United Food And Commercial Workers International Union, Local Union 23, Afl-Cio-Clc

116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Food and Commercial Workers International Union, Local Union 23, AFL-CIO-CLC and Vic's Markets, Inc. d/b/a Cranberry Mall Shop IN Save. Case 6-CP-421 27 February 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 28 June 1985 Administrative Law Judge Rus- sell M. King Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an opposing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's' rulings, findings,' and conclusions and to adopt' the recommended Order. The judge found that the Respondent Union vio- lated Section 8(b)(7)(C) of the Act by picketing at the Cranberry Mall Shop 'N Save (the Employer), primarily to obtain recognition, without a petition under Section 9(c) having been filed within a rea- sonable period of time from the commencement of such picketing. The Union in its exceptions con- tends, inter alia, that the judge. erred by failing to conclude that a' meritorious 8(a)(2) charge in an earlier case filed against the -Employer, Case 6- CA-17666, served as a complete defense to the finding of an 8(b)(7)(C) violation in the instant case. The General Counsel, in her answering brief, contends that the Board has long ' held that the filing of meritorious charges under Section 8(a)- save those involving a meritorious 8(a)(5) refusal- to-bargain charge-do not excuse a picketing union from the obligation to a file representation petition under Section 9(c). Hod Carriers Local 408 (Blinne Construction Co.), 135 NLRB 1153, 1166 fn. 24 (1962). We agree with the General Counsel that Blinne, above, controls the instant case. In Blinne, the Board, after reviewing the legislative history of Section 8(b)(7), determined that Congress was un- willing to write an exemption into Section 8(b)(7)(C) dispensing with the need to file a repre- sentation petition whenever employer unfair labor practices were alleged. In this regard, the Board i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings specifically noted that Congress rejected a pro- posed amendment to Section 10(1) that would have made any unfair labor practice under Section 8(a) a defense to a charge of an 8(b)(7) violation.2 Blinne recognized only one situation in which a represen- tation petition would not be required under Section 8(b)(7)(C): when a meritorious 8(a)(5) charge had been filed, which would moot the unresolved ques- tion concerning representation, and thereby result in dismissal of the petition. Here, the credited evidence clearly establishes that the Union's many months of picketing at the store had a recognitional object, albeit it may also have had other objects of protesting alleged area standards violations or protesting the Employer's alleged 8(a)(2) violations. No timely election peti- tion was filed, and no meritorious 8(a)(5) charge existed that would have mooted the- underlying question concerning representation. Accordingly, under Blinne, Section 8(b)(7)(C) is applicable and a violation of Section 8(b)(7)(C) has occurred. The judge also found that the outcome of the in- stant case was not affected by the Union's then pending appeal before the Third Circuit regarding the Regional Director's approval of informal settle- ment agreements in Case 6-CA-17666 as well as in other related cases filed by the Union against the predecessor employer and the allegedly , as uniona Because the issuance of the judge's deci- sion, the Third Circuit on 16 April 1986 vacated the informal settlement agreements and remanded the cases to the Board for an evidentiary, hearing on the Union's objections to the settlement agree- ments.4 The Board thereafter filed a petition for certiorari before the Supreme Court, which was granted on 12 January 1987. In our view, these subsequent events do not warrant a contrary result for the same reason, set forth above, that even a meritorious 8(a)(2) charge is not a defense to an al- leged 8(b)(7) violation, Blinne, above. At most, a meritorious 8(a)(2) charge precludes application for a restraining order pursuant to Section 10(1). Thus, even if, as a result of a later Court ruling, the earli- er unfair labor practice charges ultimately should go to a hearing and be found meritorious-and therefore a valid object of the picketing-the fact remains that the Union picketed the Employer's 2 Blinne at 1165 Sec 10(1) merely provides, in pertinent part, that a Board "officer or regional attorney shall not apply for any restraining order under section 8(b)(7) if a charge against the employer under section 8(a)(2) has been filed and after the preliminary investigation, he has rea- sonable cause to believe that such charge is true and that a complaint should issue." 