Local Union 103, Iron Workers

National Labor Relations Board - Board Decisions

Jan 6, 1975

216 N.L.R.B. 45 (N.L.R.B. 1975)

LOCAL UNION 103 IRON WORKERS 45
Local Union No. 103, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO ' and Higdon Contracting Company,
Inc. Case 25-CP-63-2
January 6, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On August 23, 1974, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief and the Respon-
dent filed an answering 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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The material facts are essentially undisputed.
Higdon Construction Company has been an employ-
er engaged primarily in the building and construction
industry within the meaning of Section 8(f) of the
Act, and Local 103 has been a labor organization of
which building and construction employees are
members within the meaning of Section 8(f). Higdon
Construction Company, herein called Higdon Con-
struction, and Respondent have had a collective-
bargaining relationship since 1968. Their initial
contract which expired about December 1972, had
been negotiated under Section 8(f) of the Act. In July
1973, Higdon Construction was engaged in the
,performance of a construction contract at Glenmore
Distillery. Local 103 refused to furnish employees
unless Higdon Construction executed a contract, and
together with Carpenters and Operating Engineers
shut down the job twice. Whereupon, Higdon
Construction on July 31, 1973, signed an acceptance
of agreement covering Respondent's ironworkers by
which Higdon Construction agreed to abide by an
existing agreement between the Tri-State Iron Work-
ers Employers Association, Inc., and Local 103,
which by its terms expires on March 31, 1976. The
contract does not contain a union-security clause or
any checkoff provisions. Neither at the time the
I Herein called Local 103 or Respondent.
2 Gerald J . Higdon is the sole stockowner of both Higdon Contracting
and Higdon Construction and the president of both companies . His son is
secretary-treasurer of both companies . The directors are the same. Higdon
Construction, which owns all the equipment, leases the equipment to
Higdon Contracting. Trucks used by Higdon Contracting on the Grace
contract was executed nor thereafter did the Union
claim to, or in fact, represent a majority of Higdon
Construction's employees. The record indicates that
some employees were supplied by the Union on the
Glenmore job and wages and contributions to the
welfare fund were paid for them according to the
contract.
Higdon Contracting Company, the Charging Party,
herein called Higdon Contracting, was formed in
July 1973 to perform nonunion ironwork jobs.2 It
successfully bid on jobs of W. R. Grace Co. at
Owensboro, Kentucky, and of Barmet at Rockport,
Indiana. About January 1, 1974, shortly after
construction at the W. R. Grace jobsite began, Local
103 Business Representative William Oglesby and
Carpenters Representative Mosely talked to Higdon
Contracting's general manager , Philip C. Kelly, and
told him that Higdon Construction was in violation
of its contract at the Grace jobsite. Thereafter, in
February 1974, Oglesby asked Higdon "what was
going on" at the Grace jobsite. Higdon replied that
the reason the job was being handled under the new
company' s name was because Higdon had been
forced into signing the contract at Glenmore, and
Higdon had a lot of nonunion competition. When
Ogelsby attempted to "get [him] signed up," Higdon
responded that "this would be kind of silly for me to
do this because it would defeat the purpose I had
started out to do. . . ." Higdon admitted "it's one
and the same companies . . . under one hat or
another hat, depending on whether [he was] doing
Union work or non-union work. .
Local 103 caused pickets to be placed at the Grace
jobsite on January 29, 1974. Pickets remained at the
site , except during periods of inclement weather
(about 4 or 5 days) until March 1, 1974. The picket
sign carried the following inscription:
Higdon Construction Company is in violation of
the agreement of the Iron Workers Local Number
103
Higdon Contracting started the Barmet job on or
about February 20, 1974. Within the first few days,
Local 103 Business Agent Hill asked Kelly if "we"
were going to use union people on the job. Kelly told
him that Higdon Contracting was doing the job; it
did not have a contract with the Ironworkers, and
was not going to do the job as a union contractor.
Hill said, "I'll get right on it." Thereafter, Local 103
jobsite, discussed infra, bear the name of Higdon Construction . In addition,
an invoice dated March 8 , 1974, indicates that material worth $96,788, for a
building on the Rockport , Indiana , site, discussed infra, was charged to
Higdon Construction . Higdon testified that Higdon Construction is the
"only one that has any par value at all" and "it 's one and the same
companies... .
