Millwrights, Local 102

National Labor Relations Board - Board Decisions

Dec 11, 1979

246 N.L.R.B. 923 (N.L.R.B. 1979)

MIIL.WRIGHIS. LOCAI 102 Milliwrights Union, Local 102, of the United Brother- hood of Carpenters & Joiners of America, AFL- CIO and United States Department of The Navy, Naval Supply Center. Case 32 CC- 100 December 11. 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On March 22. 1979, Administrative Law Judge Harold A. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed an answering brief. 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 briefs and has decided to affirm the rulings. findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Millwrights Union, Local 102, of the United Brotherhood of Carpenters & Join- ers of America, AFL CIO, Oakland, California, its officers, agents. and representatives, shall take the ac- tion set forth in the said recommended Order. I Member Jenkins does not rely on Mark.ell and Hart. Inc (Building and Construction Trades Council of Nex Orleans, A4FI CIO, 155 NRB 319 (1965). DECISON SrA rEMENT O01 Tllt CASt HAROLD A. KENNEI)Y, Administrative Law Judge: This matter was heared by me in Oakland, California, on August 29, 1978. The case involves the question of whether the Respondent. Millwrights Union, Local 102. of the United Brotherhood of Carpenters & Joiners of America. AFI CIO (herein the Union or Respondent). engaged in unlaw- ful secondary activity, contrary to Section 8(b)(4)(i) and (ii)(B) of the National abor Relations Act. as amended, Sec 8(b)(4iii) and (ilhB) of the Act prosidc, (A) It shall he an unfair labor practice for a labor iorganlmtlin or it, agents ( 4 )(i) to engage in, or to induce or encourage :an indlisidual em- ployed b ans person engaged n commerce in n industrs affecting commerce to engage in, a strike or a refusal In the courase oi his hy picketing the Naval Supply (Center (NSCO) in Oakland. California. between June 12 and 16. 1978.2 The General Counsel asserts that Respondent Union had a dispute with Road Manufacturing Corporation. Inc.. (Roach), an Ar- kansas manufacturer which had been awarded a contract to furnish and install a power conveyor sstem at the Oakland Naval facility, and that b picketing at the naval facilitv Respondent intended to pressure Roach into changing its employment policies. Respondent Union, on the other hand. contends that there was no secondary activit. Re- spondent maintains that its dispute was only with the Navy because the latter had failed to specify in its contracts for the installation of conveyor projects that wages for persons working on such projects must be in confrmirt with the requirements of the Davis-Bacon Act (40 .S.(. 276 (a)). Thus, according to the Union. there was no unla. tul sec- ondary activity and, in any event, its picketing xuas pro- tected hb the first amendment. After having considered the briefs filed, and the whole record. I find the Union did en- gage in unlawful secondary activity and therefore recom- mend issuance of an appropriate cease-and-desist order to remedy the practice. Based on a charge filed by the NSCO on June 13. 1978. the Board's Regional Director for Region 32 issued a com- plaint on June 16. 1978. The complaint alleges that by pick- eting gates I and 2 of the naval facility, where signs were posted directing Roach employees. cargo, and subcontrac- tors to use gate 3. Respondent "engaged in, and has in- duced and encouraged individuals employed b the Naal Supply ('enter, United Parcel Service. Consolidated Freightways, Pacific Intermountain Express. Di Salvo Trucking, and other persons . . . to engage in a strike or refusal in the course of their employment to use, manufac- ture materials, or commodities. or to perform any services." The complaint further alleges that "lain object" of Respon- dent's conduct was to force or require NSCO "to cease doing business with Roach and/or to force or require" the named trucking concerns "and other persons engaged in commerce or in an industry affecting commerce to cease doing business with the Naval Supply Center in order to cause the Naval Supply Center to cease doing business with Roach." The pleadings, stipulations. or uncontradicted evidence establish the following as facts: 1. NSCO, the Navy's supply facility in Oakland. "is re- sponsible for receiving, storing, processing and transship- ping all supplies and materials to West Coast and Pacific Ocean bases of the United States Navy." Nearl) all (ap- employment to use. manufacture process, transport. or otherwise handle or w.rk on any goods, articles. materials, r comnlodities or to perform ans ser ices: or (ii) to threaten. coerce. or restrain ans person engaged in commerce r in an industrs affecting commerce. where in either case an object thereof is: (B) lforcing or requiring an) person to cease using. selling. hn- dling. transporting, or others se dealing in the products o. anl .othcr producer, processor. or manufacturer or to cease ding business itlh liny other person . . 2 Respondent also distributed handbills during this persod. The United States District Court for the Northern Distnct of Calilornia issued a tempo- rar restrining order against Respondent's picketing on or about June 16. 1t}78 A temporar, injunction was thereafter ssued on June 23, 1978 246 NLRB No. 152 923 I)9t('ISIONS OF: NATIONA I.ABOR REL.ATIONS BOARI) proximately 95 percent) of the supplies received at NS('() arrive by truck. The balance of the goods arrive by rail. 2. Di Salvo Trucking. Pacific Intermountain Express. United Parcel, and Consolidated Freightways deliver goods and materials to NSCO('(). Such trucking firms are common carriers and are persons within tile meaning ol' Seclion 2(2). (6), and (7) of the Act. 3. Roach is an Arkansas corporation with its office and principal place of' business located in Truman. Arkansas. where it is engaged in the manufacture of convey or systems. During the past calendar year Roach has sold and shipped goods valued in excess of $50,000 directly outside Arkansas. At all times material. Roach has been an employer and a person within the meaning of Section 2(l). (2). (6). and (7) of the Act. 4. In March 1977 the Naval Procurement Office in Washington D.C.. awarded to Roach a contract "to furnish and install a power conveyor system consisting of a pallet- handling subsystem and a tote-pan handling subsystem and a pneumatic tube system in Buildings 313. 