Carpenters Philadelphia District Council (Delran Builders)

National Labor Relations Board - Board Decisions

Apr 21, 1992

307 N.L.R.B. 172 (N.L.R.B. 1992)

172
307 NLRB No. 26
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although directed by our remand Order to make commerce find-
ings regarding Delran and Hough/Loew, the judge failed to do so.
Delran is a Pennsylvania corporation engaged in construction, with
offices in Flourtown, Pennsylvania. During the year before the hear-
ing, Delran performed services valued in excess of $50,000 for cus-
tomers located outside of Pennsylvania. Hough/Loew is a corpora-
tion engaged in construction, with offices located in Exton, Pennsyl-
vania. During the year, before the hearing, Hough/Loew paid Vine-
land Glass of Vineland, New Jersey, in excess of $65,000 for serv-
ices performed by Vineland Glass in Pennsylvania. We conclude that
both Delran and Hough/Loew are employers engaged in commerce
within the meaning of Sec. 2(2), (6), and (7) of the Act. Siemons
Mailing Services, 122 NLRB 81 (1958); Carpenters (Reeves, Inc.),
281 NLRB 493 (1986). We further conclude that the Respondent is
a labor organization within the meaning of Sec. 2(5) of the Act.
Metropolitan District Council of Philadelphia and
Vicinity, United Brotherhood of Carpenters
and Joiners of America and Delran Builders
Company, Inc. and Hough/Loew Construction,
Inc. Cases 4–CB–5935, 4–CB–5986, and 4–CC–
1879
April 21, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On November 15, 1990, Administrative Law Judge
Stephen J. Gross issued the attached decision. The Re-
spondent and the General Counsel each filed excep-
tions and a supporting brief. Charging Party
Hough/Loew filed a brief answering the Respondent’s
exceptions and supporting the General Counsel’s ex-
ceptions. The Respondent filed a brief answering the
General Counsel’s exceptions.
On June 4, 1991, the Board remanded this pro-
ceeding to Judge Gross in order that he might make
credibility resolutions and further factual findings,
make commerce findings,1 and resolve an alleged vio-
lation of Section 8(b)(4)(i)(B). On August 15, 1991,
Judge Gross issued the attached supplemental decision.
The Respondent and the General Counsel each filed
exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decisions and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified and to adopt the recommended
Order as modified.
As described more fully in the judge’s decisions,
these cases arise from events surrounding the Respond-
ent’s picketing of Delran Builders Company, Inc. in
October 1989, and its picketing of Hough/Loew Con-
struction, Inc. in January 1990.
With respect to the picketing of Delran, the judge
found, and we agree, that the Respondent violated Sec-
tion 8(b)(1)(A) of the Act by blocking ingress to the
jobsite and by threatening violence, within earshot of
an employee, against a supervisor who was
photographing the pickets. The judge also found, and
again we agree, that the Respondent’s business agent
did not violate Section 8(b)(1)(A) by uttering a Delran
supervisor’s home address to a police officer. We also
agree with the judge that the Respondent’s pickets did
not violate the Act by shouting certain statements at
Delran employees, because the pickets here were as
likely as not responding to similar shouted remarks di-
rected at them by the employees.
Finally, in regard to Delran, the judge concluded
that the General Counsel established that the Respond-
ent’s agents padlocked a door while Delran employees
were inside the building, thereby blocking egress in
violation of Section 8(b)(1)(A). The Respondent has
excepted to this finding. We find merit in the Re-
spondent’s exception.
The judge noted that the door was padlocked at a
time when agents of the Respondent were picketing the
corresponding site entrance and that no agent of the
Respondent testified that the Respondent had no hand
in the padlocking or that it was done by a third party.
We note, however, that there is no evidence that any-
one saw an agent of the Respondent padlock the door.
While the circumstances are suspicious, the evidence is
insufficient to warrant the inference that the
padlocking is attributable to the Respondent. Accord-
ingly, we dismiss the complaint’s allegation in this re-
gard.
With respect to the allegation that an object of the
picketing was to force Hough/Loew (the neutral) to
cease doing business with Pelliccio (the primary), the
judge found, and we agree, that the picketing had that
objective. However, unlike the judge, we do not rely
principally upon the fact that the Respondent picketed
so as to block the gate. Since the gate was the sole en-
trance to the facility and was therefore used by the pri-
mary, the Respondent had a right to picket that gate
so long as it was pursuing only lawful, primary objec-
tives. And, the fact that the picketing blocked that en-
trance, in violation of Section 8(b)(1)(A), does not sup-
port the proposition that the picketing was for a sec-
ondary objective. See NLRB v. International Rice Mill-
ing Co., 341 U.S. 665 (1951). Rather, in support of the
finding of secondary objective, we rely upon the Janu-
ary 4 conversation, recounted in the judge’s supple-
mental decision, between Hough/Loew President Dale
Good and Respondent Business Representative Wil-
liam Barnett. In that conversation, Barnett indicated
that the Respondent wanted Hough/Loew to replace
the nonunion subcontractor, James Pelliccio. In our
view, Barnett’s statements clearly showed that the
173CARPENTERS PHILADELPHIA DISTRICT COUNCIL (DELRAN BUILDERS)
picketing had a secondary objective. To be sure the
blocking of the gate, used by neutrals and the primary
alike, is consistent with the finding that the picketing
had a secondary objective. However, to –repeat, our
finding of secondary objective is based principally on
the conversation between Barnett and Good.
Based on the above, we conclude that the Respond-
ent violated Section 8(b)(4)(ii)(B) of the Act by threat-
ening, coercing, or restraining Hough/Loew with an
object of forcing or requiring Hough/Loew to cease
doing business with Pelliccio.
Although directed by our remand Order to resolve
the 8(b)(4)(i)(B) complaint allegation with respect to
the picketing of Hough/Loew, the judge failed to do
so. The complaint alleges, inter alia, that in blocking
employees’ ingress to the jobsite and in inducing and
encouraging employees to refuse to perform services at
the jobsite, the Respondent had as an object forcing or
requiring Hough/Loew to cease doing business with
Pelliccio. We find that, in addition to violating Section
8(b)(4)(ii)(B) of the Act by threatening, coercing, or
restraining Hough/Loew with an object of forcing or
requiring Hough/Loew to cease doing business with
Pelliccio, the Respondent, with the same object, pick-
eted so as to block employees’ ingress and induced
and encouraged employees to refuse to perform serv-
ices at the jobsite, in violation of Section 8(b)(4)(i)(B).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, the
Metropolitan District Council of Philadelphia and Vi-
cinity, United Brotherhood of Carpenters and Joiners
of America, its officers, agents, and representatives,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Restraining and coercing employees of Delran
Builders Company, Inc. in the exercise of the rights
guaranteed them by Section 7 of the National –Labor
Relations Act by blocking ingress onto jobsites, threat-
ening to inflict physical harm, or in any like or related
manner restraining or coercing Delran employees in
the exercise of their Section 7 rights.’’
