Plumbers Local 32 (Robert E. Bayley Construction)

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 786 (N.L.R.B. 1994)

786
315 NLRB No. 115
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Sec. 8(b)(7)(C) states in pertinent part that
(b) It shall be an unfair labor practice for a labor organization
or its agents—
(7) to picket . . . any employer where an object thereof is
forcing or requiring an employer to recognize or bargain with
a labor organization as the representative of his employees, or
forcing or requiring the employees of an employer to accept or
select such labor organization as their collective-bargaining rep-
resentative, unless such labor organization is currently certified
as the representative of such employees:
. . . .
(C) where such picketing has been conducted without a peti-
tion under section 9(c) being filed within . . . thirty days from
the commencement of such picketing: . . . . Provided further,
That nothing in this subparagraph (C) shall be construed to pro-
hibit any picketing or other publicity for the purpose of truth-
fully 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.
Plumbers and Pipe Fitters Local Union No. 32,
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada, AFL–
CIO and Robert E. Bayley Construction, Inc.
Case 19–CP–514
December 16, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
Upon a charge filed by Robert E. Bayley Construc-
tion, Inc. (Bayley) on May 27, 1992, against Plumbers
and Pipe Fitters Local Union No. 32, United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Can-
ada, AFL–CIO (the Respondent), the General Counsel
of the National Labor Relations Board issued an
amended complaint and notice of hearing on January
20, 1993.
The amended complaint alleges that the Respondent
violated Section 8(b)(7)(C) of the Act by its picketing
of Olympic Plumbing and Heating, Inc. (Olympic), a
plumbing subcontractor on the port of Seattle’s Pier 69
modification—remodeling construction project, on
which Bayley was the general contractor.1
On June 7, 1993, the General Counsel, Bayley,
Olympic, and the Respondent (collectively the parties)
jointly filed a motion to transfer case to the Board and
a stipulation of facts. The parties agreed that the
charge, the initial complaint, the answer to the initial
complaint, the amended complaint, the answer to the
amended complaint, the amended answer, and the stip-
ulation of facts, including the exhibits attached to the
stipulation, constitute the entire record in this case, and
that no oral testimony is necessary or desired by any
party. The parties waived a hearing and the issuance
of a decision by an administrative law judge, and sub-
mitted the case directly to the Board for findings of
fact, conclusions of law, and a decision.
On August 31, 1993, the Board issued an order ap-
proving the stipulation, granting the motion, and trans-
ferring the proceeding to the Board. Thereafter, the
General Counsel and the Respondent filed briefs.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
On the basis of the record and the briefs, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
Bayley is a State of Washington corporation, with
an office and place of business in Seattle, where it is
engaged in the business of general construction. In the
course and conduct of its business operations during
the 12-month period preceding the issuance of the
amended complaint, which period is representative of
all times material, Bayley (1) had gross sales of goods
and services valued in excess of $500,000; (2) sold
and shipped goods or provided services valued in ex-
cess of $50,000 from its facilities within the State of
Washington to customers outside that State, or to cus-
tomers within that State, which customers were them-
selves engaged in interstate commerce by other than
indirect means; and (3) purchased and caused to be
transferred and delivered to its facilities within the
State of Washington goods and materials valued in ex-
cess of $50,000 directly from sources outside that
State, or from suppliers within that State which in turn
obtained such goods and materials directly from
sources outside that State.
Olympic is a State of Washington corporation, with
an office and place of business in Seattle, where it is
engaged in the business of general construction. In the
course and conduct of its business operations during
the 12-month period preceding the issuance of the
amended complaint, which period is representative of
all times material, Olympic (1) sold and shipped goods
or provided services valued in excess of $50,000 from
its facilities within the State of Washington to cus-
tomers outside that State, or to customers within that
State, which customers were themselves engaged in
interstate commerce by other than indirect means; and
(2) purchased and caused to be transferred and deliv-
ered to its facilities within the State of Washington
goods and materials valued in excess of $50,000 di-
rectly from sources outside that State, or from suppli-
ers within that State which in turn obtained such goods
and materials directly from sources outside that State.
Bayley and Olympic are and have been at all mate-
rial times employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
787PLUMBERS LOCAL 32 (ROBERT E. BAYLEY CONSTRUCTION)
2 In the course of the events in question, the Respondent initially
picketed Olympic only at the project’s reserved primary gate, but
later also picketed at the reserved neutral gate. The neutrality of the
latter gate was, however, breached on a number of occasions by
Olympic employees and agents. Accordingly, the parties have stipu-
lated that ‘‘[t]here is no allegation . . . that it was improper for Re-
spondent to picket at the neutral gate as opposed to at the [primary]
gate . . . at any time here relevant, provided [emphasis in original]
that the issue is whether [the Respondent] was entitled to picket at
all.’’
