Operating Engineers Local 150 (Harsco Corp.)

National Labor Relations Board - Board Decisions

Feb 8, 1994

313 N.L.R.B. 659 (N.L.R.B. 1994)

659
313 NLRB No. 115
OPERATING ENGINEERS LOCAL 150 (HARSCO CORP.)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In the absence of exceptions, we adopt, pro forma, the judge’s
finding that the Respondent did not unlawfully maintain and invoke
a confidentiality provision in its bylaws.
2 We do not adopt the judge’s finding that art. IX, sec. 7(i) is un-
lawful on its face. Rather, we would find that its application in this
case, i.e., to employees of a neutral employer, was unlawful.
In adopting the finding that the Respondent Union violated Sec.
8(b)(4)(i) and (ii)(B) of the Act, we find it unnecessary to pass on
whether the Union received notice of the reserved gate system from
its picketing employees and picket captains, because the evidence es-
tablishes that one of the Respondent’s strike weapons was to enmesh
neutral employers in its dispute with Levy and that misuse of the
gate system was a declared part of the Respondent’s strategy.
3 We agree with the judge that member/employees should be reim-
bursed for expenses, if any, incurred in resisting the Respondent’s
attempts to unlawfully discipline them. The Respondent is required
to make them whole for all legal and other expenses they may have
incurred in defending against the retaliatory union charges and in
preparing that defense. See Laborers Northern California Council
(Baker Co.), 275 NLRB 278 (1985). Interest shall be computed in
the manner set forth in New Horizons for the Retarded, 283 NLRB
1173 (1987). The Respondent contends that the Charging Party indi-
viduals had no legal expenses which are properly included in this
make-whole remedy. This issue was not litigated and is appropriately
a matter to be determined at the compliance stage of this proceeding.
International Union of Operating Engineers, Local
150, AFL–CIO (Harsco Corporation, Heckett
Division) and Russell Goin and Douglas l. Pear-
son and John Szozda and Dan Hanewich and
LTV Steel Company, Inc. and Harsco Corpora-
tion, Heckett Division. Cases 13–CB–13544, 13–
CB–13547, 13–CB–13598–1–2–3, 13–CC–1810,
and 13–CC–1811
February 17, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
The issue in these cases is whether the Respondent
Union has engaged in conduct which violated Section
8(b)(1)(A) and Section 8(b)(4)(i) and (ii)(B) of the
Act.
On January 22, 1993, Administrative Law Judge
Wallace H. Nations issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel and the Charging Parties, Heckett em-
ployees, filed answering briefs.
The National Labor Relations Board has considered
the decision in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,1
and conclusions2 and to adopt the recommended
Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Union of Op-
erating Engineers, Local 150, AFL–CIO, its officers,
agents, and representatives, shall take the action set
forth in the Order.
Librado Arreola, Esq., for the General Counsel.
Dale D. Pierson, Esq., of Chicago, Illinois, for the Respond-
ent.
William Bevan, Esq., of Pittsburgh, Pennsylvania, for Charg-
ing Party Harsco Corporation, Heckett Division.
Lawrence L. Summers, Esq., of Chicago, Illinois, for Charg-
ing Party LTV Steel Company, Inc.
Steven M. Maish and Patrick Mysliwy, Esqs., of Chicago, Il-
linois, for Individual Charging Parties.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. On
October 15, 1991, the LTV Steel Company, Inc. (LTV Steel)
filed a charge in Case 13–CC–1810 alleging that since Octo-
ber 12, 1991, the International Union of Operating Engineers,
Local 150, AFL–CIO (Union or Respondent) engaged in
picketing at the LTV Steel Indiana Harbor Works facility
with the object of forcing or requiring others including LTV
Steel to cease using, selling, handling, transporting, or other-
wise dealing in the products and services of Edward C. Levy
Company or to cease doing business with Edward C. Levy,
in violation of Section 8(b)(4)(i) and (ii)(B) of the National
Labor Relations Act (Act).
On October 17, 1991, Heckett Division of Harsco Cor-
poration (Heckett) filed a charge in Case 13–CC–1811 alleg-
ing that since on or about October 14, 1991, the Union en-
gaged in or induced or encouraged employees of Heckett and
other persons engaged in commerce or in an industry affect-
ing commerce to engage in a strike or a refusal in the course
of their employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, mate-
rials, or commodities or to perform any service and has
threatened, coerced, and restrained Heckett and other persons
engaged in commerce or in an industry affecting commerce,
where in either case an object thereof is to force or require
Heckett to cease using, selling, handling, transporting, or oth-
erwise dealing in the products of LTV Steel or to cease
doing business with LTV Steel in order to force LTV Steel,
a person engaged in commerce or in an industry affecting
commerce, to cease doing business with, or to cease using,
handling, transporting, or otherwise dealing in the products
of Edward C. Levy Company, a person engaged in com-
merce or in an industry affecting commerce, in violation of
Section 8(b)(4)(i) and (ii)(B) of the Act.
On October 17, 1991, Heckett filed a charge in Case 13–
CB–13544 alleging that since on or about October 14, 1991,
the Union has restrained and coerced employees of Heckett
in the exercise of the rights guaranteed them in Section 7 of
the Act, which violates Section 8(b)(1)(A) of the Act.
