McCarthy Heating & Air Conditioning Services, Inc.

National Labor Relations Board - Board Decisions

Nov 17, 1980

253 N.L.R.B. 330 (N.L.R.B. 1980)

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