Local Union No. 519, Etc.

National Labor Relations Board - Board Decisions

Dec 2, 1963

145 N.L.R.B. 215 (N.L.R.B. 1963)

LOCAL UNION NO. 519, ETC. 215
ondary employer affected by the Petitioner's activity, whether or not
such activity is, in fact, violative of Section 8 (b) (4) of the Act.'
Accordingly, the parties are therefore advised, under Section 102.103
of the Board's Rules and Regulations, Series 8, as amended, that on
the allegations here present, the commerce operations of the primary
employer and those of secondary employer Parke-Davis at Cherry
Hill, New Jersey, the location affected by the Petitioner's secondary
conduct, are such that the Board would assert jurisdiction with respect
to labor disputes cognizable under Section 8 or 10 of the Act .4
3 See Terrxzzi Beverage Company, 137 NLRB 495, and cases cited in footnote 5 therein.
4In view of our determination herein, it has been unnecessary to consider the commerce
data of the other neutral employers involved in the Petitioner ' s picketing activity.
Local Union No. 519, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, and its business agent,
George T. Fitzpatrick and Center Plumbing and Heating Corp.
and Local 349, International Brotherhood of Electrical Work-
ers, AFL-CIO and L & M Electric Company, Inc. Cases Nos.
12-CC-260 and 12-CC-263. December 2, 1963
DECISION AND ORDER
On August 2, 1963, Trial Examiner Joseph I. Nachman issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondents had engaged in certain unfair labor practices but recom-
mending a dismissal of the complaints in their entirety, asset forth in
the attached Intermediate Report. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a brief, and each of
the Respondent Unions filed a brief in support of the Intermediate
Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record, including the exceptions and
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications.
The Trial Examiner found, and we agree, that the Respondents
violated Section 8(b) (4) (ii) (B) by picketing Golden Development
Corporation and its selling agent, Intercity Realty Company, at the
145 NLRB No. 21.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
building which housed the model apartment and realty office, the ad-
jacent customer parking lot, and the shack. But the Trial Examiner
nevertheless recommended dismissal of the complaints, on the grounds
that (1) the picketing was subsequently discontinued voluntarily
by one of the Respondents, (2) the general contractor removed the
shack, (3) the project was probably completed, and (4) the probability
was remote that the picketing would be resumed. We do not agree
that the grounds advanced by the Trial Examiner warrant his recom-
mendation. On the contrary, even though such grounds have also
been present in other cases, the Board has issued a remedial order so
as to effectuate the preventive purposes of the Act. Accordingly, we
shall issue an appropriate order in this case.
ORDER
Upon the entire record in this case, and pursuant to Section 10(e)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Local Union No.
519, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO, and Local 349, International Brotherhood of Electrical
Workers, AFL-CIO, and their officers, agents (including Business
Agent George T. Fitzpatrick), representatives, successors, and as-
signs, shall :
1. Cease and desist from threatening, coercing, or restraining Golden
Development Corporation, Intercity Realty Company, or any other
person engaged in commerce or in an industry affecting commerce,
where an object thereof is to force or require such person to cease
doing business with Center Plumbing and Heating Corp. or L & M
Electric Company, Inc.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their offices and meeting halls, copies of the attached
notice marked "Appendix." 1 Copies of said notice, to be furnished by
the Regional Director for the Twelfth Region, shall, after being duly
signed, be posted immediately upon receipt thereof, and be maintained
for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are customarily posted.
Reasonable steps shall be taken to insure that the said notices are not
altered, defaced, or covered by any other material.
(b) Mail to the Regional Director signed copies of the notice for
transmittal to Golden Development Corporation and Intercity Realty
Company.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
LOCAL UNION NO. 510, ETC. 217
(c) Notify the Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondents have taken to
comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT threaten, coerce, or restrain Golden Development
Corporation, Intercity Realty Company, or any other person
engaged in commerce or in an industry affecting commerce, where
an object thereof is to force or require such person to cease doing
business with Center Plumbing and Heating Corp. or L & M
Electric Company, Inc.
