Laborers' Local Union No. 1184, Afl--Cio

National Labor Relations Board - Board Decisions

Oct 17, 1989

296 N.L.R.B. 1325 (N.L.R.B. 1989)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Laborers' Local Union No. 1184, AFL-CIO and
NVE Constructors, Inc.
Laborers' Local Union No. 1184, AFL-CIO (Cates
Construction , Inc.) and NVE Constructors, Inc.
Cases 21-CP-722 and 21-CP-722
October 17, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, HIGGINS, AND DEVANEY
On January 27, 1988,1 the Regional Director for
Region 21 issued an order consolidating cases, con-
solidated complaint, and a notice of hearing in the
instant cases, alleging that the Respondent had vio-
lated Section 8(b)(7)(C) of the Act. The consolidat-
ed complaint alleges that a violation has occurred
by the Respondent's picketing at the Employers'
place of business in order to force the Employers
to recognize or bargain with the Respondent as the
representative of their respective laborers or to
force the employees to select the Respondent as
their collective-bargaining representative, because
the Respondent is not currently certified to repre-
sent those employees and no petition has been filed
pursuant to Section 9(c) of the Act. The Respond-
ent filed an answer denying the commission of any
unfair labor practices.
On April 27 and 28 a hearing was held before
Administrative Law Judge James S. Jenson. The
parties agreed that the stenographic report of the
hearing, with exhibits, constitutes the entire record
in this case . The parties further agreed at the close
of the hearing to waive the filing of briefs, findings
of fact, and conclusions of law and the issuance of
a decision by the judge. Accordingly, on May 31
the parties filed a stipulation of facts and joint
motion to transfer the proceeding directly to the
Board for findings of fact, conclusions of law, and
an order to be issued directly by the Board. On
July 1 the Board accepted the stipulation and trans-
ferred the proceedings. Thereafter, the Charging
Party, the General Counsel, and the Respondent
filed briefs with the Board, and a joint amici curiae
brief was filed by Building and Construction
Trades Department, AFL-CIO and American Fed-
eration of Labor and Congress of Industrial Orga-
nizations. .,
The Board has considered the entire record, as
stipulated to by the parties, and the briefs of the
parties and the amici curiae and makes the follow-
ing findings and conclusions.
' All dates are in 1988 unless otherwise indicated
I. THE BUSINESS OF THE EMPLOYER
1325
At all times material, NVE Constructors, Inc.
and Cates Construction, Inc. have been engaged in
business as contractors in the building and con-
struction industry in southern California. Annually,
in the normal course of their business activities,
they each purchase and receive goods and products
valued in excess of $50,000 directly from suppliers
located outside the State of California.
The parties stipulated and we find that NVE and
Cates are, and have been at all times material, em-
ployers engaged in commerce and in business af-
fecting commerce within the meaning of Section
2(6) and (7) and Section 8(b)(7) of the Act.
II. THE LABOR ORGANIZATION
The parties stipulated and we find that the Re-
spondent is, and at all times material has been, a
labor organization within the meaning of Section
2(5) and Section 8(b) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Stipulated Facts
In January 1988, NVE and Cates were engaged
in the construction of a correctional facility for the
State of California in Blythe, California. Neither
NVE nor Cates was a party to any labor agree-
ments with any unions. On January 5 the Respond-
ent began picketing at the jobsite, and continued
picketing through January 13. One set of pickets
was stationed in front of the gate reserved for the
use of Cates' employees, suppliers, and customers.
Those picket signs stated, "Cates Construction, No
Contract, Laborers Local 1184, AFL-CIO." At a
separate gate reserved for NVE, its employees,
suppliers, and customers, a second set of pickets
carried signs stating, "NVE, No Contract, Labor-
ers Local 1184, AFL-CIO." As a result of this
picketing, none of the scheduled deliveries of con-
crete was made from January 5 through 7. Normal
deliveries of concrete resumed the following week.