2. Substitute the following for paragraph 1(c) and
(d).
‘‘(c) Threatening, coercing, and restraining
Hough/Loew, Delmont Mechanical, Plumbing Systems,
William Malany & Sons, Commonwealth Fire Protec-
tion, R.L. Associates, Vineland Glass, or any other
person engaged in commerce or in an industry affect-
ing commerce where the object thereof is forcing or
requiring any person engaged in commerce or in an in-
dustry affecting commerce to cease doing business
with James Pelliccio.
‘‘(d) Inducing or encouraging Hough/Loew employ-
ees to refuse to perform services at jobsites, with an
object of forcing or requiring anyone engaged in com-
merce or in an industry affecting commerce to cease
doing business with James Pelliccio.’’
3. Substitute the attached Appendices A and C for
Appendices A and C of the administrative law judge.
APPENDIX A
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 block ingress to jobsites of Delran
Builders Company.
WE WILL NOT threaten to physically harm any
Delran employee or supervisor.
WE WILL NOT in any like or related manner restrain
or coerce Delran employees in the exercise of their
Section 7 rights.
METROPOLITAN DISTRICT COUNCIL OF
PHILADELPHIA AND VICINITY, UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA
APPENDIX C
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 threaten, coerce, or restrain any per-
son engaged in commerce or in an industry affecting
commerce when in either case an object is to force or
require any person engaged in commerce or in an in-
dustry affecting commerce to cease doing business
with carpentry contractor James Pelliccio.
WE WILL NOT induce or encourage employees of
Hough/Loew Construction, Inc. or of its subcontractors
to refuse to perform services at jobsites, with an object
of forcing or requiring anyone engaged in commerce
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No one disputes the General Counsel’s claim that, for purposes
of the Act, the Union is a ‘‘labor organization.’’ Although the Union
initially disputed the General Counsel’s allegation that Delran and
Hough/Loew are ‘‘employers’’ engaged in commerce, the Union
subsequently advised that it would not contest that allegation. See
Tr. 141–142 and 304.
2 I held a hearing in this proceeding in Philadelphia on May 21
and 22, 1990. The procedural events that led to that hearing were
as follows:
10/11/89 charge in Case 4–CB–5935 filed by Delran; 11/8/89
complaint in Case 4–CB–5935; 1/3/90 charge in Case 4–CC–1879
filed by Hough/Loew; 1/4/90 charge in Case 4–CB–5986 filed by
Hough/Loew; 2/2/90 consolidated complaint in Cases 4–CB–5986
and 4–CC–1879.
These proceedings had been consolidated with Cases 4–CC–1873
and 4–CC–1887, involving charges filed by Eastview Realty Associ-
ates LP. But on May 18, 1990, pursuant to Eastview’s request for
withdrawal of the charges (which stemmed from an agreement be-
tween the Union and Eastview), the Acting Regional Director for
Region 4 severed those two cases, granted Eastview’s withdrawal re-
quest, and dismissed the complaint.
The General Counsel, the Union, and Delran have filed briefs.
or in an industry affecting commerce to cease doing
business with James Pelliccio.
METROPOLITAN DISTRICT COUNCIL OF
PHILADELPHIA AND VICINITY, UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA
Henry R. Protas, Esq., for the General Counsel.
Richard C. McNeill, Jr., Esq., of Philadelphia, Pennsylvania,
for the Respondent.
Lawrence Coburn, Esq. (Pepper, Hamilton & Scheetz), of
Philadelphia, Pennsylvania, for the Charging Parties.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The Gen-
eral Counsel alleges that the Metropolitan District Council of
Philadelphia and Vicinity, United Brotherhood of Carpenters
and Joiners of America (the Union) violated Section
8(b)(1)(A) of the National Labor Relations Act (the Act) in
its picketing of Delran Builders Company and Sections
8(b)(1)(A) and 8(b)(4)(B) of the Act during the course of its
picketing of a construction site at which Hough/Loew Con-
struction, Inc. was the general contractor.1
For the reasons discussed below, I conclude that the Union
did violate Sections 8(b)(1)(A) and 8(b)(4)(ii)(B) of the Act,
although not in all the respects alleged by the General Coun-
sel.2
I. THE UNION’S PICKETING OF DELRAN
What Happened
Delran is in the construction business in the Philadelphia
area as a contractor. Its employees are not represented by a
union. In August 1989 Delran began renovation work on a
building at Third and Market Streets in Philadelphia. (The
events discussed in this decision that involved Delran oc-
curred only at that site and only in 1989.)
James Dougherty is a business representative of the Union.
Dougherty has long been aware that Delran is nonunion, and
he learned of Delran’s work at Third and Market not long
after it began. Then, in October, he noticed that carpentry
work was being done on the site. Dougherty decided to get
up a picket line there.
The picketers block Phillips’ ingress. Delran employed
about a dozen workers at the site. Delran employee Joseph
Phillips was the first to encounter the picket line. The date:
October 10; the time: about 6:20 a.m. Delran had surrounded
the jobsite with an 8-foot high plywood wall. There were
two openings through that wall, one on Market Street, one
on Third Street, each roughly 50 feet from the corner. The
openings were 4 feet wide. Each had a door hinged to open
inward.
As Phillips approached the Market Street entrance to the
site he saw three men—picketers—standing shoulder-to-
shoulder in front of the entrance. The men were carrying
area standards signs. The entrance’s door was closed. One of
the picketers told Phillips that the three men were on a picket
line and asked Phillips to respect it. But Phillips indicated
that he wanted to enter the site. The picketers didn’t move.
