Food & Commercial Workers Local 23 (S & I Valu King)

986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Food and Commercial Workers International Union, Local Union 23, AFL-CIO-CLC and Thomas Suleiman, a Sole Proprietor, d/b/a S & I Valu King. Case 6-CP-434 May 17, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On March 6, 1986, Administrative Law Judge William A. Gershuny issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in op- position to the Respondent's exceptions. 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 only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(b)(7)(C) of the Act by picketing on and after November 24, 1985, with an object to force the Employer2 to recognize the Respondent as the exclusive representative of its employees when no petition had been filed within 30 days from the commencement of the picketing. 3 We disagree with the judge's finding that no petition was pend- ing during the period of the Respondent's picket- ing. On May 30, 1985, the Respondent filed a petition seeking to represent certain employees at a store owned by Mario A. Morini. 4 Thereafter, on June 20, 1985, a Stipulated Election Agreement was exe- cuted by the parties. However, the stipulation cov- ered two stores owned by Morini. The stipulation, 1 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. 2 The Employer refers to Charging Party Thomas Suleiman, a sole propnetor, d/b/a S & I Valu King. 3 The Board has held that in order to find a violation of Sec. 8(bX7)(C), it must be found that a union (a) picketed an employer (b) with a recogmtional or organizational objective (c) where it has not been currently certified as the collec- tive-bargaining representative of that employer's employees and (d) where the picketing continues without a representation petition being filed with the Board within a reasonable period of time, not to exceed 30 days from the onset of the picketing. Hotel & Restaurant Employees Local 274 (Warwick Caterers), 269 NLRB 482 (1984). 4 The store was Mario A Monni, a sole proprietor d/b/a Franklin Plaza Giant Eagle in effect, amended the original petition to include Mario's Wampum Valu King store.5 Subsequently, on February 3, 1986, the Regional Director withdrew approval of the stipulation be- cause the Valu King store had been sold to Thomas Suleiman and its employees therefore were no longer employees of Morini. 6 The Regional Di- rector reinstated the notice of representation hear- ing previously issued with respect to Franklin Plaza Giant Eagle. The complaint alleges that since about Novem- ber 24, 1985, the Respondent continued to picket at Mario's Wampum Valu King with a recognitional object.7 The judge found that the Respondent's Novem- ber 24 and December 9 oral demands for recogni- tion as a condition precedent to the removal of pickets constituted conclusive evidence of an un- lawful objective. Therefore, the judge concluded that because no petition had been filed by the Re- spondent seeking to represent the employees of S & I Valu King, the Respondent's picketing of that store from about November 24, 1985, violated Sec- tion 8(b)(7)(C) of the Act. The Respondent argues that the petition in Case 6-RC-9585 was still pending before the Board as to both stores until February 3, 1986, when the Re- gional Director withdrew approval of the stipula- tion, dismissed the part of the petition amended to include the Vain King store, and reinstated the notice of hearing regarding Franklin Plaza Giant Eagle. The Respondent reasons that the petition could have been amended earlier to exclude the Valu King store as the Region did on February 3. Therefore, the Respondent submits that because the petition was not amended prior to February 3, al- though it could have been, the petition was still pending as to both stores until it was effectively amended by the Regional Director's actions on February 3. This petition, argues the Respondent, precludes as a matter of law a finding that the Re- spondent violated Section 8(b)(7)(C). The General Counsel argues that on the Re- spondent's receiving ample notice that the Valu 5 The stipulation included the following two stores. I. Mario A Morin% a sole proprietor d/b/a Franklin Plaza Giant Eagle. 2 Mario A. Mormi, a sole proprietor d/b/a Mono's Wampum Valu King 6 The judge found, based on admissions contained in the Respondent's answer, that about November 24, 1985, Monni's Valu King store was taken over by the Employer He further found that the Employer's owner, Suleiman, told store employees on November 22, 1985, that the store had been sold to him effective the following day, and that on No- vember 23, 1985, all references to Morim were removed from store signs and a large sign was posted in the window indicating the new ownership 7 On January 17, 1986, a temporary injunction was issued by the United States District Court for the Western Distnct of Pennsylvania, at which time the Respondent ceased picketing at that store. 