On January 6, Tim Murchison, the project ad-
ministrator for NVE, approached Donald Saun-
ders, a business representative of the Respondent,
and asked what it would take to get the pickets re-
moved from the reserved gates. Saunders stated
that the Union wanted NVE to sign a "Union
agreement" with the Laborers. Murchison asked
for a copy of the agreement and the following day
received a copy of the southern California master
labor agreement from the Respondent. The charges
in the instant case were filed January 6, and the
picketing ceased after January 13.
296 NLRB No. 165
1326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. The Parties' Contentions
The General Counsel and the Charging Party
maintain that the Respondent 's picketing of the
Employers ' place of business for approximately 9
days violates Section 8 (b)(7)(C) of the Act because
an object of that picketing was to secure an 8(f)
prehire agreement . They argue that any picketing
for an 8(f) agreement is unlawful because the rea-
sonable time provision of Section 8(b)(7)(C) does
not apply. This position is grounded in the legisla-
tive history of Section 8(f) and case law, which
state that 8(f) agreements must be entered into
"voluntarily ." Because picketing for an 8 (f) agree-
ment has as its purpose to coerce the employer to
sign a prehire agreement regardless of the senti-
ments of its employees toward union representa-
tion , these parties maintain , any resulting agree-
ment would not be "voluntary," picketing for such
a purpose would be for more than a "reasonable
period of time" and, as such , would be unlawful.
These parties contend that the Board should dis-
tinguish between a 9(a) agreement and an 8(f)
agreement for purposes of applying Section
8(b)(7)(C). Picketing for a 9(a) agreement for a rea-
sonable period of time is not unlawful , they con-
tend , in that a purpose of that picketing is to com-
municate with the employer' s employees and
appeal to them to join or vote for the union. In
sum, the complaint alleges that the Board should
apply different standards to recognitional and orga-
nizational picketing of employers in the construc-
tion industry than it does to other employers.
The Respondent and the amici curiae assert that
Section 8(b)(7)(C) should be applied uniformly
without regard to whether the employer is or is
not in the construction industry, and that there is
no reason to prohibit construction industry unions
from enjoying the same rights of picketing for rec-
ognition as are enjoyed by nonconstruction indus-
try unions . To deprive construction industry unions
of this right , they assert , goes far beyond the ex-
press or implied purposes of the 1959 Amendments
to the Act. The Respondent and the amici curiae
further argue that the legislative history is not in-
consistent with this position , and that recent Board
decisions misperceive the law with respect to Sec-
tion 8(b)(7)(C).
IV. DISCUSSION AND CONCLUSIONS
After careful consideration of the parties ' and the
amici curiae 's arguments , we conclude that it is not
unlawful for a union to picket an employer for rec-
ognition within the reasonable time limitations set
forth in Section 8(b)(7)(C), even where an object of
that picketing is 8(f) recognition . The specific pro-
visions of Section 8(b)(7) and Section 8(f), as well
as their legislative histories , do not compel the dis-
tinction made by the General Counsel and the
Charging Party . Because there is no clear manifes-
tation of congressional intent to require such a dis-
tinction , and for the other reasons set forth here,
we find lawful in the construction industry peace-
ful recognitional and organizational picketing that
is lawful in other industries.
A. Section 8(b)(7)
Section 8(b)(7) and Section 8(f) were added to
the Act as part of the 1959 Landrum -Griffin
Amendments.2 The major purpose of Section
8(b)(7) was "to ensure that employees were free to
make an uncoerced choice of bargaining agent,"s
and to achieve this purpose , Congress restricted re-
cognitional and organizational picketing in three
specific areas, set forth in subsections (A), (B), and
(C).