LOCAL UNION No. 519, UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF TIIE PLUMBING
AND PIPE FITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LOCAL 349, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL `YORKERS , AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Anyone may communicate directly with the Board's Resident Office,
Room 104, 1200 SW. First Street, Miami, Florida, Telephone No.
FR 7-1114, if they have any question concerning this notice or com-
pliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The separate complaints issued in the captioned cases, which were by order of the
Regional Director consolidated for hearing ,' and which were heard by Trial Exam-
iner Joseph I , Nachman at Miami , Florida, on May 7, 8, and 9 ,2 involve allegations
' In Case No. 12-CC-260 the charge was filed February 25, 1963, amended March 5,
1963, and the complaint issued March 21, 1963. In Case No . 12-CC-263, the charge was
filed March 26, 1963 , and the complaint issued April 4, 1963. The last-mentioned com-
plaint provided for the consolidation of that case with Case No. 12-CC-260 for purposes
of hearing.
2 All dates mentioned are in 1963.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent Local Union No. 519 , United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO ( herein called Plumbers or Local 519), Respondent George T.
Fitzpatrick , and Respondent Local 349, International Brotherhood of Electrical
Workers, AFL-CIO (herein called Electricians or Local 349 , and together with
Local 519 called the Unions ), violated Section 8(b) (4) (i ) and (ii ) (B) of the
National Labor Relations Act, as amended (herein called the Act ). All parties
were afforded an opportunity to present evidence , to examine and cross-examine wit-
nesses, and to argue orally on the record . Oral argument was waived . Counsel for
Plumbers and Electricians each filed a brief, and these have been duly considered-
I urged the General Counsel to submit a brief, pointing out that he was apparently
advancing complex and novel contentions , but no brief from the General Counsel
has been received.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT3
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background4
As general contractor, J & G Construction Company (herein called J & G), was
awarded a contract by Golden Development Corporation for the construction of a
3-story 77-unit apartment building on NE. 6th Avenue in Miami, Florida, to be
known as Golden Towers .5 The anticipated completion date of the building is
June 1. J & G employs carpenters and laborers. In addition, Golden Development
Corporation awarded contracts to various subcontractors, particularly Center Plumb-
ing and Heating Corp. (herein called the Center), for the plumbing work, and L & M
Electric Company, Inc. (herein called L & M), for the electrical work. The em-
ployees of Center and L & M are nonunion.
The portion of the tract on which the apartments are being built fronts on NE.
6th Avenue (which runs north and south) for a distance of 240 feet, and runs
back between lines which are nearly parallel for 293 feet. The area so bounded will
hereafter be referred to as the construction area. North of the construction area is
the remainder of the tract owned by the Goldings, which fronts an additional 850
feet on NE. 6th Avenue. Neither the north nor south side of the property abuts on a
street, the adjoining property on both sides being privately owned. The portion of
the tract north of the construction area is undeveloped except for the model apart-
ment and realty office at the northeast corner of the property, and for a part of the
period involved there was a small construction shack behind the model apartment.
The model apartment and realty office fronts 400 feet on NE 6th Avenue and just
to the south thereof an additional frontage of 40 feet, for a depth of about 100 feet, is
used as a parking lot by prospective apartment purchasers.6
Early in February 1963, before work on the apartments commenced, Jack Golding,
president of J & G, was visited by a delegation from the Building Trades Council,7
including Fitzpatrick, business manager of Respondent Plumbers, and Apte, business
manager of Respondent Electricians. The purpose of the visit was to ascertain if
8 No issue of commerce or labor organization is presented The facts necessary to estab-
lish both elements are alleged in the complaints and these allegations were admitted by
answer or by stipulations entered into at the 'hearing. I so find
* The essential facts are not in dispute ; the parties differing as to their legal effect.
