Carpenters, District Council of Kansas City

National Labor Relations Board - Board Decisions

Mar 26, 1973

202 N.L.R.B. 740 (N.L.R.B. 1973)

740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, District Council of Kansas
City and Vicinity (B. H. Brown Construction Co.)1
and Congress of Independent Unions. Case
17-CP-133
March 26, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On December 13, 1972, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge, and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
I The name of the Respondent appears as amended at the heanng
2 The Administrative Law Judge inadvertently found at one point that
Respondent filed its petition after receiving the Regional Director 's letter of
August 28 that the CI U petition was to be dismissed , as correctly stated by
him elsewhere , Respondent filed its petition on August I He also
inadvertently stated that the Regional Director announced on July 24 that
an election pursuant to the CIU petition would take place on August 31, as
correctly stated by him elsewhere , the latter date was August I
DECISION
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
B. H. Brown Construction Co., a sole proprietorship, is
engaged in the building and construction industry as a
general contractor and maintains its principal office and
place of business in Clinton, Missouri; it does business in
more than one State. Annually it performs services having
a value in excess of $50,000 for customers located within
the State of Missouri, which customers in turn annually
perform services outside the State having a value in excess
of $50,000. During its last fiscal year, ending September 30,
1972, Brown contracted for onejob in the State of Kansas,
at a price of $87,000, for which it billed $61,000 during the
same year. I find that the Company is engaged in
commerce within the meaning of the Act and that it will
effectuate the policies of the Act to exercise jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
I find that United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, District Council of Kansas
City and Vicinity , is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In December 1971, Brown started work on the construc-
tion of a school building addition in Adrian, Missouri,
using six or seven subcontractors of the usual kind By the
spring of 1972, he also had four or five employees in his
direct employ. These were carpenters for the most part.
The job was completely unionized, in the sense that all the
subcontractors used union help and that Brown Company
itself only hired members of the Respondent District
Council of Kansas City. Brown never signed a contract
with the Respondent, despite the fact he always paid full
union scale and contributed to all fringe benefit funds,
such as pension, administered by that Union.
On June 28, the Carpenters council placed a picket in
front of the construction site ; it remained there 5 days a
week continuously to October 29. Its banner read:
Brown Const. Co. No Contract with Carpenters
District Council of Kansas City and Vicinity 3114
Paseo AFL-CIO
THOMAS A Ricci, Administrative Law Judge: A hearing
in this proceeding was held on October 31, 1972, at Kansas
City, Missouri, on complaint of the General Counsel
against United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, District Council of Kansas City and
Vicinity, herein called the Respondent The charge was
filed on July 18, 1972, by Congress of Independent Unions,
herein called the Charging Party, and the complaint issued
on August 31, 1972. The sole issue of the case is whether
the Respondent Union picketed the construction site of B.
H. Brown Construction Co., in violation of Section
8(b)(7)(C) of the Act. Briefs were filed by the General
Counsel and the Respondent.
Upon the entire record and from my observation of the
witnesses I make the following:
The Council was not certified as representative of
Brown's employees . The complaint alleges that the object
of the picketing was to force Brown to recognize that
Union as the majority representative and to bargain with
it, and that, as no petition for a Board election was filed
within a reasonable time, the picketing violated Section
8(b)(7)(C) of the Act. In pertinent part that section reads as
follows-
It shall be an unfair labor practice for a labor
organization or its agents . . to picket or cause to be
picketed . . . any employer where an object thereof is
forcing or requiring an employer to recognize or
bargain with a labor organization as the representative
of his employees . . . where such picketing has been
202 NLRB No. 103
CARPENTERS, DISTRICT COUNCIL OF KANSAS CITY 741
conducted without a petition under Section 9(c) being
filed within a reasonable period of time not to exceed
thirty days from the commencement of such picketing:
Provided, That when such a petition has been filed the
Board shall forthwith, without regard to the provisions
of Section 9(c)(1) or the absence of a showing of a
substantial interest on the part of the labor organiza-
tion, direct an election in such unit as the Board finds
to be appropriate. . . Provided further . . . unless an
effect of such picketing is to induce any individual
employed by any other person in the course of his
employment, not to pick up, deliver or transport any
goods or not to perform any services.
