawful. Ac- cording to the court, the "history of this dispute and the language of the union's letters and picket signs" support- ed a finding that Local 453 engaged in recognitional picketing in violation of Section 8(b)(7)(A) of the Act.'3 620 F.2d at 177. " The picket signs and letters which Respondent used herein after June 27, 1979, were essentially the same The Board had thought that the Administrative Law Judge in Case 17-CP 198 had interpreted the signs too broadly on the facts there presented There is, however, additional evidence here of Respondent's recognitional and organizational objective in the form of testimony, primarily that given by Hensley, and Respond- enl's advertisements 724 ELECTRICAL WORKERS, LOCAL 453 There are other facts of record which indicate Re- spondent had sought by its picketing to force Southern Sun out of business and its employees out of work unless the Company recognized the Union. The advertisements placed in the Springfield Daily Record refer to the fact that electrical work was being performed on specifically listed projects (by Southern Sun and other contractors) by workers who were not members of the IBEW.'4 The advertisements plainly invite a boycott of businesses be- cause they are doing business with electrical contractors who employ workers who are not members of Local 453. Further, Southern Sun's employee Sam Miller was fined $1,000 for "working with Southern Sun employees as an electrician for Southern Sun Electric," which had signed a collective-bargaining agreement with another union. ' 5 Hensley's testimony before Administrative Law Judge Rasbury in Case 17-CC-778 (which the parties presented to me for consideration by stipulation) and before me in- dicated that Respondent had a recognitional and an orga- nizational objective with respect to Southern Sun. Hens- ley testified in Case 17-CC-778 that he had told an Empire Bank official, Tucker, that Respondent was pick- eting Southern Sun because "[T]hey are not IBEW mem- bers," and "they are not an IBEW contractor." (Resp. Exh. 1, p. 58.)L6 Hensley testified later that in picketing Southern Sun he was protesting Southern Sun's substan- dard wages, benefits, and working conditions. He ex- plained what he meant by working conditions, as fol- lows: A. Working conditions. All employees should be assured of pension benefits. He knows that he has something laid up in the future. Other working con- ditions, it says on there that the contractors will have gang boxes on the jobsite. It says if there is 480 volts that there will be two people working on it and not one. It says that if you are an apprentice, that you will have a journeyman there to supervise you at all times. That you won't put two, or three, or four novices out on the job that might get hurt. There are various requirements we have in ours saying that that says that they will take two lessons before they operate power activitated tools. They have the protection of a contract which Southern Sun doesn't have for their employees. It is clear that Respondent's demands were much broader than necessary to achieve compliance with area standards. Paraphrasing the Board's Decision in R P & M, the total picture is that of a union which had previ- ously demanded recognition and thereafter sought to achieve the same end under the guise of area standards picketing. '4 The ads did not reveal the material fact that employees of Southern Sun were represented by another legally recognized union i" Miller's activity was found to have violated four separate provisions of the IBEW constitution. l' Respondent did not picket Empire Bank It is to be noted. however. that stating that an employer does not employ members of a labor organi- zation does imply an organizational object See United Brotherhood of Carpenters and Joiners, Local 906. .4fL-'10 (llanALenhip Builder. Inc ), 204 NLRB 138 (1973) Respondent raises certain procedural issues which must be considered. Pointing to the Board's dismissal of 8(b)(7)(A) charges in Case 17-CP-198 (later reversed) and the dismissed 8(b)(4)(B) charges in Case 17-CC-778, Respondent refers to a "procedural quagmire which the General Counsel has created in this case." It asserts that " res judicata, collateral estoppel, merging of causes of action, and the rules against splitting the cause of action clearly show that the General Counsel cannot prevail in the instant case."'7 However, as the General Counsel's attorney suggests in her brief, an agency is not barred from proceeding where the facts have not been previous- ly litigated. The charges involved in Case 17-CP-198 are the same, but the facts are not identical because the time period was entirely different. There are, in addition, other facts to consider in the instant case, primarily the testimony of Hensley and the Union's advertisements which were published around March 1979. There are some facts in the instant case which were also before Administrative Law Judge Rasbury in