In subsections (A) and (B), respectively, Con-
gress prohibited all recognitional and organization-
al picketing by a union when another union has al-
ready been lawfully recognized by the employer as
the representative for its employees, and where a
valid election has been conducted within the previ-
ous 12 months . In subsection (C), Congress restrict-
ed recognitional and organizational picketing
where a union pickets without a 9(c) petition
having been filed within a "reasonable period of
time" not to exceed 30 days from the commence-
ment of the picketing.
In situations where an employer has employees,
the Board has generally defined a "reasonable
period of time" as 30 days, except in very limited
circumstances, i.e., picketing accompanied by vio-
lence or other misconduct on the picket line,4 and
picketing to secure recognition where the Act itself
prohibits certification of the picketing union.5 The
Board has also held that a union cannot picket for
2 Sec . 8(b)(7)(C ) states that it shall be an unfair labor practice for a
union*
(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 organiza-
tion as the representative of his employees, or forcing or requiring
the employees of an employer to accept or select such labor organi-
zation as their collective -bargaining representative , unless such labor
organization is currently certified as the representative of such em-
ployees -
(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 commencement of such picketing
8 NLRB v Iron Workers Local 103 , 434 U S 335 , 346 (1978).
4 See , e g., Eastern Camera Corp., 141 NLRB 991 , 999 (1963).
s See, e.g, Teamsters Local 639 (Dunbar Armored Express), 211 NLRB
687, 690 ( 1974); see also Teamsters Local 71 (Wells Fargo), 221 NLRB
1240 (1975), enfd . 553 F . 2d 1368 (D C Cir 1977)
LABORERS LOCAL 1184 (NVE CONSTRUCTORS) 1327
an agreement where the employer does not cur-
rently employ any employees in the unit sought. 6
In the present case , the General Counsel suggests
that we create yet another category in which the
Board would define a reasonable time as less than
30 days. Specifically, the General Counsel urges
that there is no "reasonable period of time" for
picketing where an object of that picketing is to
secure an 8(f) agreement . According to the General
Counsel , when a union pickets for an 8(f) agree-
ment , it is seeking to coerce the employer into
signing an agreement without consideration of its
employees ' preferences as to union representation.
Picketing for a 9(a) agreement is permissible, the
General Counsel argues, because a purpose of such
picketing is to communicate with the employees in
hopes of attracting their support and eliciting their
membership in the union. Because the purpose is to
communicate with employees, the General Counsel
maintains, allowing a union to picket for up to 30
days without filing a petition is reasonable , and the
need to communicate with the employees out-
weighs the possible coercive effects on the employ-
er.
We believe that any distinction that would pro-
hibit picketing based on the type of agreement
sought by the picketing union must be clearly set
forth by Congress in its enactment of the statute.
As indicated , we do not find such a statement of
intent in either Section 8(b)(7) or its legislative his-
tory. Specifically, there is no industry distinction in
subsection (C) and to provide one would create
certain anomalies in the enforcement of the Act.
For example , a distinction based on the type of
agreement sought by the picketing would in effect
mean that any construction industry union that en-
gages in picketing in order to secure recognition
would be precluded from seeking or accepting an
8(f) agreement even when that union represents a
majority of an employer 's employees. Such a result
makes little sense in light of the fact that the law
currently permits a minority nonconstruction indus-
try union to picket for an agreement within the
time strictures of Section 8(b)(7)(C), even though,
if the employer granted recognition to that union
and entered into a contract , the recognition and
contract would be unlawful under Section 8(a) and
(b) of the Act.7
6 See Operating Engineers Local 542 (Noonan . Inc.), 142 NLRB 1132
(1963), enfd 331 F 2d 99 (3d Cir 1964). When there are no employees in
a picketed-for unit , the policies of the Act are not effectuated by permit-
ting a union to picket for recognition because no valid question concern-
ing representation is presented and, therefore , no valid election petition
can be filed
r Unions outside the construction industry are not required to declare
in advance an intent to file an election petition nor are they found guilty
Section 8 (b)(7)(C) provides that it is an unfair
labor practice for a union to picket an employer
for recognition or bargaining where such picketing
has been conducted without a 9(c) petition being
filed within a reasonable period of time, not to
exceed 30 days . The requirement that a 9 (c) peti-
tion be filed within 30 days of the commencement
of the picketing ensures both that the union is
given a reasonable amount of time in which to
present the advantages of unionization to the em-
ployer and the employees , and that the employees
will be able to exercise their right to choose or
reject the labor organization without having been
subjected to unlimited economic pressure.