Several underlying facts were explored and proved at the
hearing, but they are only collateral to the real issue to be
decided. The Respondent denies the allegation that a
purpose of the picketing was to compel Brown to sign a
contract with it; it asserts instead, in its answer to the
complaint, that all it intended was to advise the public of
the fact that Brown's direct employees were not covered by
any collective-bargaining agreement. The Respondent also
seemingly contradicts the prosecution claim that the
picketing effectively prevented employees from working, or
from making deliveries across the picket line. As will
appear, these questions are directly answered by the
evidence. The real point at issue between the General
Counsel and the Respondent is whether there was, during
the picketing, "a petition under section 9(c) ... filed
within a reasonable period of time ...." In International
Hod Carriers Building, Local 840, 135 NLRB 1153, the
Board said: ". . the filing of a timely petition stays the
limitation [upon recognitional picketing] and the picketing
may continue pending the processing of the petition." If
there were no petition pending, the recognitional picketing
was illegal, for it extended beyond 30 days. If there were a
petition in being, the picketing must be deemed entirely
lawful, regardless of its purpose, or even its effect.
A. Purpose
It seems this was the first job that Brown undertook
within the jurisdiction of the Kansas District Council of
Carpenters Clyde Epps, business representative of the
Council, testified that, when he first learned of Brown's
intention to use members of his Union, he told the general
contractor he would have to sign a contract. The union
agent's stated reason, then as well as later, was that pension
or other fringe benefit contributions to the Union's fund
must be covered by a regular collective-bargaining agree-
ment in order to be "legal." Again in June, when Brown
called on the Respondent to supply needed carpenters,
Epps repeated the demand that a contract must be signed.
Brown used the men referred by this Union, even hired
members who were not referred out of the union hall, but
always refused to sign any agreement. On June 25, 3 days
before the start of the hearing, Epps left signed copies of
regular union contracts-comprehensive agreements cov-
ering all aspects of employment-at the jobsite for Brown
to sign Twice while the picketing was going on, Ralph
Hager, another business representative of the Respondent,
talked to Brown, repeating the request. As Brown recalled
these talks with Hager, one of them occurred late in July,
when Hager said: "If you will go ahead and sign this
agreement with me I will have that banner off there this
afternoon . . .." Still Brown refused to sign anything.
Whatever Brown's motivation may have been, what all
this amounts to is that the picketing union wanted to be
recognized as the bargaining agent for his employees and
he refused to extend recognition. That he was simultane-
ously of a mind to hire only union carpenters, to pay the
going area union wage scale, and even the fnnge benefit
enjoyed by all other members of the District Council, in no
way alters the continuing dispute between him and this
union. I find that the purpose of the picketing throughout
was to compel the employer to cede recognition to the
Respondent. And the wording of the picket's banner only
reinforces this finding.
B. Work Stoppages
Brown testified, credibly and without substantive contra-
diction, that he had five men working for him the day the
picketing started, and that they refused to work the next
day because of it. He also said that three of the
approximately six or seven subcontractors had men at
work, about 15 all told, and that all of these refused to
cross the picket line for 2 weeks. At that time, some
contractors returned to work but two did not-iron
workers employed by subcontractor Robert Hill Steel
Erection Co. and carpenters working for Robbins Flooring
Co. The iron workers came to work later only on Saturday
and a Sunday when the picket was not there, and then
refused to return at all. Hill, of the Hill Company, said he
was not able to complete this contract; Brown found
another subcontractor to do it in his place. The floormen,
also members of the Respondent Council, worked at times
but by August 1 quit altogether, still because of the picket.
Their employer, the subcontractor, discharged his contract
obligation by obtaining another company to do it. The
school project was originally scheduled for completion on
September 1. It was in its final stages instead at the time of
the hearing on October 31.
The only contradiction to all this is vacillating and vague
testimony by the sole picket himself. His attempted denials
are not persuasive.
I find on the total record that the Respondent's picketing
activity effectively interrupted the work of many employ-
ees.
C. Two Representation Case Petitions and an
Unfair Labor Practice Charge
Shortly after the picketing started on June 28, another
union somehow came into the picture claiming to represent
Brown's three to five employees; it is called Congress of
Independent Unions. It filed a representation case petition
on July 11, seeking an election among those employees
(Case 17-RC-6958). These were the same persons for
whom the District Council was demanding recognition. On
July 24, the Regional Director wrote a letter to all parties
advising that a Board-conducted election would be held on
August 1. The next day, July 25, the Respondent and
picketing Union filed an unfair labor practice charge
against the Brown Company, alleging illegal assistance to
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Congress of Independent Unions in violation of
Section 8(a)(2) of the Act (Case 17-CA-5263). At this
point, the Regional Director canceled plans for the election
planned for August 1. Upon investigation , it was deter-
mined that there was merit in the unfair labor practice
charge, and therefore on August 28 the Regional Director
dismissed the election petition of the second union and
informed the Company a complaint against it would issue
The complaint case was resolved by a settlement agree-
ment, the Company promising not to assist the Congress of
Independent Unions and to post the usual appropriate
notices for a 60-day period.