Evidentiary conflicts if considered material are referred to and resolved ; otherwise the
findings hereafter made are based on testimony which is not in dispute
5 While such an issue Is not involved, it is apparent that J & G and Golden Development
Corporation are commonly owned ; Jack Golding being president of both companies. Jack
Golding and his wife own the land on which the apartment building is being constructed
and have leased that part of a larger tract to Golden Development Corporation for 99,
years The selling agent for the apartments is Intercity Realty Company of which
Mrs. Golding Is president; Jack Golding having no interest in that corporation. A build-
ing, housing a model apartment and sales office for Intercity Realty, was constructed at
the northeast corner of the larger tract Mrs. Golding was the only person working in the
office of Intercity Realty, although Golding assisted there from time to time when he
could spare the time.
6 The model apartment had been erected In November 1962
7 The evidence is in conflict as to what representatives from the various craft unions
were present. I deem it unnecessary to resolve the conflict, because of my finding, here-
after set forth, that no unlawful statements were then made.
LOCAL UNION NO. 519, ETC. 219
subcontracts had been let to employers who were under contract with building trades
union, and if not to persuade Golding to award contracts to such employers .8
Golding agreed to consider bids from union contractors, but expressed the intention
to award the contracts to the lowest satisfactory bidder.9 In any event Golding
awarded the contract for plumbing to Center, and the contract for electrical work to
L & M, both nonunion contractors.10
B. Picketing by Plumbers
Work on the project began February 14 or 15. Center, the first subcontractor on
the job, began work on February 18. Respondent Plumbers began picketing the
project the morning of February 19, and with exceptions not here material, picketed
each workday thereafter with signs reading:
THIS IS TO ADVISE
THE PUBLIC THAT
PLUMBERS
LOCAL UNION 519 AFL-CIO
Has a grievance against
CENTER PLUMBING CO.
The facts: They employ plumbers
at sub-standard conditions which
lets them take jobs away from us
They lower working standards
This is not intended to cause any
employees to strike their employer
or refuse to deliver any goods 11
The pickets patrolled north and south along NE. 6th Avenue from the southern-
most boundary of the Golding property, up to and past the model apartment and
realty office. In back of the building housing the model apartment and realty office
was what is referred to in the record as the old construction shack. This was used
by Golding as an office; it housed, in addition to the usual desk, chairs, and papers,
an extension from the telephone in the realty office. The record is clear that no
construction work of any kind went on in the model apartment, realty office, or
in the old construction shack, although employees of both Center and L & M went
into the construction shack from time to time, but the reason for their going there
is not disclosed by the record.
8 Golding testified that one of the business agents calling on him at this time was from
the Plasterers Union, whose name "he thought" was "Smitty" , that the latter asked who
would do the plastering, and that he (Golding) replied that it might be Philips; and
that "Smitty" replied, when "Philips does a job we just put a picket on it " The General
Counsel apparently contends that this was a threat to picket the entire job, made to
Golding, an officer of a secondary employer Both Fitzpatrick and Apte denied that any
representative from the Plasterers Union was present on this occasion, and also denied
that any remark of the nature referred to was made by anyone present at the time.
Golding's testimony on this point is confusing and unconvincing I therefore find that
the General Counsel has not established by a preponderance of the credible evidence that
a statement such as that set forth above was in fact made by any of the business agents
present at the meeting referred to.
9 Both Fitzpatrick and Apte promised to have union contractors submit bids, but Golding
never received such
is On or about February 18, agents from the building trades unions, including Fitz-
patrick and Apte, met with Golding again According to Golding, on this occasion Apte
commented that nonunion plumbing and electrical contractors were being used and added,
"You'd better lock your doors tonight because we are going to give you trouble." Fitz-
patrick and Apte denied that such a statement was made by anyone present at this meet-
ing. As Fitzpatrick and Apte corroborate each other, I credit them over the uncorrobo-
rated testimony of Golding
ii On the picket signs the part set forth above in capital letters appeared in large type ;
the remainder being in smaller capital letters. Such signs were carried at all times
Plumbers engaged in picketing, except that for the first few days the words "Center
Plumbing Co," which were printed on a separate strip that was attached to the sign,
was through error, attached in such a way as to cover the words "Ilas a grievance
against." When this error was discovered the strip was moved down and the last -quoted
words became visible.
