Local Union No. 133, Laborers International Union Of North America

National Labor Relations Board - Board Decisions

May 7, 1987

283 N.L.R.B. 918 (N.L.R.B. 1987)

918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local Union No. 133 , Laborers International Union
of North America and A. P. Whitaker & Sons,
Inc. Case 1-CP-348 -
7 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
Upon unfair labor practice charges filed by A. P.
Whitaker & Sons, Inc. (Whitaker) on 8 March
1985, the General Counsel of the National Labor
Relations Board issued a complaint on 5 April
1985, against Local Union No. 133, Laborers Inter-
national Union of North America, the Respondent,
alleging that the Respondent has engaged in unfair
labor practices affecting commerce within the
meaning of Section 8(b)(7)(C) of the National
Labor Relations Act. Thereafter the Respondent
filed a timely answer denying the commission of
any unfair labor practices.
On 23 May 1986 the parties jointly moved the
Board to transfer the proceeding to the Board
without benefit of hearing before an administrative
law judge, and submitted a proposed record con-
sisting of the formal papers and the parties' stipula-
tion of facts with attached exhibits. On 7 August
1986 the Deputy Executive Secretary of the Board,
by direction of the Board, issued an order granting
the motion, approving the stipulation, and transfer-
ring the proceeding to the Board. Thereafter, the
General Counsel and the Respondent filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the entire record in
this case, including the briefs of the parties. For the
reasons set forth below, the Board finds that the
Respondent has violated Section 8(b)(7)(C) of the
Act as alleged by the complaint.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Whitaker is a corporation engaged in the con-
struction industry as a general contractor, with an
office and place of business in Bridgewater, Massa-
chusetts (Bridgewater facility). Whitaker annually
purchases and receives at its Bridgewater facility
products and materials valued in excess of $50,000
directly from points outside the Commonwealth of
Massachusetts. We find that Whitaker is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. We further find
that the Respondent , Local Union No. 133, Labor-
ers International Union of North America, is a
labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On 21 ' January 1985 1 Whitaker began work on a
construction project for the New England Tele-
phone Company in Weymouth, Massachusetts. On
23 January the Respondent Union demanded that
Whitaker recognize and bargain with- it as the ex-
clusive representative of Whitaker's employees em-
ployed as laborers at its Weymouth project. The
Respondent is not currently certified as the repre-
sentative of any of Whitaker's employees, and until
11 February only one employee was employed by
Whitaker as a laborer at the Weymouth project.
On 28 January the Respondent began picketing in
furtherance of its recognitional demand. That pick-
eting continued until 15 March, for a total of 47
days.
The Respondent filed a petition seeking to repre-
sent Whitaker's laborers at the Weymouth project
on 22 February, when Whitaker employed more
than one laborer at that jobsite, but the petition
was not supported by a showing of interest indicat-
ing that a substantial number of employees at the
Weymouth project wished to be represented by the
Respondent.2 Because no charge alleging a viola-
tion of Section 8(b)(7)(C) of the Act that would
have dispensed with the necessity of a showing of
interest on the part of the labor organization had
been filed, and the Respondent failed to submit the
showing of interest required by the Board in sup-
port of its representation petition, the Acting Re-
gional Director dismissed the petition on 4 March.
Upon the Respondent's request for review, the
Board thereafter, on 30 April, affirmed the dismis-
sal.
On 8 March, subsequent to the Acting Regional
Director's dismissal of the representation petition,
Whitaker filed a charge alleging that the Respond-
ent's picketing violated Section 8(b)(7)(C) of the
1 Unless otherwise indicated, all dates are 1985
2 The Board investigates any petition filed by a labor organization that
alleges that a "substantial number" of employees wish to be represented
by the petitioner and the petitioner desires to be certified as their repre-
sentative. The Board has adopted the administrative rule, documented in
its Statements of Procedure at Sec 101.18(a), that 30 percent constitutes
a "substantial number " The purpose of this requirement is to enable the
Board to determine whether the filing of a petition warrants the holding
of an election without the needless expenditure of Government time, ef-
forts, and funds S H Kress & Co., 137 NLRB 1244, 1248 (1962) It has
been the Board's administrative experience that the conduct of an elec-
tion serves no purpose under the statute unless the petitioner has been
designated by at least 30 percent of the employees
283 NLRB No. 138
LABORERS LOCAL 133 (WHITAKER & SONS)
Act. The Respondent ceased its picketing after 15
March.