Phillips knew that his boss, Jeffry Levy, was already on
the site. Phillips called to Levy. After a few minutes Levy
opened the door to the Market Street entrance and told Phil-
lips to push his way past the picketers. As Phillips tried to
make his way into the building the picketers braced them-
selves but otherwise did nothing to prevent his entry, either
physically or verbally. The result was that while Phillips did
have to lean against the picketers in order to get past them,
he was able to enter the jobsite.
The picketers block Rush’s ingress. Delran employee John
Rush arrived at the site at 6:55 a.m. on October 10. When
he saw three picketers standing in front of the Market Street
entrance he went over to the Third Street entrance. But three
picketers were standing shoulder-to-shoulder in front of that
entrance too. He indicated to the Third Street picketers that
he wanted to enter the site—by saying ‘‘excuse me’’—but
the picketers wouldn’t move. It seemed to Rush, and, cer-
tainly, it was a reasonable perception, that the only way he
could have entered the building would have been to use force
to get past the picketers.
Rush saw some other Delran employees standing at the
corner of Third and Market Streets. He joined them. A cou-
ple minutes later Levy (the Delran supervisor) came to the
corner, said ‘‘let’s go to work, guys,’’ and headed for the
Market Street entrance. The employees followed him. The
picketers remained in front of the entrance. But as Levy,
Rush, and the other employees approached, the picketers
made enough room for all the members of the Delran contin-
gent to enter the site without having to push their way
through. And Levy and the employees did enter the building.
The picketers-Becker incident. John Becker is Delran’s
general superintendent. He arrived at the site about 7 a.m. on
October 10 and had no trouble entering. Later that morning
he exited the building (again with no trouble), camera in
hand, to take photographs of the picketers. Becker was ac-
companied by Phillips.
After Becker had taken a photograph or two of the three
Third Street picketers, one of the picketers cursed Becker
and said, ‘‘if you take another picture we’re going to kick
your ass.’’ Becker did take another photograph. The pick-
eters did not attack him.
175CARPENTERS PHILADELPHIA DISTRICT COUNCIL (DELRAN BUILDERS)
At that point Phillips, without incident, re-entered the
building through the Third Street entrance, turned, and wait-
ed for Becker. But as Becker tried to follow Phillips into the
building the picketers moved to block his way, standing
close together in front of the entrance. Becker tried to push
his way between the picketers but initially could not get past
them. A few minutes later the picketers did let Becker
through, perhaps because the picketers noticed that Levy,
from inside the building, was taking photographs of the situ-
ation.
The Dougherty-Levy incident. Two police officers from
Philadelphia’s Civil Affairs unit arrived at the site on the
morning of October 10. With Levy and Rush standing near
some picketers and Dougherty (the union business represent-
ative) outside the site, one of the officers asked Levy to
identify himself. At that point Dougherty said ‘‘Jeff Levy’’
and then stated Levy’s address—or rather misstated Levy’s
address. (Dougherty had it almost correct.) Levy had never
told Dougherty where he lived.
The locked door. The two doors at the entrances to the site
are fitted with hasps so that Delran can padlock them shut,
from the outside, at night. Early on the morning of October
11 Levy, as usual, removed the padlocks. But about the mid-
dle of the day Delran personnel noticed that the Market
Street door was locked shut. Rush and Levy exited the build-
ing through the Third Street entrance, went around to the
Market Street entrance, and saw that the door was padlocked
shut. The lock was not one of Delran’s. Several of the pick-
eters, and no one else, were in the vicinity of the entrance.
Rush and Levy used bolt cutters to remove the padlock.
The Union’s Violations of Section 8(b)(1)(A)
Agency issues. The picketers were unemployed members
of the Union or retired members of the Union. They were
present at the Delran jobsite because the Union had asked
them to picket the site. The purpose of the picketing was to
benefit the Union and its members. That alone would make
the picketers the agents of the Union for 8(b)(1)(A) purposes.
Carpenters (Reeves, Inc.), 281 NLRB 493 (1986). (That case
involved, among other things, the Union’s picketing of
Delran; I accordingly will refer to it as Delran I.)
In any case, I am convinced that initially Dougherty indi-
cated to the picketers that they should stand shoulder-to-
shoulder in front of the entrances to the site or, at least, that
it was alright with him if they did so.
Blocking ingress. Picketers prevented a Delran supervisor
(Becker), in the presence of a Delran employee (Phillips),
from entering the jobsite. That’s a violation of Section
8(b)(1)(A). Delran I. Picketers stood in such a way as to re-
quire a Delran employee (Phillips) to push against them in
order to enter the jobsite. That’s a violation of Section
8(b)(1)(A). Id. And picketers stood in front of the entrances
to the site that a Delran employee (Rush) reasonably believed
that he would have to use force to enter. That is a violation
of Section 8(b)(1)(A). Id.
Blocking egress. The record supports the General Coun-
sel’s contention that agents of the Union padlocked the Mar-
ket Street door at a time when Delran employees were inside
the building: It is clear that someone not employed by Delran
padlocked the door at a time when agents of the Union were
picketing that entrance. And no agent of the Union in a posi-
tion to know testified either that the Union had no hand in
the padlocking or that it was done by some third party.
I find that a union’s unauthorized padlocking of one of
two doors to a jobsite while employees are on the site may
reasonably restrain or coerce employees in the exercise of
their Section 7 rights and therefore conclude that for this rea-
son too the Union violated Section 8(b)(1)(A).
Threats of violence. A picketer told a Delran supervisor
(Becker) that ‘‘if you take another picture we’re going to
kick your ass.’’ A Delran employee (Phillips) was within
earshot. That amounts to a violation of Section 8(b)(1)(A).
Id.
In the presence of a Delran employee (Rush), Dougherty
gratuitously let a Delran supervisor (Levy) know that Dough-
erty knew—or thought he knew—where the supervisor lived.
I can understand that Levy might be concerned to learn that
Dougherty knew where he (Levy) lived, particularly given
the on-going picketing. But I do not understand that the ut-
terance by a union agent of a supervisor’s home address nec-
essarily violates the Act no matter what the circumstances.
And here the record fails to show that there was anything
menacing about Dougherty’s demeanor when he spoke the
address or that Dougherty accompanied the utterance of the
address with other threatening language. Moreover, Dough-
erty was speaking to a police officer when he stated what he
thought was Levy’s address. I accordingly conclude that
Dougherty’s utterance of Levy’s address did not violate Sec-
tion 8(b)(1)(A).