413 and 421 at the Naval Supply Center in Oakland. California (G.C. Exh. I ). The system was manufactured at Roach's place of busi- ness in Arkansas and shipped to NSCO in Oakland. Roach brought its own crew to Oakland to install the system at the Oakland facility on or about June 6. 1978. Certain alter- ations had to be made on one of the buildings, building 413. and this work was subcontracted on or about May 12. 1978. to a local contractor. Panky and Son (Panky), pursuant to an amendment made to Roach's contract with the Navy (G.C. Exh. 12). The alteration work performed by Panky was done pursuant to Davis-Bacon requirements (G.C. Exh. 8(c)). 5. Jame Ray Green and Roger Brownell are "agents" of Respondent Union as used in Section 2(13) of the Act. Green is a business agent and Brownell is an assistant busi- ness representative and financial secretary-treasurer. 6. On the morning of June 6. 1978. Green and Brownell. along with Union Counsel Steward Weinberg, met with William F. Finnegan. NSCO counsel, and Commander William M. Hyman. U.S. Navy project manager for ware- house modernization and mechanization. The first part of the meeting took place in Finnegan's office at NSCO and lasted about I hour. Immediately thereafter these persons spent approximately another hour viewing the site of the conveyor project at NSCO. During the meeting in Finne- gan's office, union representatives asked questions concern- ing the content of the Navy's contract with Roach. The Navy's position "as expressed to the Union. was that the provisions of the Davis-Bacon Act pertained only to struc- tural building modifications." Finnegan at that time sup- plied Union Counsel Weinberg with copies of certain provi- sions of the Armed Services Procurement Regulations. At or near the end of the meeting that day Weinberg stated the Union's position to be "the same which the Union had held in 1973. namely', that the Davis-Bacon Act applied to the conveyor project."I Also, at or near the end of the June 9 3 T'he Ulnion's 1973 position is indicated in another Board proceeding (identified by one of the Board's attorneys as Case 20 ('( 1354) nvolving the installation of a conveyor project at NSCO by a firm named "Spilsard." Spillsard defaulted on the contract, and Roach later completed its contract. ''he Spillyard matter was disposed of by a settlement. meeting, union representatives were told that the Navy would establish a reserve gate for Roach, its employees, cargo. and subcontractors. 7. On the morning of June 9. 1978. three gates were es- tablished tfor ingress and egress at the NSC(') cilit'. 4 On June 12. 1978. two union pickets were stationed near gate I1 and two union pickets were stationed at gate 2: "no pickets controlled the area in the proximity to gate 3." Picketing at gates I and 2 continued until June 16. 1978. on which date a temporary restraining order w,'s issued. A photograph in evidence. General (Counsel's Exhibit 3. shows the Navy's sign posted at gate I which reads: ROA(II Mil. ( RP. I MLO()YL5. AR(() & StrB (()NIRA(' ORS I!N I IRK/I:XI I (;GAI: 3 osI.N General Counsel's Exhibit 4 is another photograph which shows two picket signs (one standing against a light pole and the other one being steadied by a person), each of which reads: I)lIIP. OF NAVY tIAS (O)NIRA( IIl) I()R Al. I RAt ION OF Pt Bi.I( B )(i. IN VIO()I A lION (Of lF). I.A' MIIi'RI(;IIIS I.[.. 102 General Counsel's Exhibit 4 also shows a person on the right side of the photograph holding another picket sign (which presumably read the same as the other two). Gen- eral Counsel's Exhibit 4 was taken approximately 100 yards from gate 1. General Counsel's Exhibit 5 is a photograph of gate 2 which shows a posted sign that read: ROA(' M. ()RP. IVMPI.OYI.S. ( AR(i) & SlUB ((N tRA( IORS LN I R/F X I (GAI'J 3 ONI.Y General ('ounsel's Exhibit 6 is also a photograph of gate 2 which shows two persons, each of whom is steadying a picket sign.Each sign reads: 1)1PI. (1: NAVY ItAS (' O)NTRA('II ) IOR At.liRAiON (t PU'BII(C BI.)G. IN lOl.A I ION I- -FElt). I.AW ' MII.I.WRI(IIS IL 1)2 General Counsel's Exhibit 7 is a photograph of gate 3 which contains a sign that reads: ROA(It 11. ('()RP. M PI.LOY LLS, tAR(() & St (()NIRA( I()RS IN I IR/I:XI I lltS (AII ONltY '(i.C xh. 2. a schematic drawing ofI' the NSC'O lacilit. sho. s gates and 3 to he located n one side 1t Iacility Il the same general area It sas stipulated that these two gates were 500 eet apart. Ihe schematic shows gate 2 t he located some further distance away at one end of the lacilits 924 M1I l.WRI(iGtlS. LOCAI 1)02 8. ('opies of a union "WI- PRO()I S I'' handill II were dis- tributed hb pickets between June 12 and June 16, 1978. The full text of each handbill (G.