3 The judge relied on the approval of the settlements as having "re- moved any possibility that unfair labor practices could be a valid objec- tive of picketing in this case, notwithstanding the fact that the [U]mon objected to the settlement[s] 4 788 F.2d 178 283 NLRB No. 21 FOOD & COMMERCIAL WORKERS LOCAL 23 (CRANBERRY MALL) store with a recognitional object for more than 30 days without a representation petition having been filed and thereby violated Section 8 (b)(7)(C).5 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United Food and Commerical Workers International Union, Local Union 23, AFL-CIO-CLC, its offi- cers, agents, and representatives, shall take the action set forth in the Order. 5 The judge concluded that the Union unlawfully picketed at the store between 24 September 1984 and 26 April 1985, the date a temporary in- junction was obtained. We note, however, that the start of the 10(b) limi- tation period was 4 October 1984. Therefore, and in light of our decision, the finding of a violation dates from 4 October 1984. Accordingly, we amend Conclusion of Law 3 to read as follows: "That by picketing the Company's Mars, Pennsylvania store with picket signs between 4 Octo= her 1984 and 26 April 1985, the Respondent Union violated Section 8(b)(7)(C) of the Act " Barton A. Myers, Esq., for the General Counsel. Peter J. Ford, Esq., of Washington, D.C., and James A Reehl, Esq., i of Pittsburgh, Pennsylvania, for the Union. Daniel Cooper, Esq., of Monroeville, Pennsylva- nia, for the Charging Employer. DECISION STATEMENT OF THE CASE RUSSELL M. KING JR., Administrative Law Judge. This case was heard by me in Pittsburgh, Pennsylvania, on 14 and 15 May 1985. The charge was filed by the Employer, Vic's Markets, Inc. d/b/a Cranberry Mall Shop `N Save (the Store or Company) on 4 April 1985,2 and the complaint was issued on 19 April 1985 by the Regional Director for `Region 6 of the National Labor Relations Board on behalf of the General Counsel.3 The complaint alleges that the United Food and Commercial Workers International Union, Local Union 23, AFL- CIO-CLC (the Union) unlawfully demanded that the Company recognize it as the exclusive collective-bargain- ing representative of its employees at its store in Mars, Pennsylvania, by unlawfully picketing the store with signs indicating that the Store had committed unfair labor practices and did not comply with area standards, all in violation of Section 8(b)(7)(C) of the National Labor Relations Act.4 Reehl was not present on the second day of the hearing. The word "store," when used, will also and often refer to the actual facility involved in the case ' The term "General Counsel," when used, will normally refer to the attorney in the case acting on behalf of the General Counsel of the Board through the Regional Director 4 29 U S C. § 151 et sets Sec 8(b)(7) reads as follows- It shall be an unfair labor practice for a labor organization or its agents- (7) to picket or cause to be picketed, or threatened to picket ors cause to be picketed, any employer where an object thereof is forc- ing or requiring an employer to recognize or bargain with a labor 117 The Union, in its answer, defends the complaint on four grounds. First,, the Union contends the picketing was not for recognitional purposes. Second, the Union alleges that at the time of the picketing, there was a pending unfair labor practice charge by the union against the store that has not been remedied because of an in- valid settlement agreement. Third, the union claims that the complaint alleges unfair labor practices barred by the limitation period contained in Section 10(b) of the Act, and thus the entire complaint should be dismissed. Last, the Union contends that the picketing the Union engaged in was protected by Section 8(c) of the Act and the first amendment to the United States Constitution. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General, Counsel and counsel for the union, I make the following FINDINGS OF FACT5 1. JURISDICTION The pleadings and admissions established the following jurisdictional facts. At all times material, the Company, a Pennsylvania corporation with facilities located in Pitts- burgh, Gibsonia, and Mars, Pennsylvania, has been en- gaged in the retail sale of groceries. The Company's organization as the representative of his employees , or forcing or re- quiring the employees of an employer to accept or select such labor organization as their collective-bargaining representative, unless such labor organization is currently certified as the representative of such employees. (A) where the employer has lawfully recognised , in accordance with this Act [subchapter] and other labor organization and a question concerning representation may not appropriately be raised under Section 9(c) of this Act [section 159(c) of this title]. (B) where, within the preceding twelve months a valid election under Section 9(c) of this Act [section ,159(c) of this title] has been conducted, or (C) where such picketing has been conducted without a petition under Section 9(c) [section 159(c) of this title] being filed within a reasonable period of time not to exceed thirty days from the com- mencement of such picketing Provi4ed, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of Section 9(c)(1) [section 159(c) of this title] or the ab- sence of a showing of a substantial interest of the labor organiza- tion, direct an election in such a unit as the Board finds to be ap- propriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to pro- hibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that anemployer does not employ members of, or have a contract with, a labor organiza- tion, 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 Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this Sec- tion 8(b) [this subsection]. 5 The facts found are based on the record as a whole and on my obser- vation of the witnesses. The credibility resolutions have been derived from a review of the entire record, with due regard for the logic of prob- ability, the demeanor of the witnesses, and the teaching of NLRB v. Walton Mfg. Co, 369 U.S. 404, 408 (1962). Regarding those testifying in contradiction of the findings, their testimony has been discredited either as having been in conflict with the testimony of credible witnesses, or because it was in and of itself incredible and unworthy of belief 411 testi- mony and evidence, regardless of whether or not mentioned or alluded to, has been reviewed and weighed in light of the entire record 118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD store in Mars is the only facility directly involved in this case. The Company purchased and commenced oper- ations at the Mars' store about 24 September 1984,6 and in the course and conduct of its business operations at the Mars' store the Company has derived gross revenue in excess of $500,000. Also during that period the,-Com- pany, in the course and conduct of its business oper- ations, purchased and received at its Mars' store prod- ucts, goods, and materials valued in excess of $50,000 di- rectly from points located outside of the Commonwealth of Pennsylvania. Thus, I find, as alleged and, admitted, that the Company has been at all times material an em- ployer engaged in commerce within , the meaning of Sec- tion 2(2), (6), and (7) of the Act. Also, as alleged and admitted, I find that at all times material the Union has been, and is now, a labor organi- zation within the meaning of Section 2(5) ofthe Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background and Initial Facts Victor Wukits, the company's president, purchased the store in Mars on 24 September from Charlie Brothers Company, Inc. (Charlie's), and thus became a successor employer. In April Charlie's had granted recognition to the United Steelworkers of America, Local 23 (Steel- workers) as the exclusive collective-bargaining represent- ative of its nonsupervisory employees, and in May Char- lie's entered into a collective-bargaining agreement with the Steelworkers effective 29 April 1985 and expiring 30 April 1988. The Union in this case was apparently a competing union with the Steelworkers in the Spring of 1984 and after Charlie's recognized the Steelworkers, the Union in this case filed unfair labor practice charges against both Charlie's and the Steelworkers, alleging that Charlie's had unlawfully recognized and given aid and support to the Steelworkers in violation of Section 8(a)(2) of the Act, and that the Steelworkers had unlaw- fully accepted such recognition in violation of Section 8(b)(1)(A) of the Act. The Regional Director issued a complaint against Charlie's and the Steelworkers as a result of the charge. Wukit's knew of this fact when he purchased the store on 24 September and he also knew that the Union in this case had been picketing the store since at least July. However, when Wukits purchased the store he also recognized the Steelworkers as the collec- tive-bargaining representative of the employees and adopted the contract that had been entered into between Charlie's and the Steelworkers effective 29 April. As a result thereof, the Union continued picketing the Store, continued to obtain its own signed union authorization cards from the employees, and continued to pursue orga- nizing attempts