220 DECISIONS OF NATIONAL LABOR REL,TIONS BOARD
On the afternoon of February 19, carpenters employed by J & G erected a board
fence along NE. 6th Avenue, inside the property line in front of the construction area.
This was done at the request of Center. The fence consisted of posts driven into
the ground 8 to 10 feet apart, and two 8-inch boards nailed to the posts at distances of
16 inches and 3 feet above the ground. At a point about 20 feet north of the
southern boundary of the construction area, an opening about 12 feet wide was left
in the fence (hereafter called Plumbers' gate), and to one of the posts Center attached
a hand printed sign reading:
THIS GATE
FOR USE ONLY BY
CENTER PLJJMBING
AND HEATING CORP.
MEN AND TRUCKS
At the same time Golding created an entrance to the construction area from NE.
6th Avenue beginning at the northern boundry of the construction area, and extend-
ing northward for about 30 feet. This also was merely an opening between two
posts. It will hereafter be referred to as the secondary gate. No sign of any
kind was ever put up at the secondary gate, but Golding testified credibly that he
told all contractors except Center and L & M, that the secondary gate had to be
used by their employees and suppliers in entering or leaving the construction area,
and that so far as he knew such instructions were complied with. With the erection
of the above-mentioned sign at the Plumbers' gate the employees of Center were
told that they must enter and leave the construction area, and receive supplies for the
job, only through the Plumbers' gate.12 Massey also told Respondent Fitzpatrick,
business agent of Respondent Plumbers, that as he claimed to be picketing Center,
the picketing by his union should be confined to the gate set apart for Center.
Fitzpatrick's only reply was "If you say so." The pickets, however, continued to
patrol along NE. 6th Avenue, from the southern boundary of the construction area
up to and including the model apartment, until about March 15, when Respondent
Plumbers directed its pickets to patrol northward only to and including the secondary
gate. The patrolling of the last-mentioned area continued until about March 22,
at which time the United States District Court for the Southern District of Florida,
in a Section 10(1) proceeding, ordered that the picketing be confined to an area no
greater than 25 feet from the midpoint of the gate set apart for Center. This order
has been complied with.13
C. Picketing by Electricans
L & M, the electrical contractor, began work at the project on February 22. Its
employees did not work at the project every day, but only from time to time as the
services of electricians was required.14 Respondent Electricians picketed the job
on March 4, resumed picketing on March 22, and with exceptions not here material,
its picketing has continued since that date. The signs carried by its pickets have at
all times read:
PUBLIC NOTICE
L & M
ELECTRIC
MAINTAINS WAGES &
WORKING CONDITIONS
BELOW
THOSE PREVAILING
IN THIS AREA
I.B.E.W . L.U. 349
AFL-CIO
On March 5 , a gate was established for the use of L & M (hereafter called the
electricians gate ), by removing the boards from the fence between two posts at a
post about 50 feet north of the southern boundary of the construction area, with
'" Massey and his foreman both testified that to the best of their knowledge these in-
structions were at all times fully complied with. Evidence offered by Respondents, here-
after discussed, makes it clear that Center's activities at this project were not confined to
the Plumbers' gate.
is The employees of Center report to the job each day directly from their homes, and
return directly to their homes at the end of the workday.
14 Prior to picketing by Electricians, as hereafter detailed, employees of L & M were
instructed to and did enter the construction area through the secondary gate.