288 NLRB No. 103 FOOD & COMMERCIAL WORKERS LOCAL 23 (S & I YALU KING) 987 Kitig store had been sold to a new owner, the peti- tion in Case 6-RC-9585 failed to satisfy the re- quirements of Section 8(b)(7)(C) as to the Yalu King store. According to the General Counsel, be- cause the Employer is not a party to the petition and would not be bound by any result of the peti- tion, the petition cannot serve to bar a violation of Section 8(b)(7)(C). Thus, the critical issue before us is whether the petition pending for the two stores continued in effect as to both stores until February 3, 1986, when the Regional Director withdrew his approval and, in effect, dismissed that position of the petition regarding the Yalu King store, or whether the peti- tion was automatically nullified as to the Yalu King store on the sale of the store, and notice to the Respondent, about November 24, 1985. In resolving what appears to be a novel question of Jaw, we hold that the Respondent's representa- tion petition insulated its picketing from the limita- tions of Section 8(b)(7)(C) up to the date on which the Regional Director effectuated a dismissal of the petition as it related to the Valu King employees. The dismissal did not occur until the Regional Di- rector, on February 3, 1986, withdrew his approval of the Stipulated Election Agreement insofar as it covered those employees. We therefore reject the General Counsel's theory that the sale of Valu King to Charging Party Suleiman, and the notice thereof to the Respondent, by their own force ren- dered the petition a nullity apart from any determi- nation to that effect by the Regional Director. Under Section 8(b)(7)(C), an uncertified union that engages in organizational or recognitional picketing beyond a reasonable period of time (not to exceed 30 days) commits an unfair labor practice unless it files a timely representation petition with the Board. Congress added this section to the Act in 1959 after concluding that an uncertified union's resort to economic self-help, which did not culmi- nate in a Board-supervised election, could be inimi- cal to employee relations and unduly disruptive of employer businesses. In an early interpretation of the statute and its legislative history, the Board ob- served that the filing of the petition does not sus- pend the union's right to picket. Rather, "picketing may continue pending the processing of the peti- tion."8 Moreover, with one significant exception not applicable here, 8 there is nothing in the lan- 8 Hod Carriers Local 840 (Bhnne Construction), 135 NLRB 1153, 1157 (1962) 9 In the absence of a timely petition, an employer's charge under the section will triggei an expedited election procedure, in which it will not be necessary to consider the union's showing of Interest or requirements of Sec 9(c)(1) It seems evident from the record that the expedited election procedure was not invoked here. guage of the statute that requires that the petition be treated any differently than an ordinary repre- sentation petition that is unaccompanied by picket- ing. The Regional Director, on behalf of the Board, will determine whether it presents a "ques- tion concerning representation," which is the statu- tory predicate under Section 9(c)(1) for authorizing an election." The petitioning union generally will satisfy this requirement if it can demonstrate that it is a "labor organization" as defined under the Act, that the employing entity is a covered "employer" whose business affects commerce, and that there is a sufficient showing of interest among "an appro- priate unit" of employees to put the question of union representation to a vote." If an election is ordered, and the union is certi- fied as the bargaining representative, then it may continue picketing free from the stricture of Sec- tion 8(b)(7) generally. Conversely, if the union loses the election, then paragraph (B) of Section 8(b)(7) supersedes paragraph (C) as a limitation on picketing—picketing is unlawful for the 12-month period following a valid election. There have been cases, however, where a Re- gional Director has concluded that the petition does not raise a proper "question concerning repre- sentation," and this conclusion leads to a dismissal of the petition. In Teamsters Local 639 (Dunbar Ar- mored), 211 NLRB 687 (1974), for instance, the union in compliance with Section 8(b)(7)(C) had si- multaneously picketed and sought an election for recognition as the bargaining representative of a guard union. The Board determined that because the union represented nonguard employees, Section 9(b)(3) foreclosed its certification as the petitioned- for guard unit's representative. Accordingly, the petition was found to raise no question concerning representation. Of special relevance to the instant case, the Board further held that the union violated Section 8(b)(7)(C) by continuing to picket after the date on which it was advised of the Regional Di- rector's approval of the petition's withdrawal.12 Significantly, despite the Board's characterization of the petition as a "nullity," there was no sugges- tion that this legal fact rendered the picketing un- lawful at its inception from the filing of the peti- tion. In sum, there is nothing in the statute, nor has the General Counsel pointed to any authority to support the proposition that a petition's validity, for purposes of assessing the legality of picketing, '° See NLRB v. Financial Institution Employees Local 1182, 475 U.S. 192, 198 (1986). ' See Board's Statements of Procedure, Sec. 101 18, 29 CFR § 101.18. 12 See also Teamsters Local 71 v. NLRB, 553 F.2d 1368, 1376-1377 (D.0 Cir. 1977), enfg 221 NLRB 1240 (1975). 988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD can be considered independently from the Regional Director's evaluation and disposition of it. What precedent there is puts no burden on the petition- ing party to make such an evaluation on its own. Indeed, as a practical matter, it is not entirely fair to expect a petitioner to assume such a role. In the instant case, for instance, it is true that the Re- spondent became aware that the Valu King store had been sold since the entry of the Stipulated Election Agreement. But the Respondent was not in any position to determine whether the sale was an arm's-length, successorship transaction, that would significantly alter the conduct of the elec- tion or, alternatively, whether it was confronting an alter ego situation that would not necessarily have affected the scheduled election nor altered the Respondent's picketing rights. In contrast to a pri- vate petitioner, the Regional Director, however, has the duty, expertise, and resources to inquire into such situations and to