at the Store. It was stipulated' in the case that during the months of May, June, and July the union had obtained 73 signed union authorization cards from the Store's employees and further obtained an additional signed card' in March 1985.7 On 5 October the Union 6 All dates in July through December are in 1984,,and all dates in Jan- uary through June are in 1985 - ' From the record in this case, it cannot be concluded that these 74 cards constituted a majority of the store 's nonsupervisory employees filed additional unfair labor practice charges against the Store and its new owner and on 14 November the ,Re- gional Director issued a complaint against the Store, which again charged the Store with unlawfully recogniz- ing and rendering unlawful assistance and support to the Steelworkers, in violation of Section 8(a)(2) of the Act (Case 6-CA-17666). Throughout 'this period of time the Union continued to picket the Store with picket signs which included allegations that the store was guilty of unfair labor practices. On 26 November a settlement was entered into by the Store and the Steelworkers in the earlier case against Charlie's and the more recent case against the Store, and although the Union in this case was listed as a party to that settlement agreement, it re- fused to enter into the agreement. The Regional Director approved the settlement over the objections of the Union, and the Union appealed that approval to the Gen- eral ' Counsel, who denied' the appeal on 22 January. a The major thrust of the settlement was the rejection by the Store of the Steelworkers and their earlier contract. After this settlement the Union continued to picket the Store with signs alleging unfair labor practices, and con- tinued its attempts to obtain recognition by the Store and its owner, Wukits. This picketing ceased on 6 March 1985 but again commenced on 18 March,9 but with the picket signs alleging the failure of the Store to meet area standards. On 8 April the picket signs were again changed to allege unfair labor practices by the Store. Prior to the 26 November settlement, the Union had not filed a petition for representation with the Board, appar- ently because of the pending unfair labor practice charges by the Union both against Charlie's and the Steelworkers, and later against the Store's new owner- ship, and the Board's so-called "blocking policy," under which a labor organization could not obtain a Board- conducted election during the pendency of unfair labor practice charges. After the cases themselves were settled and the Union's appeal to the General Counsel of the set- tlement approval by the Regional Director was denied on 22 January, about 26 February the Union filed ' a; peti- tion for review of that approval in the United States Court of Appeals for the Third Circuit and the record in this case reflects as yet no final disposition of that' peti- tion for review.' ° As indicated earlier, the Union's pick- eting at the store continued with only a short interrup- tion between 6 and 18 March. The Union to date has not filed a petition for representation with the Board pursu- ant to Section 9(c) of the Act. The Regional Director issued the complaint in this case on 19 April and pursu- ant to Section 10(1) of the Act, also obtained a temporary injunction against the Union and its picketing in the ap- 9 In his brief, counsel for the Union alleges that settlement negotiations were held and the settlement, was reached without the Union's knowl- edge, and cites a statement to that effect in his letter of appeal to the General Counsel That letter of appeal was admitted into evidence, over the objection of the General Counsel. Other than the allegation in the brief and the statement in the letter of appeal, there is no other record evidence or testimony to support the contention. 9 The Union claims the picketing again commenced on the 25 March This dispute will be discussed later 10 Throughout all the appeals the Union has requested an evidentiary hearing on its objections to the settlement agreement FOOD & COMMERCIAL WORKERS LOCAL 23 (CRANBERRY MALL) propriate United States District Court on 26 April. That' temporary injunction presumably will remain in effect until final disposition of this case. B. The Specific Acts of Picketing and Organizational Attempts of the Union As indicated earlier, picketing at the store commenced in July 1984, and except for a short period in March 1985, the picketing continued on a daily basis until the Union was legally enjoined from such picketing on 26 April. This picketing normally consisted of two individ- ual picketers and at least one picket sign , and except for the period between 18 March and 8 