LOCAL UNION NO. 519, ETC. 221
the opening in the fence extending northward about 12 feet. To one of the posts
was attached a sign reading:
THIS GATE TO BE
USED BY TRUCKS
AND MEN OF
L & M ELECTRICAL COMPANY
Mu 8-2804
Immediately after this sign was erected the employees of L & M were instructed
that they must enter and leave the construction area only through the electricians'
gate. L & M President Vova, and his foreman on this job, Landsdon, both testified
that they never learned of any violation of these instructions. When the picketing
by Respondent Electricians began, the area of its patrol was limited to NE. 6th Avenue
immediately in front of the construction area, but this was subsequently extended to
include the model apartment and realty office at the northeast corner of the property.15
Such picketing continued until April 8, when in a 10(1) proceeding instituted against
the Electricians, they were enjoined from picketing the project at any point other than
at the Electricians' gate, or within 25 feet thereof. After April 8, the picketing was so
confined.is
D. Evidence as to the actual operation of the gates
Respondents introduced considerable evidence relating to the manner in which
the employees of the various subcontractors on the job, and those making deliveries
to it, conducted themselves with respect to the aforementioned gates. This evidence
may be summarized as follows: 17
1. Virtually the first work to be performed at the project by a subcontractor was
the installation of a sewage lift station and a sewerline. This was installed across
the front of the construction area and extended almost if not the entire frontage
of 240 feet. The excavation for this work, and the filling in after the pipes were
installed, was performed by Dangel Construction Co., but the actual laying and
connecting the pipes was performed by Center. The fence erected by J & G on
;February 19, as above set forth, was on the line where the lift station and sewage
pipes were to be installed, and hence interfered with the digging of the trench. To
facilitate the entry and movement of equipment as the digging progressed, the fence
was moved to a line closer to the street or east of its former location, so that the
sewerline was thereafter behind the fence . Because even in this new location the
fence interfered with the work on the sewerline , sections thereof were taken down each
morning and replaced at the end of the workday. The posts to which the Plumber's
and Electrician's signs were attached, remained in place. The pipe for the sewerline
was delivered to the site by the supplier and put into the street in front of the con-
struction area in two piles; one pile close to the southern boundary of the con-
struction area, and the other south of but not too far from the secondary gate. When
emplyees of Center began to install the pipe in the open trench, they took the pipe
from the southernmost pile as needed, carried it through the Center gate, and starting
at the southern end, placed the pipe in the trench, made the necessary corrections, and
worked northward to a point about midway of the approximate 240-feet length of
the sewerline. To lay the remainder of the sewerline, Center's employees took pipe
from the northernmost pile, proceeded northward to the area of the secondary gate,
entered through that gate, and proceeded southward in the trench to connect up with
the pipe previously installed.
2. On April 2, a truck from Bond Plumbing Supply made a delivery of soil pipe
and fittings to the job. The truck entered the project through the secondary gate, went
15 Although the record is not entirely clear, this change apparently occurred when the
Electricians resumed their picketing on March 22
1°L & M has a place of business in the Miami area, but Respondent Electricians did not
picket there The employees of L & M do not report to this location ; they report directly
to the jobsite each day, and return directly to their homes at the end of the workday.
