Local 542, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Jun 14, 1963

142 N.L.R.B. 1132 (N.L.R.B. 1963)

1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT threaten employees with loss of overtime, layoff, or the
closing of the Old Bridge plant as consequences of activities on behalf of
Local 145, International Display and Miscellaneous Workers Union, AFL-CIO,
or as a consequence of that Union's succeeding in organizational efforts.
WE WILL NOT discourage membership in Local 145 or any other labor
organization of our employees by discharging or laying off employees or in
any other manner discriminating against them beci use of their union activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of the right to self-organization, to bargain collectively
through representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection, except insofar as may be required under an agreement con-
forming to Section 8(a) (3) of the Act.
WE WILL offer to John Zdep reinstatement to his former or a substantially
equivalent position, without prejudice to his seniority and other rights and
privileges, and make him whole for any loss of pay suffered by reason of our
discrimination against him.
W. RALSTON AND CO., INC. AND
TECHNICAL TAPE CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee, if presently serving in the
Armed Forces of the United States of his right to reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room
614, National Newark Building, 744 Broad Street, Newark, New Jersey, 07102,
Telephone No. Market 4-6151, if they have any questions concerning this notice
or compliance with its provisions.
Local 542, International Union of Operating Engineers, AFL-
CIO and R. S. Noonan , Inc. Cases Nos.. -CP-39-1 and 4-CP-
39-2. Jenne 14, 1963
DECISION AND ORDER
On October 1, 1962, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Leedom].
142 NLRB No. 131.
LOCAL 542, INT'L UNION OF OPERATING ENGINEERS 1133
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case.' We agree with the Trial Examiner for the following reasons:
The record shows that from 1952 until April 30, 1961, Noonan and
Respondent were parties to a series of collective-bargaining agree-
ments. In April 1962, Respondent requested Noonan to sign a new
contract which provided, inter alia, that Noonan recognize Respondent
as the bargaining representative of employees performing the work of
operating engineers. Noonan refused. On May 1, 1962, Respondent
commenced to picket Noonan. The clear and unmistakable purpose of
Respondent's picketing was to force Noonan to sign the contract Re-
spondent had requested. This picketing continued for more than 30
days without a petition within the meaning of Section 8(b) (7) (C)
having been filed.2
These facts, we find, establish that Respondent's picketing of
Noonan was for an object proscribed by Section 8 (a) (7) (C) and in
violation of that section. Respondent, however, intends, inter alia,
that its picketing was not for an object of recognition or bargaining.
Respondent not only states, as was clearly the case, that Noonan em-
ployed no operating engineers at the time of its picketing, but it also
asserts that Noonan did "not plan to hire any such employees in the
near future." We find no merit in Respondent's contention.
As to Noonan's plans, we note that all that appears in the record on
the subject of Noonan's intentions vis-a-vis the employment of operat-
ing engineers is a notation on a welfare fund report to Respondent
which was preparedby Noonan's assistant office manager' This nota-
tion reads : "We do not plan to hire any engineers in the near future.
Therefore this is our last report." We also note that this assistant
officer manager testified that she placed this notation on the report
at the suggestion of one of Respondent's representatives. We do not
think that evidence such as this is entitled to the weight Respondent
would give it. But, even assuming that the notation made by the
assistant office manager at Respondent's suggestion truly reflected
'The Respondent's request for oral argument is hereby denied as, in our opinion, the
record, exceptions , and brief adequately present the positions of the parties.
2 Noonan had filed a petition but later withdrew it. In view of the withdrawal, the
petition was not one within the contemplation of Section 8(b) (7) (C ). Cf. Chicago Print-
ing Pressmen's Union No. 3, at al. ( Moore Laminating, Inc.), 137 NLRB 729.