In Noonan , supra, the Board , in finding a viola-
tion of Section 8(b)(7)(C), stated that "a holding
here that a union can picket indefinitely to force an
employer to sign a prehire contract would run con-
trary to the purposes of the section."8 The Board
went on to note that a contrary holding would be
at odds with the intent of Congress with respect to
Section 8(f), since the legislative history for Section
8(f) "makes it clear that a union cannot use coer-
cive techniques , such as picketing , to force an em-
ployer to sign such an agreement ."9 The Board's
reliance on the legislative history of Section 8(f) in
Noonan may suggest that any picketing by a minor-
ity construction industry union is unlawful because
an agreement reached by the parties pursuant to
such picketing would not have been entered into
"voluntarily." As noted above, we agree with the
holding in Noonan and similar cases10 that a con-
struction industry union may not picket for recog-
nition in a unit having no employees (in other
words, picketing for a literal "prehire" contract).
We do not agree, however, with the broader view
that a construction industry union may never picket
for 8(f) recognition . Such a view goes far beyond
the purposes for which we believe Section 8(f) was
passed.
of an unfair labor practice for not ultimately filing a petition, as long as
their recognitional and organizational picketing has not exceeded 30 days.
Presumably they will not file such a petition if they generate insufficient
support among the unit employees By the same token , since it is con-
ceivable that a union picketing a construction industry employer with
employees who are currently working might decide either at the outset
or at any time in the course of the 30-day period to seek a 9 (a) relation-
ship if it can elicit adequate support among the employees of the picketed
employer , there is no reason to proscribe the picketing simply because
the union has not declared that it intends to file an election petition or
otherwise seek a 9(a) relationship
8 142 NLRB at 1135 (emphasis omitted)
9 Id. (citation omitted)
10 See, e g, Teamsters Local 445 (Nezelek . Inc.), 194 NLRB 579 (1972),
enfd. 473 F 2d 249 (2d Cir 1973).
1328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Section 8(f)
Section 8(f) was added to the Landrum-Griffin
Amendments in order to remove prohibitions that
had been placed in the way of what had been a
longstanding industry practice of employers and
unions in the building and construction indus-
tries." This section provides that a union repre-
senting employees in the building and construction
industries is permitted to enter into a collective-
bargaining agreement with an employer in these in-
dustries without having first attained the majority
support of the employer's employees . Other than
the exemption from contract bar, the text of Sec-
tion 8(f) does not place any limitation on any rights
enjoyed by such unions.
The absence of any such limitations on the rights
of unions representing employees in these industries
is noteworthy. If Congress had affirmatively
wanted to deprive the construction industry unions
of this limited but important right to picket for rec-
ognition , it had the opportunity to do so explicitly.
However, no such language appears in Section 8(f)
or elsewhere . Because there is no limitation on a
union 's right to picket for an 8 (f) contract in the
Act itself, one must rely on the legislative history
of that section to support the argument that the
Act intends such a prohibition . There are, howev-
er, serious problems with such an approach.