The General Counsel’s Other Allegations Reagrding the
Union’s Picketing of Delran; The Union’s Contentions
On at least two occasions the picketers yelled at Delran
employees that ‘‘you could get hurt working inside that
building.’’ But on the record before me, it is at least as likely
as not that the picketers uttered those words in response to
insults and threats made against them by Delran employees.
Witnesses for the Union testified that whatever strong
words the picketers might have used toward Becker were in
response to Becker’s own provocative words and actions. I
do not credit that testimony.
Union witnesses also testified that the picketers never pur-
posefully blocked any entrance to the Delran jobsite. The
only possible blocking, they contended, occurred when the
picketers stood in the entrances to the site to make room for
pedestrians to pass. And that happened, so the Union claims,
because of the cramped situation at the site caused by a com-
bination of, on the one hand, heavy pedestrian traffic and, on
the other, reductions in usable sidewalk area caused by the
scaffolding around the building. I do not credit that testi-
mony either.
II. THE UNION’S PICKETING OF HOUGH/LOEW
What Happened
Hough/Loew is in the construction business as an architec-
tural firm and general contractor. Hough/Loew typically con-
tracts out to subcontractors almost all construction work.
Hough/Loew’s employees are not unionized. And while
Hough/Loew sometimes does use unionized subcontractors,
most its subcontractors are not unionized. On a number of
occasions Hough/Loew used a firm owned by James
Pelliccio as its carpentry subcontractor. Pelliccio’s employees
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
are not represented by a union. The only incidents we are
concerned with here occurred on January 3 and 4, 1990, at
a Hough/Loew construction site in Devault, Pennsylvania.
The site was accessible only via one road, the Phoenixville
Pike. The building that Hough/Loew was constructing on the
site was about 1000 feet from the Phoenixville Pike. Two
20-foot wide driveways ran from the Pike to the building.
But during the period of concern to us, one of the driveways
was unusable, obviously so. So anyone wanting to drive onto
the site had only one driveway to use. (I will henceforth
refer to it as ‘‘the driveway.’’)
Hough/Loew had a couple of its own employees and a
project superintendent working at the site. Everyone else
working at the site was employed by the following sub-
contractors:
Company Nature of work
Nonunion
James Pelliccio carpentry
Delmont Mechanical heating & air conditioning
Plumbing Systems plumbing
William Malany &
Sons electrical
Commonwealth Fire
Protection sprinkler systems
Unionized
R. L. Associate roofing
Vineland Glass window
Almost everyone who worked at the site for Hough/Loew
or its subcontractors drove onto the site. In fact there was no
convenient offsite parking.
The events of January 3. On January 2 officials of the
Union told one of its organizers, George Wright, to set up
an informational picket line at Hough/Loew’s Phoenixville
Pike site. At the time the Union knew that Pelliccio was
doing the carpentry work on the site and believed that
Pelliccio paid its employees below scale wages. (No one
contends that that belief was groundless.)
Wright set up the picket line at about 6:30 the following
morning manned by unemployed members of the Union.
About six of the picketers carried signs, all of which said
that Pelliccio paid unfair, substandard, wages. A
Hough/Loew employee walked onto the site. (He had appar-
ently gotten a ride to the site.) He passed through the picket
line without incident. The next person to arrive drove a pick-
up truck onto the site. According to Wright, when he moved
toward the truck in order to tell the driver what the purpose
of the picketing was, the driver accelerated, hitting Wright
and knocking him up over the hood of the truck and onto
the ground.
Ken Smith is Hough/Loew’s general superintendent. He
got to the site not long after 7 a.m. He saw about 15 or 20
men milling around on the driveway. As it turn out, only
about 13 were members of the Union. The others were R. L.
Associates employees who stood for a time with the car-
penters on the picket line.
A vehicle could not have entered the site without hitting
some of the men on the driveway. And, in fact, the only em-
ployees on the site were the ones who walked on and the
other who drove the truck that hit Wright.
Smith spoke to Wright, who told Smith that the Union was
picketing Pelliccio. Smith asked Wright if ‘‘you are going to
let us go to work today.’’ Wright responded:
I’d let you in here, but we had a little incident here this
morning. A guy came through across this picket line
and I twisted my back trying to jump out of the way
of the truck.
Dale Good is Hough/Loew’s president. He arrived at the
site around 7:45 a.m. At the time there were 13 picketers on
the driveway. They took up the full width of the driveway
and were stationed a couple feet from one another. A vehicle
could not have driven onto the site without hitting some of
the picketers.
Only the initial two employees were on the site. A number
of employees of Hough/Loew and its subcontractors were
standing at the edge of the road near Good.
Wright complained to Good about being hit by the truck
of someone who crossed the picket line. Good asked if there
was some way Hough/Loew and the Union ‘‘could work
something out’’ and talked about the fact the Hough/Loew
sometimes did use unionized carpenters. The principal thrust
of Wright’s reply was that he wasn’t there to resolve any-
thing, that he was there to protest Pelliccio’s wages. But in
response to Good’s remarks about Hough/Loew using union-
ized labor, Wright complained that Hough/Loew was ‘‘anti-
labor’’ and that Hough/Loew hadn’t given any unionized car-
pentry contractors a chance to bid on the Phoenixville Pike
job.
No work was performed on the site on January 3.
The events of January 4. The Union had 15 or 20 picket-
ers on the driveway to the site by 6:45 a.m. Wright’s injuries
from the day before kept him away. Union organizer Harry
McGuckin was at the site, as was Union Business Represent-
ative William Barnett. Good (Hough/Loew’s president) spoke
to Barnett, asking why the Union was picketing the site.
Barnett made it clear that his concern was with Pelliccio.
Good then repeated what he had said the day before about
Hough/Loew sometimes using unionized subcontractors
(which Barnett knew to be the case). Barnett responded that
the owner of the property had promised the Union that
unionized carpentry contractors were going to be invited to
bid on the work at the site and that had not happened.
Good testified that Barnett proposed that Hough/Loew
switch the carpentry work at the site to a unionized subcon-
tractor but that Good refused. It seems likely to me, how-
ever, that Good misremembered that part of the conversation.
Barnett testified that Good asked if Barnett was going to
keep the employees off the site and that Barnett replied,
‘‘I’m not stopping anybody.’’ I do not credit that testimony.
