Carpenters Union Local No. 1622, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Robert Wood & Associates, Inc.)

National Labor Relations Board - Board Decisions

Jul 23, 1982

262 N.L.R.B. 1211 (N.L.R.B. 1982)

CARPENTERS LOCAL 1622
Carpenters Union Local No. 1622, United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO and Robert Wood & Associates, Inc.
Cases 32-CC-473 and 32-CC-484
July 23, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS ANP HUNTER
On October 26, 1981, Administrative Law Judge
Burton Litvak issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel and the Charging Party each filed limited cross-
exceptions to the Administrative Law Judge's De-
cision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge,
as modified herein.
Contrary to the Administrative Law Judge, the
General Counsel and the Charging Party contend,
and we find, that Respondent violated Section
8(b)(4)(i) and (ii)(B) of the Act by picketing at the
Charging Party's neutral gate during the week of
April 13-17 and on May 21, 1981. The Administra-
tive Law Judge found that Respondent's conduct
was not unlawful because employees of neutral
subcontractors McLean Steel on April 13-17 and
Jerry R. Clark Construction, on May 21, did not
report for work and there was no record evidence
that any other subcontractors were on the project
during those times. Finding no evidence of the sub-
contractors and their employees' motivation for
failing to report to the job as scheduled, except for
the "self-serving" hearsay testimony of Project
Manager Radom, the Administrative Law Judge
conclude that Respondent's picketing on those
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
The General Counsel filed a motion to consolidate this case with
United Brotherhood of Carpenters and Joiners of America. AFL-CIO, Local
Union Na 1622 (Specialty Building Company), 262 NLRB 1244, issued
today, which involves similar violations by the same Respondent. The
General Counsel argued that Respondent's conduct in this case, viewed
together with the violations found in Specialty, requires the issuance of a
broad remedial order. However, we find it unnecessary to consolidate the
two cases, as Respondent's actions in each case independently warrant
the issuance of broad remedial orders.
262 NLRB No. 138
dates was not violative of the Act, citing Carpen-
ters District Council of Sabine Area and Vicinity and
Carpenters Local 753 (Gulf Coast Construction Com-
pany), 248 NLRB 802 (1980).
We find the Administrative Law Judge's applica-
tion of Gulf Coast to be misplaced. Unlike the situ-
ation in that case, where no common situs had been
established when the picketing commenced, and
the general contractor's hearsay testimony related
to the responses to his efforts to get the subcon-
tractors to begin work, the record in this case
clearly demonstrates that a common situs was al-
ready in existence on the dates in question. Fur-
thermore, both McLean Steel and Jerry R. Clarke
had begun work and were scheduled to continue
work on those days. Thus, we conclude that Re-
spondent's picketing of the neutral gate at a time
when a common situs had been established and
subcontractors were scheduled to work supports an
inference that the later failure of the two subcon-
tractors to appear and continue their work was due
to Respondent's picketing at the neutral gate.
AMENDED CONCLUSIONS OF LAW
Insert the following as paragraph 3:
"3. By picketing at the alleyway entrance onto
the Laurel Grove Medical Plaza jobsite, which en-
trance area was solely utilized by neutral subcon-
tractors on April 1, 2, 6 through 10, and 13
through 17, and May 18 and 21, with an object of
forcing or requiring the subcontractors to cease
doing business with Robert Wood, Respondent en-
gaged in conduct violative of Section 8(b)(4)(i) and
(ii)(B) of the Act, which violations are unfair labor
practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Carpenters
Union Local No. 1622, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO,
Haywood, California, its officers, agents, and rep-
resentatives, shall take the action set forth in the
said recommended Order.
MEMBER JENKINS, dissenting:
For the reasons stated in my dissents in and since
Markwell and Hartz,2 I find that Respondent's pick-
' Building and Construction Trades Counsel of New Orleans. AFL-CIO
(Markwell and Hartz, Inc.), 155 NLRB 319 (1965). See also Construction
A General Laborers Union. Local 304. Laborers International Union of
North America (Athejen Corporation), 260 NLRB 1311 (1982), and cases
cited herein.
1211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eting here is primary in nature and protected by
the proviso to Section 8(b)(4)(B) of the Act. Ac-
cordingly, I would dismiss the complaint.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge: This
matter' was heard before me in Oakland, California, on
July 13 and 14 and October 1, 1981.2 On April 29, May
29, and June 25, respectively, the Regional Director for
Region 32 of the National Labor Relations Board, herein
called the Board, issued a complaint, a consolidated com-
plaint, and an amended consolidated complaint based
upon unfair labor practice charges filed on April 7 and
May 20, respectively, by Robert Wood & Associates,
Inc., herein called Robert Wood, alleging that Carpen-
ters Union Local No. 1622, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, herein called
Respondent, engaged in acts and conduct violative of
Section 8(b)(4)(i) and (ii)(B) of the National Labor Rela-
tions Act, as amended, herein called the Act. Respondent
filed answers denying the commission of any unfair labor
practices. At the hearing, counsel for the General Coun-
sel was permitted to amend the consolidated complaint,
altering the jurisdictional allegations thereof and adding
another allegation that Respondent, by its acts and con-
duct, violated Section 8(b)(4Xi) and (ii)(B) of the Act.
Respondent denied both allegations. All parties were af-
forded full opportunity to offer relevant evidence, to ex-
amine and cross-examine witnesses, and to submit post-
hearing briefs. All parties filed such briefs, each of which
has been carefully considered. Therefore, based upon the
entire record, the post-hearing briefs, oral argument, and
upon my observation of the demeanor of the witnesses, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Robert Wood, a Califor-
nia corporation, with a place of business in City of In-
dustry, California, has been engaged in the building and
construction industry as a general contractor and, since
approximately August 1980, has been the general con-
tractor for the construction of a three-story building,
called the Laurel Grove Medical Plaza, located on Lake
Chabot Road in Castro Valley, California. In its capacity
as general contractor, Robert Wood entered into con-
tracts with various subcontractors, including U.S. Glass
& Mirror (installation of glass and aluminum fronts and
glazing work), McLean Steel (steel framing and deck-
ing), and Comfort Masters (heating, air-conditioning, and
duct work), to perform certain work on the construction
I The instant matter was consolidated for hearing with Case 32-CC-
476, which involved a different Respondent but similar facts. After the
hearing opened, I approved an informal settlement agreement in the latter
case, and it was subsequently severed from these proceedings.
I The record was reopened on October I, pursuant to an order of the
Board dated September 16, 1981, in order to take additional evidence of
potential unfair labor practices.
All dates herein are in 1981 unless otherwise stated.
project. While it does not appear that Robert Wood itself
satisfies any of the Board's jurisdictional standards, in
cases involving secondary activity by a labor organiza-
tion which may be violative of Section 8(b)(4) of the Act
"the Board will take into consideration for jurisdictional
purposes the entire operations of the secondary employ-
ers at the locations affected by the alleged conduct in-
volved." International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 257 (Glenn L. Whitman and
Robert R. Jolley, d/b/a Osage Neon Plastics), 176 NLRB
424, 425 (1968); Highway Truck Drivers and Helpers,
Local 107, a/w the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(George F. Paravicini, individually and trading as D.L. W.