Meanwhile , upon hearing , when it received the Regional
Director's letter dated August 28 , that the petition in Case
17-RC-6958 was to be dismissed , the Respondent filed its
own petition (Case 17-RC-6973), asking for an election
among the same employees it wished to represent. That
petition was held in abeyance , and was still pending in the
hands of the Board 's Regional Office on the day of the
hearing. Notwithstanding the pendency of that perfectly
proper petition , the complaint , charging the Respondent
with illegal picketing , was issued on August 31
D. Analysis, the Theory of Illegality
On this critical question-was there a petition filed-the
complaint is ambiguously phrased. It says there was not a
"valid" petition filed, "involving Brown's employees"
within "a reasonable time."
Discussion must start with the fact that two petitions
"under Section 9(c)" were filed during the picketing, and
no amount of descriptive phraseology or devious argumen-
tation can alter that reality. The first was filed on July 11,
13 days after the picketing started; the second petition was
filed on August 1, and therefore throughout the month of
August there were two petitions pending. The first was
dismissed by the Regional Director on August 28, and the
second was never acted upon by the Regional Office.
There is no contention that the 13 days that passed
between June 28 and July 11 was an "unreasonable period
of time " The only conceivable argument that can be made
in support of a theory that throughout the period June 28
to August 1-more than "30 days from the commencement
of the picketing"-there was no "valid" petition filed, is
that this one was filed by a labor organization other than
the one that was doing the picketing. No case precedent
has been cited lending support for the view. There is
nothing in the statutory language excluding such a petition
from proper consideration under the section. Moreover,
the cases reflect unnumbered situations where recognition-
al picketing was deemed permissible despite the fact the
employer filed the petition and not' the picketing union.
And, finally, the entire scheme of the statute requires that
there be some petition to support an expedited election,
and this objective is satisfied regardless of what party files
the petition-so long as it permits the Regional Director to
resolve the question concerning representation with dis-
patch. I find the fact that the first petition here was filed by
a competing union and not by the picketing one irrelevant
to the question whether this picketing was unlawful or not.
The second theory of illegality in the picketing is
bottomed on the reason why the Regional Director did not
hold an election on the petition filed by the Congress of
Independent Unions. On July 24, he announced the
election would take place on August 31; the next day the
picketing union filed an 8(a)(2) charge against the
employer, and on July 28 the Regional Director canceled
the election. Had the Respondent Union not charged the
Company with illegal assistance to the competing Union
the expedited election would have been held. It is argued
that by its conduct in filing that charge the picketing
Union deliberately made the election impossible and
therefore placed itself in the same position it would have
been in if no petition had been filed at all. So viewed,
according to the General Counsel, the petition of the
Congress of Independent Union was "invalid," i.e.,
invalidated by the picketing union itself . Under this view,
since the Respondent frustrated the scheme of the statute
on July 24, the "unreasonable" period of picketing started
that day. Before considering the idea that by filing a charge
against the employer a picketing union loses the protection
afforded by any petition-regardless of who filed it-it is
important to bear in mind also the second petition
On August 1, the Respondent filed a petition in Case
17-RC-6973. Unless some theory can be found to say that
this one too was "invalid" for some reason, the period of
unreasonable picketing-that is, the period during which
there literally was no petition pending, would have to be
between July 25, when the 8(a)(2) charge was filed, and
August 1 This reaches the third possible theory of
illegality. The Regional Director did not hold an election
on this second petition because, following settlement of the
8(a)(2) charge against the Company, notices were posted
during the next 60 days. Presumably this period was
required to dissipate the effect of the Company's coercive
conduct upon the employees. The reasoning of this third
theory then becomes that, because the Respondent filed
the unfair labor practices charge, the Regional Director
decided the Company was guilty; and, because the
Company misconducted itself, the employees had to be
reassured; and, because the 60-day posting period is
dictated by Board procedures, the election requested by
the picketing union could not be held- ergo, the
Respondent was responsible for the entire congery of
events and its own petition must be ignored. It is a hollow
house of cards that falls in its entire structure if only
because there was merit in the charge of unlawful
interference by the Employer itself in the self-organization-
al activities of its employees.
I find no merit in the unqualified contention that
whenever a union files an unfair labor practice charge it
removes any pending petition from consideration in the
evaluation of a complaint against it under Section
8(b)(7)(C) of the statute. The broad statement includes
every possible situation Three conceivable sets of fact
come to mind. (1) The evidence shows conclusively that the
Union knew its charge was false, that it intended
deliberately to obstruct the election for purposes of delay.