17 The following summary will refer only to conduct which I regard as material to the
issues In addition, Respondents offered photographs and oral testimony tending to show
that employees of secondary employers entered the construction area through the L & 141
or Center gate, or moved equipment into that area through such gates, or delivered sup-
plies across the fence I regard this evidence as irrelevant and immaterial. It was
admitted only to permit Respondents to make a record to support a legal argument they
wished to advance, but which they expressly abandoned in their briefs If secondary
employers chose to use one of the primary gates to gain access to the project for their
employees, equipment, or supplies, they only subjected themselves to Respondents' picket-
ing at the respective primary gates; conduct conceded by all to be permissible picketing.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behind the building where it was unloaded, and left the project through the same
gate.18 Lloyd Mixon, who picketed the project for Respondent Plumbers, took a
photograph (which is in evidence), of the Bond truck as it entered the secondary
gate, and there is no testimony contradicting this visual evidence. Mixon also testified
that he observed at least two other incidents when plumbing supplies were delivered
to the project through the secondary gate and that this occurred either before
March 25, when he began taking pictures, or that he was too far away at the time
to take one. I credit Mixon's testimony in that regard.19
3. On April 2, two plumbers employed by Center carried a bathtub from a point
along NE. 6th Avenue about 50 feet north of the Plumbers' gate, into the building
under construction. The tub had been delivered to the job by the employees of a
plumbing supply firm, and had been unloaded and placed in the street by them. The
photograph depicting this scene indicates that this occurred when the trench for the
sewerline was open, and that a plank was placed across the trench for the men
to walk on. No fence appears in this photograph. The evidence is uncontradicted
however, that in taking the tub from the street into the building, the employees
did not go through or near the area of the Center gate.20
4. Numerous photographs in evidence depict persons identified as employees of
Center entering the construction area through the L & M gate, and employees of
L & M entering the construction area through the Center gate. There are also
photographs depicting employees of Center and L & M entering the construction at
points other than through the gate to which they were, respectively, restricted.
Mixon testified credibly that it was a common occurrence and he frequently observed
employees generally, including those of Center and L & M, enter or leave the con-
struction area simply by stepping over the fence at whatever point they happened
to be at the time. I so find 21
E. Facts relating to the picketing of the model apartment and the old
construction shack
As heretofore stated, in the initial stages of the picketing by the respective unions,
their pickets patrolled past the model apartment and realty office. The reason given
for doing so was that they observed employees of Center and L & M going into the
construction shack.22 The evidence is uncontradicted that the building housing the
IS Massey admitted that he ordered this material from Bond Plumbing Supply and that
it was received at the job. He was not present when the delivery was made The General
Counsel offered no evidence to explain the use of the secondary gate for a delivery to a
primary employer.
19 The only testimony that might be regarded as in conflict with this evidence by Mixon,
is the testimony of Golding who, while admitting that there were some instances of
attempts to deliver to Center through the secondary gate, testified that such deliveries
were turned back and the trucks were required to enter the project through the primary
gate Golding admitted, however, that he was not at the project at all times, and even
when he was, he spent considerable time in his office where he v ould be unable to see such
events. In view of the fact there was no sign indicating the alleged restricted character
of the secondary gate, it is small wonder that suppliers undei took to deliver to the
primary employer through that gate For these reasons I credit Mixon's testimony con-
cerning the three incidents of deliveries of plumbing supplies through the secondary gate
20The findings in this paragraph are based on the credited, and for the most pact, un-
contradicted testimony of Mixon. The only testimony that might be regarded as in con-
diet with Mixon's testimony was that of Massey who testified that from the photograph
he could not recognize the men carrying the tub as his employees Massey admitted,
however, that on a construction project the only employees who would likely carry a
bathtub would be those of the plumbing contractor. Mixon identified the men carrying
the bathtub as men he had observed coming to the job in a truck bearing Center's name,
and who did work on the job normally performed on a construction project by plumbers.
To the extent that Mixon's testimony may be regarded as in conflict with that given by
Massey, I credit Mixon because his evidence is the more plausible and consistent with
normal practice on such a job
it The testimony of Massey, Vova, and their respective foremen, that they never learned
of any violation of their instructions restricting their respective employees to the gates
assigned to Center and L & M, respectively, is of a negative nature. On the other hand,
Mixon's testimony was direct. As I have stated, Mixon impressed me as a reliable witness
To the extent that his testimony on this point may be regarded as in conflict with that
of Massey, Vova, and their respective foremen, I credit Mixon.
22 Over a weekend in the early part of April, the construction shack was moved from
behind the model apartment to a point within the construction area.