Although legislative history can be a useful tool
in interpreting ambiguous language on the face of a
statute, it is well settled that it "cannot serve as an
independent statutory source having the force of
law." 12 This is particularly true when one seeks to
read into a statute a prohibition on an otherwise
legal action. As the Supreme Court stated in a case
dealing with the legislative history of Section
8(b)(7) and its relevance to the limitations Congress
imposed on recognitional and organizational picket-
ing, "Congress has been rather specific when it has
come to outlaw particular economic weapons on
the part of unions." 13 Here , the literal language of
Sec 8(f) provides, in pertinent part-
(f) It shall not be an unfair labor practice under subsections (a) and
(b) of this section for an employer engaged primarily in the building
and construction industry to make an agreement covering employees
engaged in the building and construction industry with a labor
organization of which building and construction employees are mem-
bers because ( 1) the majority status of such labor organization
has not been established under the provisions of section 9 of this Act
prior to the making of such agreement ... Provided further, That
any agreement which would be invalid , but for clause ( 1) of this sub-
section , shall not be a bar to a petition filed pursuant to section 9(c)
or 9(e).
12 Electrical Workers IBEW Local 474 Y. NLRB, 814 F.2d 697, 712
(D C. Or. 1987) (emphasis omitted).
13 NLRB v. Teamsters Local 639, 362 U S 274 at 282-283 (1960), quot-
ing NLRB v. Insurance Agents, 361 U S 477, 498 (1960)
Section 8(f) contains no prohibitions with respect
to a union 's right to engage in picketing to obtain a
prehire agreement . Because the statute is not am-
biguous on this point, this is normally the end of
the inquiry . However, even assuming arguendo
that something on the face of the statute would re-
quire further interpretation , we find nothing in the
legislative history of Section 8(f) that is inconsistent
with our finding that the limited recognitional and
organizational picketing permitted by Section
8(b)(7) is lawful regardless of the industry involved
or the status of the picketing union as a majority or
minority representative.
C. The Legislative History
Two statements from the legislative history of
Section 8(f) are cited for the proposition that 8(f)
agreements must be entered into voluntarily and
that a union may not use any coercive techniques,
such as strikes or picketing , to force an employer
to sign such an agreement . The first is from the
House Conference Report , which states that
"[n]othing in [Section 8 (f)] is intended . . . to au-
thorize the use of force , coercion , strikes or picket-
ing to compel any person to enter into such prehire
agreements." 14
The second is a remark made by Representative
Barden , a House floor leader and one of the con-
ferees, during the House debate where he explained
the intent of Section 8(f) by quoting from the 1958
colloquy in which Senator Kennedy answered
questions on an earlier and similar version of what
would become Section 8(f):
Mr. Holland . Was it the intention of the
committee that [this section] shall require em-
ployers to enter into prehire agreements where
the union has not been recognized or certified
bargaining agent of the employer involved?
Mr. Kennedy . I shall answer the Senator
from Florida as follows-and it is my inten-
tion , by so answering , to establish the legisla-
tive history on this question: It was not the in-
tention of the committee to require by [this
section] the making of prehire agreements but,
rather, to permit them ; nor was it the intention
of the committee to authorize a labor organiza-
tion to strike , picket, or otherwise coerce an
employer to sign a prehire agreement where
the majority status of the union had not been
established . The purpose of this section is to
permit voluntary prehire agreements . . . .1 s
14 HR Rep No 1147, 86th Cong, 1st Sess. 42, 1 Leg Hist. 946
(LMRDA 1959).
1s 105 Cong Rec 18128 (1959 ), II Leg. Hist at 1715 (LMRDA 1959),
incorporating 104 Cong Rec 11308 (1958).
LABORERS LOCAL 1184 (NVE CONSTRUCTORS) 1329
The General Counsel asserts that this legislative
history establishes that striking or picketing for an
8(f) contract is unlawful because such actions are
coercive , and 8(f) contracts must be entered into
voluntarily . This interpretation , however, ignores
the fact that in enacting Section 8 (b)(7) Congress
acted to ensure that employees would be able "to
make an uncoerced choice" of bargaining repre-
sentative by limiting , not prohibiting , recognitional
and organizational picketing in Section 8(b)(7)(C).
It follows, then , that Congress did not consider all
recognitional and organizational picketing to be co-
ercive , or, at least , it did not consider recognitional
and organizational picketing permitted by Section
8(b)(7)(C) to be unlawfully coercive.