(2) There is no evidence of malicious purpose, so that it
could not be said the charge was filed in anything other
than good faith. (3) The record as a whole proves the
Union had solid basis for the charge and that in fact it was
a meritorious one.
CARPENTERS, DISTRICT COUNCIL OF KANSAS CITY
There is no need , or occasion here , to consider the first
situation, for not only is there no evidence of bad faith but
no such claim is convincingly advanced. It is entirely
possible the Board would be justified in ignoring a clearly
dilatory charge, any technique utilized by the picketing
Union to avoid a head count of its representative strength.
This is not such a case.
There is a confusion in terms in the General Counsel's
brief. In Local 294, Teamsters (R.H. Macy), 199 NLRB No.
40, there is passing reference to the situation where the
picketing union files a representation petition in bad faith,
a document that is tantamount to an absurdity on its face.
The picketing union in the case at bar is correctly charged
with knowledge that the filing of an 8(a)(2) charge would
delay any election under the competitor's petition, and that
if the charge stood up that petition would die altogether.
This mere knowledge on the part of the Respondent is said
to support a finding that the picketing union thereby
"ultimately destroyed" the first petition, as though it had
itself killed it in the first instance because of a fatally
inherent defect . From this it is then argued- that because
the Respondent knew it was killing the first petition, it
follows the charge was filed in bad faith. This sort of
reasoning-that what came first is bad because of what
came after , and that what came later is bad because of
what preceded it-is unpersuasive, to put it mildly.'
A rule holding that the union may not file a charge when
it honestly believes the employer has by its misconduct
made a fair election impossible would run counter to the
general principle that any person may file a charge with
this Board. It would do violence to the salutary policies of
the statute as a whole. Assume the charge in this case had
been filed by an individual, even a member of the picketing
Union. Could he be denied the right to complain to the
Board that the Company was coercing him into joining a
union not of his choice? The only logical distinction that
could be made between a petition filed by an employee
and one filed by the Union must be that the Union was not
attempting to protect the employees' rights, but to make a
shambles of the Board processes . But then the situation
would revert to the first situation considered above.
Clearly the facts shown in the record here establish
conclusively that Section 8(a)(2) was violated by the
Company, at least to the extent that the Regional
Director 's investigation convinced him of the fact. In the
settlement agreement the Company did not confess guilt,
but the General Counsel's theory must be otherwise. This is
precisely situation 3 described above. Whatever the
' One must particularly reject the proposition that evil in the Respondent
is proved by the fact it knew the Employer had misbehaved when it accused
it of wrongdoing From the General Counsel ' s brief " if the
Respondent did believe that its charge was meritorious , then its conduct in
743
answers to questions 1 and 2 may be as a matter of law,
and they really need not be determined here , there is no
doubt the charge filed by the picketing Union against the
Brown Company cannot be said to have `invalidated'
either the first or the second representation petitions.
The heart question presented in this case can be viewed
in a different light. The Regional Director dismissed the
first petition because the charge was filed . He refrained
from holding an election pursuant to the second petition
because notices had to be posted for two months in
consequence of the same charge. Whose fault was it that
no election was held under either petition ? Is blame to be
placed on the party who accused the other of wrongdoing
or on the party who in fact committed the unfair labor
practices? The answer is obvious . I find that at all times
during the Respondent 's picketing activities there was a
valid petition filed "within a reasonable period of time,"
and I shall therefore dismiss the complaint.2
In his brief, for the first time , the General Counsel makes
an additional argument to bring the picketing within the
proscription of the section . It is that there was no petition
on file "involving Brown's employees." The record shows
otherwise , for both petitions sought elections among the
same employees and these were the ones the Respondent
sought to represent . Brown only had three to five persons
working for him and they were essentially carpenters. The
first petition speaks of "all full time employees and regular
part time employees employed by the employer," and
asserts they were four in number, and the second of "all
carpenters and employees performing carpenter work and
their apprentices," and says there were three of them. The
issue that the General Counsel now seeks to raise was
never mentioned at the hearing and no one for a moment
doubted the two Unions were competing for the same
people. If the activities of the Congress of Independent
Unions involved employees other than the ones for whom
the District Council wanted recognition , the Regional
Director would have obtained an injunction during the
first 30 days of picketing . If the District Council 's petition
had nothing to do with the employees involved in the
unfair labor practice case there was no reason for not
holding an election under the second petition.
RECOMMENDED ORDER
It is hereby recommended that the complaint be, and it
hereby is, dismissed.
filing the 8(a)(2) charge amounted to a deliberate attack on the petition
itself "
2 Compare Local 294 Teamsters (R H Macy), supra