3 All the following dates are 1992, unless otherwise stated.
4 In Case 19–CP–513, not the instant Case 19–CP–514.
The Respondent is and has been at all material times
a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
Bayley was the general contractor on the port of Se-
attle’s Pier 69 modification—remodeling project, and
Olympic was a subcontractor. The Respondent did not
represent any employees on the project and its primary
dispute was only with Olympic against which it con-
ducted picketing in three discrete phases at the job-
site.2
1. Phase I
From March 10 through April 29, 1992,3 the Re-
spondent picketed with signs saying ‘‘Olympic does
not have a contract with Local 32 [i.e., the Respond-
ent].’’ The parties have stipulated that this phase I
picketing was for a recognitional object.
On March 23, during the Respondent’s phase I pick-
eting, Olympic recognized and entered into a collec-
tive-bargaining agreement with a rival of the Respond-
ent, the Independent Union of Plumbers and Pipe Fit-
ters (IUPP). On March 31, however, after the Board’s
Regional Office notified Olympic that there was evi-
dence that Olympic had improperly interfered with em-
ployee choice in the designation of IUPP as representa-
tive of its employees, Olympic informed IUPP in writ-
ing that it would not be honoring the March 23 collec-
tive-bargaining agreement.
On April 29, the Respondent, faced with an earlier
8(b)(7)(C) charge against it4 alleging that its recog-
nitional picketing was unlawful, notified Olympic in
writing (1) that it was discontinuing the above-de-
scribed picketing; (2) that it ‘‘unequivocally
disclaim[ed]’’ any interest in representing Olympic’s
employees; (3) that it would not engage in any conduct
inconsistent with that disclaimer; and (4) that it would
resume picketing Olympic at the jobsite on May 4,
‘‘for the sole and exclusive purpose of truthfully advis-
ing the public that [Olympic] does not employ mem-
bers of Local 32.’’
Also on April 29, the Respondent filed an 8(a)(2)
charge against Olympic, alleging that Olympic had at-
tempted in March to force its employees to join or as-
sign bargaining rights to the IUPP.
2. Phase II
In phase II, the Respondent picketed from May 4
through 27 with signs saying ‘‘Olympic does not em-
ploy members of Local 32.’’
On May 21, the Board’s Regional Director for Re-
gion 19 approved a bilateral settlement agreement in
the above-mentioned 8(a)(2) case between Olympic
and the Respondent. Under the terms of the agreement,
Olympic agreed to post a notice in which it promised
not to recognize, deal with, or assist the IUPP unless
and until it became certified by the Board as the exclu-
sive collective-bargaining representative of Olympic’s
employees.
During phase II, the Respondent continued to picket
only at the primary gate until May 26, when it began
picketing also at the neutral gate, still with signs say-
ing ‘‘Olympic does not employ members of Local
32.’’
On May 26 and 27, coincident with the Respond-
ent’s expansion of picketing to include the neutral
gate, and in the face of that picketing, a large number
of employees of Bayley and other subcontractors on
the project declined to come to work, and certain de-
liveries were not made.
On May 27, the Respondent notified Olympic in
writing that (1) its picket signs were going to be
changed to say ‘‘Olympic Plumbing. Unfair Labor
Practice. Plumbers Local 32’’ and (2) that its picketing
was ‘‘in protest of your unfair labor practices and is
for no other reason.’’
3. Phase III
In phase III, the Respondent picketed from May 28
through June 29 at both the primary and the neutral
gates, with signs saying ‘‘Olympic Plumbing and Heat-
ing, Unfair Labor Practice, Plumbers and Pipe Fitters
Local 32.’’ The parties have stipulated that
[S]o long as [the Respondent] continued to picket
with signs on their face advertising Olympic’s un-
fair labor practice [i.e., on and after May 28], at
least some of the employees who had refused to
cross the picket line to work for Bayley or other
sub-contractors on May 26 and 27 continued to
withhold their services from their employers and
additional deliveries were turned away because
their drivers would not cross the picket line.
Meanwhile, on May 29, Olympic posted the notices
required by the 8(a)(2) settlement agreement. These
notices remained posted for the required 60-day period.
The 8(a)(2) case was closed by the Board’s Regional
Director on July 27, and the parties have stipulated
that there is no evidence that Olympic engaged in any
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Only the General Counsel and the Respondent filed briefs.
6 The record contains no further information about Case 19–CP–
513.
activity which is inconsistent with the settlement
agreement.