216 NLRB No. 5
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picketed this job on March 4, 5, 18, 19, and 20, 1974,
with the same signs described above.
Local 103 has not filed a petition seeking an
election, nor has Higdon Contracting or Higdon
Construction. Nor has Local 103 filed an 8(a)(2)
charge. It did file charges alleging violation of
Section 8(a)(1), (3), and (5), which were dismissed
April 25, 1974.
In R. J. Smith Construction Co., Inc.,3 the Board
found that, although Section 8(f) of the Act clearly
exempts a company and union from unfair labor
practice liability for entering into a contract prior to
establishment of the union as a majority representa-
tive, Section 8(f) does not protect the union from
inquiry into its majority status during the contract
term. The Board thus concluded that Section 8(f)
only protects from illegality the preliminary contrac-
tual steps of a prehire agreement, and that, where a
union never thereafter obtains majority status, the
company does not violate Section 8(a)(5) and (d) of
the Act by refusing to continue the bargaining
relationship established and by unilaterally changing
terms and conditions of employment set forth in the
contract. Since the Board found that the union had
admittedly never attained majority status, it dis-
missed the refusal -to-bargain complaint.
As set out above, it is undisputed that the Union
did not represent a majority of either the employees
of Higdon Construction or of Higdon Contracting at
any relevant time. Nor is it disputed that the parties'
July 31, 1973, contract was a prehire agreement
lawfully executed under Section 8(f) of the Act prior
to the establishment of the Respondent's majority
status. The Administrative Law Judge sought to
distinguish this case from R. J. Smith, supra, on the
ground that there is no persuasive evidence that the
Employer actively repudiated the contract. Rather
the evidence is that the Employer sought to adhere to
the contract for union work, such as the Glenmore
contract, and to avoid it as to nonunion work by the
creation of a second corporation. The Administrative
Law Judge therefore concluded that the picket
legend published the truth. He found that the target
of Respondent's picketing was not to force or require
the Employer to initially accept the Union as the
bargaining representative since that had already been
accomplished, but instead was to secure compliance
with an existing contract, a permissible objective. We
disagree.
In Ruttmann Construction Company,4 a companion
3 191 NLRB 693 ( 1971), enforcement denied sub none. Local No. 150,
Operating Engineers v. NLRB., 480 F.2d 1186 (C.A.D.C., 1973), remand
accepted 208 NLRB 615 (1974).
4 191 NLRB 701, 702 (1971).
s More precisely until the provisions of the union-security clause have
taken effect at a project (usually 7 days).
6 194 NLRB 52 (1971), enforcement granted in part and denied in part
case to R. J. Smith, supra, the Board stated that the
"prehire agreement is merely a preliminary step that
contemplates further action for the development of a
full bargaining relationship: such actions may
include the execution of a supplemental agreement
for certain projects or covering a certain area and the
hiring of employees who are usually referred by the
union or unions with whom there is a prehire
agreement." Thus, the Board recognized the industri-
al realities of the construction industry in finding
that 8(f) contracts do not carry, even with union-
security provisions, a presumption of majority status
until such time as employees for particular projects
have been hired.5 In David F. Irvin, et al., d/b/a The
Irvin-McKelvy Company,6 the parties conceded, and
the Board held, that by virtue of compliance with
union-security provisions in an 8(f) contract the
union had majority status at those projects still
underway. The Board nevertheless dismissed the
complaint therein with respect to projects not yet
begun at the time the employer terminated the union
contract.
From the foregoing, we conclude that the contract
herein is an 8(f) contract and that no presumption of
majority status attaches to it in the circumstances of
this case. Accordingly, the duty of Higdon Construc-
tion and its alter ego, Higdon Contracting,7 to honor
the Employer's collective-bargaining agreement with
Local 103 is limited by the nature of 8(f) agreements.
Under the doctrine set out in the cases cited above,
the Employer could have terminated the agreement
with Local 103 for projects not yet underway. For the
Board to allow the Respondent to picket to enforce
an 8(f) agreement if an employer decides to ignore it,
as the Employer herein has done with respect to
nonunion jobs, which Respondent could not enforce
by means of obtaining an 8(a)(5) bargaining order, is
to permit it to do by indirection what it could not do
directly, and in effect nullify our decisions in R. J.