April, the picket signs alleged that the store was guilty of unfair labor practices. Victor Wukits purchased the store on 24 Sep- tember but prior thereto, and sometime in early to mid- September, Union trustee Carl Huber telephoned Wukits and indicated that he wanted to talk to Wukits about "accreting" the collective-bargaining contract which the Union had recently negotiated and entered into , with the other two stores that Wukits owned . At that time Wukits essentially rejected any such conversations." Sometime in mid-October two individuals identifying themselves as representing the Union came into the store, one of which was Black. Wukits testified that the black individual identified himself as one "Gregory Hazlett" or something similar.' a Wukits testified that the black man gave him "a card," which he has since lost, and that this individual also indicated that he wanted to speak to him about get- ting rid of the pickets in front of the store , and further indicated that he wanted to discuss a collective-bargain- ing agreement with him. Wukits referred both individ- uals to a firm named Human Resources Management, Inc. (HRM), a labor consulting firm that represented Vic's Markets, Inc. In late January union business agent Patrick Monaco, who was assigned by the Union to ad- minister the two contracts at the company 's other stores, telephoned , the .store's roving Supervisor James Maccag- lia and asked him to speak to Wukits about accreting the other two contracts to the Mars Store.' 3 Maccaglia testi- fied that he related his conversation to Wukits, who never responded to Monaco's request. Thus, and ap- proximately 2 weeks later, Monaco again telephoned Maccaglia with the same request, and again Wukits never responded. In approximately mid-February Monaco talked with Wukits in person at the Gibsonia store and according to Wukits, Monaco stated, "... if you sit down and talk to him [Union trustee Huber] about accreting the contract, he'll get the pickets out of there." Wukits then indicated his desire not to discuss the matter of accretion and that he did not ' think it would be legal to engage in such discussions, and again referred Monaco to his labor consultant HRM, indicating that he should specifically contact one Richard Goclano 11 Carl Huber did not testify in the case. 12 It was stipulated in this case that one Gregory C. Hamblet was an employee of the United Food and Commercial Workers International Union and was assigned to assist the Union (Local 23) in the Pittsburgh area in organizing activities during the period from 6 October to the end of October 1984, and that he was a black man. No individual by the name of "Hazlett" or Hamblet testified in the case. 13 Patrick Monaco also did not testify in the case. 119 of TIRM. Goclano+ testified that Monaco did telephone him in late February about attempting to set up a- meet- ing with himself, Union Trustee Huber and Wukits to discuss recognition of the Union and the implementation of a contract at the Mars store . According to Goclano, Monaco also related that he had attempted to set up such a meeting directly with Wukits and Maccaglia, but had been unsuccessful. Goclano's reply to Monaco's request was negative at that time, 'and Goclano met in person with Monaco the first week of March 1985 , whereupon Monaco renewed his request for a meeting to discuss recognition and a contract at Mars , and Goclano firmly indicated that at that time that he did not think such a meeting and discussions would be appropriate. On 6 March 1985 the pickets at the Store were re- moved and two staff organizers for the Union came to and entered the store and had conversations with at least two employees and also handed them cards. Supervisor Maccaglia was in the Store at that time and after watch- ing this activity he asked both organizers to leave, and after a short confrontation both organizers left. t 4 Mac- caglia indicated that later on that afternoon one of the organizers returned and approached employee John Pe- terman who was outside of the Store collecting shopping carts in the parking lot. Peterman testified that he was approached by organizer Krampert while in the parking lot and that Krampert suggested they both meet in a local bar after work. Peterman did meet Krampert in the bar after work and Peterman testified that Kfampert asked him to sign a union authorization card, which he did, but using a false last name. The two staff organizers continued to solicit employees outside of the Store and in the parking lot for a period of time after March 6 but according to Kean, their attempts to solicit the support of the store's employees were unsuccessful.' 