2 The only other reference in this record to this subject is found in the charge signed by
Noonan's attorney wherein it is stated that Noonan told Respondent 's representatives
that Noonan "would not be employing any [operating engineers ] in the foreseeable future
[and] that if and when operating engineers were again hired by R. S. Noonan , Inc., it
would be for the employees to decide which union , if any, would represent them." Else-
where in this charge, it is stated that Noonan "does not contemplate employing any
operating engineers in the foreseeable future "
These statements in the charge , it is fundamental , do not constitute evidence in this
case.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Noonan's plans as then conceived, we believe that such a declaration of
intention, when it is evaluated in light of the then existing circum-
stances, does not warrant Respondent's inferential assertion that
Noonan never again intended to hire operating engineers. At the
time the notation was made, Noonan had no contract with Respondent ;
and if this situation remained unchanged, it might be assumed that
Noonan would continue, and intended to continue, to conduct its busi-
ness as it had in the past. But if, on the other hand, Respondent had
succeeded in forcing Noonan to sign the contract it was seeking, the
whole picture would have been changed ; and no one, unless he is
blessed with clairvoyant powers, can say with any degree of certainty
that had Noonan capitulated it would have continued to do business
without engineers. Moreover, if there is one plain and simple fact
established by this record it is that Respondent, by its picketing,
sought to force Noonan to recognize and sign a contract with Respond-
ent to cover operating engineers whenever Noonan hired operating
engineers. Indeed, were this not so, Respondent's picketing to force
Noonan to sign a contract would have been absured and meaningless.
Further, the realities of the case seem to impel the conclusion that
Respondent wanted Noonan to hire its members. As pointed out in the
Intermediate Report, Respondent's picketing followed closely upon
Noonan's subcontracting of its engineers' work to a nonunion con-
tractor. Obviously, Respondent wanted this work for its members-
a result that could be assured by requiring Noonan to employ respond-
ent's members."
As stated, Noonan had no engineers in its employ when Respondent
made its demands and picketed. Thus, the issue to be resolved is
whether picketing for recognition and bargaining to cover future
employees is subject to the proscriptions of Section 8(b) (7) (C).
That is, does the term "his employees" as used in Section 8 (b) (7) ap-
ply to future or prospective employees as well as those currently em-
ployed? We believe that it does.
First, the Board, with court approval, has found a violation of
Section 8 (b) (7) (C) where a union picketed an employer to force him
to hire certain union members, and to compel the employer to recognize
and bargain with the union of those nonemployed individuals. Local
705, International Brotherhood of Teamsters, etc. (Cartage and
Terminal Management Corporation), 130 NLRB 558, enfd. 307 F. 2d
197 (C.A.D.C.). Neither Board nor the court, interpreting Section
A We find no implication that Respondent wanted Noonan to sign the contract in order
to control Noonan's subcontracting , for we note that there is nothing in this record re-
motely indicating that the contract Respondent wanted Noonan to sign contained any
subcontracting provision . To the contrary, it appears that Respondent had executed a
contract with some members of the 29 Pennsylvania county area group, and that this
contract , which the record indicates is the one Respondent wanted Noonan to sign, con-
tained no subcontracting clause
LOCAL 542, INT'L UNION OF OPERATING ENGINEERS 1135
8(b) (7) (C), found it necessary to distinguish between current em-
ployees and nonemployed individuals as to whom a union was seeking
recognition. Again in Hoisting and Portable Engineers Local Union
101, etc. (Sherwood Construction Company, Inc.), 140 NLRB 1175,
the Board in finding a violation of 8 (b) (7) (C) said:
The Respondent contends, however, that the only purpose of its
picketing was to cause Sherwood to enter into a contract on be-
half of its members now or hereafter employed by Sherwood. Even
if we were to assume that this was Respondent's sole object, we
nevertheless hold that forcing or requiring an employer to rec-
ognize and bargain with a labor organization as the representa-
tive of his employees is an object within the scope of Section
8 (b) (7), even though exclusive recognition for all employees in an
appropriate unit is not also being sought. [Emphasis supplied.] s
Secondly, our holding here is consistent with the congressional in-
tent underlying Section 8(b) (7) (C). The primary purpose of Sec-
tion 8 (b) (7) is to limit the impact of recognitional or organizational
picketing upon an employer or his employees, so that questions of rep-
resentation may be settled by orderly processes and in accord with the
free choice of employees. In our view, a holding here that a union can
picket indefinitely to force an employer to sign a prehire contract
would run contrary to the purposes of the section.