LOCAL UNION NO. 519, ETC. 223
model apartment and realty office was completed during the fall of 1962 , and that
no construction work of any kind was carried on in that building during the period
relevant here. Although some employees of Center and of L & M did from time
to time go into the construction shack while it was located behind the model apart-
ment, it is undisputed that neither of those employers stored materials or supplies
in the construction shack, or transacted there any form of business connected with
their work 23 I so find.
F. Contentions of the parties and conclusionary findings
The General Counsel having waived oral argument and refrained from submitting
a brief, his theories with respect to the case are somewhat obscure. As I understand
his contentions , the General Counsel urges that this case is controlled by the Supreme
Court's decision in GE; 24 that a separate gate having been established for Center
and L & M, the primary employers , and they and their employees and persons doing
business with them, having been confined to those gates , picketing by either Re-
spondent at any point other than at the gate set apart for the employer with whom
they had their respective disputes, is proscribed by Section 8(b) (4) (i) and (ii) (B)
of the Act. Thus, under the General Counsel theory picketing by Respondent
Plumbers at the L & M gate, and picketing by Respondent Electricians at the Center
gate, was just as unlawful as their picketing at the secondary gate.
Respondents ' contentions are twofold . They argue that ( 1) the reserve gate
doctrine can have no application at a situs where only construction is carried on
because the work performed by secondary subcontractor is, by the very nature of the
work, "necessary to the normal operation" of the primary employer (GE, supra, at
682); and (2) assuming the applicability of that doctrine to a construction site, under
the facts of this case there was no gate to which the primary employees and those
doing business with the primary employer, were, in fact, restricted. As intriguing as
Respondents ' first argument may be, I find it unnecessary to consider it, because on
the facts found in section I, D, above, I find and conclude that there was no
separate gate in fact. The fence, instead of being a barricade to prevent entrance
of employees to the project at places they were prohibited from entering it, was in
reality a sieve through which they passed at will. There was not only an absence
of a sign prohibiting the use of the secondary gate by primary employees, or by
those making deliveries to a primary employer, but on at least three occasions
deliveries were in fact made to Center through the secondary gate, and employees of
Center used that gate entrance at least on the occasion when they put the sewer pipe
in the northern end of the trench dug for that purpose. Such use of the fence and
secondary gate, I find and conclude, entitled Respondents to picket the entire front-
age of NE. 6th Avenue adjacent to the construction area up to and including what
was designated as the secondary gate, in order to appeal to the employees of Center
and L & M not to perform services for their employer , and to the employees of
suppliers not to make deliveries to the struck employers, provided that such picketing
was conducted in conformity with the criteria established by the Board in Sailors'
Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, for com-
mon situs picketing.
The facts set forth above demonstrate that Respondents conformed with the
Moore Dry Dock criteria in their picketing of the construction site, including the
secondary gate. The evidence shows that (1) such picketing was conducted only
when Center and/or L & M were engaged in performing work at the project; (2)
the performance of such work was a part of the normal business of Center and
L & M, respectively; (3) Respondents picketed as close to situs of such work as was
possible; and ( 4) Respondents ' picket signs at all times clearly disclosed the em-
ployer with whom they, severally, were in dispute. There is no evidence that
Respondents orally appealed to employees of secondary employers, or engaged in
any other conduct that might be regarded as indicative of an intent to extend the
appeal of the picket lines beyond the primary employers. In fact, what little
evidence there is on that subject would indicate the contrary.25 Accordingly, I find
23 The record does not show for what purpose employees of L & M and Center went into
this shack Respondents ' witnesses Mixon and Apte, who observed this conduct , admitted
the employees took nothing into or out of the shack
24 Local 761 , International Union of Electrical, Radio and Machine Workers , AFL-CIO
(General Electrso Company) v N.L R B , 366 U S. 672
ss There is no contradiction of the testimony of Apte, Electricians ' business manager,
that he told employees of Florida Power Co., and of the elevator constructor , that the
picket line was not directed at them , and that when employees of Florida Power expressed
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conclude that by picketing the 240-foot frontage of the construction area in-
cluding the so-called secondary gate, Respondents did not violate Section 8(b) (4) (i)
and (ii) (B) of the Act.