('. xh. 10) reads as follows: WE: PR()OTEST 'The Davis-Bacon Act sas that construction or al- teration of Federal Buildings must he done at prexail- ing wages. The Navy is :iolating this Federal [au. In 1973, the Navy contracted ia non-union emplo,,er to construct a conveyor system. After vigorous protest by the Union (which took several ftortis) all agreement was made that substantial construction or alterations would he done according to the laws governing pre- vailing wages and NO SB-STAND[ARI) WAGlS WOULD BE PERMITTED. The Navy' now has tor- gotten ad has allowed an employer to bring in OU'T- OF-STATE CCONSTIRU('TION WORKERS and pa' them sub-standard wages. This area has high unemployment and the Nav; is allowing OUT-OE-S'TAT' WORK E RS to replace lo- cal workers to use ('HEAP I.ABOR. The General Counsel called the fllowuing its witnesses: James R. McCullars, contract administrator for Roach: Ed- ward J. Pankowski. president of Panky and Son: Coin- mander William Hyman: and union official Jimmie Ra Green. The Union recalled Green to testify for it and also presented the testimony of union official Roger O. Brow- nell. McCullars testified that he received "several" telephone calls at his office in Arkansas from union officials Green and Brownell concerning the NSCO conveyor project. lHe said Green first called around June 1977 and inquired it' Roach needed any help in performing its Navy contract. McCullars said he explained that Roach had its own crew hut invited Green to send his union "literature . . . phone numbers. labor rates." McC'ullars also testified that ireen asked whether the Davis-Bacon Act applied to the Roach contract and if McCullars knew about the Spillyard con- tract that "had shut down the Supply ('enter." McCullars said he told Green that he understood that Davis-Bacon did not apply and that he had "some knowledge" of the Spill- yard contract. After Green's telephone call, Mc('ullars said he got in touch with the Navy in Washington and learned that Davis-Bacon was not applicable. Mc(ullars said he had a similar conversation with Green's assistant, Roger Brownell, around January 1978. Brownell asked, according to McCullars. when McCullars would be in Oakland, whether Roach had its own crew, and whether Davis-Bacon applied to Roach's contract with the Navy. McCullars said Brownell also brought up the subject of Spillyard, noting that NSCO had been closed down "dur- ing the height of the Vietnam War" and that "if something wasn't done . . . there was going to be a problem on my contract." McCullars referred Brownell to the Navy and again asked that the Union send its literature to him. McCullars said he received three more telephone calls from the Union around May 1978 one from Brownell in early May and two later ones from Green. McCullars said he again told Brownell during a May conversation that he had not received the union literature.' Brownell again 'On Mas 17. 1978. Mc('ullars received an nformational cops of a "'Car- brought up the subject tot' Spillsard and said there vould bhe a probhlem i I)avis-Bacon as;i 11ot included in the conlecor project contract. Green then called near the end of a and asked for the name of the Roach subcontractor "lor the Davis-Bacon portion of the contract that had since been added." Mc(Cullars said he declined to gix, e out Pank,'s name as the subcontractor at that time. Mc(ull;lrs said he also told Green that Roach would make installation o the convecor with its on crew. and again reen stated that "there is going to he a prohlem."'' Mlc('ullars did re',cal the identit o Panks as the Roach subcontraictor 2 or 3 daxs later, around June 1. when Green telephoned again be- cause, according to Mc('ullars he knew at that time that Green had talked with Pank' about the NS('() concsxtor project." (ireen again asked whether Roach woluld use the inion's "people." and. when told that Roach wNould not. stated to McCullars: "There's going to be a problem."' Brownell, wvho was not employed hb the lnioll until September 1975. said he had never heard of' "Spillard'' belfore the da' of the hearing and, therefore, could not ha,e used the word in conversations with McCullars. lie testified that he had made a call to McCullars as earlx as i:ebruarx 1977. and others later, at Green's request. but he could not remember precisel 5 why he had. He ultiniatel agreed. however, that he called to see if' McCullars had a conveNor project with the Navy and. ift' it did. who would do the work . Union business representative Green testified that in 1973 the Union had a dispute with the Navy over the instal- lation of convevor ssNstems but that it had been resolved bx an "informal agreement." Green referred to "somne sort of a letter" that indicated that Spillsard type of work at NS('() "would be done Davis-Bacon'' hut no letter to that effect from the Nas', was oftered.' On cross-examination Green said he knew ot' no written agreement between the Navys and the Union on the subject, but he maintained that it was understood up through 1977 and 1978 that anx conveor system work would be under Davis-Bacon. lie then testified that a Navy', employee named Jack Levine (an assistant of, ('ommander Hyman} had told him in May 1978 that "[t]hrough your efforts ... the work will be done [)avis- Bacon . . . congratulations." On or about June 2 when Gireen called Mc('ullars to penters Master Agreement for Northern California" (.(' tExh 14) sent o him by Brownell. I Pankowskl. president of Panks. testified that union official Green called him shortly after he was awarded a contract "to install the oserhead doirs and the motors and the miscellaneous other work pertaining to this job." Pankowski staled that Green told him that he was "looking for work" Green admitted that he knew Panks was the subcontractor when he asked McC'ullars ftor the name of the subcontractor on or about June 2 "to see If Ron would tell me the truth." On cross-examination McCullars stated that Green had told him that the Union had an agreement with the Nas) that the contract would he under Da.s i-Bacon I Brownell acknowledged that the Nayv had informed the nion that Roach had been awarded the Oakland NSCO conveor contract IHe con- ceded un cross-examination that he knew that Roach had prevsiusl\ subcon- Ira:ted work at the Oakland Nass facilits ut to different subcontrlctors even though "it was before his] time" ' Resp Exh 6, a letter of August 17. 1973. addressed t t niin (unsel Weinherg and signed bh Nayv (Captain ) G Aitken states that II there :las not a a slhstantial amnount of constructlon . as was clear in he Spillsard contracl situatllon, no D)ais-Bacon Acl pres;,ling area :age determinallon is required or escn permitted in the contract 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inquire who Roach's subcontractor would be (even though concededly he already knew it was Panky), McCullars told Green that the conveyor system itself would be installed outside of Davis-Bacon by Roach's own crew. Green agreed that McCullars at that time gave the name, tele- phone number, and address of a Washington, D.C.. Navy representative (Jim Garrison) to contact for confirmation of the fact that the installation was not covered by Davis- Bacon. 