Oil Workers Local 3-689 (Martin Marietta)

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 1031 (N.L.R.B. 1992)

1031
307 NLRB No. 158
OIL WORKERS LOCAL 3-689 (MARTIN MARIETTA)
1 In agreeing with the judge that the Respondent violated Sec.
8(b)(4)(i) and (ii)(B) in picketing the reserved north gate, we find
it unnecessary to pass on the General Counsel’s allegation that the
Respondent also unlawfully engaged in ‘‘signal picketing.’’ In es-
sence, that allegation is that the Respondent, after ostensibly stop-
ping its picketing on July 3, left behind signs, and used cars to par-
tially block the road, which ‘‘signalled’’ users of the neutral gate not
to enter. Because this allegation, even if established, would not af-
fect the remedy, we decline to pass on it.
2 As noted in the General Counsel’s exceptions, the judge incor-
rectly refers to the Employer as the Respondent. The Employer is
the Charging Party. This correction does not affect the analysis of
the unfair labor practice issues presented.
3 All dates hereafter refer to 1991 unless otherwise indicated.
4 The north (neutral) gate was reserved for construction contrac-
tors, their employees and suppliers, and the main (primary) gate was
established for the Employer’s employees, service contractors, ven-
dors, and suppliers.
5 In addition, a union witness testified that he observed persons en-
tering the north gate that appeared to be ‘‘secretaries or young peo-
ple,’’ but could not specifically identify those persons by name or
by employer, nor did the witness testify as to when and how often
he observed them entering the north gate. We find that this vague
testimony does not establish taint.
Oil, Chemical & Atomic Workers International
Union, Local 3-689, AFL–CIO and Martin
Marietta Energy Systems, Inc. Case 9–CC–1507
June 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABUGH
On December 26, 1991, Administrative Law Judge
Lowell M. Goerlich issued the attached decision. The
Respondent filed cross-exceptions and a supporting
brief. The General Counsel filed limited exceptions
and a brief in support. The Respondent filed an an-
swering brief to the General Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s ruling, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.
The judge found, and we agree, that the Respondent
violated Section 8(b)(4)(i) and (ii)(B) of the Act by
picketing the north gate entrance to the Employer’s fa-
cility despite the Employer’s clear establishment of
this gate as reserved for authorized neutrals only. The
General Counsel agrees with the judge’s 8(b)(4)(i) and
(ii)(B) finding, but contends that the judge, in finding
the gate was not tainted, should have specifically set
forth the evidence upon which he relied. We agree
with the General Counsel that the judge should have
set forth more fully the evidence regarding the issue of
alleged taint. The Union, in its brief to the Board, does
not specifically set forth the evidence upon which it re-
lies to establish taint. Based on our reading of the
record, we have set forth below the evidence that
could arguably be relied upon to establish taint. We
conclude, however, that such evidence does not in fact
establish sufficient taint.
On June 14, 1991,3 the Employer, in writing, noti-
fied the Union of designated reserved gates,4 the gates
were clearly marked, and the Employer posted guards
at the entrance to the north gate to check persons or
entities entering or exiting. On June 19, the Union, in
writing, notified the Employer that it suspected that
unauthorized persons were using the reserved north
gate and, without identifying the basis for its sus-
picions, requested that the Employer provide to it a list
of entities or persons authorized to use the north gate
and a description of security measures being used
there.
On June 20, the Employer responded to the Union’s
letter by requesting that the Union provide to it the
identities of those persons suspected of violating the
reserved gate system. Also, during subsequent con-
versations between the Employer and the Union, the
Employer repeatedly and specifically requested this in-
formation from the Union so that the Employer could
take appropriate action to correct any violation. The
Union never provided the Employer with the identities
of those persons or entities that it suspected of vio-
lating the neutral gate, and the Employer never turned
over the requested information to the Union.
At the hearing, the Union presented specific evi-
dence as to the identities of those persons that it sus-
pected of tainting the reserved north gate. It asserted
that a water truck used the north gate, and that Jake
Bell, a former employee of the Employer, used the
north gate. Further, the Union alleged that Belco Inc.,
a construction contractor, was performing bargaining
unit work. The Union also introduced evidence that an
unidentified geologist employed by service contractor
Geraghty and Miller, a service contractor of the Em-
ployer, entered and exited the north gate.5
The General Counsel established that the water truck
was a subcontractor of a construction company’s sub-
contractor, and that Bell works as an ‘‘escort’’ for
some construction contractors as he has the necessary
security clearance. Further, Belco was doing work
which had been performed by construction contractors
in the past, and the contract for the work was awarded
to Belco prior to January 23. The evidence does estab-
lish that the ‘‘geologist’’ entered and exited the reserve
gate on approximately three occasions.