B. Contentions of the Parties
In the complaint, the General Counsel alleges
that the Respondent picketed for more than 30
days to force or require Whitaker to recognize or
bargain with the Respondent as the representative
of its laborer employees, notwithstanding that the
Respondent is not currently certified as the repre-
sentative,of such employees and a question con-
cerning the representation of such employees has
not appropriately been raised under Section 9(c) of
the Act. The General Counsel asserts that, al-
though filed within 30 days of the commencement
of recognitional picketing, a petition that does not
raise a valid question concerning representation
does not preclude the finding of a violation of Sec-
tion 8(b)(7)(C) of the Act based on a charge filed
following the petition's dismissal.
The Respondent argues that the clear statutory
language of Section 8(b)(7)(C),directs the Board to
expedite election procedures when a petition is
filed within a reasonable time after the commence-
ment of recognitional picketing, without regard to
the provisions of Section 9(c)(1) or the absence of a
showing of substantial interest on the part of the
labor organization. Accordingly, the 'Respondent
submits, by filing its petition within 30 days of the
commencement of picketing, it satisfied the require-
ments of Section 8(b)(7)(C) and its recognitional
picketing was protected under the Act. Alterna-
tively, the Respondent contends that its picketing
did not violate Section 8(b)(7)(C) because the time
during which its election petition was pending, and
the time during which only one laborer was em-
ployed at the Weymouth project, should not be
counted in calculating a reasonable period not to
exceed 30 days during which its recognitional pick-
eting would be lawful.
C. Discussion
We agree with the General Counsel that the Re-
spondent violated Section 8(b)(7)(C) of the Act by
picketing for more than 30 days without the filing
of a valid petition, under Section 9(c) of the Act,
for a Board election where an object of the Re-
spondent's picketing was to force or require Whi-
taker to recognize the Respondent as the represent-
ative of its employees employed as laborers at its
Weymouth project jobsite. As the Board_ long ago
noted in the seminal case of Hod Carriers Local 840
(C. A. Blinne), 135 NLRB 1153 (1962), the expedit-
ed election procedure contemplated by Section
8(b)(7)(C) is applicable only in an 8(b)(7)(C) pro-
ceeding where an 8(b)(7)(C) unfair labor practice
919
charge has been filed . "In the absence of an
8(b)(7)(C) unfair labor practice charge ," the Board
stated, "a union will not be enabled to obtain an
expedited election by the mere device of engaging
in recognition or organization picketing and filing a
representation petition ." Blinne, supra at 17157.3 In
this situation , the, normal representation procedures
are applicable; the showing of a substantial interest
will be required, and the preelection hearing direct-
ed in Section 9(c)(1) will be held.
This approach has been incorporated in the
Board's Rules and Regulations . Thus, Section
102.76 provides that when an employer has been
picketed for an object proscribed by Section
8(b)(7) of the Act, a petition for the determination
of a question concerning representation of the em-
ployees of that employer may be filed in accord-
ance with the procedures under Section 9(c) of the
Act, but if an 8(b)(7) charge has been filed against
the labor organization that is picketing, the petition
shall not be required to contain a statement that the
employer declines to recognize the petitioner as the
representative within the meaning of Section 9(a).
Section 102.77(b) conditions an expedited election
on the prior , filing of a charge of an unfair labor
practice under Section 8(b)(7)(C). (See also Board
Statements of Procedure, Sec.' 101.23.)
As the necessary proof that a substantial number
of the employees desire to be represented by the
petitioner was lacking to sustain the petition, dis-
missal of the petition was warranted . If an 8(b)(7)
charge is filed before the petition is dismissed, then
the expedited procedure is invoked , but in the
present case no such charge was filed before the
petition 's dismissal . As the Board explained in
Blinne, Congress did not intend to allow unions to
circumvent 9(c) requirements by the mere device
of engaging in picketing and filing ; a petition.
Absent , a charge that its picketing violated the law,
there is no justification for allowing the Union to
avail itself of the expedited election procedure and
dispensing with normal showing -of-interest require-
ments . ' The proposition that the first proviso to
Section 8(b)(7)(C) must be interpreted literally,
rather than construed within the total context of
the Act, has previously been urged and found defi-
cient . See Reed 1. Roumell, 185 F.Supp. 4
(D.C.E.D. Mich . 1960), discussed in Blinne at
1157-1158.