Case 17-CC-778, but there are other facts, including the Springfield Labor Record advertisements, letters, and ad- ditional testimony, which could not have been consid- ered by him in reaching his decision. More importantly, the issue before Administrative Law Judge Rasbury was not whether the picketing had an organizational or re- cognitional object, but whether Respondent had engaged in unlawful secondary activity. " The authorities Respondent cites are inapposite and do not compel dismissal of the instant matter. In United States v. Utah Construction & Mining Co., 384 U.S. 394 (1966), the Supreme Court held: [W]hen the Board of Contract Appeals has made findings relevant to a dispute properly before it and which the parties have agreed shall be final and conclusive, these findings cannot be disregarded and the factual issues tried de novo in the Court of Claims when the contractor sues for relief which the board was not empowered to give. In that case the Supreme Court was presented with the issue of whether breach of contract claims, arising out of the construction of an AEC facility, previously adjudi- cated by the agency's Advisory Board of Contract Ap- peals could be retried de novo in the Court of Claims. The disputed claims remained the same; the legality of practices engaged in during different time periods with different evidence was in no way involved. " Of course, if Respondent is correct in saying that the legality of its picketing of Southern Sun after June 22, in 1979, was determined in Case 17 CP- 19. then the Court of Appeals for the Eighth Circuit has decided that it is unlawful in Respondent's answer in opposition to the General Counsel's motion to reopen Case 17 CC-778 is curious. The motion refers to the August 31, 1979, advertisement in the Springfield Labor Record (admitted herein but not in Case 17-CC 77). proposes consolidation of a new complaint (Case 17-CC-809) "about to he issued." and states that "this case should be iewed as not an isolated incident but as a part of a pattern of con- duct" (Resp. Exh. 10.) Respondent's response n opposition asserts that "the so-called evidence referred to by the Employer clearly has no bear- ing on this case and insolses a totally different act which the Employer deems to be a violation of the Act '" (Resp Exh I 11.) Cf aremtont Corp World Paurr )ivlon, 2415 NLRH 21t (1980) 725 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In Safir v. Gibson, 432 F.2d 137 (2d Cir. 1970), cert. denied 400 U.S. 942, the Federal Maritime Commission had found that a conference of federally subsidized carri- ers, AGAFBO, had reduced shipping rates to "an admit- tedly noncompensatory and unreasonable" level in an unfair attempt to drive Sapphire Steamship Lines, Inc., from the trade (the carrier of military cargo). The re- duced rates were found to be "so unreasonably low as to be detrimental to the commerce of the United States, and, therefore, contrary to Section 18(b)(5) of the [Ship- ping] Act" of 1916, as amended. The court in a 1969 decision (417 F.2d 972) had point- ed out that the Maritime Administration (not FMC which had found AGAFBO to begin violation of Section 18(b)(5)) was required under Section 810 of the Mer- chant Marine Act to consider whether subsidies paid to AGAFBO members should be recovered. The Maritime Administration thereupon directed an investigation on the public record as "a basis for recommending . . . whether Section 810, Merchant Act, 1936, as amended (46 U.S.C. §1227), has been violated." The court held, in effect, that FMC had decided that Section 810 of the 1936 Act had been violated. Finding it "unseemly" under the circumstances for the Maritime Administration to be able "to conclude that its sister agency had been wrong on a fully litigated issue the decision of which Congress had confided to it," the court directed that the Maritime Administration be instructed (by the district court which had declined to enjoin subsidy payments to members of the AGAFBO on petition of Safir) "not to redetermine the issue as to whether the AGAFBO carriers' concerted act in reducing their rates to an unreasonably low level and holding them there for eleven months was unjustly discriminatory or unfair." The circumstances noted by the court effectively distinguish the case from the instant matter. Among them: "Section 810 is violated not only when agreement by a subsidized carrier is justly discrimi- natory or unfair to another American-flag carrier but when such carriers 'engage in any practice in concert with another carrier or carriers by water' having that effect." The court pointed out that there was a difference in the sanctions provided by the two statutes involving different causes of action but it perceived no "injustice would result" where AGAFBO had not sought judicial review. The court stated: "While the issues here may not have been purely factual, they were fully litigated before the agency designated to determine them." (Emphasis