0 Green said that he was not kept well informed by the Navy on NSCO activites. He stated that he "was laboring under the impression, the whole thing was Davis-Bacon. until June the 2nd." He maintained that he did not know that the Navy had modified the Roach contract whereby Davis-Bacon was made applicable to a portion of the con- veyor system project until the day of the hearing. According to Green, the Union did not picket Roach at NSCO. He referred to the picket instructions (Resp. Exh. 7) which, among other things, directed pickets not to "inter- fere with employees, customers or any persons going in or coming out of the plant, building or premises." However, Green indicated that he had not been at the site of the picketing and did not know whether any Roach employees were there except on the basis that Comdr. Hyman had indicated to him that they were there on the premises. Comdr. Hyman testified that he got "twice daily reports" between June 12 and 16, 1978, and that there was "about 20 percent of the normal truck traffic . . . coming into the Center, because the Teamster drivers would not cross the line at the gate." Comdr. Hyman also testified that the Union had telephoned his office on occasion and inquired of him or his assistant whether the conveyor project was covered by Davis-Bacon and when the work would begin. Hyman said his response was that he did not not know the answer to such questions. He explained that the contracting officer for the project was in Washington, D.C., and that he acted only as the "technical advisor" at the NSCO site. Nyman stated that the Navy's policy was not to "invoke the Davis-Bacon Act on conveyor contracts" but to use instead, he thought, the Walsh-Healy Act in such projects. It is unlawful under Section 8(b)(4) of the Act to induce employees to refuse to handle goods or to coerce any person engaged in commerce where "any object" is to require "any person to cease . . . doing business with any other person .... " The status has been construed to prohibit only sec- ondary activity. See the recent Supreme Court's Enterprise decision, N.L.R.B. v. Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Lube, Ice Machine & lo The parties agreed that on June 6 Green and other union officials met at NSCO with Navy representatives and that the Union thereafter filed, through its International office, a protest with the Department of Labor over the Navy's determination that the conveyor system installation would not be under Davis-Bacon. The Employment Standards Administration of the Department of Labor, in a letter addressed to the Naval Supply System Command under date of June 21, 1978, indicated that it had determined that the installation of the conveyor system at NSCO was "construction work" and therefore covered by the Davis-Bacon Act (Resp. Exh 2). The determination was reaffirmed on July 28 (Resp. Exh. 4), and an appeal was filed by the Navy with the Wage Appeals Board of the Department of Labor on August 28, 1978 (Resp. Exh. 5). General Pipefitters, Local Union No. 638 /,4ustin Co.], 429 U.S. 507 (1977).'' Justice Frankfurter, in ocal 761 International Union o' Electrical. Radlio & Machine B'orkers, A FI. (10 General Electric Corporation] v. N. L.R.B., 366 U.S. 667. 673 (1961), usually referred to as the General Electric case, said: Important as is the distinction between legitimate "primary activity" and banned "secondary activity," it does not present a glaringly bright line. The objectives of any' picketing include a desire to influence others from withholding from the employer their services or trade. See Sailor's Union of the Pacific (Moore Do, Dock), 92 NLRB 547 .... However difficult the drawing of lines more nice than obvious, the status compels the task. Accordingly, the Board and the courts have attempted to devise rea- sonable criteria drawing heavily upon the means to which a union resorts in promoting its cause .... Justice Frankfurter pointed out that the early decisions of the Board following the enactment of Taft-Hartley focused on whether picketing activities occurred around the prem- ises of the secondary (illegal) or primary (legal employer. He noted that the "common situs" cases "where two em- ployers were performing separate tasks on common prem- ises" called for laying down of new rules, which had been done in the Board's 1950 Moore Dry Dock case, supra. Quoting further from the Supreme Court opinion: The Board concluded, however, that when the situs of the primary employer was "ambulatory" there must be a balance between the union's right to picket and the interest of the secondary employer in being free from picketing. It set out four standards for picketing in such situations which would be presumptive of valid primary activity: (I) that the picketing be limited to times when the situs of dispute was located on the sec- ondary premises, (2) that the primary employer be en- gaged in his normal business at the situs, (3) that the picketing take place reasonably close to the situs, and (4) that the picketing clearly disclose that the dispute was only with the primary employer. These tests were widely accepted by reviewing federal courts .... [366 U.S. at 677.1 The Court did not disapprove of the Board's Dry Dock standards, noting that the Court itself had previously indi- cated (in its International Rice Milling decision, 341 U.S. 665 (1951)) that the location of the picketing was "not nec- essarily conclusive." The Court then announced its "re- served-gate" doctrine, indicating that the legality of the picketing would turn on the kind of work done by those entering a reserved gate. The Court indicated that General Electric could set aside a separate gate for contractors and other persons not employed by it, and that such persons could come and go without being subjected to picketing so long as the work they were to perform for General Electric was unrelated to its normal operations. Said Justice Frank- furter: The key to the problem is found in the type of work that is being performed by those who use the separate " In 1959 Congress amended the section to make it clear that it did not prohibit "any primary strike or primary picketing." 