As noted above , Congress gave assurances in
connection with Section 8(f) that it did not "au-
thorize" minority construction industry unions to
picket for such agreements . However , "authorize"
denotes an "affirmative enabling action," 16 and, as
such, "not authorizing" is quite different from pro-
hibiting a given action . Thus, the assurances given
by Congress were not equivalent to forbidding
stranger picketing , 17 and for this reason were un-
satisfactory to the industry.18 Rather , the compro-
mise that emerged in 1959 was to allow picketing
for a prehire agreement subject to the limitations of
Section 8(b)(7)(C). Such picketing thus loses all
protection once it becomes clear that the union has
no intention of ever putting its majority status to
the test of an election , i.e., after the 30-day period
has expired without the filing of an operative elec-
19 County of Washington v Gunther, 452 U .S 161, 169 (1981)
17 105 Cong Rec 18134- 18135 (1959), II Leg Hist 1721 (remarks of
Rep Thompson , also a conferee and House floor manager) ("there is no
language in the conference report which justifies any implication that
Section 705 [8(f)] is intended to deny the right of a union to strike or
picket for a legal object , such as a prehire agreement in the building and
construction industry . ") Chairman Stephens does not rely on these
remarks of Representative Thompson
19 Labor-Management Reform Legislation: Hearings on S 505, S. 748. S.
76. S 1002. S. 1137, and S 1311. Before the Subcomm on Labor of the
Senate Comm on Labor and Public Welfare, 86th Cong , 1st Sess 215
(1959) (statement of Frank J Rooney ), Labor-Management Reform Legis-
lation' Hearings on H.R 3540. H R. 3302. H. R 4473 and H R. 4474 Before
a Joint Subcomm of the House Comm. on Education and Labor, 86th
Cong , 1st Sess 610 (1959) (same) Rooney , who testified on behalf of the
Associated General Contractors of America , made his observations with
regard to Sec 603 of S. 505 , 86th Cong , 1st Sets (1959), which is virtu-
ally identical to Sec 8 (f) as ultimately enacted . He urged that express lan-
guage be added to the bill to forbid any union "coercion" to secure con-
struction industry agreements (Senate Hearings at 215), and he comment-
ed as follows on statements by members of Congress not actually em-
bodied in statutory language (House Hearings at 610)
The proponents of the bill stated unequivocally that the prehire
provision was something that could be entered into voluntarily by
labor and management in construction and was not something for
which the union could strike or picket. Yet the proponents of this
particular weakening provision of the Taft-Hartley Act steadfastly
opposed writing such language into the bill as a safeguard against co-
ercion and strikes for compulsory unionism after 7 days As a matter
of fact , such a safeguarding amendment was considered and rejected
by the Senate Labor Committee prior to its approving the so-called
Kennedy -Ervin bill [S 505]
tion petition , or when the circumstances are such
that an election satisfying the requirements of Sec-
tion 8(b)(7)(C) would be an impossibility. 19
Further, although it is apparent from the counsel
for the General Counsel' s argument that he is de-
fining the term "voluntary" in the legislative histo-
ry as free from any type of economic pressure, this
is not the only possible definition . For example, the
legislative history of Section 8 (e) indicates that
Representative Barden , immediately prior to his
quote from Senator Kennedy with respect to the
voluntary nature of an 8(f) agreement, discussed
the provision that would become the construction
industry proviso to Section 8(e) in identical "volun-
tary agreement" terms.20 Yet the Board and the
courts have permitted picketing to obtain such an
8(e) provision . 21 Because the term "voluntary" in
the legislative history of Section 8(e) has not been
interpreted as prohibiting picketing in that context,
it is difficult to imagine why the same term would
be interpreted differently with respect to Section
8(f). Accordingly, we believe that even if an in-
quiry into the legislative history of Section 8(f) is
appropriate , such an inquiry indicates that the
intent of that section was neither to make illegal
that which would otherwise be legal nor to strip
unions of any rights already enjoyed.