Smith and its progeny that such contracts are
voidable by either party if a union never thereafter
obtains majority status. In these circumstances, we
conclude that the picketing by Respondent to
enforce a noneffective 8(f) contract was for initial
recognitional purposes and therefore was proscribed
by Section 8(b)(7)(C) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
475 F.2d 1265 (C.A. 3, 1973).
7 The Administrative Law Judge found that Higdon Contracting was the
alter ego of Higdon Construction , and the General Counsel did not except
to this finding . Thus, Higdon Contracting was bound by the collective-
bargaining contract of Higdon Construction and Respondent . See Peter
K,ew,t Sons ' Co. and South Prairie Construction Co., 206 NLRB 562 (1973).
LOCAL UNION 103 IRON WORKERS
unfair labor practices, we shall order that it cease
and desist therefrom and take certain affirmative
action set forth below to effectuate the policies of the
Act.
CONCLUSIONS OF LAW
1. Higdon Contracting Company, Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By picketing Higdon Contracting Company,
Inc., from January 29, 1974, until March 1, 1974, at
its W. R. Grace Company jobsite at Owensboro,
Kentucky, with an object of forcing and requiring
Higdon Contracting Company, Inc., to bargain with
Respondent, without being currently certified as the
representative of Higdon Contracting Company,
Inc.'s employees and without a petition under
Section 9(c) being filed within a reasonable period of
time, Respondent engaged in unfair labor practices
within the meaning of Section 8(b)(7)(C) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Local Union No. 103, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, Evansville , Indiana, its officers, agents,
and representatives, shall:
1. Cease and desist from picketing or causing to
be picketed, or threatening to picket or cause to be
picketed, Higdon Contracting Company, Inc., where
an object thereof is forcing or requiring said
employer to recognize or bargain with it as the
representative of its employees in violation of Section
8(b)(7)(C) of the Act.
2. Take the following affirmative action designed
to effectuate the purposes of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the
Regional Director for Region 25, after being duly
signed by the Respondent's authorized representa-
tive, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by it to
insure that said notices are not altered, defaced, or
covered by any other material.
47
(b) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
8 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 Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence, it has been decided that we
violated the law by picketing or causing to be
picketed, or threatening to picket or causing to be
picketed Higdon Contracting Company, Inc., where
an object thereof was to force or require the said
Employer to recognize or bargain with us as the
representative of its employees in violation of Section
8(b)(7)(C) of the Act. We have been ordered to post
this notice. We intend to carry out the Order of the
Board and abide by the following:
WE WILL NOT, under conditions prohibited by
Section 8(b)(7)(C) of the Act, picket or cause to
be picketed, or threaten to picket or cause to be
picketed, Higdon Contracting Company, Inc.,
where an object thereof is to force or require the
said Employer to recognize or bargain with us as
the representative of its employees.
LOCAL UNION No. 103,
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL AND
ORNAMENTAL IRON
WORKERS, AFL-CIO
DECISION
STATEMENT OF THE CASE
LowELL GOERLICH, Administrative Law Judge: The
charge filed by Higdon Contracting Company, Inc., herein
referred to as Higdon Contracting, against Local Union
No. 103, International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO, the Respondent
herein, sometimes referred to as the Union, on March 6,
1974, was served on the Respondent by registered mail on
or about March 6, 1974. A complaint and notice of hearing
was issued on April 25, 1974. The complaint charged that
the Respondent violated Section 8(b)(7)(C) of the National
Labor Relations Act, as amended, herein referred to as the
Act, in that the Respondent picketed certain jobsites, with
the object of forcing and requiring Higdon Contracting to
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognize the Respondent as the collective-bargaining
representative of its employees and the employees of
Higdon Contracting to accept the Respondent as their
collective-bargaining representative when at the time of
said picketing the Respondent was not certified as the
bargaining representative of the employees of Higdon
Contracting nor had the Respondent filed a valid petition
under Section 9(c) of the Act within a reasonable time
from the commencement of such picketing.
The Respondent filed a timely answer denying that it
had engaged in any of the unfair labor practices alleged.
The case was submitted pursuant to the following
stipulation:
The [parties hereto] hereby agree as follows:
1. All parties hereby waive all rights to the holding
of a hearing before an Administrative Law Judge.