Finally, we think that a contrary holding would give a meaning to
another section of the Act-Section 8 (f)-that is clearly at odds with
the intent of Congress. Under Section 8(f) an employer in the con-
struction industry, as is Noonan, and a union are permitted to enter
into prehire agreements. The legislative history of Section 8(f),
however, makes it clear that a union cannot use coercive techniques,
such as picketing, to force an employer to sign such an agreement.6
To permit what Respondent sought to do here would be to give license
to unions to compel employers in the construction industry to sign
prehire agreements. This is clearly repugnant to both the spirit and
the letter of the law.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
6 Accord : Const7uction, Shipyard and General Laborers Local 1207 , et al. (Alfred S.
Austin Construction Company, Inc.), 141 NLRB 283
6 The Respondent did not contend before the Board that by reason of Section 8(f) it
could force Noonan to enter into a prehire contract . In light of the legislative history
unequivocally showing that a union cannot picket for this kind of a contract , Respond-
ent's failure to contend to the contrary is understandable . See statement of Senator
Kennedy , 104 Daily Cong. Rec. 10249 ; statement of Representative Barden, 105 Daily
Cong. Rec 16630, and H Rept 1147, 86 Cong., 1st sass., p. 42. See also N L R.B. v
International Hod Carriers , etc., Local No . 1140 (Gilmore Construction Co.), 285 F. 2d
397, 403 (C A. 8)
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act as amended (61 Stat. 136; 73 Stat. 519), was heard before Trial Examiner
George A. Downing in York, Pennsylvania, on August 13 and 14, 1962. The con-
solidated complaint, issued on June 20, 1962, by the General Counsel of the Na-
tional Labor Relations Board and based on charges dated May 14, 17, and 24, 1962,
alleged in substance that Respondent has engaged in unfair labor practices pro-
scribed by Section 8(b)(7)(C) of the Act by picketing since May 1, 1962 (for
more than 30 days) four of the jobsites of R. S. Noonan, Inc. (herein called Noonan)
with an object of forcing Noonan to recognize or bargain with it as the repre-
sentative of certain of Noonan's employees though Respondent was not currently
certified as the representative of any such employees and though no operative
petition was filed under Section 9(c) within a reasonable period of time from the
commencement of such picketing, and that the effect of such picketing was to induce
individuals employed by suppliers, service companies, common carriers, and other
persons not to make pickups or deliveries to the said jobsites or not to perform
services on such projects.
Respondent answered, denying the unfair labor practices. Though admitting
the picketing and the fact that it holds no certification, Respondent pleaded (1)
that Respondent and Noonan have been parties to contracts covering Noonan's
employees for more than 10 years, including a contract which was scheduled to
expire May 1, 1963; and (2) that Noonan filed a petition under Section 9(c) within
30 days after the picketing commenced but later withdrew it.
Upon the entire record in the case and from my observation of the witnesses
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Noonan, a Pennsylvania corporation, is a general contractor in the building and
construction industry operating in Pennsylvania and in several other States. Dur-
ing the past year Noonan purchased and received goods and materials outside of
Pennsylvania valued in excess of $50,000, and in the same period it performed
services outside the State valued in excess of $50,000. Noonan is therefore engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The issues herein may be stated as follows:
1. Whether Respondent 's picketing had as an object recognition or organization,
or whether it was solely informational . A subsidiary question is whether a contract
existed between Noonan and Respondent which covered the York area.
2. Whether an RM petition which Noonan filed was an operative petition within
the meaning of Section 8(b) (7) (C).
B. The evidence
The case concerns the picketing by Respondent of four of Noonan's construction
projects I in York and its vicinity from May I to June 27, 1962, when halted by
the entry of an injunction order entered in Section 10(1) proceedings (see
Schauffler, etc. v. Local 542, International Union of Operating Engineers AFL-
CIO, 50 LRRM 2691). The material facts are not in dispute.
Noonan, the general contractor, had, as was customary, reserved to itself certain
of the work on the four jobs to be performed by its own employees and had sub-
contracted the remainder. In addition, certain other work on the projects had
^ The construction of a freight terminal for Motor Freight Express, Inc., the alteration
of a packing plant for Medusa Portland Cement Co., the construction of dwelling units
for the Public Housing Authority, and the construction and installation of a converter
boiler for P. H. Glatfelter.
LOCAL 542, INT'L UNION OF OPERATING ENGINEERS 1137
been let to prime contractors. Noonan's employees were members of various
unions among the building trades, with whom Noonan had contracts.
In the latter part of April, business agents of Respondent had several conversa-
tions with Noonan's president, Raymond S. Noonan, during which Noonan was
asked to sign a contract with Respondent, but declined to do so. Respondent
commenced the picketing at the four jobsites around May 1, 1962, with picket
signs reading, "R. S. Noonan, Inc., Unfair to Operating Engineers Local 542."
At a later date that legend was changed to read, "Dispute between R. S. Noonan,
Inc., and Operating Engineers Local 542."