On June 29, all picketing ceased, pursuant to an
order of the U.S. District Court for the Western Dis-
trict of Washington in a proceeding under Section 10(l)
of the Act.
On January 20, 1993, the General Counsel issued
the instant amended complaint, alleging that an object
of the Respondent’s picketing from and since March
10—notwithstanding the changes in language on the
picket signs and the Respondent’s disclaimers of a re-
cognitional objective—has been to force or require
Olympic to recognize and bargain with the Respond-
ent, or to force or require Olympic’s employees to ac-
cept or select the Respondent as their collective-bar-
gaining representative, in violation of Section
8(b)(7)(C).
B. Contentions of the Parties5
The parties have stipulated that the phase I picket-
ing, from March 10 through April 29, with signs stat-
ing ‘‘Olympic does not have a contract with Local
32,’’ was for a recognitional object.
1. The General Counsel’s contentions
The General Counsel contends that the phase II
picketing, from May 4 through 27, with signs stating
‘‘Olympic does not employ members of Local 32,’’
was also for a recognitional or organizational object
within the meaning of Section 8(b)(7) of the Act, cit-
ing Hotel & Restaurant Employees Local 681 (Crown
Cafeteria II), 135 NLRB 1183 (1962), enfd. sub nom.
Smitley v. NLRB, 327 F.2d 351 (9th Cir. 1964).
The General Counsel also contends that the Re-
spondent’s April 29 disclaimer of any recognitional
object was invalid because (1) it was issued only in re-
action to an 8(b)(7)(C) charge in an earlier case, Case
19–CP–513,6 and (2) it was followed on May 4 by a
resumption of assertedly recognitional picketing, i.e.,
the phase II picketing, with signs stating ‘‘Olympic
does not employ members of Local 32.’’
Thus, the General Counsel contends, in effect, that
phases I and II picketing from March 10 through May
25 was for a recognitional or organizational object;
was conducted without a representation petition under
Section 9(c) having been filed within 30 days from the
start of that picketing; and was not otherwise permitted
by the second proviso to Section 8(b)(7)(C), as picket-
ing for the purpose of truthfully advising the public
that Olympic did not have a contract with or employ
members of the Respondent, because any such argu-
able protection by the proviso was lost, and the picket-
ing became unlawful under Section 8(b)(7)(C) on and
after May 26, when an effect of the picketing was to
induce a work stoppage on the project.
The General Counsel further contends that the phase
III picketing, from May 28 through June 29, with signs
stating ‘‘Olympic Plumbing and Heating, Unfair Labor
Practice, Plumbers and Pipe Fitters Local 32,’’ was
also for a recognitional or organizational object; was
conducted without a representation petition under Sec-
tion 9(c) having been filed within 30 days from the
start of that picketing; and was, on its face, not other-
wise permitted by the second proviso to Section
8(b)(7)(C), as picketing for the purpose of truthfully
advising the public that Olympic did not have a con-
tract with or employ members of the Respondent.
2. The Respondent’s contentions
The Respondent contends that its picketing after
April 29 (i.e., its phases II and III picketing) was law-
ful under the Act because it did not have a recog-
nitional object, but rather was for the ‘‘exclusive pur-
pose’’ of providing information about Olympic’s non-
union status and protesting Olympic’s unlawful rec-
ognition of IUPP.
In support of its contention that its picketing from
May 4 through 27 (i.e., phase II) was for the exclusive
purpose of providing information about Olympic’s
nonunion status, the Respondent points to its April 29
letter to Olympic, in which the Respondent ‘‘unequivo-
cally disclaim[ed]’’ any interest in representing Olym-
pic’s employees, promised not to do anything incon-
sistent with that disclaimer, and declared that its pick-
eting starting May 4 would be for the ‘‘sole and exclu-
sive purpose of truthfully advising the public that
[Olympic] does not employ members of’’ the Re-
spondent. The Respondent asserts that there is nothing
in the record to indicate that it acted inconsistently
with its stated intent in its April 29 letter to Olympic.
In support of its contention that its picketing from
May 28 through June 29 (i.e., phase III) was for the
exclusive purpose of protesting Olympic’s unlawful
recognition of IUPP, the Respondent points to its May
27 letter to Olympic, where the Respondent stated that
its picketing from then on was going to be in protest
of Olympic’s unfair labor practices ‘‘and for no other
reason.’’ Here again, the Respondent asserts that there
is nothing in the record to indicate that it acted incon-
sistently with its stated intent in its May 27 letter to
Olympic.