926 MILLWRIGHTS. LOCAL 102 gate. It is significant that the Board has since applied its rationale, first stated in the present case, only to situations where the independent workers were per- forming tasks unconnected to the normal operations of the struck employer-usually construction work on his buildings .... [366 U.S. at 680.]'2 Location of the picketing has been considered to be of less significance in later Board Decisions.' In 1962 the Board announced in International Brotherhood of Electrical Workers, Local Union 861 Plauche Electric Inc.), 135 NLRB 250 (1962), that it would no longer apply the D' Dock standards "on an indiscriminate 'per se' basis." The Board noted, however, that the Dry Dock standards had met with "consistent judicial approval" and that it would regard such standards "as aids in determining the underlying questions of statutory violations."" In 1965 in Building and Construction Trades Council of New Orleans, AFL-CIO (Markwell and Hartz, Inc.), 155 NLRB 319 (1965), the Board declined to apply the General Electric's related-work test in a case arising in the construc- tion field. In that case the general contractor had reserved a gate for its own employees as well as separate gates for subcontractors that performed pile-driving and electrical work. Employees of the subcontractors refused to cross the picket line at the gates reserved for them. The Board ruled that the General Electric and the Supreme Court's later Carrier Corp. decision (United Steelworkers of America, AFL-CIO [Carrier Corporation] v. N.L.R.B., 376 U.S. 492 (1964))" were inapposite and ruled that the legality of the picketing was to be determined by the Board's Dry Dock standards which had been "traditionally applied by the Board in determining whether picketing at a common situs is protected primary activity." Said the Board 155 NLRB at 324) Over the years, the distinction between common si- tus picketing and that which occurs at premises occu- pied solely by the struck employer had been a guiding consideration in Board efforts to strike a balance be- tween the competing interests underlying the boycott provisions of the Act. Mindful of the fact that "Con- gress did not seek, by Section 8(b)(4), to interfere with the ordinary strike," the Board has given wide latitude to picketing and related conduct confined to the sole premises of the primary employer. On the other hand, in the interest of shielding "unoffending employers" from disputes not their own, the Board has taken a 2 The Court thus approved, in essence, the Board's Decision but re- manded the case for a determination of whether some contractors' employ- ees performed "conventional maintenance work necessary to the normal op- erations of General Electric." '3 Actually, in the Board's Dry Dock case itself, the Board found no viola- tion even though the union had picketed the one entrance to the dr) dock where the pnmary employer's vessel was located. 14 For a penod the Board had utilized an additional or fifth standard, known as the Washington Coca Cola rule. The rule restncted picketing to the primary employer's place of business. See Brewery and Beverage Drivers and Workers, Local No. 67, International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America (Washington Coca Cola Bottling, Works, Inc.), 107 NLRB 299 (1953), enfd. 220 F.2d 380 (D.C. Cir. 1955) to The Supreme Court in Carrier Corp. clanfied its related-work rule first announced in General Electric. Carrier involved "primary" picketing of a gate owned by a railroad which was cut through a fence adjacent to the struck employer's premises. more restrictive view of common situs picketing, re- quiring that it be conducted so as "to minimize its im- pact on neutral employees insofar as this can be done without substantial impairment of the effectiveness of the picketing in reaching the primary employees. Finding that the Dry Dock standards were not satisfied (as the picketing and picket signs were not intended to reach the primary employer). the Board found the picketing to be secondary and, therefore, unlawful.l The Board. with court approval, has continued to follow the rule announced in Markwell and Hartz--that the DO' Dock standards deter- mine the legality of common situs picketing without regard to the General Electric "relatedness" test. See, for example, Linbeck Construction Corporation v. N.L.R.B., 550 F.2d 311 (5th Cir. 1977). and Carpenters Local 470, United Brother- hood of Carpenters and Joiners of America AFL-CIO [Mueller-Anderson, Inc.] v. N.L.R.B., 564 F.2d 1360 (9th Cir. 1977). In National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S. 612 (1967), in a case in which a carpen- ters union ordered its members not to hang premachined doors because rule 17 of its collective-bargaining agreement forbade its members to "handle . . . any doors . . . which have been fitted prior to being furnished on the job ... ." the Supreme Court gave recognition to the "totality-of-the- circumstances" test. The Court indicated that in consider- ing the legality of the "will not handle" sentence in rule 17 under Section 8(b)(4)(B) as well as Section 8(e) there must be "an inquiry into whether, under all the surrounding circumstances, the Union's objective was preservation of work for the [general contractor's] employees, or whether the agreements and boycott were tactically calculated to satisfy union objections elsewhere." [lid at 644.] Added the Court: "The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the con- tracting employer vis-a-vis his own employees." lid at 645.] Finding the objective of the sentence of rule 17 to be pres- ervation of work traditionally performed by the jobsite car- penters, the Court found no violation of Section 8(b)(4)(B)-or Section 8(e). The Board has applied a "right of control" test whereby a union is considered in violation of Section 8(b)(4)(B) if it coerces an employer to obtain work it has no power to assign. George Koch Sons, Inc. v. N.L.R.B. 490 F.2d 323 (4th Cir. 1973). Recently the Supreme Court in the Enter- prise case, N.L.R.B. v. Pipefitters [Austin Co.], supra, con- trary to the decision of the court of appeals in the case. 521 F.2d 885 (D.C. Cir. 1975). found no conflict between the Board's "right of control" test and the National Woodwork 's "totality-of-the-circumstances" test. See also Lcal No. 742, United Brotherhood of Carpenters and Joiners of Aimerica (J. L. Simmons Company, Inc.), 237 NLRB 564 (1978). In the case at bar, the evidence shows that picketing by the Respondent Union induced employees of trucking con- cerns to refuse to make deliveries at NSCO. According to m' The Board's Order was later enforced. 387 F.2d 79 (5th Cir 1967). The reviewing court pointed out that the Supreme Court's decision in N. L R B v. Denver Building and Construction Trades Council Gould & Preisuer], 341 U.S. 675 (1951), which had also involved common situs picketing with "an object .. to force or require the cessation of business" between a subcon- tractor and pnme contractor. was controlling, not General Electric 927 I)DECISIONS OF1: NATIONAL. ILABOR R:A.A'IIONS BOARD Commander Hyman, only about 20 percent of the normal truck traffic entered the Oakland Naval flcility between June 12 and 16, 1978, "because Teamsters drivers would not cross the line at the gate." Nearly all of the truck traffic used gate 2, which the Union had picketed, along with gate 1, the "passenger gate." Gate 3, which was not picketed. was reserved for Roach employees and subcontractors. If the Union's dispute was with Roach, as the complaint as- serts, the pressures exerted on the driver employees would be secondary in nature and unlawful. After having carefully considered the whole record, I am persuaded that the Respondent Union's real dispute was with Roach and that the Union's picketing at the Oakland Naval facility between June 12 and 16, 1978. was for the purpose of forcing neutrals, including NSCO and employ- ees of trucking companies, to cease doing business with Roach. I therefore hold that the General Counsel estab- lished violation of Section 8(b)(4) of the Act. It is true, as Respondent asserts, that it had for some time taken the position that NSCO should include Davis-Bacon provisions in its conveyor projects. It took no serious action to change Navy contracting policy, however, until it be- came clear that its appeals and threats to Roach were not going to be successful. Union Officials Green and Brownell made a number of calls to Roach's contract administrator, James McCullars. in the hope they could secure employ- ment for their union members." If they could not secure work for their members, the union officials hoped to force termination of Roach's contract with the Navy. Green and Brownell made it clear that there would be a "problem" if Roach tried to carry out the conveyor installation unless the contract were modified to incorporate a Davis-Bacon provi- sion. Each of the officials had indicated that the problem was so serious, in fact, that if the contract was not modified the operations at NSCO would be brought to a standstill, just as before when the Spillyard concern had undertaken to install a conveyor system under a non-Davis-Bacon con- tract.'" Respondent cites the Board's Decision in Brotherhood of Painters. Decorators and Paperhangers of America, Local Union No. 171, AFL CIO (Centric Corporation), 218 NLRB 944 (1975). as supporting its position. In that case the con- struction trades council complained that certain Federal agencies had unfairly required union, but not nonunion. firms to comply with affirmative action apprenticeship pro- grams. The council contended such disparate treatment placed its members at a disadvantage in bidding on Gov- ernment contracts. It appealed for assistance from Congress and Federal agencies; also two employees of a nonunion contractor complained to the union of being paid substan- dard wages. The union at different times picketed two Air Force facilities in Colorado until the Department of Labor agreed to investigate the matter. Finding the Union's pick- eting to have had the "limited object" of advertising the injustice of the government's interpretation of the law, the I find it difficult to believe that Brownell had not heard the name "Spill- yard" before the hearing as he claimed. He could of' course have forgotten the name: he did not recall why he had first called McCullars. And he ultimately conceded that he was aware of an earlier problem involving pick- eting by the Millwrights at the Naval Center. 