sup- plied.) The court added: "It is the FMC, not the Mari- time Administration, that has the expertise to pass on whether rates are unfair or unduly discriminatory." The District Court in Whitman Electric, Inc. v. Local 363, International Brotherhood of Electrical Workers, AFL-CIO, 398 F.Supp. 1218 (1974), held, after discuss- ing the Utah Construction and Safir cases, that the Board's "determinations of questions of law" in a Board case (that had been enforced) holding that the union had engaged in illegal secondary boycott activity was con- clusive between the parties as there was "no showing that injustice would result." The case before the court presented the same issue that the Board had determined; the law and facts were the same. The other Labor Board cases are clearly distinguish- able from the case at bar. In Mosher Steel Company v. NV.L.R.B., 568 F.2d 436 (5th Cir. 1978), an Administra- tive Law Judge had improperly permitted relitigation of an employee's conduct (threats by Buruato) on a specific occasion. In N.L.R.B. v. Deaton Truck Line, Inc., 389 F.2d 163 (5th Cir. 1968), an employer sought to reargue the court's earlier (1961) decision that certain drivers were employees. In N.L.R.B. v. Brown & Root, Inc., 206 F.2d 73 (8th Cir. 1953), the court declined to permit the Board, on a request for rehearing, to change its position with respect to the status of strikers (from economic to unfair labor practice strikers) and explore the possibility that there may have been jobs to which strikers may have been entitled. Finally, Respondent requests reconsideration of certain rulings made during the hearing but it does not cite any that could have resulted in prejudice to Respondent. It is apparent that the General Counsel's attorney had pre- sented a prima facie case when she completed her case- in-chief, and, in any event, it did not prejudice Respond- ent to hear the defense and other evidence before decid- ing the issues in the case. Respondent was allowed to show how Hensley dealt with "overtures ... and his re- action to them." A party is called upon to present evi- dence which has probative value. It is not apparent that any question allowed was relevant only to another pro- ceeding or resulted in any prejudice to Respondent. 19 Based upon the foregoing, I enter the following: CONCLUSIONS OF LAW 1. Southern Sun Electric Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local 453, and the Congress of Independent Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. By picketing Southern Electric Corporation at job- sites since June 22, 1979, with an organizational and re- cognitional object at a time when that Employer had lawfully recognized the Congress of Independent Unions and a question concerning representation could not ap- propriately be raised under Section 9(c) of the Act, Re- spondent violated Section 8(b)(7)(A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 'l In the last section of its brief Respondent reiterates its contention that this proceeding sought relitigation of matters previously ruled upon, but this argument has been previously addressed 726 ELECTRICAL WORKERS, LOCAL 453 ORDER2 0 The Respondent, International Brotherhood of Electri- cal Workers, Local 453, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from picketing Southern Sun Elec- tric Corporation where an object thereof is forcing or re- quiring an employer to recognize or bargain with it as the representative of its employees, or forcing its em- ployees to accept or select it as their representative, where the employer has lawfully recognized another labor organization and a question concerning representa- tion cannot appropriately be raised under Section 9(c) of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its offices and meeting halls in Springfield, Missouri, copies of the attached notice marked "Appen- dix." 21 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- 20 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 21 In the event that 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 National l.abor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ter, in conspicuous places, including all places where no- tices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 17 signed copies of said notice in sufficient number to be posted by Southern Sun Electrical Corporation, if will- ing. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 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 picket or threaten to picket South- ern Sun Electric Corporation with an object of forcing or requiring that employer to recognize or bargain with us as the representative of its employ- ees, or forcing such employees to accept us as their representative, where Southern Sun has lawfully recognized another labor organization as the repre- sentative of its employees and a question concerning representation cannot be raised. INTERNATIONAl BROTHERHOOD OF El C- TRICAL. WORKERS, LOCA 453 727