The Respondent contends that its earlier March 10–
April 29 (phase I) recognitional picketing does not cre-
ate an inference that its subsequent May 28–June 29
(phase III) picketing in protest of Olympic’s unfair
labor practices had a recognitional object, because of
(1) the 1-month hiatus between the April 29 end of the
phase I recognitional picketing and the May 28 start of
the phase III unfair labor practice protest picketing; (2)
789PLUMBERS LOCAL 32 (ROBERT E. BAYLEY CONSTRUCTION)
7 Theatrical Stage Employees Local 15 (Albatross Products), 275
NLRB 744, 745 fn. 4 (1985), and cases cited there (‘‘[Sec.
8(b)((7)(C)] applies even if there are legitimate purposes for the
picketing; it is sufficient to make out a violation of Section 8(b)(7)
if one of the union objects is recognitional.’’ (emphasis in original)).
8 Hotel & Restaurant Employees Local 681 (Crown Cafeteria II),
supra.
In Crown Cafeteria II, the Board majority expressly adopted the
dissenting opinion in Crown Cafeteria I, 130 NLRB 570, 574
(1961), which found that the publicity proviso permits recognitional
picketing that would otherwise be prohibited by Sec. 8(b)(7)(C)
where such recognitional picketing is also for the purpose of truth-
fully advising the public that an employer does not employ members
of, or have a contract with, a labor organization, and where such re-
cognitional picketing permitted by the publicity proviso does not
have the effect of inducing a failure to pick up, deliver, or transport
any goods or to perform any services.
9 Teamsters Local 294 (Gene Graham Ford), 188 NLRB 515, 519
(1971), and cases cited there.
10 See Waiters & Bartenders Local 500 (Mission Valley Inn), 140
NLRB 433, 437 (1963); Hod Carriers Local 840 (C. A. Blinne Con-
struction), 135 NLRB 1153, 1156, 1168 fn.29 (1962).
11 Cf. Houston Building Trades Council (Everett Construction
Co.), 136 NLRB 321 (1962) (area standards picketing that was not
for a recognitional or organizational objective did not violate Sec.
8(b)(7)(C) even though it interfered with deliveries and services; also
citing C. A. Blinne, supra).
the Respondent’s April 29 disclaimer of recognitional
intent; and (3) the Respondent’s May 27 assertion that
its picketing from then on was only for the purpose of
protesting Olympic’s unfair labor practices.
The Respondent further notes that after April 29, it
neither demanded that Olympic recognize it nor told
Olympic that the picketing would be stopped if Olym-
pic did recognize it. Thus, the Respondent contends
that because its picketing after April 29 was, first,
nonrecognitional informational picketing (phase II),
and then (phase III) unfair labor practice protest pick-
eting, the post-April 29 picketing was therefore outside
the scope of picketing prohibited by Section
8(b)(7)(C), and consequently not in violation of that
section, even though it had the effect of inducing indi-
viduals to stop working on the construction project or
making deliveries to it.
C. Analysis and Conclusions
1. Applicable principles
Section 8(b)(7)(C), excerpted in footnote 1, supra,
expressly prohibits, in pertinent part, union picketing
that has an object (but not necessarily the only object7)
of forcing or requiring an employer to recognize a
union as the representative of the employer’s employ-
ees, where (1) such union is not currently certified as
the representative of those employees and (2) such
picketing has been carried on without a representation
petition having been filed under Section 9(c) of the
Act within a reasonable time (not to exceed 30 days)
from the start of the picketing.
The second proviso to Section 8(b)(7)(C), however,
also set forth above (the so-called publicity proviso),
expressly permits picketing for a recognitional object,
even for more than 30 days without a representation
petition having been filed, if such picketing is also for
the purpose of truthfully advising the public that an
employer does not employ members of, or have a con-
tract with, a labor organization.8
But, as noted in the preceding footnote, even such
permissible picketing for a recognitional object, that is
also for the specified publicity purpose, expressly loses
its protection under the publicity proviso, and thus vio-
lates Section 8(b)(7)(C)’s general prohibition against
picketing for a recognitional or organizational object if,
after 30 days without a representation petition having
been filed, the picketing has (or continues to have) an
effect of inducing any individual not to pick up, de-
liver, or transport any goods, or not to perform any
services.9
Finally, Section 8(b)(7)(C) does not expressly pro-
hibit picketing solely for the object of protesting unfair
labor practices,10 even if such picketing has the effect
of interfering with deliveries and services.11 Unfair
labor practice picketing will, however, be prohibited
by Section 8(b)(7)(C) where (1) it also has an object
of forcing or requiring an employer to recognize a
union as the representative of the employer’s employ-
ees; (2) such union is not currently certified as the rep-
resentative of those employees; and (3) such picketing
has been carried on without a representation petition
having been filed under Section 9(c) of the Act within
a reasonable time (not to exceed 30 days) from the
start of the picketing.