18 Union business representatives also called Panky. Roach's suhcontrac- tor. in an effort to find work for union members. Board dismissed the complaint. There was not, however. such a limited object in the case at bar. Respondent's offi- cials directed their efforts to change the conveyor contract at Roach. not at the Navy contracting office. The picketing, unlike in C(enlrix. had the clear object, and effect. of induc- ing employees of' trucking firms to refuse to perform ser- vices for NS('C). In Ccntri.x picketing occurred at a site where no employees of subcontractors were at work. A union official in the Centrix case even had announced that union painters and construction workers should not honor the picketing. The Supreme Court's recent Enterprise decision. N.L.R.B., v. Pipe/itters Austin Co./, .supra, affirming the Board's application of its "right of control" standard, con- demns Respondent's picketing at NSCO. In that case a steamfitters union caused its members who were employed by Hudik, a subcontractor, to refuse to install certain cli- mate control units that had been ordered by Austin, the general contractor, for use in constructing a home for the aged. The internal piping in the units had been cut, threaded, and installed at the factory in accord with the job's specifications. The union refused to install the units because the collective-bargaining agreement with the sub- contractor called for pipe threading and cutting to be done at the jobsite. The Board held that the Union had violated Section 8(b)(4)(B) because, although the refusal to install the unit "was based on a valid work preservation clause ... " the union "was exerting prohibited pressure on ludik with an object of either forcing a change in Austin's manner of doing business or forcing Hudik to terminate its subcon- tract with Austin." The Supreme Court agreed, saying: There is ample support in the record for the Board's resolution of this question. The union sought to en- force its contract with Iludik by a jobsite product boy- cott by which the steamfitters asserted their rights to the cutting and threading work on the Norwegian Home project. It is uncontrovertible that the work at this site could not be secured by pressure on Hudik alone and that the union's work objectives could not be obtained without exerting pressure on Austin as well. That the union may also have been seeking to enforce its contract and to convince Hudik that it should bid on no more jobs where prepiped units were specified does not alter the fact that the union refused to install the Slant/Fin units and asserted that the piping work on the Norwegian Home job belonged to its members. It was not error for the Board to conclude that the union's objectives were not confined to the employ- ment relationship with Hudik but included the object of influencing Austin in a manner prohibited by §8(b)(4)(B). [429 U.S. at 529 531.] The Court pointed out that since deciding Nlational Wood- work, supra, "the Board has continued to interpret and ap- ply §8(b)(4)(B) to find an unfair practice, at least where the union employs a product boycott to claim work that the immediate employer is not in a position to award .... " [Id. at 526.] there Respondent was bound to know that it was not within NSCO's power to require Roach to give its mem- bers employment. While maintaining its dispute is only with the Navy, Respondent in its brief acknowledges that under the Enterprise case it would be unlawful "to picket 928 929 Roach in order to tForce the NaN ! to ch;liate its cntractnil policies .... Respondent ma' ha; e a dispute tilil the Na . hut thIe stateInletlts mat de h\ union otfficlits (;reen and Bro tinell to rMc('ullars o, cr the telephone re eill their primar'; dispute , as kith Roach. Respondenlt poinlts to the tIclct that lh picketl sign idenlti- ties the Nass. not Roach. as the source of iis dispute. But it is to he noted. lioc ser. that Respondent's handhill referred toa "non-union eplooer who has roughl i 01 I ()1-- SIAI ('()NSIR (IION W()RKIiIRS" to o he ol-rk at "sub-standard wages." Of course. "the mere laonuge of the ickel ign does iolt itself establish lie lecalit of' the picketing nor e en its real objecl or object,." .,d /3. / l'r- notll iott[ Rrolht'rhoo[ of le cril( I rcr . -IH. ( 10() falotield (i,IIro.' (y ttr'ttfiit. 205 NI RB 5) (1973 . " Actuall. the picket SUign used ! Responldelnt do not satisfy the fourth DOr' Dock test for thev did not accuiratels, nmiush less cle.arI. re' eal thait Rspolldenl' dlispute kist with Roach. the priia'r! emiploser. I)n n' eent. it is clear th;lt Respondent's ohlect in picketllng i, as to eniesh NS( () in its dispute with Roach for tihe purpose of tfrcing the Navv to change its manner of doing husiness or forcilng the Navy to lerminite its contract ilh Roach. Respondent's collnduct was "at least in sonme ncasure'tacticall calculaled to satliS t lnion hobectives elsewhere " and heclreore pro- scribed h: Sectlion 8(h)(4(13B) of the Act. ( arp)(''rt, 1 742, supro. Finall. contrar t Respondent's contention. Respon- dent's picketing ,als not constitutionlI protected. Respon- dent maintlains that it as merel seekilng to adc ertise and communicate to the public its grieance k iith the Na con- cerning the applicabilit5 of the D)a is-Bacon Act to con- vesor projects at NS(). I loc,,eer. the Supreme C(ourt's "Tree Friirle " decisionN. L. r B. . Fruit lr I clleta Pick - cr & Cl;rt'l'lotl.st'pnt, l.o( l 7t(0, 377 U.S. 58 ( 1964). relied on bs Respondent. did not sanction Respondent's second- ars picketing. The (ourt did hold that Section 8(b}(4)(B) did not tforbid peaceful consumer picketing of Safe as stores to persuade customers not to hu a struck product. Washington State apples. as there was "not the clearest in- dication" h Congress of an intention to do o. The (Court noted that the Union's appeal was "closels confined to the primary dispute" and not directed at persuading customers not to trade at all with the secondlar emploser. The ('ourt indicated that Section 8(b)(4) did proscribe. without collid- ing "with the guarantees of the First Amendment." such "peaceful customer picketing at secondar ' sites . . to per- suade the customers of the secondars emploser to cease trading with him in order to force him to cease dealing with, or to put pressure upon. the primar emplosN er." Based on the foregoing findings of fact, and the whole record. I enter the following: 1 Respondent's picketing as conistent uith I its lntention Ihat its dis- pute was with the Navy. It did not picket the gate rescrc.l lir Ro;ach (gate 31. and its picket signs did nt refer to Roach 2 11 llanoi /d (o,nriliing ('orprtinl a lso es ab hhshes tha Sec Kf(h)(4)H ) protects (vernmnent agencies front secondar, presure,. exen thiough thes mai not he consi der ed aill " enp ploer Linder the Acl Plll rs. tI .tfllt/l r. Refrigeralon, Ptrumol F;iiir. uatsd 4pprinti't /u'l 0 -,i ? 