D. The Case Law
Recently, the Board commented on the appropri-
ateness of picketing for recognition by a minority
construction industry union in John Deklewa &
Sons,22 a case in which the Board reinterpreted
certain areas of 8(f) law. Specifically, that case fo-
cused on an employer 's ability to reject an 8(f) con-
tract and on how, if at all, an 8(f) contract could be
converted into a 9(a) agreement . Deklewa did not
purport to deal with the legal issues involved with
determining whether a minority construction indus-
try union may picket for recognition . However,
several statements in that decision conflict with our
position , set forth above, with respect to the use of
19 See Noonan , supra , Painters Local 86 (Carpet Control), 216 NLRB
1127, 1132-1133 (1975 ), Sears. Roebuck & Ca v Carpenters , 436 U. S. 180,
186 (1978) (picketing to secure a prehire agreement "was at least argu-
ably subject to the prohibition on recognitional picketing contained in
§ 8(b)(7)(C)")
20 11 Leg Hist 1715 (LMRDA 1959) ("section permits the making of
voluntary agreements in the construction industry relating to the
contracting or subcontracting of work")
21See Laborers Local 383 v. NLRB, 323 F 2d 422 (9th Cir 1963); Car-
penters Y. NLRB, 332 F 2d 636 (3d Cir 1964), Orange Belt District Council
of Painters No 48 v NLRB , 328 F 2d 534 (D.C Cir 1964); San Bernar-
dino Building Trades Council v. NLRB, 328 F 2d 540 (D C Cir 1964).
See also Sheet Metal Workers Local 48 v. Hardy Corp., 332 F 2d 682 (5th
Cir 1964), Northeastern Indiana Building Trades Council (Centlivre Vil-
lage), 148 NLRB 854 (1964)
22 282 NLRB 1375 (1987), enfd sub nom . Iron Workers Local 3 v
NLRB, 843 F 2d 770 (3d Cir 1988)
1330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
strikes or picketing in order to secure recognition
by a minority construction industry union.
Early in Deklewa , the Board cites Higdon , supra,
for the proposition "that a prehire agreement did
not permit the coercion of employee free choice by
unlimited picketing . . . ."23 This is a correct
statement of the law . As we have stated repeatedly
throughout this decision , picketing for recognition
by a minority construction industry union within
the time limitations set forth in Section 8(b)(7)(C) is
consistent with the purposes for which Section 8(f)
was passed , and is not violative of the Act. Despite
this clear statement of the Board 's position, other
comments in Deklewa support a contrary conclu-
sion.
In discussing under what circumstances an 8(f)
representative may be able to achieve the function-
al and legal equivalent of a 9(a) representative, the
Board stated that it was rejecting the approach that
a union could acquire 9(a) status based solely on
the employer 's adoption of an 8 (f) agreement. The
reason given was that in those circumstances, the
union would enjoy a rebuttable presumption of ma-
jority status when the contract expiredand could
lawfully seek to compel the employer, through
strikes or picketing , to negotiate and sign a succes-
sor agreement . This would be directly contrary to
the express congressional mandate that an employ-
er cannot be coerced, through strikes or picketing,
into negotiating or adopting an 8(f) agreement.
This mandate was expressly recognized and applied
in Operating Engineers Local 542 (R.S. Noonan),
supra , and we discern no legitimate basis for de-
parting from that holding or declining to apply it
to "successor 8(f) agreements."24
The Board later reiterated this position , stating,
"[t]he signatory employer will be free , at all times,
from any coercive union efforts , including strikes
and picketing , to compel negotiation and/or adop-
tion of a successor [8(f)] agreement ." 26 We now
hold that these statements are inaccurate and con-
clude that a correct statement of the law is that an
employer must be free at all times from any unlaw-
ful coercion (as manifested for example by unlimit-
ed picketing), in order to ensure that an agreement
entered into pursuant to Section 8(f) is "voluntary"
within the meaning of that Section . As indicated
above , we do not believe that picketing within the
time limitations set forth in Section 8(b)(7)(C) as
those limitations have been interpreted26 is unlaw-
fully coercive.