We now apply these principles to the facts in this
case to determine whether any of the Respondent’s
picketing violated Section 8(b)(7)(C).
2. Phase I picketing (March 10 through April 29)
The parties have stipulated that the Respondent’s
phase I picketing, from March 10 through April 29,
with signs saying ‘‘Olympic does not have a contract
with Local 32,’’ was for a recognitional object. The
Respondent was not at any material time certified as
the representative of Olympic’s employees, and the
phase I picketing for a recognitional object was obvi-
ously carried on for more than 30 days without the fil-
ing of a representation petition. Thus, the phase I pick-
eting for a recognitional object would be in violation
of Section 8(b)(7)(C), unless it was nevertheless per-
mitted by the publicity proviso because (1) it also (i.e.,
in addition to its recognitional object) had the purpose
of truthfully advising the public that Olympic did not
have a contract with the Respondent, and (2) it did not
have an effect of inducing any individual not to pick
up, deliver, or transport any goods, or not to perform
any services.
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Hotel & Restaurant Employees Local 681 (Crown Cafeteria II),
135 NLRB 1183, 1185 (1962), enfd. sub nom. Smitley v. NLRB, 327
F.2d 351 (9th Cir. 1964) (‘‘‘[D]oes not employ members of’ clearly
imports a present object of organization, and ‘[does not] have a con-
tract with’ just as clearly implies a recognition and bargaining ob-
ject’’). See also Retail Store Employees Local 214 (Pick-N-Save
Warehouse Foods), 244 NLRB 547, 550 (1980) (8(b)(7)(B) case;
not-employ-members and not-have-a-contract messages on picket
signs ‘‘leave no doubt’’ of a recognitional object); Painters Local
130 (Joiner, Inc.), 135 NLRB 876 (1962) (8(b)(7)(B) case; not-em-
ploy-members and not-have-a-contract messages on picket signs
shows a recognitional or bargaining objective).
As seen, the Board majority in Crown Cafeteria II, supra, ex-
pressly adopted the dissenting opinion in Crown Cafeteria I, which
in turn expressly adopted the opinion of the court in John C. Getreu
v. Hotel & Restaurant Employees Local 58 (Fowler Hotel), 181
F.Supp. 738 (D.C.N.Ind. 1960), stating in pertinent part:
[S]ubparagraph (C) means that although ‘‘an object’’ of picket-
ing may be bargaining . . . it is immunized from the statute if
‘‘the purpose’’ of such picketing is also truthfully to [advise] the
public that the employer does not have a contract with the union
and further if the picketing does not curtail picking up, delivery
or transportation of goods or the performance of services. It is
difficult, if not impossible, to imagine any kind of informational
picketing pertaining to an employer’s failure or refusal to em-
ploy union members or to have a collective bargaining agree-
ment where another object of such picketing would not be ulti-
mate union recognition or bargaining. In most instances certainly
the aim of such informational picketing could only be to bring
economic pressure upon the employer to recognize and bargain
with the labor organization.
13 See McClintock Market, 244 NLRB 555 (1979).
14 But see Ladies Garment Workers Local 155 (Boulevard Knit-
wear Corp.), 167 NLRB 763, 765–767 (1967) (7-day hiatus in pick-
eting and change in message on picket signs do not establish change
from prehiatus recognitional object).
The phase I picket signs said ‘‘Olympic does not
have a contract with Local 32,’’ which is language ex-
pressly permitted by the publicity proviso, and the
phase I picketing did not have an impermissible effect
of interfering with deliveries or the performance of
services.
Accordingly, we conclude that the Respondent’s
phase I picketing for a recognitional object was pro-
tected by the publicity proviso of Section 8(b)(7)(C)
and did not violate that Section of the Act.
3. Phase II picketing (May 4 through 27)
The phase II picket signs said ‘‘Olympic does not
employ members of Local 32.’’ Notwithstanding the
Respondent’s April 29 purported disclaimer of any in-
terest in representing Olympic’s employees, the ex-
press language of the phase II picket signs bespeaks
the picketing’s recognitional object12 and belies the
Respondent’s recognitional disclaimer.13 Thus, we find
that the phase II picketing was for a recognitional ob-
ject.