4 f ,I I ' (,rnt d D,/r. 359 S. 354 ( 1 9 5 9 i ' Sec 8(bhH4 includes i provrso. added In 1959. u hlch ssrurcs the lLalii. iel giving "puhlicit. ,ther than p, Acting, lr the purpiose ot trutilhulls adsis- ('t)N It St itS )l I \s 1. R lach Mt:llult.cturing (rptr;itlon. Inc.. is an elm- plo! er enatlged in commerce i thin the meaningl of' Section 2(6) and (71 of the Act. 2. Roach NMalluftacturing (Corpora;tion. Inc.. and the I nited States )epartmlent of the Nay; are perso ns ithin Ilie nlLa ieltig of' Seclioll 8(h)(4}(B) t' the Act. 3. 1 lie Respondent., ' \ill righls 1nio. l.ocal 1(02. of' the lInited Brotherhood oft Carpenters & Joiners of' America. Al 1 ('10) is a labor rganization within the meaning ot' Section 2 ) of' the Act. 4. B, inducinig illdi'vidu;ll s emplo!c h contimon carrier truckiti tfirn's to refuse in the course of' their emplo mient to perflirm services with an ohbject of forcinLg the Na\al Sup- pl\ ('enter It cease doing husiness with Roach \;antiufact lr- Inig ('ollporatllon. Inc. Respotndent has engaged i1l unlait lahor practices aflectin commerce within the meaning o' Section X(h)(4)(i)(3B) of the Act.!- 5. r threatening. coercinig and restraining lthe Na;al Supplhs (cnlter and colmmon carrier trucking irms ith an object o fotrcing the Nav;al Suppls ('enter to cease doing business \\itll Ro;ch Man uflicturing ('orporation Inc.. Re- spondelit h1s enga;ge d il Lintair lahbor practices a;tl.ctinlg commierce within the meaning of Sectiotn X(h)(4)(ii(B of the Act. I lavin tiOund that Respondeni has \iolated Section 8(h)(4)(ii)(B) of the A\ct. I shall recoimmiend that it he or- dered to ceaIse a;d desist therefron and to take certainl alfir- mative actllon designied to effectuate the policies ot the I\t. pli te hasis of thle toregoing itdings of tfact. conclu- siotis Of' 1 1i aind upon the entire record, and ilI rsllzuant to Section 1(c) of the \ct. I hereb}' issue the Ifllosk ing recoin- mendcd: O()RI)R I rhe Respondent. Nillkrights U:nion. Local 102, of the l nited Brotherhood of Carpenters & Joiners of Amelrica. AFL (10. Oakland ('alifornia. its officers. agents. and representativ.es, shall: . Cease and desist from: (a) Inducing individuals emplosed by common carrier trucking firms to refuse in the course of' their emplo ment to perf'orm services with an ohject of forcing the Naval Sup- ing the publc,. including cnsumers and memhers, oi a labor rganlation, Iha a produl ior products are pr. duced by an emplo.er ,ith hhom Ihe la hr orga niza l on has a primars dispute .' " imphasls supplied.) The ('curt nerpreted thal prosiso in V1. R B : S-nertel In. 377 S 46 1964). decided oin Ihe anme da5 as Trc Fruii 2 Suhset (i) of Sec 8(h4)1 is direcled at nducing if emplolyees (e. "an% Indi.idual cmplosed bh ins person '") sllh the proscrihed purpose Im- pl0sees tf the Naal Supply (center would he included Aithin Ihe suhetctin and are n lact n, cluded ithin the allegations of the complaint (par Xi. hut Ihe eidence il record d i11 suggest Iha.l aIn such Inld s IJduit ere in- duced Io refutse perform their ser ices he record ,on Ildcaes Ithat empl ee iot the trucking tirmsl ere so ndced he Suprnle (ourt ci, nsd- ered Ihe ditnctinll hbetween the Ios suhbecilltn In I R B Sir-lrl., Iln, "' In Ihe cent nol ecepti,ns are filed a priovided h Sec 10t2 46 oI the Rules aind Regutoit Iol I hc Naultlnal I hor Relitiu ins Board. Ihc tindilgs. cncluslr . ,ind rccnltendd ()rder herein shaill. a. prol ided in Sec I112 48 ol the Rules arid R egul.llsn,. h .adlpiled h the Balrd .nid hecImec its tinthing. o1ctloinsiis. nd ()rder aid dl ohJeciolns thereto hll he deenied sdsied or a 11 puirp.ses M111WRIGHIS, LOCNI M-2 DEC(ISIONS OF NATIONAL I.ABOR RELATIONS BOARD ply Center to cease doing business with Roach Manufatctur- ing Corporation. Inc., under circumstances prohibited by Section 8(b)(4)(i)(B) of the Act. (b) Threatening, coercing, and restraining the Naval Supply Center and common carrier trucking firms with an object of forcing the Naval Supply Center to cease doing business with Roach Manufacturing Corporation. Inc., un- der circumstances prohibited by Section 8(b)(4)(ii)(B) of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post copies of the attached notice marked "Appen- dix"24 at their offices and meeting halls. Copies of said no- tice, to be furnished by the Regional Director for Region 32. shall, after being duly signed by Respondents. be posted by them immediately upon receipt, thereof, and be main- tained by them for a period of 60 consecutive days there- after, in conspicuous places, including all places where no- tices to members are customarily posted. Reasonable steps shall be taken to insure that the notices are not altered. defaced, or covered by any other material. (b) Furnish to the said Regional Director copies of the aforementioned notice for posting by the Naval Supply Center. if' willing. 24In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National abor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional L.abor Relations Board." Ic) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken by Respondent to comply herewith. APPENDIX NolI tC To MSI1BERS PoslI) BY ORDI)ER ()If lit NAIIONAI. LABOR Ril.AIIONS BOARD An Agency of the United States Government WI'. rilt NO) in violation of Section 8(b)(4)(i)(B) of the National l.abor Relations Act. as amended, induce employees of common carrier trucking companies to refuse in the course of their employment to perform services with an object of forcing the Naval Supply C'enter to cease doing business with Roach Manufac- turing Corporation. Inc. WI l . Nor, in violation of Section 8(b)(4)(ii)(B) of said Act, threaten, coerce, or restrain the Naval Supply Center or any common carrier trucking firm with an object of forcing the Naval Supply ('enter to cease doing business with Roach Manufacturing C'orpora- tion, Inc. 111II.I R(; GHIS UNION, Lo( Al. 102, ()i 1ili UNItILD BR()IIIRIIO()I) ()I (CARPIiNIIRS & JOINERS ()I AMIRI'A, AFL CIO 930