The picketing had the following effects: Around May 2, truckers hauling rein-
forcing steel from Bethlehem Steel Company to the Motor Freight job refused to
cross the picket line to make deliveries. Rodsetters employed by Lucking Brothers,
a contractor, to install the reinforcing steel refused to cross the picket line. On
the Medusa job, employees of all crafts, including employees of subcontractors,
refused to cross the picket line and remained off the job until the entry of the in-
junction. On the Public Housing job, employees of the electrical contractor (a
prime contractor) refused to cross the picket line. On the Glatfelter job, em-
ployees of other prime contractors, as well as of Noonan's subcontractors, refused
for 3 days to cross the picket line. After the first 3 days of picketing on the Medusa
and Glatfelter jobs, separate gates were opened for two prime contractors, and
their employees and other persons who did business with those contractors used
those gates. The latter gates were not picketed, though picketing continued at
other entrances to which Noonan and its subcontractors had access.
On May 16, 1962, Noonan's attorneys filed an RM petition in Case No. 4-RM-
416 (not published in volumes of NLRB Decisions), which recited that Respondent
had made a request for recognition in a unit described as follows: "All operating
engineer employees of equipment traditionally claimed by operating engineers."
The petition recited, however, that there were no employees in the unit and that
Noonan had declined recognition on that ground. On June 12, 1962, the Regional
Director, upon Noonan's telegraphic request, approved the withdrawal of the
petition.2
Relevant to Respondent's claim of a contract were the following facts:
Beginning May 1, 1952, Respondent and Noonan had been parties to a series
of contracts by which Noonan recognized Respondent as the bargaining agent for
employees performing work within the Union's jurisdiction within an area which
included York and other counties in Eastern Pennsylvania. The last such contract,
which covered some 29 counties, expired on April 30, 1961. Noonan is also a
member of the General Building Contractors Association (GBCA) of Philadelphia,
which has a current contract with Respondent covering a five-county area in and
around Philadelphia which does not expire until April 30, 1963. York County
is not within that area.
Noonan's president testified that the requests to sign a contract which Respond-
ent's representatives made of him were made during conversations concerning con-
ditions in York County and concerning a contract which Respondent's representa-
tives were trying to get the York County Contractors Association (of which Noonan
was also a member) to sign. Though Noonan denied that he was offered or
shown any written contract, his testimony in the injunction proceeding indicated
that some form of contract may have been presented for signature. From the con-
text of his entire testimony I conclude that Noonan was requested to sign either
the same contract or one similar to that which Respondent was attempting to
negotiate with the York Association.
Contending, however, that Noonan in fact recognized the continued existence of a
contract, Respondent points to the following facts: Both the Philadelphia contract and
Noonan's last individual contract with Respondent contained provisions under which
the Employer was required to make certain payments into a pension fund and a
welfare fund on a man-hour basis for "every operating engineer, oiler, and appren-
tice engineer employed by such employer throughout the period of this contract."
The contracts also required the Employer to submit monthly reports concerning the
details of his contributions and the hours worked by such employees.
Actually, Noonan had no operating engineers in its employ within the 29-county
area since 1957, and at least from February 1961 through April 1962 its reports to
the funds showed no employees and no contributions . Betty J. Paules, Noonan's
2 The General Counsel represented in his opening statement that the Regional Director
would in any case have dismissed the petition as he found there were no operating engi-
neers in Noonan 's employ and as it therefore would have been impossible to conduct an
election
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assistant office manager, testified that she prepared the reports from Noonan's perma-
nent payroll records; that she did not make separate reports for the 29-county area
as distinguished from the Philadelphia area; that after May 1, 1961, she was report-
mg on the 5 counties in the Philadelphia area; and that after she made her report
in April 1962, a representative of Respondent informed her it was unnecessary to
send in a report every month when no operating engineers were employed. She
therefore inserted the following statement in the final report dated May 15, 1962: "We
do not plan to hire any engineers in the near future. Therefore this is our last
report."
C. Concluding findings
Section 8(b) (7) (C) prohibits the picketing of an employer by an uncertified union
with an object of forcing or requiring an employer to recognize or bargain with it
where the picketing had been conducted without the filing of a petition under Section
9(c) within a reasonable period of time not to exceed 30 days from the commence-
ment of the picketing. A proviso adds that subparagraph (C) shall not 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.