Transportation Company), 145 NLRB 212 (1968). In this
regard, the record discloses that, in connection with their
respective contracts with Robert Wood and their oper-
ations at the Laurel Grove Medical Plaza building
project, U.S. Glass & Mirror purchased fixed windows,
in the amount of $15,909, directly from a supplier locat-
ed in the State of Oregon; McLean Steel purchased steel
trusses and steel joists, valued at $32,178.27, directly
from a supplier located in the State of Nebraska; and
Comfort Masters purchased a Carrier multi-zone air-con-
ditioning unit and accessory items, valued at approxi-
mately $20,000, from a wholesale distributor of Carrier
air-conditioning products located within California,
which company, in turn, purchased said products direct-
ly from Carrier, which is located in the State of Tennes-
see. The record further discloses that all the aforemen-
tioned materials were shipped directly to the Laurel
Grove Medical Plaza jobsite from outside the State of
California. Based upon the foregoing, inasmuch as said
purchases of goods and products exceed $50,000, and the
record as a whole, I find that Robert Wood, McLean
Steel, U.S. Glass & Mirror, and Comfort Masters are em-
ployers and/or persons engaged in commerce or in in-
dustries affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) and Section 8(b)(4) of the Act.
II. LABOR ORGANIZATION
The consolidated complaint alleges, Respondent
admits, and I find that Respondent is a labor organization
within the meaning of Section 2(5) of the Act.
111. ISSUE
Did Respondent, by its picketing at the Laurel Grove
Medical Plaza jobsite on April 1 and 2, April 6 through
April 23, May 18, May 20 and 21, and July 22, engage in
acts and conduct violative of Section 8(b)(4)(i) and (ii)(B)
of the Act?
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Robert Wood is engaged in the building and construc-
tion industry as a general contractor, constructing com-
mercial buildings for developers and/or architects. As to
the project herein involved, Robert Wood contracted
with Laurel Grove Medical Partners, Ltd., to erect a
three-story medical office building, called the Laurel
1212
CARPENTERS LOCAL 1622
Grove Medical Plaza, on Lake Chabot Road in Castro
Valley, California. Construction work on the building
was scheduled to, and did, commence in August 1980,
with all such work performed by subcontractors. These
included Avery Pratt Masonry (masonry work), Juranco
Plumbing (sewers), McLean Steel (steel decking), Com-
fort Masters (heating and air-conditioning), U.S. Glass &
Mirror (glazing work and windows), Ragevig Roofing
(roofing work), Jerry R. Clarke Construction (concrete),
Enserv Electric (electrical work), Chatterton Plumbing
(plumbing work), and U.S. Elevator and Supply (eleva-
tors). Roger Radom, who has been project manager'
since the inception of the project, testified that Robert
Wood reserved for itself all "miscellaneous work," con-
sisting of light carpentry and cleanup duties. To perform
this latter work, the general contractor employed three
carpenters and a helper, the latter acting as Radom's as-
sistant. According to Radom, the carpentry work which
was accomplished by Robert Wood's employees was
completed by mid-March. 4
The record establishes that the jobsite is fully en-
closed, with retaining walls bordering the entire lengths
of the west and north sides. The south side of the project
is bordered by Laurel Grove Hospital; between the hos-
pital and the building project is an unpaved alley or
roadway which is approximately 20 feet wide. Lake
Chabot Road runs in front of and along the entire east
side of the project. A sidewalk s separates the jobsite
from the street on the latter side. Further, the building
itself is set back 12 to 15 feet from the sidewalk, and a
chain link fence" separates the project from the sidewalk
and stretches along the entire front of the jobsite. With
regard to the fence, from its erection until May 21, two
swinging gates existed within the fence structure. One
such gate is located 10 feet from the north end and
crosses the only true entrance onto the project. Accord-
ing to Roger Radom, this gate remains open during each
workday but is padlocked shut each evening. The second
swinging gate, consisting of two hinged fence sections
both of which are capable of swinging inward or out-
ward, was placed 7 approximately 5 feet to the north of
the alley or roadway between the hospital and the build-
ing project. The record establishes that, except for
March 9, this gate had constantly been padlocked: that
the building itself was directly behind this gate; and that,
at all times material herein, the Carrier air-conditioning
unit, which will be installed in the building, has been
3 According to Radom, his functions as project manager included su-
pervising all phases of the construction work, writing and negotiating all
subcontracts, and scheduling the performance of work on the jobsite.
4 The record does disclose that after March Robert Wood continued
to employ personnel on the project-using carpenter's tools and perform-
ing odd-type jobs.
1 From I akc Chabot Road, there is no driveway which crosses the
sidewalk and leads into the alley between the building project and the
hospital.
I At the time construction work commenced, no such fencing existed.
However. according to Radom, it was hurriedly erected after the build-
ing's basement had been excavated, "and I didn't want any kids getting
onto the project until I covered the basement aiea.
7 As to the locx-ation of the gate, Radom intimated that such was a mis-
take, asserting thal, at the time the fence was erected, he hurriedly point-
ed out the intended location for the gate to the contractor. Radom did
not explain %shy he waited until May 21 to move the swinging gate to its
present locate ln -across the alleys ay
placed no more than 2 or 3 feet in back of the hinged
fence section which is farthest from the alleyway, effec-
tively blocking said section from swinging inward. Final-
ly, also at all times material herein until May 21, affixed
to a fence post at the corner of the hospital and to an-
other at the end of the permanent fence and strung
across the entire width of the alleyway at the southern
end of the Lake Chabot Road side of the jobsite was a
loose strip of fencing which was capable of being re-
moved, rolled back, and placed to either side of said
alley.
As mentioned above, construction work on the build-
ing project was predominantly to be performed by sub-
contractors who were scheduled to work at appropriate
intervals. Apparently, in the latter part of February, em-
ployees of Avery Pratt Masonry were either scheduled
for work or actually working at the jobsite. According
to both Project Manager Radom and his assistant, Frank
O'Dea, one day in mid-Fcbruary a man entered onto the
jobsite; walked over to Radom, who was standing upon
a section of scaffolding; and identified himself as John
Wedaman, an organizer for Respondent. Radom there-
upon climbed down, and he and Wedaman entered
Robert Wood's job shack.8 According to Radom, "he
expressed . . . that he noticed that I had carpenters on
the job, and he asked me if they were Union carpenters
· . . and I told him, no, I didn't believe any of them
were in the Union. He then asked me if I had other con-
tractors on the job, and I said, 'Well, yeah, at the time I
have a mason on the job."' Wedaman asked if the sub-
contractors were union contractors, "and I just informed
him that I really didn't want to give him any names of
contractors, and that [it] didn't make a difference wheth-
er they were Union or non-Union .... " Nothing more
was said, and Wedaman departed.
On or about February 24, two individuals, carrying
picket signs, established themselves at the north entrance
to the jobsite, off Lake Chabot Road. A witness, Michael
Britton, testified that he is a member of Respondent and
that, after volunteering to do so, he picketed at the job-
site on behalf of Respondent for at least a 2-1/2-month
period. 9 The record discloses that he carried a sign read-
ing:
Robert Wood & Associates, Inc. fails to pay
wage rates and fringe benefits established by car-
penters in area. No dispute with any other employ-
er.
The other picket carried a similarly worded placard,
identifying an identical dispute between Avery Pratt Ma-
sonry and the bricklayers union. The record further dis-
closes that, in response to this picketing, Project Man-
ager Radom established what he believed were clearly
defined separate entrances to the jobsite from Lake
Chabot Road by means of two signs. The first was
placed at the left corner of the north entrance and read:
* The job shack is located between the building and the front fence,
equidistant between the north and south ends of the project.
9 A second individual, Gary Smith, who also is a member of Respond-
ent, commenced picketing with Britton at the jobsite on March 9. He
carried an identical sign.
1213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STOP-READ GATE I
THIS GATE IS RESERVED FOR
PERSONNEL, VISITORS & SUPPLIERS
OF THE CONTRACTORS LISTED BELOW:
ROBERT WOOD & ASSOC. INC.
AVERY PRAIT MASONRY INC.