3 Congress plainly did not intend such a result , the Board opined,
citing Congressman Barden's statement in the Conference Report on the
Labor-Management Reporting and Disclosure Act of 11959 to the effect
that the expedited election proviso to Sec 8(bX7)(C) was not intended to
be used as a device or subterfuge by a_ picketing union to bring about a
prehearing , or quickie election . (105 Daily Cong. Rec. A8062, September
4, 1959; 2 Leg. Hist. 1813). Id.
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We also reject the Respondent's argument that
the 11 days during which its unsupported petition
was pending prior' to the Regional Director's dis-
missal should not be counted in computing the
number of days in which it engaged in recogni-
tional picketing. The Union's petition here did not
raise a question concerning representation because
of the Union's failure to obtain or submit any
showing of interest. The Board has held that a peti-
tion that does not raise a valid question concerning
representation does not preclude the finding of a
violation under Section 8(b)(7)(C). Teamsters Local
639 (Dunbar Armored Express), 211 NLRB 687, 690
(1974).4 Similarly, here, in the absence of an 8(b)(7)
charge that would have triggered the expedited
election procedure, a petition that may not other-
wise lead to an election in no way protects a
union's picketing for recognitional purposes beyond
the period allowed by Section 8(b)(7)(C). Nor does
it insulate the offending union from liability for its
picketing in excess of that allowed by Section
8(b)(7)(C) for recognitional purposes.
Finally, we find it unnecessary to address the
Respondent's additional contention based on Vila-
Barr, supra, that the 14 days during which only
one laborer was employed at the Weymouth
project should not be counted against the limitation
period on recognitional picketing. Since the Re-
spondent picketed for 33 days without including
that time period, that determination cannot affect
the result in this case.
CONCLUSIONS OF LAW
1. A. P. Whitaker & Sons , Inc. is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Respondent, Local Union No. 133, La-
borers International Union of North America, is a
labor organization within the meaning of Section
2(5) of the Act.
3. By picketing or causing to be picketed A. P.
Whitaker & Sons, Inc. for more than 30 days with-
out the filing of a valid petition, under Section 9(c)
of the Act, for a Board election, and with an object
of forcing or requiring the Company to recognize
or bargain with the Respondent as the representa-
tive of its employees employed as laborers at its
Weymouth, Massachusetts jobsite, the Respondent
° The Board distinguished the situation in Dunbar, where the union
was unable to obtain a Board certification because of its decision to admit
both guards and nonguards to membership from the situation in Team-
sters Local 115 (Vila-Barr Co.), 157 NLRB 588 (1966), where the union
was unable to obtain an election because the Board will not entertain an
election petition for a one-man unit. In Vila-Barr, the Board stated, the
union was disabled through no fault of its own from invoking the Board's
processes, whereas in Dunbar the union was unable to obtain a certifica-
tion because of its own voluntary choice to admit nonguard employees to
membership.
has engaged in an unfair labor practice within the
meaning of Section 8(b)(7)(C) of the Act.
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Local Union No. 133, Laborers
International Union of North America, Weymouth,
Massachusetts, its officers, agents , and representa-
tives, shall
1. Cease and desist from picketing, or causing to
be picketed, A. P. Whitaker & Sons , Inc., where an
object thereof is forcing or requiring the Company
to recognize or bargain with the Respondent as the
representative of its employees employed as labor-
ers at its Weymouth, Massachusetts jobsite, in vio-
lation of Section 8(b)(7)(C) of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its business office copies of the at-
tached notice marked "Appendix."5 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 1, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Furnish the Regional Director for Region 1
signed copies of the notice for posting by A. P.
Whitaker & Sons, Inc., if willing, in places where
notices to employees are customarily posted.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
LABORERS LOCAL 133 (WHITAKER & SONS) 921
WE WILL NOT picket or cause to be picketed A. Massachusetts jobsite, in violation of Section
P. Whitaker & Sons, Inc., where an object thereof _ 8(b)(7)(C) of the Act.
is forcing or requiring the Company to recognize
or bargain with us' as the representative of its em- LOCAL UNION No. 133, LABORERS
ployees employed as laborers at its Weymouth, INTERNATIONAL UNION OF NORTH
AMERICA