Before BIGGS, Chief Judge, FORMAN and GANEY, Circuit Judges.
The National Labor Relations Board (hereafter the Board) has petitioned this court for enforcement of a cease and desist order against respondent, Local 542 of the International Union of Operating Engineers, AFL-CIO*fn1 (hereafter the Union).
The pertinent facts are as follows:
R.S. Noonan, Inc. (hereafter the Employer) is a Pennsylvania corporation engaged as a general contractor in the construction industry with principal offices in York, Pennsylvania. The interstate character and volume of its business present the necessary jurisdictional features.
Beginning on May 1, 1952, the Employer and the Union entered into a series of collective bargaining agreements in which the Union was recognized as the bargaining representative for employees performing work traditionally done by operating engineers within an area including York and 28 other counties in estern Pennsylvania. The last of these agreements expired on April 30, 1961.
The Employer was a member of the General Building Contractors Association of Philadelphia with which the Union had a collective bargaining agreement expiring April 30, 1963. This contract, however, covered only five counties in and around Philadelphia and did not include York County.
During the latter part of April 1962 the Union unsuccessfully sought a bargaining agreement with the York County Contractors Association, in which the Employer was also a member, for the 29 counties in eastern Pennsylvania. At the same time, agents of the Union solicited Raymond S. Noonan, the Employer's president, to sign a new contract directly with the Union for the 29 county area. This he declined to do.
The Employer contemporaneously was engaged in fulfilling contracts for the construction of the following four projects in the York County area: (1) the construction of a freight terminal for Motor Freight Express, Inc., York, Pennsylvania; (2) the alteration of a packing plant for Medusa Portland Cement Co., York, Pennsylvania; (3) the construction of dwelling units for the York Public Housing Authority, York, Pennsylvania; and (4) the construction and installation of a converter for P. H. Glatfelter Co., Spring Grove, York County, Pennsylvania.
In performing work on these projects, the Employer reserved to itself some of the labor and subcontracted the remainder. One subcontract, dated April 20, 1962, was with the Hanover Construction Company which operated on an open shop basis. The Employer did not itself then employ any operating engineers. Indeed, it had not employed operating engineers since 1957. Furthermore, the Union was not the certified representative of the Employer's workers. They were members, instead, of various labor organizations in the building trades field, with whom the Employer had collective bargaining agreements.
About May 1, 1962, the Union began to picket the Employer at the Motor Freight, Medusa, York Public Housing Authority, and Glatfelter projects, with signs stating:
"R. S. Noonan, Inc. unfair to Operating Engineers Local 542."
The Union subsequently changed these signs to read:
"Dispute between R. S. Noonan, Inc., and Operating Engineers Local 542."
On May 16, 1962, the Employer filed unfair labor practice charges with the Board against the Union. It alleged that because the Union's picketing of the York area sites was for an object of recognition or bargaining, and for a period of more than 30 days no petition within the meaning of Section 8(b)(7)(C) of the National Labor Relations Act*fn2 had been filed, the Union was in violation of that section.
Also on May 16, 1962, the Employer filed a representational petition with the Board. It stated that the Union has asked for recognition in a unit of operating engineers. But, the petition further stated, there being no employees in ...