The other sign was affixed to that section of the swing-
ing gate at the south end of the project which was
blocked from swinging in toward the building by the
Carrier air-conditioning unit, with the sign, therefore,
placed approximately 15 to 20 feet from the alleyway be-
tween the hospital and the building project.10 The sign
read:
STOP-READ GATE 2
THIS GATE MAY NOT BE USED BY
PERSONNEL, VISITORS, OR SUPPLIERS
OF THE CONTRACTORS LISTED BELOW:
ROBERT WOOD & ASSOC. INC.
AVERY PRATT MASONRY INC.
Also on February 27, Radom sent a telegram to Re-
spondent, notifying the latter that the aforementioned
gate signs had been posted and requesting Respondent to
confine its picketing to Gate I, "the primary's gate." No
other subcontractors besides Avery Pratt Masonry
worked on the project for any significant periods in Feb-
ruary and March; however, Respondent's pickets contin-
ually ignored the reserve gate system, picketing along
the entire front of the jobsite.
A great deal of the record evidence concerns exactly
what the Gate 2 sign designated as the entrance for use
by all neutral subcontractors, their employees, and their
suppliers. In this regard, Project Manager Radom testi-
fied that the sign was intended to, and did, designate the
alleyway, at the southern end of the project and across
which was stretched the removable section of fencing, as
the neutral gate; while Respondent argued that the place-
ment of the sign clearly identified the swinging gate, at
the south end of the chain link fence, as Gate 2 and that
the alleyway represented a separate, unposted third en-
trance onto the jobsite. Radom, while offering no credi-
ble explanation as to why the Gate 2 sign was affixed to
the fence at such a distance'" from the intended entrance
and at a point which obviously was a section of a swing-
ing gate and admitting the unknowing neutral visitors or
suppliers "may indeed" believe the southern swinging
gate was that which was designated as Gate 2, asserted
that this area was not an entrance inasmuch as, except for
March 9, this swinging gate was constantly padlocked
and as neutral subcontractors and their suppliers always
utilized the alleyway as their entrance onto the project.
However, Respondent points to the very events of
'o This distance is easily discerned from viewing Resp. Exh. I(c), a
photograph of the scene.
I' According to Radom, on or about March 9. the sign was moved 5
feet to the left. However, his assistant, Frank O'Dea, contradicted
Radom, testifying that prior to May 21, he never had any occasion to
move the sign. Finally, picket Michael Britton confirmed Radom that the
sign had been taken down on March 9 but corroborated O'Dea that the
sign was reaffixed in exactly the same position.
March 9 to buttress its position that not only was the
swinging gate an entrance onto the project but also that
its pickets perceived it as such. On that day, according
to the credible testimony of Michael Britton and the doc-
umentary evidence, the gate was opened in the morning
to permit the pickup truck of a drilling subcontractor to
be backed onto the project to begin the process of plac-
ing building braces into the ground. Respondent's Exhib-
its 2(a), (b), and (c) clearly show the swinging gate wide
open (with the remainder of the fence still standing) and
the pickup truck backed onto the jobsite at that loca-
tion.12 Other than on this date, Britton corroborated
Radom that the swinging gate was constantly padlocked
and never utilized by subcontractors and that the latter
and their suppliers always utilized the alleyway for
access onto the project.' 3 In this regard, there is no dis-
pute that either Radom or O'Dea would roll back the
loose fencing whenever entry by a subcontractor or sup-
plier was necessary.
While there is controversy over whether the alleyway
was the neutral entrance or a third entrance onto the job-
site, there is no dispute that Respondent's pickets sta-
tioned themselves at this location whenever the fencing
was moved and the entrance was utilized by subcontrac-
tors or their suppliers. Thus, picket Britton testified that
he picketed there "anytime that had a call to [do so]
.... Whenever there was business being occurred at
the [alley entrance]." He further testified that he was in-
structed to picket in that manner by Wedaman. Corrobo-
rating Britton, picket Gary Smith testified that he was
assigned to picket Gate I "and when they tore down the
fence I was told to go to the [alleyway entrance] when
somebody went down and just hold my sign there and
take it down and walk to Gate 1 where the other carpen-
ter was and then we'd switch on intervals." While Re-
spondent's admissions were generalized, the consolidated
complaint alleges specific incidents of the aforemen-
tioned picketing as unlawful. In support, Radom testified
that McLean Steel was scheduled to perform work on
the project for 10 days commencing on or about March
31. On that day the subcontractor's employees entered
and exited through Gate 1; however, on April 1, after
Radom or O'Dea rolled back the loose fencing, McLean
Steel employees entered the jobsite via the alleyway.
Also on that date, a large steel shipment was delivered to
McLean Steel at the alleyway entrance. That day, while
the McLean Steel employees worked and during the
steel delivery, Respondent's pickets traversed the entire
front of the project-from the Gate 1 entrance to, and
including, the alleyway. Britton admitted picketing at the
alleyway at the time of the McLean Steel steel delivery,
testifying that the driver was unable to drive onto the
project due to the muddy condition of the alley. Radom
1I At other times during that day, the entire fence was taken down to
permit drilling at various points along the front of the building, between
it and the sidewalk. It was this that prompted a telegram from Radom to
Respondent on March 10, describing the events of March 9 and stating
that the reserved gate system had been reestablished on the jobsite.
s Britton admitted that a large trailer "couldn't have made it"
through the swinging gate and around the corner of the building but con-
tended that smaller vehicles could have been driven through and onto
the property at that point
1214
CARPENTERS LOCAL 1622
further testified that McLean Steel employees again uti-
lized the alleyway for entrance onto the project on April
2 and that Respondent's pickets again traversed the
entire front of the project,' 4 including the alley. 5
Radom and O'Dea testified that, on April 6 and 7, Re-
spondent's pickets continued to picket both at Gate I
and at the alleyway and that McLean Steel employees
reported to the jobsite but did not cross the picket line at
the alleyway and enter onto the project on either date.
According to Radom, he telephoned to unidentified
McLean Steel officials on April 6 and was told that the
latter's personnel would not enter the project due to the
picketing. The record discloses that, despite this com-
ment and continued picketing at the alleyway by carpen-
ter pickets for the remainder of that week, the McLean
Steel employees did report to work on April 8 and that
they worked on April 9 and 10, as well. Also during this
week, a forklift was delivered to McLean Steel via the
alleyway. Radom testified that Respondent's pickets
were stationed at the alleyway when said delivery was
made, and Britton recalled picketing on that occasion.
The record further discloses that, although McLean
Steel had significant work remaining on the jobsite, no
employees of that subcontractor reported for work
during the week of April 13. By the start of this week,
the bricklayers union picket was no longer appearing in
front of the jobsite; however, at some point during this
week, a picket, representing the sheetmetal workers
union, replaced the former, joining the two carpenter
pickets.-" According to Radom, these three pickets tra-
versed the entire front of the project each day that week,
stopping for brief periods in front of the alley. With no
work being done, Radom further testified, he telephoned
to McLean Steel several times during the week in order
to ascertain when, if at all, that contractor would reap-
pear on the jobsite.' 7 Testifying that he spoke to Law-
rence McLean and to two supervisors, Radom stated
that "I was told that they wouldn't be able to get back
onto the project until-that the sheetmetal picket was-
they resolved the sheetmetal picket problem." Further
according to Radom, Lawrence McLean told him that
his company would commence work when that picket
was gone. Counsel for the General Counsel did not have
any witnesses to corroborate the above conversations,
which clearly are hearsay in nature.
14 On both days, according to Radom, a picket was "stationed" at the
alley, but Radom could not recall if this individual carried a carpenter
picket sign or whether he was the bricklayers picket.
" Late in the afternoon of April 2, Radom took down the gate signs
in order to remove Avery Pratt Masonry from them inasmuch as its
work at the jobsite had been concluded. According to Radom, not only
were the signs reestablished in the same locations at 9 a.m. on April 3 but
also a telegramn was sent to Respondent on April 3 so informing the
latter. When McLean Steel employees arrived for work on April 3, Re-
spondent's pickets were again traversing the entire front of the jobsite
Such occurred prior to the reestablishment of Steel's employees honored
the picket line and did not report for work.