2. The case shall be submitted to an Administrative
Law Judge for decision and issuance of decision, and
the following shall constitute the record in this case,
copies of which are attached hereto and made a part
hereof:
a. The complaint, marked Attachment A, which was
timely served on all parties.
b. The answer , marked Attachment B, which was
timely served on all parties.
c. The order postponing the hearing, marked Attach-
ment C, which was timely served on all the
parties.
d. The order indefinitely postponing the hearing,
marked Attachment D, which was timely served
on all parties.
e. The transcript (including the exhibits) of a hearing
before District Judge Gordon on May 6, 1974,
concerning the above case , marked Attachment
E. [The parties hereto agree that references in the
transcript to "VII" should read "&"]
f. The petition for injunction in Civil No. C74-420,
marked Attachment F.
3. The parties do not necessarily concede the
relevance of all facts above recited, and any party
urging irrelevance will do in a brief to the Administra-
tive Law Judge.
4. The privilege of filing a brief to the Administra-
tive Law Judge is expressly reserved by all parties
hereto, said briefs to be due by a date to be set by the
Administrative Law Judge.
All briefs have been carefully considered.
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
1. THE BUSINESS OF THE CHARGING PARTY
Higdon Contracting is, and has been at all times material
herein, a corporation duly organized under , and existing by
virtue of, the laws of the State of Kentucky.
At all times material herein, Higdon Contracting has
maintained its principal office and place of business at
Owensboro, Kentucky, herein called the facility, and
various other facilities and jobsites in the States of
Kentucky and Indiana, and is, and has been at all times
material herein, engaged at said facilities and jobsites as a
general contractor in the construction contracting industry.
During the past year, a representative period, Higdon
Contracting in the course and conduct of its business
operations purchased, transferred, and delivered to its
Kentucky facilities and jobsites goods and materials valued
in excess of $50,000 which were transported to said
facilities and jobsites directly from States other than the
State of Kentucky.
During the past year, a representative period, Higdon
Contracting in the course and conduct of its business
operations performed services valued in excess of $50,000
in States other than Kentucky wherein Higdon Contracting
is located.
Higdon Contracting is now, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
The Union caused pickets to be placed at the W. R.
Grace Chemical jobsite in Owensboro, Kentucky, where
the Higdon Contracting was performing construction work
on January 29, 1974. Pickets remained at the site, except
during periods of inclement weather (about 4 or 5 days),
until March 1, 1974. The picket sign carried bore the
legend:
Higdon Construction Company is in violation of the
agreement of the Iron Workers Local Number 103
The Union also picketed with a similar sign on March 4,
5, 18, 19, and 20, 1974, at the Barmetjobsite at Rockport,
Indiana, where Higdon Contracting was also performing
work.
On July 7, 1973, the Higdon Construction Company,
herein referred to as Higdon Construction, recognized the
Union and accepted and approved the current labor
agreement between the Tri-State Iron Workers Employees
Association , Inc., and the International Association of
Bridge , Structural and Ornamental Iron Workers, Local
103, terminating on March 31 , 1976. The agreement was
signed by Gerald J. Higdon for Higdon Construction. At
the time this agreement was signed Higdon Construction
had executed a construction contract dated May 7, 1973,
calling for construction work at the Glenmore Distilleries
Company in Owensboro, Kentucky. An article of the
contract provided:
It is understood and agreed as a material part and as
a consideration for this contract that Contractor
[Higdon Construction Company, Inc.] as well as any
sub-contractor or assignee hereunder , shall use union
labor exclusively in the performance of this contract.
Higdon maintained that he entered into the labor
agreement with the Union "reluctantly, against my will."
LOCAL UNION 103 IRON WORKERS 49
He explained that in order to comply with his agreement
with Glenmore Distilleries Company he had asked for
employees through the Union. The Union refused to
furnish employees. Nevertheless, when Higdon determined
to continue without union labor, the Carpenters and
Operating Engineers "entered into it." Said Higdon: "They
came up and shut my job down and there was talk about a
walk out of the Distillery. So, their manager came to me
and told me that something would have to be done. Well,
when the final shut down came , uh, well, I-I just lost my
cool and I went and signed their contracts." The contract
does not contain a union-security clause or any checkoff
provisions.
Thereafter in July 1973 Higdon incorporated the Higdon
Contracting Company, Inc., the Charging Party herein.