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We find in agreement with the judge that the Em-
ployer has properly established and maintained a re-
serve gate system in compliance with the criteria enun-
ciated in Sailors Union (Moore Dry Dock), 92 NLRB
547 (1950). In only the case of the geologist was it
shown that a violation of the reserved north gate may
have occurred. It is unclear as to whether the geologist
continued to use the north gate after June 14 when the
Respondent had clearly established the reserved gate
system. However, even assuming that the geologist did
use the neutral gate after June 14, record evidence sup-
ports a finding that he did so on only three occasions.
In view of the uncertainty as to the dates, the minimal
number of crossings, and the fact that only one indi-
vidual was involved, we do not believe that this con-
duct establishes a pattern of destruction of the reserve
gate system sufficient to justify the Union’s resump-
tion of picketing at the reserved north gate.
We also note that the Union did not present any evi-
dence that the Employer failed to rehabilitate the re-
serve gate system when it discovered possible viola-
tions. In fact, in situations where a company guard at-
tempted to enter through the north gate, he was coun-
seled by the Employer and appropriately redirected to
the primary gate. The Union never informed the Em-
ployer of the specific identities of persons suspected of
entering or exiting the north gate, even when asked
and told by the Employer that ‘‘immediate action
would be taken.’’ The Union thereby precluded the
possibility of appropriate corrective action by the Em-
ployer against those suspected of violating the reserve
gate system. It was only at the hearing that Respondent
presented specific evidence of alleged violations and
only one of these instances has any arguable merit.
The Union contends that the Employer’s failure to
furnish the Union with information concerning those
neutrals who were authorized to use the reserved north
gate and a description of security measures imple-
mented at the north gate was in itself sufficient to es-
tablish that the Employer was not adhering to its estab-
lished reserve gate system. We do not see how the
Employer’s failure to furnish the Union with informa-
tion regarding possible taint can be used as a substitute
for proof of taint. As indicated above, that proof is
lacking. Therefore, we adopt the judge’s finding that
the neutral north gate has not been sufficiently tainted
to warrant the Union’s resumption of picketing at that
gate.
AMENDED REMEDY
The judge, despite his finding that the refusal to
supply the requested information concerning those
neutrals authorized to use the reserve gate does not es-
tablish taint, nevertheless decided to withhold the
Board’s usual remedy because of the Employer’s fail-
ure to provide this information. The judge found that
fairness dictates that the Union ought not be compelled
to guess about the neutrality of a gate. In the judge’s
view, in the interest of fair play and openness, employ-
ers ought not be permitted to thwart a union inquiry
into the gate’s administration. Further, he found that
the Employer’s reluctance to furnish the information
raised a question whether it was actually operating an
untainted reserve gate. Accordingly, he recommended
that the Order in this case be held in abeyance until
such time as a joint monitoring system is established.
We disagree with the judge. The purpose of Section
8(b)(4)(B) is to protect neutral persons from becoming
enmeshed in a labor dispute between a union and the
primary employer. Thus, in the instant case, the fact
that the primary Employer failed to furnish the Union
with a list of neutrals cannot be used as a license for
the Union to picket the neutrals. Even if the primary
Employer had a contractual or 8(a)(5) obligation to
furnish the information to the Union, that would sim-
ply add another basis for the Union’s dispute with the
primary Employer. However, that would not establish
a separate dispute with otherwise neutral employers so
as to privilege picketing such employers. In sum, the
Union is free to use statutory or contractual measures
to elicit the information from the primary Employer.
But it cannot picket neutral employers simply because
the primary Employer fails to supply the information.
Based on the above, we will not condition a remedy,
designed for the protection of neutrals, upon the pri-
mary Employer’s willingness to set up a joint moni-
toring system.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Oil
Chemical and Atomic Workers International Union,
Local 3-689, AFL–CIO, its officers, agents, and rep-
resentatives, shall take the action set forth in the Order
as modified below.