resolve them expedi- tiously in accord with Board law policy. More- over, we do not think that it is unduly burdensome for an employer such as the Charging Party here to initiate such a formal inquiry by moving to in- tervene in the representation case and asking the Board to vacate the direction of election." Section 8(b)(7)(C) places the onus on the employer to chal- lenge the union's picketing in the "C" case pro- ceeding; the Employer's charge here was tanta- mount to challenging the resolution of "R" case issues---questioning the continued propriety of the Union's petition and the Stipulated Election Agree- ment.14 We thus conclude that as of the time the Re- spondent is alleged to have violated Section 8(b)(7)(C)—namely, on November 24 and Decem- ber 9, when it demanded recognition as a condition of removing the pickets—the Respondent's conduct was insulated by the pendency of the previously filed petition. It was not until after the Regional Director dismissed the petition as to Valu King on February 3, 1986, in response to the Employer's charge, that the picketing lost its immunity. By that time, it appears that picketing had ceased and there is no evidence that the Respondent threatened to revive the picketing. In such circumstances, the complaint should have been dismissed.15 " See Board's Rules and Regulations, Sec 102.65(b) and (e)(1). 14 As a parenthetical observation, we note the absence of any evidence suggesting that the Union was exercising its petitioning rights in a frivo- lous or duplicitous manner merely to gain unwarranted picketing rights Thus, we have no occasion to determine whether such abuse of proce- dure would dictate a different result 15 As a procedural matter, we find it puzzling why the Regional Di- rector, having succeeded in obtaining a 10(1) injunction against the pick- eting on January 17, 1986, on the basis of the Employer's December 24, 1985 charge, waited until February 3 to dismiss the petition as to the Valu King store. The injunction presumably must have been supported Having found that a representation petition was pending during the period of the Respondent's picketing at Valu King, we conclude that the Re- spondent did not violate Section 8(b)(7)(C) of the Act." Accordingly, we shall dismiss the complaint in its entirety." ORDER" The complaint is dismissed. by a finding of no pending representation petition, notwithstanding the fact that the Regional Director did not enter the order dismissing the pe- tition until February 3 It would seemingly have been the better practice to dismiss the Respondent's petitions as to Valu King before or simulta- neously with the entry of the temporary injunction. In that way, the Re- spondent would have been on clear notice that any effort to picket Valu King would run afoul of Sec. 8(bX7)(C) unless it filed a new. petition. The failure to coordinate the imposition of the injunction with the dismis- sal of the petition did not work any confusion here, however, because the injunction did not lapse before the dismissal. Had there been a lapse, con- ceivably the Respondent would not have had a clear indication from the Regional Director as to the status of the petition " In light of our decision we need not pass on the Respondent's con- tention that the judge improperly disallowed its offers of proof regarding the relevancy of its evidence and defenses 17 We dismiss the complaint based on the particular circumstances here. In so doing, we find Laborers Local 133 (Whitaker & Sons), 283 NLRB 918 (1987), distinguishable from the present case and emphasize that the petition filed by the respondent union there was not supported by a necessary showing of interest and therefore clearly from its incep- tion did not raise a valid question concerning representation Barton Meyers, Esq., for the General Counsel, James Reehl, Esq., of Pittsburgh, Pennsylvania, for the Respondent. Frank. C Botta (Human Resources Management, Inc., of Pittsburgh, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM A. GERSHUNY, Administrative law Judge. A hearing was held on 28 February 1986 in Pittsburgh, Pennsylvania, on a complaint issued 15 January 1986 al- leging unlawful organizational picketing in violation of Sec. 8(b)(7)(C) of the Act. All parties waived their right to file posthearing briefs and counsel presented closing arguments. The single issue presented is whether Respondent's di- rector or organizing made oral demands to Charging Party for recognition during a telephone conversation in late November and during lunch on 9 December. On the entire record, including my observation of wit- ness demeanor, I hereby make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION AND LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that Charging Party Employer is an employer subject to the Act and that Respodnent is a labor organization within the meaning of Sec. 2(5) of the Act. FOOD & COMMERCIAL WORKERS LOCAL 23 (S & I VALU KING) 989 II. UNFAIR LABOR PRACTICES The answer admits all allegations of the complaint, except those relating to the oral demands for recognition. Thus, Respondent admits that it is not currently certified as the bargaining representative of Charging Party's em- ployees; that it commenced picketing at the Valu King food store, then owned by one Morini, about 15 August, with picket signs informing the public that Morini "has committed unfair labor practices"; that about 24 Novem- ber 1985, Charging Party "took over the operations of the facility formerly operated by Mario Morini and com- menced operations of its business"; and that, neverthe- less, it continued to picket at that food store with the same signs. Additional undisputed facts are reflected in a number of joint exhibits: that Respondent filed a representation petition on 30 May 1985, designating Morini as the em- ployer; that a