'6 Both Radom and O'Dea testified, without contradiction, that they
observed Wedaman in front of the project several times each week
during April
I7 Radom testified that while he generally scheduled work at the job-
site and allotted each subcontractor a certain number of days in which to
perform its work. McLean Steel controlled its own labor relations, in-
cluding the scheduling of work
From late April until on or about May 18, Respond-
ent's pickets confined their activities to Gate 1, the gate
reserved for Robert Wood. There is no evidence that
Respondent was unsuccessful in advertising its dispute
with Robert Wood to the latter's employees or to the
general public during this period. Frank O'Dea testified
that, on May 18, two employees of a subcontractor, U.S.
Elevator and Supply, drove onto the jobsite in a pickup
truck via the alleyway and that, immediately thereafter,
Respondent's pickets walked down to the alleyway and
remained there. The truck was parked next to the build-
ing and an individual, whom O'Dea described as the
"boss," asked what was happening. O'Dea told him
about the picketing, and the "boss" replied that he had
been unaware of any such activity. Thereupon, accord-
ing to O'Dea, the "boss" said he was not going to do
any work, and the pickup truck was driven off the job-
site through Gate 1.
The record reveals that later in this week on May 20,
Radom had scheduled Jerry R. Clarke Construction to
perform concrete work on the jobsite; the latter, in turn,
had purchased, and was scheduled to receive on said
date, a cement delivery from Rhodes and Jamison Con-
crete. At approximately 11 a.m., the concrete delivery
trucks arrived at the entrance to the alleyway. Standing
at the alleyway and blocking the delivery were Respond-
ent's two pickets and approximately eight other individ-
uals, including Wedaman. According to O'Dea, the
cement trucks eventually were permitted to drive into
the alleyway but only after a picket yelled that ". .. this
was a sanctioned line and the drivers shouldn't cross . .
there could be trouble," and other individuals recorded
the license numbers of the delivery trucks. General
Counsel's Exhibit 21 clearly shows the picketing at the
alleyway as the cement delivery truck was stopped at its
entrance. According to Radom, the carpenter pickets re-
mained at the alleyway for the remainder of that day and
the next day.
On May 21, according to O'Dea, Robert Wood decid-
ed to clarify any ambiguity as to the location of Gate 2.
Thus, on that day, he and two helpers removed the pad-
locked swinging gate from its prior position and placed it
across the entrance to the alleyway. In so doing, the
Gate 2 sign was taken off the fence and placed at the
edge of the building, to the right of the alley. After he
finished installing the swinging gate, O'Dea again affixed
the Gate 2 sign to the gate. He further testified that,
while the gate installation work was in progress, the two
pickets walked down to where O'Dea was working.
"They started saying to us that we had already violated
the gate and this job would be shut down pretty soon.
I'd be out of work .... No other union company
would enter the gate."
During the month of July, Jerry R. Clarke Construc-
tion employees performed work on the jobsite for 3 or 4
ia According to Radom, Jerry R. Clarke Construction was scheduled
for work this day (May 21) but no employees reported to the jobsite.
Radom testified that he spoke to Jerry Clarke that day and that the latter
allegedly stated that his men were not there because of the picketing and
because he feared no concrete delivery would be made. Again, despite
the obvious hearsay nature of this conversation, no corroborating testi-
mony was offered.
1215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days. On July 22, according to Jerry Clarke, he had
scheduled several cement deliveries from Rhodes and Ja-
mison Concrete. Brian Norton, a driver for the latter, ar-
rived in front of the jobsite at approximately 8 am. and
observed Clarke and two other individuals standing at
the alleyway. Assuming that he was to deliver his con-
crete shipment through this entrance, Norton com-
menced maneuvering his truck in order to back into the
alleyway. At this point, according to Clarke, a carpenter
picket, without his sign, came from Gate I and jumped
onto the driver's side running board of the moving truck.
Norton, who was concentrating on operating his truck,
testified that he could sense that someone had leaped
onto the running board but that he never turned to see
who the individual was. Norton yelled that the person
should get off the truck; a voice responded that he could
not back onto the jobsite. Norton asked why, and the in-
dividual replied that his union was picketing the job and
that, as a member of the Teamsters, Norton was required
to honor a picket line. Norton then asked which union
was picketing, and the voice identified the carpenters
union. Nothing more was said,"9 and, according to
Norton, whoever was on the truck's running board
jumped to the ground. As he continued maneuvering the
truck onto the jobsite, Norton observed an unidentified
individual walking from the vicinity of his ready-mix de-
livery truck toward a gray pickup truck which was
parked in front of the jobsite, midway between Gate I
and the alleyway. Subsequently, Norton backed onto the
jobsite via the alleyway and commenced the concrete
pour. Later, while Norton was in the midst of his pour, a
second Rhodes and Jamison Concrete ready-mix truck
drove up to the project and was parked at the alleyway
entrance. The driver walked over to Norton, who was
standing by the cab of his truck at the front edge of the
building project, and they began to converse. The afore-
mentioned gray pickup truck, which had been driven
away from the jobsite, returned, followed by a car. An
individual got out of the car, took photographs of the
two Rhodes and Jamison Concrete trucks, returned to
his car, and drove off.
Finally, there is no contention, and, indeed, no record
evidence, that at any time material herein any employees
or suppliers of Robert Wood ever entered onto the job-
site through the swinging gate at the southern front end
of the project or via the alleyway between the Laurel
Grove Hospital and the building project.
B. Analysis
The complaint alleges that, by its acts and conduct
herein described, Respondent engaged in conduct viola-
tive of Section 8(bX4Xi) and (iiXB) of the Act. That pro-
vision, in relevant part, states:
'D I do not rely upon the testimony of Clarke as to what the individu-
al, who was upon the running board. said to the Rhodes and Jamison
Concrete driver. The truck was emitting a substantial amount of nose,
and I do not believe Clarke could accurately hear what was said. How-
ever, I specifically credit the forthright testimony of the driver Norton.
[Sec. 8](b) It shall be an unfair labor practice for
a labor organization or its agents-
(4Xi) to engage in, or to induce or encourage any
individual employed by any person engaged in com-
merce or in an industry affecting commerce to
engage in, a strike or a refusal in the course of his
employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
material, or commodities or to perform any serv-
ices; or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry af-
fecting commerce, where in either case an object
thereof is:
* s S t S
(B) forcing or requiring any person . . . to cease
doing business with any other person ....
The prohibitions of Section 8(bX4) of the Act were de-
signed to reach secondary boycotts by labor organiza-
tions and reflect "the dual congressional objective of pre-
serving the right of labor organizations to bring pressure
on offending employers in primary labor disputes and of
shielding unoffending employers and others from pres-
sures in controversies not their own." N.LR.B. v.
Denver Building and Construction Trades Council [Gould
& Peisner], 341 U.S. 675, 692 (1951). Especially in
common situs situations, the line between lawful primary
and unlawful secondary activity is not clearly defined,
and in Sailors' Union of the Pacific, AFL (Moore Dry Dock
Company), 92 NLRB 547 (1950), the Board adopted
guidelines,' ° which have been approved by the courts,2'
to aid in determining whether the object of common
situs picketing by a labor organization is primary or sec-
ondary. However, said guidelines are merely evidentiary
in nature and are not to be mechanically applied. Thus,
while compliance may give rise to a rebuttable presump-
tion that picketing is primary, the totality of the evidence
may establish an underlying secondary objective. Inter-
national Union of Operating Engineers, Local Union Na
450( AFL-CIO (Linbeck Construction Corporation), 219
NLRB 997, 998 (1975), affd. 550 F.2d 311 (5th Cir.