There remains for consideration the legality of Respondents' picketing of the
building housing the model apartment and realty office, and the customer parking lot
adjacent thereto. The evidence shows that neither Center nor L & M made any use
of the storage shack located at the rear of the aforementioned area, nor did any
employees of either primary employer perform any service at this part of the prem-
ises. Thus, Respondents' picketing of that area did not satisfy Moore Dry Dock
requirements that the situs of the dispute be located on the picketed area, and that
the picketing be located as close as possible to that situs. The fact that employees
of Center and L & M from time to time went into the old construction shack does
not bring the situs of the dispute to that area in the absence of some evidence that
this was done in furtherance of their employer's business No such evidence
appears in this record. Accordingly, I find and conclude that Respondents' picketing
of the area last referred to was not permissible common situs picketing, and hence
was violative of the Act. However, as Intercity Realty, the only person engaged at
the realty office and model apartment, had no employees at this location,26 such
picketing did not induce employees within the meaning of (i), but did restrain and
coerce Intercity and Golden Development Corporation within the meaning of (ii),
of Section 8(b) (4) (B) of the Act.27
II. CONCLUSIONS OF LAW
1. Center, L & M, Golden Development Corporation, and Intercity Realty are
engaged in commerce or in an industry affecting commerce within the meaning of
Sections 2(6) and (7) and (8) (b) (4) of the Act.
2. Respondents are labor organizations within the meaning of Section 2(5) of
the Act.
3. By picketing the construction area, including the so-called secondary gate, as
set forth in section I, above, Respondents did not engage in conduct violative of
the Act.
4. By picketing the model apartment and realty office, and the parking area adja-
cent thereto, as set forth in section I, above, Respondents violated Section
8(b) (4) (ii) (B) of the Act. Because it appears that picketing of the last-mentioned
area was voluntarily discontinued by Plumbers; the old construction shack has been
removed, the anticipated June 1 completion date of the project has passed and the
project has probably been completed; and the probability of a resumption of the
picketing referred to in this paragraph being remote; it would not effectuate the
policies of the Act to issue a remedial order on this aspect of the case. Accordingly,
I shall recommend that both complaints issued herein be dismissed in their entirety.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pursu-
ant to Section 10(c) of the Act, it is recommended that the complaints herein be dis-
missed in their entirety.
reluctance at crossing the picket lines, he and Fitzpatrick, Plumbers' business manager,
both removed their pickets for it day so that those employees could go upon the jobsite
and perform their duties
26 The only person working there was Mrs Golding, who is president of Intercity
Realty. Prospective purchasers of apartments also came there to view the model apart-
ment and to discuss a possible purchase of an apartment
21 Respondents' contention that no violation based on this facet of the case may properly
be found because the General Counsel failed to prove that Intercity Realty is within the
coverage of the Act, Is without merit Intercity, whose sole function was to sell the apart-
ments being constructed at the project, was as much a part of the construction industry
as the contractors engaged in actual construction This is all that is required See
Sheet Metal Workers International Association, Local Union No 299, AFL-CIO, etc
(S. M. Eisner, et al, d/b/a S M Eisner it Sons), 131 NLRB 1196; Local 20, Sheet
Metal Workers International Association , AFL-CIO (Bergen Drug Company, Inc ), 132
NLRB 73 ; Plumbers Union of Nassau County, Local 457, United Association of Journey-
men, etc. (Jerry Bady, d/b/a Bomat Plumbing and Heating ), 131 NLRB 1243, United
Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, etc,
Local 575, AFL-CIO ( Boulder Master Plumbers Association ), 132 NLRB 1355.