Delete the last paragraph of the judge’s rec-
ommended Order.
Patricia Rossener Fry, Esq., for the General Counsel.
John R. Doll, Esq., of Dayton, Ohio, for the Respondent.
John Robert Uhlinger, Esq., of Piketon, Ohio, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
LOWELL M. GOERLICH, Administrative Law Judge. The
charge in this case filed by Martin Marietta Energy Systems,
Inc. (the Employer) on July 1, 199l, was served on Oil,
Chemical and Atomic Workers International Union, Local 3-
689, AFL–CIO (the Respondent or the Union), on the same
date by certified mail. A complaint and notice of hearing was
issued on July 17, 1991. In the complaint it was alleged that
1033OIL WORKERS LOCAL 3-689 (MARTIN MARIETTA)
the Respondent had violated Section 8(b)(4)(i) and (ii)(B) of
the National Labor Relations Act (the Act).
The Respondent filed a timely answer denying that it had
engaged in the unfair labor practices alleged.
The case came on for hearing October 3, 1991, at Ports-
mouth, Ohio. All parties were afforded full opportunity to be
heard, to call, to examine and cross-examine witnesses, to
argue orally on the record, to submit proposed findings of
fact and conclusions, and to file briefs. All briefs have been
carefully considered.
On the entire record in this case and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT AND REASONS THEREFORE
I. THE BUSINESS OF EMPLOYER INVOLVED
At all times material, the Employer, a corporation, has
been engaged in the production and sale of enriched uranium
at its Piketon, Ohio facility.
During the past 12 months, the Employer, in the course
and conduct of its business operations described above, sold
and shipped from its Piketon, Ohio facility products, goods,
and materials valued in excess of $50,000 directly from
points outside the State of Ohio.
The Employer is now, and has been at all times material,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR UNION INVOLVED
Respondent is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
On June 11, 1991, the Union engaged in a strike at the
Employer’s premises at Piketon, Ohio. At the commence-
ment of the strike, the Union began picketing at the west
main access, north access, east access, and south access gates
of the Respondent. Thereafter, by letter dated, June 14, 1991,
Respondent informed the Union:
Designation of Contractor’s Gate
This supplementary notice will serve to advise you
that the North Access Gate is reserved for the exclusive
use of construction of Martin Marietta Energy Systems,
Inc., and the Department of Energy and their employees
and suppliers.
Employees of Martin Marietta Energy Systems, Inc.,
its suppliers and vendors, service contractors business
visitors, DOE employees and Ohio Valley Electrical
Company employees will use the West Gate to enter
the plantsite.
It is expected that OCAW Local No. 3-689 will ob-
serve the provisions of the National Labor Relations
Act and remove their pickets at the reserved gate.
The Respondent posted a sign which read as follows:
NOTICE
NORTH ACCESS ROAD
RESERVED FOR USE BY:
* CONSTRUCTION CONTRACTORS
* THEIR EMPLOYEES & SUPPLIERS
ONLY
MMES EMPLOYEES, SUPPLIERS, VENDORS
& ALL OTHERS
USE THE CLOVERLEAF ENTRANCE
The Union removed its pickets at the north access gate.
On June 19, 1991, the president of the Union wrote the
Respondent:
This is in reference of your letters that you sent me
dated June 12th and 14th, l99l, designating a reserved
gate. I informed Mr. Uhlinger verbally at that time that
we questioned the legitimacy of this reserved gate but
that we would pull the pickets pending our investiga-
tion.
Our investigation had indicated that persons other
than contractors and their employees and suppliers have
utilized the North Gate. As a result, we now, respect-
fully, request you supply us with a list of those people
and or companies you have designated to use this gate
and what means you have implemented of guaranteeing
the integrity of the reserved gate.
We need this information by close of business, June
20, 1991, with sufficient proof that the Company can
maintain the integrity of the reserved gate. If the re-
quested information is not provided the pickets will be
again placed upon the gate.
The Respondent replied by letter dated June 20, 1991:
This is in response to your letter dated June 19, 1991
concerning the designated reserve gate. The Company
is unaware that the North Gate is being used by anyone
other than the contractors and/or their employees, sub-
contractors and suppliers for whom it has been specifi-
cally established. If you have information that this gate
is being used inappropriately, please let me know so
that the Company may take immediate action.