5 According to Maccaglia and Wukits, the pickets reappeared-in front of the Store on 18 March and the picket signs then al- leged that the Store violated area wage and other stand- ards, as opposed to alleging that the Store was guilty of unfair labor practices.' 6 14 One Ronald Kean testified on behalf of the Union in this case His position was the director of organizing for the union . Kean admitted that he sent the two staff organizers to the store on 6 March and identified them as Sandra Thompson and Douglas Krampert is Store Supervisor Maccagha indicated that the two staff organizers remained outside for a 2-week period after 6 March, but Kean testified that they remained only 1 week. Other than Kean, the director of orga- nizing, only one other witness was called on behalf of the Union in the case and that was the Union 's bookkeeper, Rita Nist. 16 There is a dispute in this case about whether the pickets reappeared on 18 or 25 March Bookkeeper Rita Nist was called , for the purpose of proving that the picketing resumed on 25 March, through certain records that she kept All of the pickets at the Store had been hired, outside pick- ets Nist was responsible for the union's payroll and thus for making pay- ment to these pickets Certain of Nist's payroll records were admitted into evidence that did tend to indicate that payments did not resume until 25 March However, she also conceded that the ' information in her records were derived from reports she had received and both she and Kean conceded that they never visited the Store at any time relevant in this case. On the other hand, Wukits and Maccaglia were definite and certain in their testimony that the pickets reappeared on March 18, and I so find that such was the case 120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Union's attorney James Reehl sent a letter to the store which was received on 25 March. In that letter a demand was made that the store meet the minimum standards of wages, hours, and working conditions for all retail store employees in the area. The letter also con- tained the following statement : "This letter is not intend- ed as a demand upon you to sign a contract with Local 23 .... " The store's attorney, Daniel W. Cooper, re- plied to Attorney Reehl's letter on 3 April and that letter indicated the store's intention to file unfair labor prac- tices charges with the Board if the union's picketing con- tinued. On 4 April the Store did file such charges that eventually led to the issuance of the complaint in this case on 19 April. About 8 April the picket signs were again changed alleging the Company to be guilty of unfair labor practices, and on 26 April 1985 the Union was legally enjoined from picketing the store. C. Evaluation of Evidence and Law and Initial Conclusions Sometime prior to 24 September, the date the Compa- ny purchased the Mars store, Union Trustee Carl Huber approached the Company's President Victor Wukits and requested that Wukits recognize the union as the sole representative of the Store's nonsupervisory for employ- ees the purposes of collective bargaining. Huber also asked Wukits to extend the existing contracts at the Company's other two stores to the Mars' store by "ac- cretion."_-Wukits refused. 17 In mid-October two union representatives came to the store and talked to Wukits about getting rid of the pickets and discussing a collec- tive-bargaining agreement . In late January and, early Feb- ruary Union - Business Agent Monaco telephoned Store Supervisor Maccaglia and asked him to talk to Wukits about extending or "accreting" the union contracts with those existing at the Company's other two stores. In mid- February Monaco talked personally with Wukits at the Company's Gibsonia store about accreting the contract and getting rid of the pickets at the Mars store. In late February and early March Monaco talked the Compa- ny's labor consultant, Goclano, about the same subject.18 17 This conversation, among others, were alleged as specific violations in,the complaint. Because it was definitely outside the 6-month limitation period contained in Sec. 10(b) of the Act, at the hearing the Union moved to dismiss the entire complaint, or in the alternative, to strike any reference to the conversation in the complaint, citing Machinists Local 1424 (Bryan Mfg.) v NLRB, 362 US. 411 (1960) (also cited in the Union's brief) I ruled the reference to the conversation could remain in the complaint although indicating it could not, and would not constitute any violation of the Act, and that I would consider it, if at all, only as background evidence, and then only if supported by testimony in the case Huber did not testify in the case Wukits did creditably testify