23 Id at 1381 (emphasis added).
24 Id. at 1384- 1385 (citation omitted)
25 Id at 1386
26 See , e g, fns 4 . 5, and 6, supra
Our position is consistent with the Supreme
Court 's holding that restraint should be exercised
when seeking to proscribe peaceful picketing to a
broader degree than specifically provided for in the
Act. In Curtis Bros., supra, the Supreme Court fo-
cused on the Board 's interpretation of Section
8(b)(1)(A) as conferring on the Board the right to
proscribe peaceful picketing beyond the limitations
specifically set forth in Section 8(b)(4). The Court
noted that Section 13 provides that the Act should
not be read as restricting or expanding either the
right to strike or the limitations or qualifications on
that right except as "specifically provided for" in
the Act itself.27 Further, the Court stated that
picketing has been equated with striking for the
purposes of Section 13.28
Despite the Court 's admonition against interpret-
ing the Act to provide for limitations on the right
to strike and picket not specifically provided for
therein , the Board 's decision in Noonan , supra, in-
cluded language stating that a construction indus-
try union may not picket for a prehire agreement
because a contract entered into pursuant to picket
action would not be "voluntary" and thus would
run counter to the purpose of Section 8(f).29 The
Board later recognized in Los Angeles Building
Trades Council (Schriver, Inc.),S0 however, that the
use of lawful economic pressure to obtain a "vol-
untary" agreement in the context of an 8(t) agree-
ment did not violate the Act . There , the Board
held that the fact that the respondents picketed "in
support of their attempt to establish the 8 (f) rela-
tionship," did not establish a violation of Section
8(b)(7)(C) since the "picketing which lasted for less
than 30 days did not contravene the limitations
placed on recognitional picketing by Section
8(b)(7)(C)." 31 It is this view that we affirm today.
In sum, at least with respect to an employer,
which has employees, we do not believe that re-
cognitional and organizational picketing by a mi-
27 362 U .S at 281
28 Id. at 281 fn. 9.
29 Despite this language, Noonan, supra , remains good law. The hold-
ing in Noonan is based on the findings that (1) the union picketed for rec-
ognition for more than 30 days without filing a 9(c) petition as required
by Sec 8 (b)(7)(C), and (2) that the picketing union sought recognition in
a unit in which no employees were employed . The Board then added a
further rationale , stating that the legislative history of Sec 8 (f) estab-
lished that a union cannot use coercive techniques , such as picketing, to
force an employer to sign a prehire agreement because such agreements
must be entered into voluntarily Our disagreement with this additional
rationale , however , does not affect the primary focus of that case
30 239 NLRB 264 (1978 ), enfd . 635 F 2d 859 (D.C. Cir . 1980), cert.
denied 451 U S 976 (1981), rehearing denied 457 U S 1111 (1982) As the
court of appeals noted (id. at 868), no 8(b)(7) violation had been alleged
in Schriver, but the manner in which Sec 8(b)(7) applies to picketing for a
prehire agreement was discussed to meet the employer 's contention that
the protection of the construction industry proviso is lost if it is part of a
prehire agreement obtained or sought through picketing
2 t Id. at 269
LABORERS LOCAL 1184 (NVE CONSTRUCTORS) 1331
nority union in the construction industry is prohib-
ited by Section 8(b)(7)(C) of the Act if the picket-
ing meets the time limitations set forth in that sec-
tion . Accordingly, we dismiss the complaint.32
ORDER
The complaint is dismissed.
32 See also Laborers Local 98 (Fisher Construction), 296 NLRB 133