You are advised that we will consider any resump-
tion of picketing at the North Gate to be a violation of
the National Labor Relations Act.
Because the Respondent refused to furnish the Union with
‘‘a list of those people and or companies you have des-
ignated to use this gate and what means you have imple-
mented of guaranteeing the integrity of the reserved gate’ the
Union replaced the pickets at the north gate on June 21,
1991.
A 10(e) injunction was sought an a consent order entered
on August 13, 1991, enjoining the the Union from:
(a) Engaging in any form of picketing at the ‘‘North
Gate’’ to the premises of Martin Marietta at Piketon,
Ohio.
(b) In any manner or by any means, including pick-
eting, orders, directions, instructions, requests or ap-
peals, however given, made or imparted, or by any like
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 According to Union President John Knauff the pickets were re-
moved to accommodate other employees who were members of
other labor organizations.
2 In Local 761 at 681, the criteria was thus stated:
In a case similar to the one now before us, the Court of Ap-
peals for the Second Circuit sustained the Board in its applica-
tion of § 8(b)(4)(A) to a separate-gate situation. ‘‘There must
be a separate gate marked and set apart from other gates; the
work done by the men who use the gate must be unrelated to
the normal operations of the employer and the work must be of
a kind that would not, if done whenthe plant were engaged in
its regular operations, necessitate curtailing those operations.’’
United Steelworkers v. Labor Board, 289 F.2d 591, 595, decided
May 3, 1961. These seem to us controlling considerations.
or related acts or conduct or by permitting any such to
remain in existence or effect, engaging in, or inducing
or encouraging any individual employed by the contrac-
tors of Martin Marietta or any other persons engaged in
commerce or in industries affecting commerce, to en-
gage in a strike or refusal in the course an of his em-
ployment to use, manufacture, process, transport or to
perform any service, or any manner or by any means,
threatening, coercing or restraining any of the contrac-
tors of Martin Marietta or any other person in com-
merce or in any industry affecting commerce where, in
either case, an object thereof is to force or require the
contractors of Martin Marietta or other persons to cease
contracting or doing business with Martin Marietta.
Additionally it was further ordered that:
[F]or the sole purpose of monitoring and assuring
compliance with the use restriction of the North Gate
to the United States Department of Energy, Piketon,
Ohio Facility operated by Martin Marietta, respondent
shall be permitted to station two (2) observers in the
area of the said North Gate, subject to the following re-
strictions:
(1) Vehicles used by the observers shall be parked
on the outside berm of the outbound (northbound)
lanes, facing north.
(2) The portable toilet facilities utilized by the ob-
servers shall be placed off the paved roadway on the
outside berm of the outbound (northbound) side of the
roadway.
(3) There shall be no signs of any kind of description
at the North Gate other than the sign placed by Martin
Marietta to advertise the use restrictions for said gate.
(4) A maximum number of four (4) observers may
be present at the North Gate for reasonable periods for
shift changes, not to exceed fifteen (15) minutes in any
four (4) hour period. Union coordinators or shift cap-
tains may make necessary visits to the North Gate for
the periods not in excess of five (5) minutes to deliver
messages and/or to assure the health and welfare of ob-
servers.
(5) Observers shall not block ingress or egress at the
North Gate by any means.
According to the General Counsel, picketing activity con-
tinued as late as September 18, 1991. According to the
Union, the Union pulled the pickets at the North Gate on
July 3, 1991,1 and since that date no authorization has been
given by the Union to picket the north gate. Observers have
only been in the vicinity.
The Respondent offered evidence to support its claim that
the reserved gate was tainted because the Company allowed
persons who should have been excluded to enter through the
gate. Weighing evidence of the Union and General Counsel
on this subject (although the Company is not without sus-
picion) I conclude that the reserved gate was not tainted to
such a degree as to destroy its integrity. The Respondent’s
evidence was little more than surmise.
I find that the north gate reservation met the criteria of
Electrical Workers IUE Local 761 v. NLRB, 366 U.S. 667
(1961), and Sailors Union (Moore Dry Dock), 92 NLRB 547
(1950).2
Accordingly the picketing at the reserved gate by the
Union was an unfair labor practice in violation of Section
8(b)(4)(i) and (ii)(B) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and it will effectuate the purposes of the Act for jurisdiction
to be exercised here.