in the case, and about this and other conversations Accordingly, I accept the conversation and the reference to it in the complaint only as background evidence. I note also that Bryan Mfg. supra, also held that when occur- rences within the 10(b) limitation period in and of themselves constitute unfair labor practices, earlier events may be utilized to shed light on the true character of the matters occurring within the limitation period. I thus find the Union's 10(b) limitation defense to be without merit. is The settlement agreement in the earlier unfair labor practice case was admitted into evidence It was approved by the Regional Director on 27 November and contained an immediate 60-day posting provision and a notice that was extensive and complete Thus, a considerable part of the timeframe involved was also a posting period for the Store Both Wukits and Goclano testified that they had doubts about the legality of From 6 to 18 March the pickets were removed and on 6 March the Union admittedly sent two organizers to the store to solicit support for the union and signed Union authorization cards. Although they actually entered the store on-6 March they continued their organizing activi- ties outside of the store until 18 March, when pickets reappeared with picket signs then alleging the store's fail- ure to follow area standards. Some 21 days later, on 8 April, the picket signs were changed back to allege unfair labor practices by the store. The pickets and signs remained until the temporary injunction was obtained on 26 April. Section 8(b)(7) of the Act was added by Congress to the Act in 1959 to proscribed picketing by an uncertified Union when "an" object of such picketing is recognition or organization. Laborers Local 840 (Blinne Construction, 135 NLRB 1153 (1962). If either recognition or organiza-, tion is found to be "an" object of the picketing, the limi- tations of Section 8(b)(7) will apply despite the existence of other legitimate objectives. Machinists Local 1173 (Alabama Motors), 266 NLRB 91 (1983); Electrical Work- ers IBEW Local 265 (R P & M Electric), 236 NLRB 1333 (1978), enfd. 604 F.2d 1091 (8th Cir. 1979); Houston Bldg. Trades Council (Everett Construction), 136 NLRB 321 (1962).19 More specifically Section 8(b)(7) makes unlaw- ful organizational or recognitional picketing by an uncer- tified union when another union has been lawfully recog- nized by the employer under Section 9(c) of the Act (8(b)(7)(A)), when a valid election had been held within the preceeding 12 months (8(b)(7)(B)), or when no peti- tion for an election had been filed within a reasonable period of time not to exceed 30 days from the com- mencement of the picketing (8(b)(7)(C)), as alleged in this case. The object of the picketing must be ascertained from the union's overall conduct. Operating Engineers Local 4 (Seward Construction), 193 NLRB 632 (1971); Teamsters Local 618 (S & R Auto Parts), 193 NLRB 714 (1971). This may include events which precede as well as those that accompany the picketing. Retail Clerks Local 345 (Gem of Syracuse), 145 NLRB 1168, 1172, (1964). Other factors that tend to show a recognitional or orga- nizational objective include oral requests to employees to join the Union and an indication that pickets will be re- moved only when recognition is received. Gem of Syra- cuse, supra; Retail Clerks Local 212 (Maxam Buffalo), 140 NLRB 1258, 1265 (1963). - I find and conclude in this case that the Union's pick- eting at the Mars' store after 24 September was'primarily (if not solely) to obtain recognition, and thus violative of Section 8(b)(7)(C)'of the Act as alleged in the complaint. I find that the Union's temporary ' change to claims of violations of area standards by the store is in no way in- consistent with the above conclusion. Electrical Workers IBEW Local 265 (R P & M Electric), supra. I further find that the pending appeal before the Third Circuit regard- even talking to any of the Union's representatives during the posting period 19 In its brief, the Union curiously avoids headon the issue of "organi- zational" picketing, although the record reflects there was organizing at- tempts or activity by the Union after the Company purchased the store on 24 September. FOOD & COMMERCIAL WORKERS LOCAL 23 (CRANBERRY MALL) ing approval of the settlement of the earlier cases does not affect the outcome of this case. The administrative determination by the General Counsel to dispose of those cases removed any possibility that unfair labor practices could be a valid objective of picketing in this case, not- withstanding the fact that the Union objected to the set- tlement. Waiters & Bartenders Local 500 (Mission Valley