About 7:30 a.m. some Hough/Loew and subcontractor per-
sonnel formed a column of trucks in a parking lot near the
Phoenixville Pike site. Smith (Hough/Loew’s general super-
intendent) in the first truck; a Hough/Loew supervisor and a
Hough/Loew employee in the second; Pelliccio in the third
truck; some Pelliccio employees in the fourth and fifth
trucks; lastly another truck or two with employees of sub-
contractors other than Pelliccio.
The line of trucks moved onto Phoenixville Pike, heading
for the site. Smith turned his truck left, onto the site. Smith
177CARPENTERS PHILADELPHIA DISTRICT COUNCIL (DELRAN BUILDERS)
3 See Sailors Union (Moore Dry Dock Co.), 92 NLRB 547 (1950).
4 E.g., Electrical Workers IBEW Local 441 (Rollins Communica-
tions), 208 NLRB 943 (1974).
5 Id.
6 NLRB v. International Rice Milling Co., 341 U.S. 665 (1951).
7 Steelworkers v. NLRB, 376 U.S. 492 (1964).
8 See fn. 3, above.
was closely followed by the other Hough/Loew truck. As
Smith’s truck got to the driveway the picketers began walk-
ing back and forth across the driveway. Since Smith could
not proceed without hitting some picketers, he stopped. That
left the second Hough/Loew truck partially on the Pike. The
other trucks remained in the left-turn lane on the Pike. Smith
yelled ‘‘let me through’’ and inched forward. The picketers
stayed on the driveway, and Smith’s forward motion ended
on the driveway a few feet into the site, with the truck
touching, or nearly touching, some of the picketers. A couple
minutes later the two Hough/Loew trucks backed up and
drove away. The subcontractors’ trucks followed.
Barnett and McGuckin watched the entire episode. They
saw that Smith was driving the first truck. They did not
know whether any of the trucks in the line carried Pelliccio
personnel.
Later that day Hough/Loew obtained a restraining order
from a county judge that limited the number of picketers and
prohibited them from blocking the entrance to the site. The
Union honored that order. Picketing continued until January
17. Neither Hough/Loew nor any subcontractor had any trou-
ble getting onto or off the site.
The Union’s Violations of Section 8(b)(1)(A)
On January 3 union picketers stood or walked on the one
driveway leading to the construction site in such a way as
to preclude the passage of vehicles. Additionally, a Union or-
ganizer stated to a Hough/Loew supervisor that he was not
going to let personnel employed by Hough/Loew and its sub-
contractors onto the site. Hough/Loew and its subcontractors
had been planning to perform work at the site on January 3.
But because of the picketers’ presence on the driveway, no
work got done. Employees of Hough/Loew and its sub-
contractors witnessed these circumstances.
That amounts to a violation of Section 8(b)(1)(A). See
Service Employees Local 254 (Massachusetts Institute of
Technology), 218 NLRB 1399, 1401 (1975).
The Union’s violation of Section 8(b)(1)(A) on January 4
is even clearer. On that day the picketers deliberately stood
in front of a Hough/Loew vehicle that was attempting to
enter the jobsite. Again, employees of Hough/Loew and its
subcontractors witnessed the circumstances.
The Union’s Violations of Section 8(b)(4)(ii)(B)
Section 8(b)(4)(ii)(B) provides, in pertinent part:
It shall be an unfair labor practice for a labor organi-
zation or its agents—
. . . .
to threaten, coerce, or restrain any person . . . where
. . . an object thereof is:
(B) forcing or requiring any person to . . . cease
doing business with any other person . . . .
On this record the Union’s dispute with Pelliccio was a
lawful one and the Union accordingly had the right to picket
the site with signs complaining of Pelliccio’s below-par
wages.3 But Hough/Loew and its other subcontractors were
neutrals.4 Accordingly, the Union violated Section
8(b)(4)(ii)(B) if its agents uttered words or undertook ac-
tions—beyond the picketing itself—that indicated that an ob-
ject of the Union was to cause a disruption in Hough/Loew’s
relationship with Pelliccio.5
I do not interpret anything that Wright or Barnett said as
evidencing any such secondary objective.
But the Union’s actions are another matter.
Had a union agent told the employees of Hough/Loew and
its subcontractors that it wanted them to stay off the job so
long as Pelliccio remained a subcontractor, the Union would
thereby have indicated its unlawful secondary objective.
Electrical Workers IBEW Local 369 (Garst-Receveur Con-
struction), 229 NLRB 68 (1977), enfd. per curiam 609 F.2d
266 (6th Cir. 1979). Here the Union picketed the site in such
a way as to prevent all personnel of Hough/Loew and its
subcontractors from entering the site and, indeed, knowingly
prevented Hough/Loew trucks from entering the site. That
action, coupled with the anti-Pelliccio picket signs and the
statements of Wright and Barnett that the Union’s dispute
was with Pelliccio, unmistakenly was a deliberate commu-
nication by the Union to Hough/Loew and its subcontractors
that they should cease doing business with Pelliccio.
I realize that Rice Milling6 and Carrier7 might be read to
suggest otherwise. Both tell us that picketing that would oth-
erwise be solely primary does not become secondary merely
because it is conducted in an unlawful manner. And apart
from the picketers’ blocking of the driveway, the picketing
here met Moore Dry Dock standards.8
But both Rice Milling and Carrier involved the efforts of
striking employees to prevent transportation companies from
supplying the struck company. In those circumstances the
striking unions could lawfully have as an object the preven-
tion of such business. That is not the case here.
I accordingly conclude that the Union violated Section
8(b)(4)(ii)(B) of the Act.
Agency Issues
For the reasons discussed in part I, above, in connection
with the picketing at the Delran site, I conclude that the
picketers at the Hough/Loew site were agents of the Union.
Beyond that, officials of the Union watched as the picketers
stood in such a way as to prevent entry on to the site.
The Union argues that Wright was not acting as an agent
of the Union when he told Smith, on January 3, that, because
of Wright’s being run down by a Hough/Loew employee, he
was going to prevent personnel of Hough/Loew and its sub-
contractors from entering the site. I do not agree. Wright was
a paid official of the Union. The Union put him in charge
of the picketers at the Hough/Loew site. And he and the
picketers were at the site to further the Union’s purposes. In
those circumstances Wright and the picketers would be
agents of the Union even assuming that the record showed
that Wright’s superiors were aghast at Wright’s statement. As
a matter of fact, of course, the events of January 4 showed
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
10 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.’’
that Wright’s remark about preventing entry onto the site was
wholly in line with the Union’s objectives.