2. The Union is a labor organization within the meaning
of the Act.
3. By unlawfully picketing the lawfully reserved north gate
of Martin Marietta Energy Systems, Inc., the Respondent
violated Section 8(b)(4)(i) and (ii)(B).
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it cease
and desist therefrom and take certain affirmative actions de-
signed to effectuate the policies of the Act.
While the statute requires a union to honor a reserved gate
properly installed and administered, the Employer may not
use the gate for any other purposes than those sanctioned by
the statute. This means that a reserved gate loses its reserved
statue if excluded employers or parties pass through it. In
this regard the Union argues in its brief that the Union ought
to be allowed access to information from which it can deter-
mine whether the employer had violated the integrity of the
gate. The Union contends that ‘‘company’s refusal to supply
information regarding the neutral gate mechanism to main-
tain the integrity of the gate allowed the union to picket the
tainted gate.’’ I find merit in the Union’s apprehension be-
cause, as the Company operated the reserved gate, keeping
the Union wholly in the dark as to who could enter through
the gate, the Union was unable to resolve whether its pick-
eting would be lawful or unlawful. Cf. Limbeck Construction
Corp., 555 F.2d 311, 318 (5th Cir. 1977). The Union made
the wrong guess.
The parties and the court in the court’s consent decree re-
alized that in order that the Union might be protected against
the surreptitious slipping of excluded persons through the
gate the Union should be given the right to monitor the gate.
Obviously the monitoring system imposed by the consent de-
cree could not be totally effective for without a means of
identifying the parties passing through the gate the monitor
1035OIL WORKERS LOCAL 3-689 (MARTIN MARIETTA)
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 See Electrical Workers IUE Local 761 (General Electric), 123
NLRB 1547 (1959).
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
was literally hogtied and the Union (as appears in the record)
was left to speculate whether the Employer was tainting the
gate and whether the persons going through the gate were
violators of its integrity. While the Union was unable to
prove tainting, its attempt to do so will demonstrate the prob-
lem. Fairness dictates that the Union ought not be compelled
to speculate and surmise. Thus, in the interest of fairplay and
openness, employers ought not be permitted to thwart an
open disclosure of the gate’s administration. The more open-
ness the less chance for controversy over who is passing the
gate. Had the Company responded to the Union’s letter and
acted with openness, no doubt the present lawsuit would
have been averted. Indeed the Employer’s reluctance to fur-
nish the requested information raised a question whether the
Company was actually operating an honest reserved gate.
The Union predictably answered with a picket line. Hence,
something ought to be done to prevent this type of situation.
Accordingly, I recommend that the Order in this case be
held in abeyance until such time as there is established a
joint monitoring system between the Union and the Em-
ployer, which will assure that there will be no violations of
the north reserved gate by parties who are barred from pass-
ing though the gate without destroying its reserved gate sta-
tus.
Certainly such a monitoring system will cause little hard-
ship to the Employer who has derived substantial benefit
from its rule at the expense of the Union.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent Oil, Chemical and Atomic Workers Inter-
national Union, Local 3-689, AFL–CIO, its officers, agents,
and representatives, shall
1. Cease and desist at the north reserved gate of Martin
Marietta Energy Systems, Inc., from engaging in or encour-
aging employees to engage in a strike or a concerted refusal
in the course of their employment to use, manufacture, proc-
ess, transport, or otherwise handle or work on any goods, ar-
ticles, materials, or commodities or to perform any services
where the object is to force or require any other employees
or persons to cease doing business with Martin Marietta En-
ergy Systems, Inc.4
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its in Piketon, Ohio, copies of the attached no-
tice marked ‘‘Appendix.’’5 Copies of the notice, on forms
provided by the Regional Director for Region 9 after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT, at the north reserved gate of Martin Mari-
etta Energy Systems, Inc., Piketon, Ohio, engage in or en-
courage employees to engage in a strike or a concerted re-
fusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities or to perform any
services where the object is to force or require any other em-
ployers or persons to cease doing business with Martin Mari-
etta Energy Systems, Inc.
OIL, CHEMICAL & ATOMIC WORKERS INTER-
NATIONAL UNION, LOCAL 3-689, AFL–CIO