Higdon is the sole stockowner of both Higdon Contracting
and Higdon Construction and the president of both
companies . His son is secretary-treasurer of both compa-
nies . The directors are the same . Equipment is being leased
from one company to the other.' Trucks used by Higdon
Contracting on the Grace Company jobsite bear the name
of Higdon Construction. Indeed an invoice dated 3/8/74
reveals that material for a building in the amount of
$96,788 intended for the Rockport, Indiana, site was
charged to Higdon Construction.
In February 1974 when Union Representative William
Oglesby asked Higdon "what was going on" at the Grace
Company site, Higdon replied that a new company had
been set up. He continued, "they had, uh, forced me into
signing this agreement at the Glenmore Distillery that I
had to do something because , uh, I have a lot of
competition that is not non-union . . . ." When Oglesby
attempted to "sign up" the new company Higdon respond-
ed that "this would be kind of silly for me to do this
because it would defeat the purpose I had started out to do
...." Higdon frankly admitted "it's one and the same
companies . . . under one hat or another hat, depending
on whether [he was] doing Union work or non-union work
112
After Higdon refused to honor the above-mentioned
labor agreement the Union placed the pickets as above
detailed.
Neither at the time the contract was executed nor
thereafter did the Union represent a majority of the
employer's employees within an appropriate unit.
B. Conclusions and Reasons Therefor
The contract executed by Higdon Construction and the
Union on July 7, 1973, satisfied the lawful requirements for
a prehire agreement authorized by Section 8(f) of the Acts
Nevertheless, the General Counsel apparently asserts, as
his major premise, that the contract, "an g(f) agreement,"
had no prospective validity requiring the employer to
adhere to its terms because at no time after it was executed
did the Union represent a majority of the employer's
employees in an appropriate unit. Thus, reasons the
General Counsel, it follows that, in the absence of a valid
contract, the Union's picketing aimed at the employer's
violation of a noneffective contract was for initial
recognitional purposes proscribed by Section 8(b)(7)(C).
The General Counsel's major premise is drawn from the
Board's holding in R. J. Smith Construction Co., Inc., 191
NLRB 693 (1971). In this case a majority of the Board held
"that a prehire agreement, although validly executed for a
fixed term of years, is effective only so long as both parties
wish to adhere to it and may be ignored with impunity .. .
by either party at any time without thereby offending
either Section 8(a)(5) or Section 8(b)(3) of the Act" 4 if the
Union has not previously established a majority.5 The facts
in that case disclose that the employer, while'he executed
8(f) agreements, did not intend and never did abide by
their terms. Moreover, during the period of the agreements,
without prior notice or bargaining with the union, the
employer raised wages of certain employees covered by the
agreement.
The facts in the instant case differ. Here the terms of the
contract were implemented, Employees were supplied by
the union and wages and contributions to the welfare fund
were paid according to the contract. There is no persuasive
evidence that the Employer actually repudiated the
contract. On the other hand, the evidence is that the
Employer sought to adhere to the contract for union work
(such as the Glenmore Distilleries contract) and to avoid it
as to nonunion work by the creation of a second
corporation as a subterfuge and a sham. This blow hot,
blow cold stance of the Employer,6 which contemplated an
i Higdon testified , "Well Higdon Construction Company is the only one
that has any par value at all and , uh, therefore it would own the equipment,
once it is paid for and , uh, we lease it to the Higdon Contracting Company."
2 When Higdon informed Union Representative Oglesby that Higdon
Construction did not have a contract with W R. Grace Company,
according to Higdon, Oglesby said that "we were in violation of contract
and that we should get a lawyer because we would have to go to court with
'em. 11
The employer was "engaged primarily in the building and construction
industry"; the employees covered by the agreement were "engaged (or who,
upon their employment, [would] be engaged) in the building and
construction industry"; and the union was "a labor organization of which
building and construction employees [were] members (not established,
maintained , or assisted by any action defined in section 8 (a) of [the ] Act as
11an unfair labor practice .. .