We further find that this phase II picketing for a re-
cognitional object was a continuation of the phase I
picketing for a recognitional object. Under all the cir-
cumstances of this case, we do not believe that a ces-
sation of 4 days, only 2 of which were presumptive
workdays, was enough to interrupt the continuity of
the picketing and thus to begin a new 30-day period
under Section 8(b)(7)(C). The brief hiatus was pre-
ceded by 51 days and followed by another 57 days of
uninterrupted picketing. It is also significant that the
picketing before and after the hiatus was recognitional
in object, albeit with two different legends on the pick-
et signs. Thus, while a brief hiatus on a short-lived
project, particularly where a change in objective was
clearly demonstrated, might serve to immunize the re-
sumed picketing,14 this small interruption does not pre-
clude tacking the pre- and posthiatus periods of picket-
ing.
This phase II recognitional picketing was, however,
also for the permissible purpose, within the scope of
the publicity proviso to Section 8(b)(7)(C), of truth-
fully advising the public that Olympic did not employ
members of the Respondent, and was immunized by
the proviso so long as it did not interfere with deliv-
eries or the performance of services. The phase II
picketing from May 4 through 25 did not have such
an impermissible effect, and consequently, like the
phase I picketing, did not violate Section 8(b)(7)(C).
On May 26 and 27, the previously protected phase
II picketing began to have the impermissible effect of
interfering with deliveries and the performance of serv-
ices on the jobsite, and therefore it lost the protection
of the publicity proviso. Accordingly, we find that the
Respondent’s phase II picketing for a recognitional ob-
ject on May 26 and 27 violated Section 8(b)(7)(C).
4. Phase III picketing (May 28 through June 29)
The phase III picket signs said ‘‘Olympic Plumbing
and Heating, Unfair Labor Practice, Plumbers and Pipe
Fitters Local 32.’’ On April 29 the Respondent pur-
ported to disclaim any interest in representing Olym-
pic’s employees, and on May 27 the Respondent (1)
told Olympic that it was changing the language on the
picket signs from a recognitional message to an unfair
labor practice message, and (2) asserted that its phase
III picketing was solely in protest of Olympic’s unfair
labor practice (i.e., Olympic’s recognition of IUPP in
March).
Notwithstanding the above steps taken by the Re-
spondent, we conclude, for the reasons discussed
below, that the phase III picketing was not solely for
the purpose of protesting the Respondent’s alleged un-
fair labor practice, but rather that it was at least partly
for a continued recognitional object (i.e., continued
from the virtually uninterrupted phases I and II recog-
nitional picketing).
791PLUMBERS LOCAL 32 (ROBERT E. BAYLEY CONSTRUCTION)
15 See Casino & Gaming Employees (New Pioneer Club), 166
NLRB 544 (1967). See also Teamsters Local 295 (Calderon Truck-
ing Corp.), 178 NLRB 52 (1969).
16 See New Pioneer Club, supra.
17 We do note, however, in deference to the Respondent’s position,
that although the 8(a)(2) settlement agreement was reached on May
21, about a week before the Respondent changed the message on its
picket signs to refer to Olympic’s alleged unfair labor practice,
Olympic had in fact only just begun to post the 60-day notice called
for in the settlement agreement at the time the Respondent began its
purported unfair labor practice picketing on May 28. Unfair labor
practice protest picketing which occurs after the settlement of the
unfair labor practice, but still during the period of compliance with
the settlement, is not conclusively invalidated as unfair labor practice
protest picketing just because of such timing. Cf. Mission Valley Inn,
supra, 140 NLRB at 438, stating:
[A] refusal to accord recognition to the Union’s claim that it
was at all times engaged in unfair labor practice picketing does
not resolve the issue [of the object of the picketing]. It does not
follow that, because the picketing after settlement and compli-
ance was not—or, more accurately, may not be considered to
have been—for the object of protesting unfair labor practices, it
was, therefore, for a proscribed object, namely recognition, bar-
gaining, or organization. The existence of the proscribed object
still remains an element of affirmative proof which is pre-
requisite to a finding of the violation here alleged, and cannot
be supplied by merely disproving the existence of a different ob-
ject. [Emphasis added.]
The Phase III Picketing was not Solely for the
Purpose of Protesting Olympic’s Unfair
Labor Practice
At the outset, and particularly in light of the coun-
tervailing circumstances discussed below, we find the
Respondent’s May 27 change of the picket sign lan-
guage (from a recognitional to an unfair labor practice
message) to be unpersuasive on the ultimate issue of
the object of the phase III picketing.15 Likewise, we
are not persuaded in this regard by the Respondent’s
May 27 declaration to Olympic that the Respondent’s
picketing from then on would be solely in protest of
Olympic’s unfair labor practices.16 The Board deter-
mines the purpose and object of a course of picketing
from all the circumstances surrounding it. In spite of
the signage and the Respondent’s assertion of a solely
nonrecognitional object, several other relevant factors
convince us that the phase III picketing had at least a
partially recognitional objective.