REMEDY
For the reasons discussed in Delran I, the recommended
Order requires the Union to cease and desist from its unlaw-
ful actions at all Delran and Hough/Loew jobsites. The Gen-
eral Counsel urges that that recommended Order also require
the Union to cease and desist from its unlawful behavior to-
ward Pelliccio. Given the Union’s actions at the Hough/Loew
jobsite, the recommended Order does effectuate that pro-
posal.
Delran urges me to require ‘‘the Union to pay Delran’s
reasonable attorneys’ fees,’’ pointing out that the Union’s un-
lawful actions toward Delran violated the cease-and-desist
order in Delran I. But it does not appear to me that a few
relatively mild violations of the Delran I Order more than 3
years after the issuance of that Order and more than 5 years
after the union actions that were the subject of that order,
warrant the award of attorneys’ fees.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, the Metropolitan District Council of
Philadelphia and Vicinity, United Brotherhood of Carpenters
and Joiners of America, its officers, agents and representa-
tives, shall
1. Cease and desist from
(a) Restraining and coercing employees of Delran Builders
Company, Inc. in the exercise of the rights guaranteed them
by Section 7 of the National Labor Relations Act by block-
ing ingress onto or egress from jobsites, threatening to inflict
physical harm, or in any like or related manner restraining
or coercing Delran employees in the exercise of their Section
7 rights.
(b) Restraining and coercing employees of Hough/Loew
Construction, Inc., and of Hough/Loew’s subcontractors, in
the exercise of the rights guaranteed them by Section 7 of
the National Labor Relations Act by blocking ingress to
Hough/Loew jobsites, or in any like or related manner re-
straining or coercing the employees of Hough/Loew or its
subcontractors in the exercise of their Section 7 right.
(c) Threatening, coercing, and restraining Hough/Loew,
Delmont Mechanical, Plumbing Systems, William Malany &
Sons, Commonwealth Fire Protection, R. L. Associates,
Vineland Glass, or any other person engaged in comerce or
in an industry affecting commerce, where an object thereof
is forcing or requiring such person to cease doing business
with James Pelliccio.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at all its business offices in Philadelphia, Pennsyl-
vania, copies of the attached notices marked ‘‘Appendices A,
B and C.’’10 Copies of the notices, on forms provided by the
Regional Director for Region 4, after being signed by the
Respondent’s representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places where
notices to members 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 material.
(b) Mail to the Regional Director for Region 4 signed cop-
ies of the notices for posting, if the companies listed below
are willing, in places where notices to employees are custom-
arily posted. Copies of the notices, on forms provided by the
Regional Director, after having been signed by the Respond-
ent’s representatives, shall be forthwith returned to the Re-
gional Director for such posting by such companies.
Company Applicable notice(s)
Delran Builders Co. Appendix A
Hough/Loew Con-
struction, Inc. B and C
James Pelliccio B and C
Commonwealth Fire
Protection B and C
Delmont Mechanical B and C
Plumbing Systems B and C
R. L. Associates B and C
Vineland Glass B and C
William Malany &
Sons B and C
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Repondent has
taken to comply.
APPENDIX B
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT block ingress to jobsites of Hough/Loew
Contruction, Inc.
WE WILL NOT in any like or related manner retrain or co-
erce the employees of Hough/Loew or it subcontractors in
the exercise of their Section 7 rights.
METROPOLITAN DISTRICT COUNCIL OF PHILA-
DELPHIA AND VICINITY, UNITED BROTHER-
HOOD OF CARPENTER AND JOINERS
OF AMERICA
179CARPENTERS PHILADELPHIA DISTRICT COUNCIL (DELRAN BUILDERS)
SUPPLEMENTAL DECISION
I
STEPHEN J. GROSS, Administrative Law Judge. This case
is about certain incidents that occurred at a Delran construc-
tion site in October 1989 and at a Hough/Loew construction
site on January 3 and 4, 1990. I issued a decision in this
matter on November 15, 1990. Then, on June 4, 1991, the
Board remanded the proceeding back to me.
The remand concerns only the incidents at the
Hough/Loew site and, specifically, only the testimony of
Dale Good, William K. Smith, George L. Wright, and Wil-
liam J. Barnett about conversations that occurred at the site.
The reason for the remand is that (in the words of the
Board’s Order), in my decision I—
did not discuss all of the conflicting testimony about
what was said in the conversations relevant to the issue
of the Union’s motive in picketing, did not make credi-
bility resolutions regarding this testi mony, and did not
address the significance of the testimony which [I] did
credit.
The Board accordingly ordered me to consider and make
credibility resolutions regarding such testimony—that is, re-
garding the testimony of Good, Smith, Wright, and Barnett
about conversations that occurred at the Hough/Loew site on
January 3 and 4, 1990.
The four named witnesses testified about, in the aggregate,
four relevant conversations on the 2 days at issue. The fol-
lowing part of this decision sets forth my findings about who
said what to whom in each of those conversations.
II
I will assume that the reader is familiar with my Novem-
ber 15, 1990 decision in this matter. Nonetheless some back-
ground discussion may be useful to include here. (All of this
background information is taken from the November 15 deci-
sion; I do not intend to be making new findings in these re-
spects.)
First, here is some information about the four witnesses
whose testimony is to be considered in this supplemental de-
cision.
1. William Barnett: business representative for (and
agent of) the Union.
2. Dale Good: President (and supervisor and agent)
of Hough/Loew.
3. William (Ken) Smith: Hough/Loew’s ‘‘general su-
perintendent’’ (and a Hough/Loew supervisor and
agent).
4. George Wright: A paid, full-time organizer for
(and agent of) the Union.
Secondly, the conversations all occurred near (or on) the
one driveway onto a construction site. Hough/Loew was the
general contractor. At all times during all the conversations,
the Union was picketing the site, with the pickets standing
or walking on the driveway in such a way as to prevent any
vehicle from entering the site. The picket signs all stated that
a company named ‘‘Pelliccio’’ paid unfair, substandard
wages. Pelliccio was Hough/Loew’s carpentry subcontractor
at the construction site. Pelliccio’s employees are not rep-
resented by a union.