4 This language is taken from the dissent
5 This proposition of law was reversed by the Court of Appeals for the
District of Columbia, 480 F.2d 1186 (1973). The court held that "an
employer , who has entered into a validly executed prehire agreement may,
after a reasonable period, seek a representation election to challenge an
enduring minority union , but until he does and prevails, he should be held
to the same standard of conduct in regard to unfair labor practices as an
employer who has entered into a collective-bargaining agreement with a
union certified to have majority status." On remand , 208 NLRB 615 (1974),
the Board applied the court 's views. In a footnote it was noted, "Member
Fanning agrees with the court's decision . Chairman Miller reserves opinion
as to the underlying legal issues ..." While I adhere to the reasoning of
the court and the dissent , I deem myself bound by the Board's decision
Insurance Agents' International Union, AFL-CIO, 119 NLRB 768. 772-773
(1958)
6 The record indicates that Higdon was the real employer, the alter ego
of Higdon Construction and Higdon Contracting, a single integrated
business entity. See J Howard Jenks, d/b/a Glendora Plumbing, 165 NLRB
101 (1967); and Industrial Fabricating Inc., 119 NLRB 162 (1957). Higdon
admitted that Higdon Contracting and Higdon Construction were "one and
the same "
In Bricklayers, Masons and Plasterers' Union, Local No 1, 209 NLRB 820
(1974), it was stated by the Administrative Law Judge:
Where an individual is the sole owner of a corporation , the Board has
(Continued)
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adherence to the contract for some purposes , was not of
such character as to render the Union 's picket line
vulnerable to Section 8(bX7)(C).1 Not all picketing which
continues for more than 30 days without filing a represent-
ation petition runs afoul of Section 8(bX7)(C). Local Union
No. 741, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, 137 NLRB 1125 (1962).
Only picketing is banned where an object of such picketing
is to require an employer to "recognize or bargain" with a
labor organization or to require the employees "to select
such labor organization as their collective bargaining
representative ." In the instant case the object of the
picketing as indicated by the picket sign was to inform the
world that the Employer was in violation of an agreement
with the Union . Since there is no persuasive evidence that
the Employer, who had recognized the Union , intended to
terminate the contract in toto but only sought by
subterfuge and chicanery to avoid its application for
nonunion works while adhering to the contract for union
work , the picket legend published the truth. The target of
the Union's picketing was not to force or require the
Employer to initially accept the Union as the bargaining
representative , since that had already been accomplished,
consistently ignored the corporate fiction and has considered one as the
alter ego of the other . Diaper Jean Manufacturing Company, 109 NLRB
1045 (1954); Industrial Fabricating Inc, 119 NLRB 162, 169 (1957),
enfd . 272 F.2d 184 (C.A. 6, 1959); Ogle Protection Service, Inc and
James L Ogle, 149 NLRB 545, 546 ( 1964), fn . 1, modified in other
respects 375 F.2d 497 (C.A. 6, 1967).
Sec. 8(bX7XC) reads as follows:
(7) to picket or cause to be picketed , or threaten 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, or
forcing or requiring the employees of an employer to accept or
select such labor organization as their collective bargaining
representative , unless such labor organization is currently
certified as the representative of such employees-
7
. . .
but to secure compliance with an existing contract, a
permissible objective.
In Bay Counties District Council of Carpenters , AFL-CIO,
et al., 154 NLRB 1598, 1605 ( 1965) the Board said:
We have held in previous cases that Section
8(bX7XC) is not to be literally applied so as, for
example , to reach picketing by a recognized union to
secure compliance with an existing contract, since the
section was
intended to proscribe picketing having as its
target forcing or requiring an employer 's initial
acceptance of the union as the bargaining
representative of his employees . [Emphasis sup-
plied.]
(Citing Building and Construction Trades Council of Santa
Barbara County, AFL-CIO, et al. (Sullivan Electric Compa-
ny), 146 NLRB 1086, 1087 (1964).) Thus, the Union's
picketing did not come within the proscription of Section
8(b)(7)(C). Moreover, the conclusion that the picketing was
legal activity is strengthened by the proviso to Section
8(b)(7XC) since the legend used was pointed at an
employer who failed to apply a union contract.
[Recommended Order omitted from publication.]
(C) where such picketing has been conducted without a
petition under section 9(c) being filed within a reasonable
period of time not to exceed thirty days from the commence-
ment 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 organization , direct
an election in such unit as the Board finds to be appropriate and
shall certify the results thereof : Providedfurther, That nothing in
this subparagraph (C) shall be construed to prohibit any
picketing or other publicity for the purpose of truthfully
advising the public (including consumers) that an employer
does not employ members of, or have a contract with a labor
organization , 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
6 Higdon testified, "in order to, uh, get around the contract, as you put it,
uh, to be able to bid with my competition, yes."