We first find significant the fact that the alleged un-
fair labor practice in protest of which the Respondent
assertedly began picketing in late May—Olympic’s
recognition of IUPP—actually occurred in late March,
more than 2 months earlier. The Respondent was far
from idle during those 2 months, and indeed was en-
gaged in picketing throughout the entire time. But the
Respondent was picketing for a recognitional object,
and did not assert, even in part, a protest of the alleged
March unfair labor practice. This substantial passage of
time between the alleged March 23 unfair labor prac-
tice and the asserted unfair labor practice picketing
starting May 28, combined with the Respondent’s con-
tinued recognitional picketing during that time, seri-
ously undermines the persuasiveness of the Respond-
ent’s assertion that the sole reason for the phase III
picketing from May 28 through June 29 was to protest
the alleged unfair labor practice.
Second, that assertion is also undermined by the fact
that on May 21, a week before the asserted unfair
labor practice picketing even began, Olympic entered
into a settlement agreement with the Respondent.
Under this settlement agreement, Olympic promised
generally not to interfere in any way with its employ-
ees’ Section 7 rights, and it promised specifically not
to recognize, deal with, or assist the IUPP unless and
until it became certified by the Board as the exclusive
collective-bargaining representative of Olympic’s em-
ployees. In fact, as far back as March 31, Olympic no-
tified the IUPP that it would not honor its March 23
collective-bargaining agreement with IUPP, and the
Respondent concedes that since that time it has no evi-
dence that Olympic has engaged in any conduct that
was inconsistent either with that commitment or with
its subsequent commitments in the settlement agree-
ment. And yet, notwithstanding the settlement agree-
ment and the absence of any evidence that Olympic
had acted unlawfully since March 31, the Respondent
claims that its picketing starting May 28 was solely in
protest against that discontinued, settled, soon-to-be
fully remedied March unfair labor practice.17
Third, the timing of the Respondent’s asserted
change in its picketing objective suggests that the
phase III picketing retained at least a partially recog-
nitional purpose. The Respondent purported to change
on May 28 from recognitional picketing to unfair labor
practice picketing only when (1) the Respondent’s law-
ful picketing for a recognitional object became unlaw-
ful on May 26, i.e., when its impermissible effect on
deliveries and the performance of services starting that
day stripped it of the protection of the publicity pro-
viso; and (2) the Respondent’s continued recognitional
picketing was therefore challenged on the grounds of
those impermissible effects the following day, May 27,
by Bayley’s instant 8(b)(7)(C) charge.
By purporting to switch from recognitional picketing
to unfair labor practice picketing, the Respondent was
apparently attempting to switch to a type of picketing
that would not be expressly prohibited by Section
8(b)(7)(C)’s ban against picketing for a recognitional
object and would therefore not be encompassed within
the scope of the 8(b)(7)(C) charge filed against the Re-
spondent the day before.
More specifically, the Respondent changed the lan-
guage on its picket signs on May 28, from a message
that on its face bespoke a recognitional object (i.e.,
‘‘Olympic does not employ members of Local 32’’),
and which was thus subject to the constraints imposed
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 See Local Joint Executive Board of San Diego (Evans Hotels),
132 NLRB 737 (1961).
by Section 8(b)(7)(C), to a message that on its face did
not bespeak such an object (i.e., ‘‘Olympic Plumbing
and Heating, Unfair Labor Practice, Plumbers and Pipe
Fitters Local 32’’), and which was thus not on its face
subject to the constraints of Section 8(b)(7)(C). The
day before, May 27, the Respondent claimed that the
phase III picketing was going to be solely in protest
against Olympic’s alleged unfair labor practice.
We find that the steps taken by the Respondent on
May 27 and 28 were largely, if not entirely, expedients
employed to circumvent the invalidating effect of the
May 26 and 27 interferences with deliveries and the
performance of services on what had been the Re-
spondent’s openly recognitional picketing up to that
time.18
In sum, the Respondent’s assertion that the picketing
it began on May 28 was solely for the purpose of pro-
testing Olympic’s assertedly unlawful March 23 rec-
ognition of the IUPP is substantially discredited by the
facts that (1) the Respondent entered into a May 21
settlement agreement with Olympic in which Olympic
promised not to recognize, deal with, or assist the
IUPP unless and until it became certified by the Board
as the exclusive collective-bargaining representative of
Olympic’s employees; (2) the Respondent concedes
that Olympic acted at all times subsequent to March 31
in complete accord with its March 31 promise not to
honor its collective-bargaining agreement with IUPP
and with its subsequent commitments in the May 21
settlement agreement; (3) the Respondent did not even
begin to picket in protest of this unfair labor practice
until 2 months later—after picketing for recognition
throughout this 2-month period; and (4) the timing of
the asserted change in objective suggests that it was
merely an attempt to cleanse the recently tainted recog-
nitional picketing.