stipulation for certification on consent election at Morini's two stores was filed on 20 June; that unfair labor practice charges were filed against Morini on 19 April and 30 August; that one of the charges dealt with allegedly unlawful conduct at the market that later was sold to Charging Party; that, on 26 July, the Re- gional Director decided to hold the petition in abeyance pending investigation of the charges; that complaints were issued against Morini on 26 June and 4 September and were consolidated on 4 September; that the com- plaints were settled on 4 February and 26 February 1986, providing for the posting of a notice at the two stores; that on 3 February the Regional Director withdrew ap- proval of the stipulation for consent election because one of Marini's stores had been sold to Charging Party here and employees at the store no longer 'were em- ployed by Morini; that the petiton for representation was reinstated; that on 17 January 1986 a temporary injunc- tion against Respondent here was issued out of the United States District Court for the Western District of Pennsylvania; and that Respondent has engaged in no further picketing at the store since issuance of the injunc- tion. It is also undisputed that Charging Party Suleiman told the store employees on 22 November that the store had been sold to him effective the following day; that Suleiman, on 23 November, removed all references to Morini from store signs and posted a large sign in the window indicating the new ownership; that, on 25 No- vember, an article indicating the change of ownership appeared in an Ellwood City newspaper of general circu- lation; that, when the pickets remained at the store, Su- leiman directed the store manager to contact the Re- spondent and obtain the name of the union official with whom he should speak; that, about 27 November, Sulei- man spoke by telephone with Respondent's director of organizing, Kean; and that, about 9 December, Suleiman met with Kean at lunch. In dispute is what was said during those two conversa- tions, The telephone conversation. Suleiman testified that he introduced himself as the new owner of the market and asked Kean to remove the pickets; that Kean asked whether he was willing to recognize the union; that he replied it was up to the employees to decide; and that Kean suggested they meet for lunch on 9 December. Kean, on the other hand, testified that he told Suleiman he had no knowledge of the new ownership; that he would meet with him to discuss it; and that he did not discuss recognition with Suleiman. I credit Suleiman's version of the telephone conversa- tion and find that Kean made an oral demand for recog- nition during the telephone conversation. Suleiman, who spoke with a heavy foreign accent, was a convincing witness whose testimony was clear and consistent. Kean's testimony, on the other hand, was vague to a dis- turbing extent, and I was unconvinced that his account of the conversation was accurate. It also conflicted with his affidavit, which made no reference to his concern re- garding Suleiman's ownership of the store. The luncheon meeting. Suleiman met with Kean and a female union organizer (who has no responsibilities as to the Morini/Suleiman picketing) at a local restaurant. Su- leiman testified that he told Kean his business was suffer- ing due to the pickets; that Kean said he would remove them if Suleiman would recognize the union; that he re- plied, again that it was up to the help to decide; that Kean should "run an election and let them decide"; that, at the end of the luncheon meeting, he asked Kean to give him a year to get started and to return in December 1986 to then talk about representation of employees at the store; that Kean replied he would have to talk with his "boss" and get back to him; and that, several days later, Kean told him that his "boss" refused to remove the pickets. Kean denied making a request for representation or discussing a 1-year moratorium. He testified that the dis- cussion concerned only the remoyal of the pickets and that he told Suleiman he could not, because that would demonstrate a lack of support for those few employees at the store who had signed authorization cards. He testi- fied that, in order to appear reasonable, he told Suleiman that he would check with his "boss" despite the fact he had complete authority over the picket line. Kean's testi- mony was corroborated by organizer Kaskie. Again, I find that Kean made an oral demand for rec- ognition at the luncheon meeting of 9 December, based on the testimony of Suleiman, which I credit. Kean's tes- timony again was vague, leaving me with the clear im- pression that he was not giving a full and fair account of the conversation. Kaslcie's testimony was even more vague and even less convincing. Section 8(b)(7(C) of the Act prohibits an uncertified union f om picketing an employer where an object of the picketi g is to force the employer to recognize the union as the' exclusive representative of his employees, where no petition as to that employer has been filed within 30 days from the commencement of the picketing. This pro- hibition applies even if there are or have been, legitimate purposes for the picketing. It is a violation of the Act if one of the objects is recognitional. Nor is the language used in the picket signs determinative. The object of the picketing is a fact question to be determined by the union's overall conduct. Machinists Local 1173 (Alhambra Morors), 266 NLRB 91 (1983). The Union's oral demand for recognition as a condi- tion precedent to the removal of the pickets is conclusive 990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD evidence of an unlawful objective. Accordingly, I con- clude that Respondent's conduct is violative of Section 8(b)(7)(C) of the Act. [Recommended Order omitted from publication.]