1977); General Teamster, Warehouse and Dairy Employees
Union Local Na 126, International Brotherhood of Team-
sters Chauffeurs, Warehousemen and Helpers of America,
etc (Ready Mixed Concrete, Inc.), 200 NLRB 253 (1972).
'0 In order to be determined that such is lawful primary conduct, (I)
common situs picketing must be strictly limited to times when the situs of
the dispute is located on the secondary employer's premises; (2) at the
time of the picketing the primary employer must be engaged in its normal
business at the situs; (3) the picketing must be limited to places reamonably
close to the location of the situs, and (4) the picketing must disclose clear-
ly that the dispute is with the primary employer.
I' The Court of Appeals for the Ninth Circuit has specifically ap-
proved of the Moore Dry Dock guidelines as the "proper test for deter.
mining the legality of union picketing at common situs construction proj-
ects." International Asociation of Bridge Structural and Ornamental Iron
Workern Local Na 433, AFL-CIO [Robert McKee, Inc] v. NLR..R, 598
F.2d 1154, 1156 (9th Cir. 1979); Carpenters Local 470 [Mueller-Anderson.
Inc] v. N.LRR.., 564 F.2d 1360 (9th Cir. 1977).
1216
CARPENTERS LOCAL 1622
Further, in order to insulate neutral employers and their
employees and suppliers from disputes not their own,
employers on a common situs are permitted to establish
and maintain separate gates for use by those primarily in-
volved in a labor dispute and those not so involved.
Local 761, International Union of Electrical. Radio & Ma-
chine Workers, AFL-CIO [General Electric Company] v.
N.L.R.B., 366 U.S. 667 (1961). When such gates are
properly established, a union may picket only at the gate
of the employer with whom it has a dispute; however,
the integrity of the neutral gate must not be compro-
mised by utilization by the primary employer's employ-
ees or suppliers-which conduct would destroy its im-
munity from picketing. Local Union 323, International
Brotherhood of Electrical Workers (J. F. Hoff Electric Co.),
241 NLRB 694 (1979); Linbeck Construction Corporation,
supra. Moreover, the primary gate must not be placed so
as to impair the effectiveness of picketing at that loca-
tion, for the purpose of the separate primary gate is to
"minimize [the impact of picketing] on neutral employers
without substantial impairment of the effectiveness of the
picketing in reaching the employees of the primary em-
ployer." Nashville Building & Construction Trades Coun-
cil, et al. (H.E Collins Contracting Company, Inc.), 172
NLRB 1138, 1140 (1968), enfd. 425 F.2d 385 (6th Cir.
1970).
In support of the allegations of the consolidated com-
plaint herein, counsel for the General Counsel argues
that the alley or roadway entrance was clearly designat-
ed as Gate 2, the neutral gate; that Respondent's pickets
admittedly did not confine themselves to the primary en-
trance, Gate 1, but rather picketed at the alleyway en-
trance whenever neutral subcontactors, their employees,
and their suppliers entered onto the jobsite at that loca-
tion; and that the aforementioned conclusively establishes
that the object of the picketing was secondary. Contrary
to the General Counsel and to counsel for the Charging
Party, Respondent argues that, at all times material
herein, its members lawfully picketed at the alleyway en-
trance inasmuch as the Gate 2 sign did not clearly identi-
fy who was supposed to utilize that entrance, as the Gate
2 sign was significantly removed from the actual entry
area utilized by the neutral contractors, and as the actual
entry area was not a properly established reserve gate.
Finally, as to the events of July 22, counsel for Respond-
ent argues that such were inconsequential and do not es-
tablish a violation of the Act.
Certain factors are susceptible of immediate resolution
herein. At the outset, although their signs failed to identi-
fy Respondent, it is clear, and I conclude, that, com-
mencing on February 27, Michael Britton and Gary
Smith picketed on behalf of Respondent at the Laurel
Grove Medical Plaza jobsite and that Respondent was, at
all times, responsible for their conduct. Thus, both indi-
viduals are members of Respondent and received instruc-
tions from that labor organization regarding the manner
in which the picketing was to be accomplished. Further,
Respondent's organizer, Wedaman, visited the jobsite
and spoke to Robert Wood's project manager Radom
prior to the start of the picketing, and Wedaman was ob-
served by Radom and Frank O'Dea in the area of the
picketing on several occasions during April and May.
Accordingly, I conclude that Respondent is responsible
for the conduct of the picketing herein. Next, the record
establishes, and it was uncontroverted, that Roger
Radom established a valid reserved gate system at the
jobsite on or about February 27; that, at the very least, a
clearly defined entrance was set aside for the exclusive
use of Robert Wood, its employees, and its suppliers and
another primary employer; that there exists no record
evidence that employees of Robert Wood or its suppliers
utilized any other location for entrance onto the jobsite
after February 27; and that Respondent was given notice
of the establishment of the reserved gates. In this regard,
I reject Respondent's initial defense that the neutral gate
(Gate 2) sign was deficient inasmuch as it failed to identi-
fy which contractors were supposed to enter at that lo-
cation. While Respondent is correct that said sign does
not identify the users of the designated entrance, the
Board has previously concluded that picketing at
common situs entrances, set off by identically worded
signs, is violative of Section 8(bX4)i) and (iiXB). Con-
struction and General Laborers Union, Local 185, Laborers
International Union of North America, AFL-CIO; Cement
Masons Local 582. Operative Plasterer and Cement Masons
International Association, AFL-CIO (West-Cal Construc-
tion, Inc.), 255 NLRB 53 (1981); National Association of
Broadcast Employees and Technicians, AFL-CIO, Local 31
(CBS, Inc.), 237 NLRB 1370 (1978). Finally, the consoli-
dated complaint alleges that unlawful picketing occurred
on specific dates. The record reveals, and Respondent's
witnesses admitted, that picketing occurred at the alley
or roadway entrance whenever subcontractors or their
suppliers utilized that area as a means of access to the
jobsite. Specifically, the record establishes that unlawful
picketing occurred on April I and 2 (when employees of
McLean Steel were on the jobsite and a large steel deliv-
ery was made to McLean Steel via the alleyway); 22 on
April 6 through April 10 (during which week picketing
occurred at the entrance to the alleyway on each day,
and the McLean Steel employees honored the picketing
the first 2 days of the week but refused to do so the re-
maining 3 days, entering the jobsite via the alleyway and
working);25 on May 18 (when employees of U.S. Eleva-
*2 While there was picketing at the alleyway entrance on April 3
when McLean Steel employees arrived at the jobsite and crossed onto
the project at the alleyway entrance, such occurred early that morning.
Inasmuch as the reserved gate signs had been removed the previous after-
noon and were not reestablished until after the picketing commenced on
April 3, I place no reliance on that picketing for any possible violations
of the Act.
