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National Labor Relations Board v. Building and Construction Trades Council of Delaware

argued: May 2, 1978.



Seitz, Chief Judge, Van Dusen and Rosenn, Circuit Judges.

Author: Seitz

SEITZ, Chief Judge.

The National Labor Relations Board petitions for enforcement of its Order issued against Building and Construction Trades Council of Delaware (Council) and the Council cross-petitions for review.

The Board found that the Council violated Section 8(b)(7)(C) of the National Labor Relations Act*fn1 by picketing the Pettinaro Construction Company, Inc. ("the Company") at its United States Postal Service project with an object of forcing or requiring the Company to recognize and bargain with local unions affiliated with the Council, although neither the Council nor any of its locals was certified as the bargaining representative of the Company's employees and no election petition was filed within 30 days after commencement of the picketing.

After concluding that the Council violated the Act, the Board imposed the following remedy:

"Cease and desist from picketing or causing to be picketed, or threatening to picket or cause to be picketed, Pettinaro Construction Co., Inc. or any other employer, where an object thereof is forcing or requiring said Employer to recognize or bargain with Respondent Council or its affiliated locals, as the collective-bargaining representative of its employees, or for the purpose of forcing or requiring the employees of said Employer to accept or select Respondent Council or its affiliated locals as their collective-bargaining representative, under circumstances which would violate Section 8(b)(7)(C) of the Act, as amended." (Emphasis added.)

The Council contends that we should deny enforcement on the ground that there is insufficient evidence in the record to support the findings of the Board. In addition, the Council asserts that the cease and desist Order is impermissibly broad to the extent that it includes "any other employer."


We first determine whether there was substantial evidence to support the Board's findings of an unfair labor practice.

About January 16, 1976, the U.S. Postal Service awarded the Company a $7,625,000 general contract to construct a mail and vehicular maintenance facility in New Castle County, Delaware. In early January, shortly before it was awarded the contract, Company President Pettinaro and Vice-President Alfred Bertomeu met with Council President Theodore Ryan and asked whether the Company would "once again be picketed and bothered by the . . . Council." Ryan said that while he "could not speak for his membership," because the Company was "the biggest non-union contractors [sic] in the state . . . [he] would like [the Company] . . . to be the first to sign an agreement to use only union subcontractors." Nothing was done by the Company to accomplish such an agreement. On February 9, the first Company employee hired for the Postal Service project, a carpenter, commenced work at a wage of $10.98 per hour, including fringe benefits, the then prevailing area wage. He was the only employee on the project until March 22, 1976, when an apprentice carpenter commenced work. Commencing on February 23, 1976, and continuing to April 1, 1976, there was an interchange of letters between the Council and the Company. In its letters, the Council took the position that the Company's pay and benefit standards on the project were substantially beneath those which prevailed in the area. In its letters the Company took the position that it was complying with area standards for all of its employees on the project.

On April 1, 1976, the Council commenced picketing at the construction site. The picket signs protested the Company's pay practices as being beneath those which were considered the area standards and protested the destruction of these area standards. Though the picketing continued without interruption for over 30 days, neither the Council nor any of its affiliated locals petitioned the Board for an election.

The Board found that Ryan's reference to "union subcontractors" meant those subcontractors who had a bargaining relationship with locals affiliated with the Council. Ryan's statement regarding the subcontractors, the Board concluded, was "a clear signal . . . that picketing could be avoided by signing "a subcontracting agreement. It is recognized that picketing of a non-union general contractor that is directed at obtaining a subcontracting agreement "has the proscribed 'recognitional' purpose as at least one of its objectives." Hirsch v. Building and Construction Trades Council of Philadelphia and Vicinity, 530 F.2d 298, 303 (3rd Cir. 1976).

The Board concluded that, under the circumstances, Ryan's statement respecting the desirability of a subcontracting agreement was a manifestation of an organizational and recognitional purpose in the subsequent picketing. On this record we believe the Board was warranted in finding that there was reasonable cause to believe that the Council's ...

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