Inn), 140 NLRB 433 (1963).20 In its brief, the Union cites two cases as contrary authority, Hotel & Restau- rants Employees Local 274 (Warwick Caterers), 269 NLRB 482 (1984), and Mistletoe Express Service, 268 NLRB 1245 (1984). In my opinion, those cases are distinguishable from this case. In Warwick the Union had filed 8(a)(5), (3), and (1) charges against the employer claiming repre- sentation under the successorship or alter ego theory. The Regional Director dismissed the charges and the General Counsel approved the dismissal. The union then picketed the employer, who thereafter filed 8(b)(7)(C) charges against the union and the Regional Director issued a complaint based on those charges. The judge found a violation after refusing to consider the union's representation defense, which was the basis of its earlier 8(a)(5) charge. The Board reversed and remanded the case to the judge with instructions to consider the union's defense. In the instant case there was no repre- sentation issue or 8(a)(5) issue, and no incumbent or in- tervenor union after the earlier settlement. See Blinne Construction Co., supra. Mistletoe was a representation case. The petitioning union filed a representation petition with the Board and thereafter Sections 8(a)(2) and 8(b)(l)(A) unfair labor practice charges against the Em- ployer and intervenor Union. The Regional Director ul- timately decided to grant the petitioning Union's request to waive the Board's blocking rule and proceed with the representation case, including both Unions. The Employ- er appealed the Regional Director's decision to the Board, alleging that the pending 8(a)(2) charge should block the representation proceeding, and the Board agreed. Again, in the instant case there is no representa- tion issue. The Union's fourth defense in its answer al- leged that the Union's picketing was protected by Sec- tion 8(c) of the Act and the first amendment to the Con- stitution, i.e., a freedom of speech assertion. I also find this defense to be without merit, and I note further in this regard that the defense was not mentioned or dis- cussed in the union's brief. On the foregoing findings of fact and initial conclu- sions, and on the entire record, I make the following CONCLUSIONS OF LAW 1. That the Charging Company is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. That the Respondent Union is a labor organization within the meaning of Section 2(5) of that Act. 20 The Union's appeal is based on the Third Circuit's holding in Leeds & Northrup Co. v NLRB, 357 F.2d 5-29 (1966), wherein the court held that a' charging party is entitled to an evidentiary hearing, on its objec- tions to an informal settlement agreement The circuits are split on the issue, and as counsel well knows, I am duty bound to follow Board law in the absence of a clear U S. Supreme Court mandate I note again, however, that the posted notice included in the settlement is lengthy and appears to be complete 121 3., That by, picketing the Company's Mars, Pennsylva- nia store with picket signs between 24 September 1984 and 26 April 1985, the Respondent Union violated Sec- tion 8(b)(7)(C) of the Act. 4. That the violation found in paragraph 3 above, af- fected commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Union, United Food and Commercial Workers International Union, Local Union 23, AFL-CIO-CLC has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action that we find necessary to effectuate the policies of the Act, as set forth below. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2l ORDER The Respondent, United Food and Commercial Work- ers International Union, Local 23, AFL-CIO-CLC, its officers, agents, successors, and assigns, shall 1. Cease and desist from picketing, or causing to be picketed, the premises of the Employer, Vie's Market Inc. d/b/a Cranberry Mall Shop `N Save, with an object of forcing or requiring the Employer to recognize or bargain with the Union as the representative of its em- ployees or to force or require the employees of the Em- ployer to accept or select the Union as their collective- bargaining representative, the Union not being currently certified as the representative of such employees, and a petition under Section 9(c) of the Act not having been filed within a reasonable period of time from the com- mencement of such picketing. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its business offices copies of the attached notice marked "Appendix."22 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted., Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 21 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 22 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."