2s I credit the uncontroverted testimony of Radom and O'Dea as to
the events of April 6 through April 10. However, while Radom testified
that Respondent's picketing continued at the alleyway entrance on April
13 through April 17, employees of McLean Steel did not report to the
jobsite for work that week and there is no record evidence that any other
subcontractors were on the project during that week. Radom also testi
fled that substantial work remained for McLean Steel to complete but ad-
mitted that the subcontractor controlled its own labor relations, including
the scheduling of work. Radom further testified that he had serveral con-
versations with McLean Steel management officials about working that
week and was told that no employees would work until the sheetmetal
workers union picketing ended. Assuming arguendo that this alleged
reply implicated Respondent's picketing as the reason why the McLean
Steel employees did not report for work on April 13 through April 17, I
note the hearsay nature of the response and that no corroborating testi-
Continued
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tor and Supply entered onto the project via the alleyway
and picketing by Respondent ensued immediately there-
after at the alleyway); 24 and on May 20 (on which date
Respondent's pickets, organizer Wedaman, and other un-
identified individuals attempted to induce drivers, who
were employed by Rhodes and Jamison, to forgo making
a cement delivery to Jerry R. Clarke Construction
through the alleyway.25
If one concludes that counsel for the General Coun-
sel's arguments, that the Gate 2 sign, which was affixed
to a section of the swinging gate near the southern
border of the jobsite and located no less than 15 feet
from the alley or roadway, between the Laurel Grove
Hospital and the building project, at most referred to
said alley as the designated neutrals' entrance onto the
jobsite or, at the least, referred to the entire southern
fence area, including the alleyway and the swinging gate,
herein are meritorious, there is-and can be-no question
that Respondent's aforementioned picketing had, as an
object, the exerting of pressure on Robert Wood by en-
meshing neutral subcontractors on the project in a dis-
pute not their own. Thus, there is no evidence that em-
ployees or suppliers of Robert Wood ever utilized the
neutral entrance for access onto the jobsite; rather, the
admissions of pickets Britton and Smith, that they were
instructed to picket at the alleyway entrance whenever
there was "business" at that location, suggest that Re-
spondent was well aware of this fact and designed its
above-described picketing at the alleyway to reach the
employees of the neutral subcontractors and their suppli-
ers. In a recent case, the Board characterized similar
picketing as follows: "Thus, Respondent made no effort
to limit its appeal to the primary employer even after its
agents knew that there was a gate reserved for use by
the primary. The inference is justifiable that Respondent
did this in order to cause [pressure upon the primary by
the neutral employers]." General Service Employees Union
Local No. 73, affiliated with Service Employees Internation-
al Union, AFL-CIO (Andy Frain, Inc.), 239 NLRB 295,
307 (1978). That the identical inference is permissible-
and, indeed, warranted-herein is clear from the uncon-
troverted and credited testimony of Frank O'Dea that
one of Respondent's pickets approached him on May 21
mony was adduced. Accordingly, I place no reliance upon, or give any
weight to, such self-serving hearsay testimony, and draw no inference as
to the motivation underlying the failure of the McLean Steel employees
to report for work that week. Carpenters District Council of Sabine Area
and Vicinity and Carpenters Local 7.3 (Gulf Coast Construction Company),
248 NLRB 502, fn. 2 (1980). Therefore, picketing that week will not be
found unlawful.
a4 I credit the uncontroverted testimony of Frank O'Dea regarding
this incident; however, noting the hearsay testimony concerning the
reason while the U.S. Elevator and Supply personnel departed without
working, I do not credit O'Dea as to why said individuals left. Gulf Coast
Construction. supra.
Ia The testimony of both Radom and O'Dea along with the photo-
graphic evidence clearly establish that said incident occurred. However,
while I also credit Radom that Respondent's pickets may have been at
the alleyway on May 21, I do not believe such can establish a potential
violation. Thus, I place no reliance upon the hearsay uncorroborated ra-
tionale allegedly given to Radom by Jerry R. Clarke Construction man-
agement for its employees' failure to report for work that day. Gulf Coast
Construction, supra. Thus, there is no credible evidence that any subcon-
tractors were on the project that day to be affected by the picketing or
that employees refused to work due to said conduct.
as he installed the southern boundary swinging gate
across the alleyway and said "that we had already violat-
ed the gate and this job would be shut down pretty soon.
I'd be out of work . . . no other union company would
enter the gate." 2 6 Clearly, then, accepting the conten-
tions of the General Counsel, Respondent's picketing
was unlawfully motivated and violative of Section
8(b)(4)(i) and (ii)(B) of the Act. Local 32B-32J, Service
Employees International Union, AFL-CIO (New York As-
sociation for the Blind), supra; International Brotherhood of
Electrical Workers, Local Union No. 211 (Atlantic County
Improvement Authority), 248 NLRB 168, fn. 2 (1980).
Moreover, even if I conclude, as urged by counsel for
Respondent, that the Gate 2 sign referred solely to the
swinging gate to which it was affixed as the designated
neutral subcontractors' entrance; that the alleyway,
across which was stretched a section of loose fencing,
constituted an undefined, third entrance onto the project
through which employees and suppliers of any entity, in-
cluding Robert Wood, could conceivably enter the job-
site; and that the foregoing resulted in confusion as to
which entrance was the one reserved for neutral subcon-
tractors, I likewise must further conclude that Respond-
ent's picketing herein was nonetheless violative of Sec-
tion 8(b)(4Xi) and (iiXB) of the Act. Thus, counsel's ar-
guments are fallacious in two significant aspects. Initial-
ly, I note his apparent misconception that the lack of
precise definition of the alleyway as an entrance, solely
reserved for employees and suppliers of neutral subcon-
tractors, somehow vitiates the entire reserved gate
system at the jobsite and privileges picketing at that area.
Second, his arguments completely ignore the critical fact
that not only was the primary gate clearly defined but
also that there was no contamination of any neutral
access area by the primary's employees or suppliers.
That Respondent's legal theory is without merit is clear
from two recent decisions of the Board. In CBS Inc.,
vupra, unions were engaged in a labor dispute with a na-
tional television network, which was covering a news
event at a Washington, D.C., hotel. The hotel's employ-
ees were represented by another labor organization and,
in order to localize the dispute, a separate entrance was
reserved for the network's employees and other en-
trances were posted as reserved for the hotel's employ-
ees. However, there was another hotel entrance at which
no gate designation was posted and, consequently, at
which picketing occurred. The Board concluded that
this picketing was violative of Section 8(bX4Xi) and
(ii)(B) of the Act, stating: ". . . that the picketing in
front of the hotel's [unposted entrance] was . . . imper-
missible, although no sign was put up in that area, in
view of the fact that the [unions involved] were aware of
a functioning 'reserved gate' for [the network's] person-
nel and the absence of any evidence that [the network's]
employees used the [unposted] entrance." 237 NLRB at
"2 Statements of pickets may be utilized to ascertain the true motiva-
tion for a labor organization's picketing. Local 32B-32J, Service Employees
International Union, AFL-CIO (New York Association for the Blind), 250
NLRB 240, 248 (1980); Local Union Na 3. International Brotherhood Ele.
trical Workers AFL-CIO (Bisantz Electric Co., Inc.), 192 NLRB 283, 287
(1971); Plumbers & Steamfitters Local Union Na 178 (Springday Company.
Division of Dayco Corporation), 185 NLRB 725 (1970).