The Conversation Between Smith and Wright
on January 3
It was early in the morning when Smith arrived. Wright
was already there. According to Wright, he had been injured
moments before when an employee of Hough/Loew or one
of its subcontractors had deliberately driven a truck into
Wright as he was standing on the driveway.
Wright’s testimony describes a very brief conversation he
had with Smith. Wright testified that the ‘‘nature’’ of his
conversation with Smith was that Wright said, ‘‘Ken, this
guy tried to kill me’’; Smith then said, ‘‘let me make a
’phone call.’’
Smith recalled the interchange somewhat differently. I
credit Smith, not Wright, and find that the conversation
went:
SMITH: Why is the picket line up?
WRIGHT: It’s an informational picket line. We’re
picketing Pelliccio. How can I compete with a guy like
that?
SMITH: Are you going to let us go to work today?
WRIGHT: I’d let you in here, but we had a little inci-
dent here this morning. A guy came through across this
picket line and I twisted my back trying to jump out
of the way of the truck.
(I will discuss my understanding of the significance of this
conversation, and the other conversations I describe in this
part of this supplemental decision, in part III, below.)
The Conversation Between Good and Wright
on January 3
Good arrived at the site later on the morning of January
3. He had a conversation with Wright. Smith was present for
at least some of the conversation.
Good, Smith, and Wright testified about the conversation.
I generally, but not entirely, credit Good’s and Smith’s testi-
mony and find that the conversation went as follows, imme-
diately following Smith’s introduction of Good and Wright
to one another:
WRIGHT: I got hit by a truck that crossed the picket
line!
GOOD: Why is there a picket line? What’s going on?
WRIGHT: It’s an informational picket line. We’re
protesting the unfair wages that Pelliccio is paying.
How can we [i.e. unionized carpentry subcontractors]
compete with someone who pays substandard wages?
GOOD: Can’t we work something out? We just want
to work.
WRIGHT: I’m not here to resolve anything. I’m here
to protest Pelliccio.
GOOD: Hough/Loew has used union trades in the
past. We used a union carpentry contractor, Ceilings,
Inc., on another project and we were very happy with
their work. And we’ve gotten bids from a couple of
union ized contractors on at least two up-coming
projects. We know that a job will be well-manned when
we have a union carpentry contractor there.
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 When Smith tried to drive onto the site on January 4, pickets
blocked his way. Smith yelled, ‘‘let me through.’’ According to
Smith, he got no verbal response. Barnett, on the other hand, testi-
fied that he answered, ‘‘I’m not going to do anything.’’ (That meant,
Barnett testified, that he ‘‘wasn’t going to stop anybody.’’) I credit
Smith, not Barnett.
WRIGHT: I don’t care about Ceilings. Why didn’t a
union car pentry contractor get a shot at this job? Those
guys [pointing to the pickets] are out of work.
GOOD: We didn’t have the opportunity to bid out the
carpentry portion of the work the way we would have
liked because the plans were not complete, they were
constantly changing, and we were being forced in a po-
sition where we had to start work before all the plans
were all completed. So we wanted to give the work to
a contractor that we’ve used in the past, one that we
trusted.
WRIGHT: Unionized carpentry contractors never get a
chance at Hough/Loew work. One of the guys on the
picket line says he had a conversation with Mr. Hough
at his house and Hough talked anti-labor.
SMITH: That’s bullshit!
GOOD: Why don’t you to come back to the
Hough/Loew office so we can talk about all of this?
WRIGHT: No, I can’t leave the picket line. Anyway,
what’s the point in talking? We’ve been trying to get
your work for years and we never get anywhere. But
I expect to be talking to my boss, and I’ll mention that
you want to talk to somebody.
The Smith-McGuckin Conversation on January 4
Wright did not return to the site on January 4. Harry
McGuckin, also an organizer for and agent of the Union, re-
placed Wright. On arriving at the site on January 4, Smith
spoke to McGuckin. Their very brief exchange was as fol-
lows:
SMITH: What’re you guys going to do today?
MCGUCKIN: We’re going to picket you.
SMITH: I want to work today.
MCGUCKIN: You do what you guys have to do, and
we’ll do what we have to do.
(That description of the conversation is based entirely on
Smith’s testimony. McGuckin did not testify.)
The Good-Barnett Conversation on January 4
Good and Barnett conversed sometime after the Smith-
McGuckin exchange. Good, Smith and Barnett testified about
the conversation. Again, I generally, but not entirely, credit
Good and Smith and find that the conversation proceeded
this way:
GOOD: Why are you picketing?
BARNETT: [Points to one of the picket signs.]
GOOD: Isn’t there some way we can work this out?
I expected to hear from you or Wright yesterday. You
know that you don’t really have a problem with us.
BARNETT: We never got the opportunity to bid this
job.
GOOD: The way we normally go about bidding work
is that we like to have people that are interested in
doing our work to bid to us and approach us about
work. In this particular case we weren’t been able to
do that because the plans weren’t complete when we
had to start work, so we weren’t able to bid it out. But
we have another project that’s out for bids, and out of
the three carpentry bidders, two of them are union con-
tractors.
BARNETT: Sorbus [the owner of the property] told us
that we [i.e., carpentry subcontractors whose employees
are represented by the Union] would have a shot at the
bidding.
GOOD: We’re working for the developer, not Sorbus.
Anyway, nobody at Sorbus ever told us that.
BARNETT: Can we talk about our people [i.e., mem-
bers of the Union] doing the work?
GOOD: We’re committed to Pelliccio, and when we
commit to somebody we stand behind it.
BARNETT: Can we [the Union] talk to Pelliccio?
GOOD: That’s between you and Pelliccio.
BARNETT: Yes, but you’re the GC [general con-
tractor].
GOOD: That’s between you and Pelliccio. We’re
planning to go to work today.
BARNETT: We have to do what we have to do. I
guess we’re at a standoff.1
III
The question is, what significance should be attributed to
the foregoing conversations. More particularly, does anything
in any of those conversations indicate a secondary objective
on the part of the Union (that is, an objective of ‘‘forcing
or requiring’’ Hough/Loew or any of its subcontractors ‘‘to
cease . . . dealing’’ with Pelliccio). Contrarywise, does any-
thing in those conversations indicate that the Union’s objec-
tive was entirely primary.
Smith and Wright on January 3
Smith approached Wright and began the conversation.