The principles which control the decision of the present case are set out in a series
of recent Board decisions. The picketing which is proscribed must have recognition
or organization as an object. Crown Cafeteria, 135 NLRB 1183; Charles A. Blinne,
d/b/a C. A. Blinne Construction Company, 135 NLRB 1153. Purely informational
picketing is not barred and may be engaged in without regard to whether an election
petition was filed and without regard to its effect on pickups and deliveries. Dual
purpose picketing comes within the protection of the publicity proviso and becomes
unlawful only if it has an effect of inducing employees not to make pickups and
deliveries or not to perform services. Crown Cafeteria, supra.
However, mere isolated interferences with pickups, deliveries, or services will not
remove such dual purpose picketing from the protection of the publicity proviso and
make it unlawful. There will be a violation only if the picketing has "disrupted,
interfered with, or curtailed the employers business." Retail Clerks Union Local 324,
et. al. Barker Bros., et al. 138 NLRB 478; San Diego County Waiters and Bartenders
Union Local 500, et al. (Joe Hunt's Restaurant), 138 NLRB 470; Local Union 429,
International Brotherhood of Electrical Workers (Sam M. Melson), 138 NLRB 460;
Retail Clerks International Association, Local 57 (Rested Stores Company), 138
NLRB 498.
I find from the evidence that Respondent's picketing was with an object of requir-
ing Noonan to bargain with it by entering into a new contract covering the 29-county
area. The evidence does not support Respondent's contention that its representatives
merely sought to have Noonan sign some alleged contract which had continued in
existence. Though Noonan was a party through GBCA to the 5-county contract at
Philadelphia, that contract did not cover the York area concerning which Respon-
dent's representatives were negotiating and within which Noonan's (picketed) jobs
were in progress. The continued filing of reports to the pension and welfare neither
established nor implied recognition of the continued existence of the contract for
the 29-county area. Not only were such reports also required under the GBCA con-
tract at Philadelphia, but Paules' testimony showed that, following the expiration of
the 29-county area contract on May 1, 1961, her reports covered the 5-county area
at Philadelphia.
There is no other evidence from which the existence of a contract can be implied.
Nine years of contractual relations in the York area gave Respondent no proscriptive
or vested rights to continuance of the relationship beyond the agreed term of the
final contract. Indeed, Respondent's bargaining requests were such as plainly indi-
cated recognition by it of the necessity to seek renewal by Noonan of an expired
relationship.
In connection with its claims concerning an existing contract, Respondent also
sought to develop evidence that Noonan was violating its contract with Respondent.
Thus, by cross-examination of the General Counsel's witnesses and by subpenas for
Noonan's records, Respondent attempted to develop evidence that Noonan either
had employed operating engineers in the York area,3 or had used other employees
to perform work which normally fell within Respondent's jurisdiction, or had sub-
contracted such work to subcontractors, some of whom, at least, operated on an
3 Noonan's permanent payroll records corroborated denials by the witnesses that Noonan
employed operating engineers.
LOCAL 542, INT'L UNION OF OPERATING ENGINEERS 1139
open-shop basis .4 As such evidence was plainly irrelevant as to the existence of a
contract and to the other issues in the case , Respondent 's subpena for records (other
than Noonan's permanent payroll records ) was quashed on motion of Noonan's
counsel.
There was no evidence which supports Respondent 's contention that the object of
the picketing was solely informational in that it was to inform the public that Noonan
was violating its contract by subcontracting work within the mechanical jurisdiction
of operating engineers to nonunion contractors . Not only were Respondent 's negotia-
tions with Noonan devoid of suggestion of such an object , but the picket signs failed
to indicate that such was the object.
Indeed , the publicity proviso aids Respondent 's defense not at all. In the first
place, the picket signs did not contain the information to the public which the
proviso authorized ( i.e., that Noonan did not employ its members or have a contract
with it ). In the second place, even were it assumed that the picketing was in part
for a permitted informational purpose, the evidence here met the tests established by
Barker Bros . and companion cases, supra, by showing that the picketing disrupted,
interfered with , or curtailed Noonan 's business . Here as in Sam M . Melson , supra,
it is clear that Respondent 's picketing substantially delayed the completion of the
four jobs and thereby disrupted and interfered with Noonan 's business operations.
The impact on Noonan ' projects was therefore sufficient to constitute "an effect"
within the meaning of Section 8(b) (7) (C). Cf. Joe Hunt's Restaurant, supra.