1218
CARPENTERS LOCAL 1622
1377-79. The operative factors therein are identical to
those herein involved. Thus, notwithstanding the lack of
clear designation of the alleyway as an entrance reserved
solely for neutral subcontractors, Radom's telegrams,
dated February 27 and April 3, establish that Respondent
was well aware of the well-defined and functioning re-
served gate for Robert Wood's use, and there is no evi-
dence-and Respondent does not contend-that Robert
Wood's employees or suppliers ever utilized any en-
trance but its own for access to the jobsite. Likewise, in
International Brotherhood of Electrical Workers, Local 332,
AFL-CIO (Lockheed Missiles and Space Company, Inc.),
241 NLRB 674 (1979), the Board concluded that a
union's picketing was designed to reach all employees
but the primary and was, thus, violative of Section
8(b)(4Xi) and (ii)(B) of the Act. Therein, the union,
which represented the neutral plant owner's employees,
had a labor dispute with a subcontractor. In order to lo-
calize picketing to the dispute with the subcontractor, a
clearly designated entrance was reserved for that em-
ployer; however, no other entrances to the plant were
posted. Notwithstanding that the subcontractor's em-
ployees only entered through the reserved entrance, the
union picketed at other entrances which were used by
plant employees and suppliers. Noting that the plant
owner failed to post signs at any other entrance, the
Board nonetheless concluded that "the lack of those
signs did not invalidate the reserved gate." Id. at 680. In
so ruling, the Board emphasized that the work area was
essentially enclosed and that the reserved gate could be
effective without additional signs. Herein, of course, the
jobsite was also fully enclosed, and there has been no
showing that picketing at the primary gate could not
have been effective. See Local No. 222, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (W.S. Hatch Co., Inc.), 152 NLRB 853
(1965).27
Based upon the foregoing and the record as a whole,
there can be no doubt herein that Respondent's picketing
at the alleyway entrance on April I and 2 and 6-10 and
May 18 and 20 was unlawfully motivated, having as its
object the advertising of its labor dispute with Robert
Wood to employees of all neutral subcontractors and
their suppliers with the expectation that said individuals
would honor the picketing and not work, That this must
be the case is clear from the explicit instructions given
by Respondent to its pickets-that they were to picket at
the alleyway entrance whenever there was "business" at
that location. The inferences are warranted that "busi-
27 In support of its argument that a union is privileged to picket the
entire common situs in essence of a properly maintained reserve gate, Re-
spondent points to Local 453. International Brotherhood of Electrical
Workers. AFL-CIO (Southern Sun Electric Corp.), 237 NLRB 829 (1978).
enfd. 620 F.2d 170 (8th Cir. 1980). While technically accurate, Respond-
ent's contention is grossly leading. Thus, Southern Sun concerns an im-
properly maintained primary gate, which was placed at a location barely,
if at all. visible to the general public. Accordingly, adhering to traditional
concepts, the Board concluded that the placement of the primary gate
unjustly impaired the effectiveness of the union's lawful picketing to
convey its message to the primary's employees and suppliers and to the
general public. Id. at 830. This is not the situation involved herein; there
is no contention that picketing at the primary gate would, in any way, be
ineffective in transmitting Respondent's message to the general public or
to Robert Wood's employees or suppliers
ness" translates to "use by subcontractors" and that the
object of such was to force or require the neutral and
unoffending subcontractors to cease doing business with
Robert Wood. Recently, the Board stated, "Moore Dry
Dock would be virtually nullified if unions were free to
picket any part of a jobsite other than the one gate re-
served for the primary employer. Moore Dry Dock must
be construed in the light of [Respondent's] overall obli-
gation to conduct its activities with the minimum possi-
ble effect on the secondaries." United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada (Charles Feath-
erly Construction Co.), 252 NLRB 452, 463 (1980). The
rationale applies equally to the instant case, and I find
that by picketing on the specific dates mentioned above
at the alleyway entrance, Respondent engaged in acts
and conduct violative of Section 8(b)(4Xi) and (iiXB) of
the Act.28
THE REMEDY
Having found that Respondent engaged in unfair labor
practices violative of Section 8(b)(4)(i) and (iiXB) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom. Arguing that Respondent's conduct
herein demonstrates a proclivity to violate the secondary
boycott provisions of the Act, counsel for the General
Counsel contends that the appropriate remedy herein
should include the broadest possible such language.29
Buttressing her argument, counsel points to a Decision
and Order in Cases 32-CC-375, 32-CC-376, and 32-CC-
389, issued by the Board on July 6, 1981, and involving
the same Respondent Union and similar issues as in-
volved in these cases. Counsel for the General Counsel
'8 Inasmuch as I do not credit the hearsay testimony of O'Dea regard-
ing the alleged rationale given by U.S. Elevator and supply personnel for
departing from the jobsite on May 18. I find that the picketing that day
represented an unlawful inducement within the meaning of Sec.
8(bX4XiXB) of the Act. Cf. N.LR.B. v. Local 3. International Brotherhood
of Electrical Workers [New York Telephone Co.], 325 F.2d 561 (2d Cir.
1963). Likewise, although unsuccessful, the May 20 acts and conduct (in-
cluding picketing, informing the Rhodes and Jamison Concrete drivers
that the picketing was sanctioned, threatening said drivers with "trouble"
if deliveries were made, and writing down license numbers) of Respond-
ent's pickets and other individuals, with organizer Wedaman present, also
constitutes unlawful inducement within the meaning of Sec. 8(bX4XiXB).
Los Angeles Building and Construction Trades Council. AFL-CIO (Sierra
South Development. Inc.), 215 NLRB 288., 290 (1974). Finally, as with the
May 20 conduct, I believe that Respondent's pickets also attempted to
unlawfully induce Brian Norton, a Rhodes and Jamison Concrete driver,
to not complete a ready-mix concrete delivery on July 22. Thus. I credit
Jerry Clarke to the extent that he observed a picket jump onto the run-
ning board of Norton's truck on that date and speak to Norton. I further
credit Norton as to what was said. While Norton did not see this individ-
ual speak, it would be utterly naive to conclude that anyone but the
picket was the speaker. As to the substance of the picket's comments,
such clearly constitutes an unlawful inducement to an employee of a neu-
tral not to cross a picket line. Sierra South, supra. Accordingly. such was
violative of Sec. 8(b)(4)iXB) of the Act. Clearly, on both May 20 and
July 22. Respondent hoped to put pressure upon the Rhodes and Jamison
Concrete drivers not to deliver their ready-mix to Jerry R. Clarke Con-
struction with the hope and expectation that the latter would, in turn,
cease doing business with Robert Wood.
29 In her post-hearing brief, counsel for the General Counsel argues
that the cease-and-desist language herein should, rather than being specif-
ic to the facts, set forth as the object, "an object thereof is to force or
require any person to cease doing business with any other person en-
gaged in an industry affecting commerce."
1219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further argues that while the aforementioned was based
upon a formal settlement stipulation, the latter did not
contain a nonadmissions clause. Counsel for Respondent
argues that no such broad cease-and-desist language is re-
quired herein inasmuch as the prior Decision and Order
does not demonstrate a proclivity to violate the Act, but
rather, at most, establishes merely an earlier violation of
the Act. Counsel further argues that the instant conduct
is not sufficiently egregious to warrant any broad relief.
At the outset, the Board has long held that a broad re-
medial order is appropriate whenever a proclivity to vio-
late the Act is established, either by compelling circum-
stances in a particular case or by prior Board decisions,
which involve the same respondent and similar conduct
as the case at bar. Brotherhood of Teamsters & Auto Truck
Drivers, Local No. 70, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
(H. A. Carney and David Thompson, Partners, d/b/a C &
T Trucking Co.), 191 NLRB 11 (1971); Teamsters, Chauf-
feurs, Warehousemen and Helpers, Local 85, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Victory Transportation Service, Inc.),
180 NLRB 709 (1970). With regard to the latter, the
Board's normal position is that prior settlement agree-
ments, either formal or informal, may not be utilized as
showing a proclivity to violate the Act. However,
"formal settlement agreements which do not contain a
non-admissions clause may be relied on to [establish] a
proclivity to violate the Act." Tri-State Building and
Construction Trades Council, AFL-CIO (Structures, Inc.),
257 NLRB 295, fn. 1 (1981); Sequoia District Council of
Carpenters, AFL-CIO (Nick Lattanzio d/b/a Lattanzio
Enterprises), 206 NLRB 67 (1973). For several reasons, I
find merit to counsel for the General Counsel's request
that a broad cease-and-desist order be issued against Re-
spondent herein.
Underlying the July 6 Decision and Order of the
Board was a formal settlement stipulation which, in turn,
was based upon no less than three separate cases and
complaints, filed against Respondent. Two factors
emerge. First, as far as can be determined from the com-
plaints in Cases 32-CC-375, 32-CC-376, and, 32-CC-
389, respectively, these involve picketing at three differ-
ent jobsites, two separate primary employers, and the
identical conduct as herein involved (picketing at clearly
defined entrances, reserved for neutrals). Second, there is
no nonadmissions clause in the formal settlement stipula-
tion. In this regard, paragraph 9 of the latter (G.C. Exh.