Wright’s responses to Smith suggest a lack of any secondary
intent. The picket line was an ‘‘informational picket line,’’
Wright declared. ‘‘We’re picketing Pelliccio.’’ Wright then
went on to state that he was going to use the picket line to
keep ‘‘you’’—presumably Hough/Loew—off the site. But
Wright’s stated reason for that was his earlier injury; Wright
did not suggest that it had any thing to do with any Union
desire to have Hough/Loew cease dealing with Pelliccio. (By
that conclusion I do not intend to alter the conclusion ex-
pressed in my November 15, 1990, decision that Wright was
an agent of the Union at the time of his conversation with
Smith.)
Wright and Good on January 3
If I were to limit my consideration only to Wright’s re-
marks themselves, I could not conclude that Wright’s words
evidenced a secondary objective on the Union’s part.
The conversation between Good and Wright had two dis-
crete parts. The first part had to do with the reasons the
Union was picketing. That part began when Good asked why
a picket line was up. Wright responded with great specificity:
181CARPENTERS PHILADELPHIA DISTRICT COUNCIL (DELRAN BUILDERS)
2 The Board’s Order remanding this proceeding to me states that
‘‘following service of the Supplemental Decision on the parties, the
provisions of Section 102.46 of the Board’s Rules and Regulations,
Series 8, as amended, shall be applicable.’’
It’s an informational picket line. We’re protesting the
unfair wages that Pelliccio is paying. How can we com-
pete with someone who pays substandard wages?
Good, however, was unwilling to let Wright’s answer
stand, despite the fact it was wholly responsive to Good’s
question. Instead Good went on to claim a kind of good-guy
status for Hough/Loew—even though Good knew that
Hough/Loew had not even given any unionized carpentry
contractor a chance to bid on the work at the site. That was
too much for Wright, who responded to Good’s claims by
criticizing Hough/Loew’s labor policies. But even then
Wright did not link the existence of the picket line to those
policies. Because of that, because Good’s comments about
Hough/Loew’s labor policies virtually baited Wright into re-
sponding, and because it was Good who sought out Wright
(rather than the reverse), it seems to me that Wright’s re-
marks, if they are considered without taking into account the
circumstances that they were obtained at the site at the time
Good and Wright were conversing, do not show a secondary
objective on the Union’s part.
But a reasonable evaluation of Wright’s words requires
consideration of the fact that, as Wright was speaking to
them, the pickets he was supervising were completely block-
ing access to the site by all vehicles. In these circumstances,
Wright’s statement that the picket line was ‘‘informational’’
was obviously disingenuous. Similarly, Wright had to have
realized that the combination of the pickets’ blocking of the
driveway coupled with his reference to Pelliccio would be
heard as a demand that Hough/Loew choose a different car-
pentry subcontractor, even though the words that Wright
used were innocuous. That implicit demand was then made
even more obvious when Wright complained about
Hough/Loew’s subcontracting procedures.
Smith and McGuckin on January 4
Smith, whom McGuckin knew worked for Hough/Loew,
opened the conversation by asking, ‘‘[W]hat’re you guys
going to do today?’’ McGuckin responded, ‘‘[W]e’re going
to picket you.’’
Does that show a secondary objective—in that McGuckin
said that the Union was going to picket ‘‘you’’? I think yes,
if—but only if—the fact that the pickets were blocking ac-
cess onto the site is taken into account.
But if one puts aside the fact that the pickets were block-
ing all access to the site, I don’t think so. There was only
one driveway onto the site, so picketing at the driveway
would, in a manner of speaking, be a picketing of anyone
who wanted to enter the site. And the conversation took
place outside in the cold darkness of the early hours of a
January morning, circumstances not conducive to precise
word selection. Thus McGuckin’s ‘‘we’re going to picket
you’’ should not be deemed to have meant anything more
than ‘‘we’re going to picket.’’
Good and Barnett on January 4
The Good/Barnett conversation was much like the
Good/Wright conversation. It began with a question by Good
about the purpose of the picketing, continued with what
amounted to a declaration by the union agent that the Union
was conducting area standards picketing of Pelliccio, and
then moved on, at the behest of Good, to a discussion of
Hough/Loew’s labor policies.
For the reasons discussed in connection with the
Good/Wright conversation, I conclude that: (1) because an
evaluation of the import of Barnett’s remarks must take into
account that, at the time of Barnett’s utterances, the pickets
were blocking all access to the site, Barnett’s pointing to the
‘‘Pelliccio unfair’’ picket signs amounted to a demand that
Hough/Loew stop using Pelliccio as a subcontractor, and
Barnett’s complaint about Hough/Loew’s bidding procedures
added emphasis to that message; and (2) if that blocking of
the site were put aside, Barnett’s remarks would not con-
stitute evidence of a secondary objective.
IV
In my November 15 decision in this matter I concluded
that the Union violated Section 8(b)(4)(ii)(B) of the Act be-
cause—
the Union picketed the site in such a way as to prevent
all personnel of Hough/Loew and its subcontractors
from entering the site and, indeed, knowingly prevented
Hough/Loew trucks from entering the site. That action,
coupled with the anti-Pelliccio picket signs and the
statements of Wright and Barnett that the Union’s dis-
pute was with Pelliccio, unmistakenly was a deliberate
communication by the Union to Hough/Loew and its
subcontractors that they should cease doing business
with Pelliccio.
That decision also states that ‘‘I do not interpret anything
that Wright or Barnett said as evidencing any . . . secondary
objective.’’ It would have been more accurate for me to
state, as I have here, that Wright’s and Barnett’s statements
would not have evidenced a secondary objective had they not
been uttered at a time when pickets were blocking access to
the site.
For the reasons discussed earlier in this supplemental deci-
sion, having given further consideration to the conversations
between the agents of Hough/Loew and the Union, I con-
clude that
1. Absent the blocking of the site by the Union’s pickets,
none of the remarks by the Union’s agents would constitute
evidence of a secondary objective.
2. Because at all relevant times the Union’s pickets were
blocking all access to the site, and because the meaning rea-
sonably to be attributed to the communications by Wright to
Good, by McGuckin to Smith, and by Barnett to Good, nec-
essarily must take into account that action by the pickets,
those communications amounted to demands by the Union
that Hough/Loew and its other subcontractors cease doing
business with Pelliccio and thus evidenced an unlawful sec-
ondary objective on the Union’s part, in violation of Section
8(b)(4)(ii)(B).2