Neither did Noonan's filing of an RM petition avail Respondent as a defense.
For reasons which are stated in Chicago Printing Pressmen 's Union No . 3, et al.
(Moore Laminating Inc.), 137 NLRB 729, it is only a petition which can lead to
an expedited election which warrants dismissal of an otherwise meritorious charge
alleging a violation of Section 8(b) (7) (C). The section thus contemplates a valid
or operative petition which can serve as the basis for conducting an expedited election.
Noonan 's RM petition was not an operative one under Section 9(c). In the first
place the withdrawal of the petition left no petition pending as to which the Section
9(c) procedures related. Moore Laminating Inc., supra . Cf. International Typo-
graphical Union, AFL-CIO (The Greenfield Printing & Publishing Co.), 137 NLRB
363. In the second place, as there were no employees in the unit, there was no
basis upon which the Board could proceed "forthwith" to an election , as directed
by Section 8(b)(7)(C). Thus, in Al & Dick's Steak House, Inc., 129 NLRB 1207,
the Board dismissed a petition for a one-man unit , holding that it was without power
to issue a certification in such a unit , and that the petition therefore could not
serve to block the processing of a Section 8(b)(7) charge , because, "Section
8(b)(7)(C) contemplates a situation where the picketing labor organization in an
expedited election can establish its majority in the unit of employees affected by the
picketing and be certified for such unit."
For the foregoing reasons, I find that Respondent 's picketing was violative of
Section 8(b) (7) (C).
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type conventionally ordered in such cases as provided in the Recom-
mended Order below, which I find to be necessary to remedy and to remove the
effects of the unfair labor practices and to effectuate the policies of the Act. See
Sam M. Melson, 138 NLRB 460, supra; Joe Hunt's Restaurant, 138 NLRB 470,
supra.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. R. S. Noonan, 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.
4 The finding that the object of the picketing was to force Noonan to bargain makes
irrelevant to any issue under Section 8(b)(7)(C) evidence concerning Noonan's subcon.
tracting to Hanover Construction Company (who operated "open shop") of a portion
of the work on the Motor Freight job and evidence that Respondent also picketed Hanover
on that job. Similarly irrelevant was Respondent' s contention that it was engaged in
primary picketing.
712-548-64-vol 142-73
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By picketing Noonan from May I to June 27, 1962, with an object of forcing
and requiring Noonan to bargain with Respondent, without being currently certified
as the representative of Noonan '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 com-
merce within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Local 542, International Union of Operating Engineers, AFL-CIO, its officers,
agents, representatives , successors and, assigns shall:
1. Cease and desist from picketing or causing to be picketed, or threatening to
picket or cause to be picketed, R. S. Noonan, 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:
(a) Post at its business offices and meeting halls in Philadelphia (and York, if
any) copies of the attached notice marked "Appendix." 5 Copies of said notice to
be furnished by the Regional Director for the Fourth Region shall, after having been
duly signed by an authorized representative of Respondent, be posted by it immedi-
ately upon receipt thereof and maintained by it for 60 consecutive days thereafter
in conspicuous places, including all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(b) Transmit to the Regional Director for the Fourth Region signed copies of
said notice for posting by R. S. Noonan, Inc., the Employer willing, in places where
notices to employees are customarily posted.
(c) Notify the Regional Director for the Fourth Region in writing within 20
days from the receipt of this Intermediate Report and Recommended Order what
steps Respondent has taken to comply herewith .6
5In the event that this Recommended Order be adopted by the Board the words "Pur-
suant to a Decision and Ordei" shall be substituted for the words "Pursuant to the
Recommended Order of a Trial Examiner" in the notice. In the further event that the
Board's Order be enforced by a decree of a United States Court of Appeals, the words
"Pursuant to a decree of the United States Court of Appeals, Enforcing an Order" shall
be substituted for the words "Pursuant to a Decision and Ordei "
e In the event that this Recommended Order be adopted by the Board this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 542, INTERNATIONAL UNION OF OPERATING
ENGINEERS, AFL-CIO, AND TO ALL EMPLOYEES OF R. S. NOONAN, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and to effectuate the policies of the National Labor Relations Act,
as amended, we hereby notify you that:
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, R. S
Noonan, 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 542, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 1700
Bankers Security Building, Philadelphia, Pennsylvania, 19107, Telephone No. Penny-
packer 5-2612, if they have any question concerning this notice or compliance with
its provisions.