3(b)), in part, reads as follows:
This stipulation contains the entire agreement be-
tween the parties, there being no agreement of any
kind, verbal or otherwise, which varies, alters or
adds to it, except that for the sole purpose of deter-
mining the appropriate breadth of any order to be
entered against Respondent in any future unfair
labor practice proceeding, this Stipulation may be
considered as though it were an adjudicated deter-
mination of the Board .... With the exception of
the foregoing sentence, Respondent, by entering
into this Stipulation, does not admit the commission
of any unfair labor practice and does not waive any
defenses of law or fact concerning this matter
which Respondent may seek to assert in any pro-
ceeding not involving the Board ....
This language is similar to that contained in the formal
settlement stipulation which was considered by the
Board in Lattanzio Enterprises, supra. Therein, not only
was said language construed as not constituting a dis-
claimer of liability but such also was construed as per-
mitting the General Counsel to rely upon it as establish-
ing a proclivity to violate the Act in a similar manner.
Id. at 70.
However, I do not base my conclusion solely upon
prior events. Rather, I also rely upon the nature of Re-
spondent's conduct herein which cannot be condoned.
Thus, the instant conduct did not occur by mistake, nor
is such legally in unchartered waters. Rather, in blatant
disregard of a clearly marked, scrupulously maintained,
and clearly visible primary entrance, Respondent quite
deliberately picketed at an entrance or area which was
solely utilized by neutral subcontractors and their suppli-
ers for access onto the jobsite. In these circumstances,
only a broad order is sufficient to remedy what seeming-
ly is Respondent's propensity to ignore the Moore Dry
Dock prohibitions when engaged common situs picket-
ing. Featherly Construction, supra.
CONCLUSIONS OF LAW
1. Robert Wood, McLean Steel, U.S. Glass & Mirror,
and Comfort Masters are employers and/or persons en-
gaged in commerce or industries affecting commerce
within the meaning of Section 2(2), (6), and (7) and Sec-
tion 8(bX4) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By picketing at the alleyway entrance onto the
Laurel Grove Medical Plaza jobsite, which entrance area
was solely utilized by neutral subcontractors, including
McLean Steel and U.S. Elevator and Supply on April 1,
2, and April 6 through April 10, and May 18, with an
object of forcing or requiring said subcontractors to
cease doing business with Robert Wood, Respondent en-
gaged in conduct violative of Section 8(b)(4)(i) and
(ii)(B) of the Act, which violations are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
4. By conduct, including appeals to drivers, picketing,
threats, and the writing down of license numbers, at the
alleyway entrance onto the Laurel Grove Medical Plaza
jobsite on May 20 and on July 22, Respondent attempted
to induce employees of Rhodes and Jamison Concrete
not to deliver concrete to the jobsite, with an object of
forcing or requiring Rhodes and Jamison Concrete to
cease doing business with Jerry R. Clarke Construction
in order to force Jerry R. Clarke Construction to cease
doing business with Robert Wood, in violation of Sec-
tion 8(b)(4)(i)(B) of the Act, which violation is an unfair
labor practice affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
1220
CARPENTERS LOCAL 1622
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER3 0
The Respondent, Carpenters Union Local No. 1622,
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, Haywood, California, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) By picketing at the entrance which is solely uti-
lized by neutral subcontractors, their employees, and
their suppliers at the Laurel Grove Medical Plaza jobsite
or at any similar entrance onto any common situs jobsite
within its territorial jurisdiction, inducing or encouraging
individuals employed by McLean Steel, U.S. Elevator
and Supply, or any other person engaged in commerce
or in an industry affecting commerce, to engage in a
strike or refusal, in the course of his employment to use,
manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities
or to refuse to perform any other services; or threaten-
ing, coercing, or restraining McLean Steel or any other
person engaged in commerce where, in either case, an
object thereof is to force or require McLean Steel, U.S.
Elevator and Supply, or any other person to cease doing
business with Robert Wood or any other person engaged
in commerce or in an industry affecting commerce. 3'
(b) By conduct, including appeals, picketing, threats,
and writing down license numbers, at the entrance which
is solely utilized by the employees and suppliers of neu-
tral subcontractors at the Laurel Grove Medical Plaza
jobsite or at any similar entrance onto any common situs
within its territorial jurisdiction, inducing or encouraging
individuals employed by Rhodes and Jamison Concrete
or any other person engaged in commerce or in an in-
dustry affecting; commerce, to engage in a strike or re-
fusal, in the course of his employment, to use, manufac-
ture, process, transport, or otherwise handle or work on
any goods, materials, or commodities or to refuse to per-
form any other services, where an object thereof is to
force or require Rhodes and Jamison Concrete or any
other person to cease doing business with Jerry R.
Clarke Construction or any other person in order to
force or require Jerry R. Clarke Construction or any
other person to cease doing business with Robert Wood
or any other person engaged in commerce or in an in-
dustry affecting commerce.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
"S In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
3n I note that this language is similar to, and accomplishes the same
purpose a.,, that language proposed by counsel for the General Counsel.
Moreover, as I believe an order must be specific to whatever case it in-
volves, the instant language is more efficacious
(a) Post at its business office and meeting hall copies of
the attached notice marked "Appendix." 32 Copies of said
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Respondent's rep-
resentatives, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to its members are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notice is not altered, defaced, or covered
by any other material.
(b) Promptly after receipt of copies of said notice from
said Regional Director, return the signed copy for post-
ing by McLean Steel, U.S. Elevator and Supply, Rhodes
and Jamison Concrete, Jerry R. Clarke Construction, and
Robert Wood, those companies willing, at all places
where notices to their employees are customarily posted.
(c) Notify the Regional Director for Region 32, in
writing, within 20 dayrs from the date of this Order, what
steps Respondent has taker tIn comply herewith.
l71n the event that this Order is enforced ha a ludgment 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing during which all parties were afforded
the opportunity to present evidence, it has been deter-
mined that this labor organization has engaged in con-
duct violative of the National Labor Relations Act. Ac-
cordingly, we undertake the following:
WE WILL NOT, by picketing or in any manner
proscribed by Section 8(b)(4Xi) and (ii) (B) of the
National Labor Relations Act:
1. Induce or encourage any employee of McLean
Steel, U.S. Elevator and Supply, or of any other
person engaged in commerce or in an industry af-
fecting commerce to refuse, in the course of his or
her employment to work or perform services, or
2. Threaten, coerce, or restrain McLean Steel, or
any other person engaged in commerce or in an
industry affecting commerce to refuse, in the
course of his or her employment, to work or per-
form services
where, in either case, an object thereof is to force
or require McLean Steel, U.S. Elevator and Supply,
or any other person to cease doing business with
Robert Wood & Associates, Inc., or any other
person engaged in commerce or in an industry af-
fecting commerce.
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT, by appeals, picketing, taking
down license numbers, or similar conduct pro-
scribed by Section 8(bX4)(iXB) of the National
Labor Relations Act, induce or encourage any em-
ployee of Rhodes and Jamison Concrete or of any
other person engaged in commerce or in an indus-
try affecting commerce to refuse, in the course of
his or her employment, to work, transport, or per-
form services where an object thereof is to force or
require Rhodes and Jamison Concrete or any other
person to cease doing business with Jerry R. Clarke
Construction or any other person in order to force
or require Jerry R. Clarke Construction, or any
other person to cease doing business with Robert
Wood & Associates, Inc., or any other person en-
gaged in commerce or in an industry affecting com-
merce.
CARPENTERS UNION LOCAL No. 1622,
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO
1222