Thus, we find, on the totality of the circumstances,
that the phase III picketing was at least in part for the
same ongoing recognitional object that was the aim of
the 2-1/2-month picketing in phases I and II that im-
mediately preceded the asserted unfair labor practice
picketing. Unlike the phases I and II picketing, how-
ever, the phase III picketing obviously was not for the
purpose of truthfully advising the public that Olympic
does not employ members of, or have a contract with,
the Respondent, and it therefore was outside the scope
of the protection of the publicity proviso. Accordingly,
because the phase III picketing was recognitional, was
conducted for more than 30 days from the March 10
start of the Respondent’s picketing for a recognitional
object without a representation petition under Section
9(c) having been filed, and was not protected by the
publicity proviso, we conclude that it violated Section
8(b)(7)(C).
CONCLUSIONS OF LAW
1. Bayley and Olympic are employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By picketing Olympic on May 26 and 27, 1992,
with an object of forcing or requiring Olympic to rec-
ognize or bargain with it as the representative of
Olympic’s employees, without a petition under Section
9(c) of the Act having been filed within 30 days from
the March 10, 1992 commencement of its picketing for
a recognitional object, and for the purpose of truthfully
advising the public that Olympic did not employ mem-
bers of, or have a contract with it, but where the effect
of that picketing was to induce individuals employed
by other persons in the course of their employment not
to pick up, deliver, or transport goods and not to per-
form services, the Respondent has engaged in an unfair
labor practice affecting commerce within the meaning
of Section 8(b)(7)(C) and Section 2(6) and (7) of the
Act.
4. By picketing Olympic from May 28 through June
29, 1992, with an object of forcing or requiring Olym-
pic to recognize or bargain with it as the representative
of Olympic’s employees, without a petition under Sec-
tion 9(c) of the Act having been filed within 30 days
from the March 10, 1992 commencement of its picket-
ing for a recognitional object, the Respondent has en-
gaged in an unfair labor practice affecting commerce
within the meaning of Section 8(b)(7)(C) and Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(b)(7)(C)
of the Act, we shall order it to cease and desist and
to take certain affirmative action designed to effectuate
the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Plumbers and Pipe Fitters Local Union
No. 32, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL–CIO, Seattle,
Washington, its officers, agents, and representatives,
shall
1. Cease and desist from picketing Olympic Plumb-
ing and Heating, Inc. with an object of forcing or re-
quiring that employer to recognize or bargain with the
Respondent as the representative of the employer’s em-
ployees, without a petition under Section 9(c) of the
Act having been filed within a reasonable period of
time not to exceed 30 days from the commencement
of such picketing, even if the purpose of such picket-
793PLUMBERS LOCAL 32 (ROBERT E. BAYLEY CONSTRUCTION)
19 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ing is truthfully advising the public that the employer
does not employ members of, or have a contract with
the Respondent, if the effect of the picketing for such
purpose is to induce individuals employed by other
persons in the course of their employment not to pick
up, deliver, or transport any goods or not to perform
any services.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its office and meeting halls copies of the
attached notice marked ‘‘Appendix.’’19 Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Deliver to the Regional Director for Region 19
signed copies of the notice in sufficient number for
posting by Olympic, if willing, at all places where no-
tices to employees are customarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND 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 or-
dered us to post and abide by this notice.
WE WILL NOT, nor will our officers, business rep-
resentatives, business agents, or anyone acting for us,
whatever his title may be, picket Olympic Plumbing
and Heating, Inc. with an object of forcing or requiring
that employer to recognize or bargain with us as the
representative of the employer’s employees, without a
representation petition under Section 9(c) of the Na-
tional Labor Relations Act having been filed within a
reasonable period of time not to exceed 30 days from
the commencement of such picketing, even if the pur-
pose of such picketing is truthfully advising the public
that the employer does not employ our members, or
have a contract with us, if the effect of such picketing
for such purpose is to induce individuals employed by
other persons in the course of their employment not to
pick up, deliver, or transport any goods or not to per-
form any services.
PLUMBERS AND PIPE FITTERS LOCAL
UNION NO. 32, UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUSTRY
OF THE UNITED STATES AND CANADA,
AFL–CIO