On October 18, 1991, Russell Goin filed a charge in Case
13–CB–13547 alleging that since on or about October 14,
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On December 9, 1991, the Regional Director petitioned the Unit-
ed States District Court for the Northern District of Indiana for ap-
propriate injunctive relief pursuant to Sec. 10(l) of the Act pending
final disposition before the Board. After a hearing held on December
18 and 23, 1991, and January 14 and 15, 1992, the presiding district
court judge issued an order enjoining Local 150 from engaging in
proceedings to exact discipline and/or fines from Heckett’s employ-
ees who crossed Local 150’s picket line at LTV Steel and from en-
gaging in certain conduct with respect to Heckett’s employees where
1991, the Union has restrained and coerced its members in
the exercise of their Section 7 rights by arbitrarily filing in-
ternal union charges against its members for refusing to en-
gage in a sympathy strike, and attempting to cause the Em-
ployer (Heckett) to discriminate against the members, which
violates Section 8(b)(1)(A) of the Act.
On December 4, 1991, Douglas Pearson, John Szozda, and
Dan Hanewich filed charges in Cases 13–CB–13598–1, –2,
and –3, respectively, alleging that since on or about October
14, 1991, the Union has restrained and coerced them and
other employees of Heckett by bringing internal union
charges against them and scheduling trials to impose dis-
cipline on them, which violates Section 8(b)(1)(A) of the
Act.
On April 10, 1992, Russell Goin filed a first amended
charge in Case 13–CB–13547 alleging that since on or about
October 14, 1991, the Union has restrained and coerced its
members, named in Appendix A, in the exercise of their Sec-
tion 7 rights by arbitrarily filing internal union charges
against its members for refusing to engage in a sympathy
strike, and attempting to cause the Employer (Heckett) to
discriminate against the members, which violates Section
8(b)(1)(A) of the Act.
On November 27, 1991, the Regional Director for Region
13 issued an order consolidating cases, consolidated com-
plaint and notice of hearing in Cases 13–CB–13547, 13–CB–
13544, 13–CC–1811, and 13–CC–1810 alleging that the Re-
spondent violated Sections 8(b)(1)(A) and 8(b)(4)(i) and
(ii)(B) of the Act. An amendment to the order was filed on
the same date. On December 30, 1991, the Acting Regional
Director for Region 13 issued a complaint and notice of
hearing in Cases 13–CB–13598–1, –2, and –3 alleging that
the Respondent violated Section 8(b)(1)(A) of the Act. On
December 30, 1991, the Acting Regional Director for Region
13 also issued an order consolidating complaints in all of the
captioned cases. Hearing was held in the above matters in
Chicago, Illinois, on May 18, 19, and 20, 1992.
On May 19, 1992, counsel for the General Counsel moved
to amend the complaint in three regards, which motions were
allowed. The first alleges that the provisions found in article
IX, section 7(i) and article XXI, section 1 of Respondent’s
bylaws are unlawful and violate Section 8(b)(4) and (1)(A)
of the Act, respectively. The second alleges that Respondent
promulgated a policy and distributed pamphlets to neutral
employees which induced them to cease performing work.
Briefs were filed by the parties on or about July 10, 1992.
Based on the entire record, including my observation of the
demeanor of the witnesses and after consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
It is admitted, and I find, that at all times material to this
proceeding, Harsco Corporation, Heckett Division, a corpora-
tion with an office and place of business in Whiting, Indiana,
engaged in the business of metallic recovery, slag separation,
and other specialized services and is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
It is admitted, and I find, that at all times material to this
proceeding, LTV Steel Company, Inc., a corporation with an
office and place of business in East Chicago, Indiana, en-
gaged in the manufacturing and processing of steel, and is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Respondent Union is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues for Determination
The complaint, as amended, presents the following issues:
1. Whether Respondent engaged in unlawful secondary ac-
tivity by bringing internal charges against members em-
ployed by a neutral employer, and thereby violated Sections
8(b)(1)(A) and 8(b)(4)(i)(B) of the Act.
2. Whether Respondent engaged in picketing at neutral
gates in violation of Section 8(b)(4)(i) and (ii)(B) of the Act.
3. Whether Respondent promulgated an unlawful rule and
disseminated the contents of that rule to neutral employees,
thereby inducing neutral employees to cease working for
their employers in violation of Section 8(b)(4)(i)(B) of the
Act.
4. Whether Respondent’s bylaw provision prohibiting
members from working on a job where a strike is called is
maintained in violation of Section 8(b)(4)(i)(B) of the Act.
5. Whether Respondent’s bylaw provision regarding the
confidentiality of its business is maintained in violation of
Section 8(b)(1)(A) of the Act.
B. The Facts Involved in the Dispute
LTV Steel maintains a very large steelmaking facility in
East Chicago, Indiana, known as the Indiana Harbor Works
facility. The facility is spread over some 1150 acres and
about 5000 workers are employed there. As pertinent, in the
course of its operations, it has contracted with two separate
and independent companies, The Edward C. Levy Company
(Levy) and Harsco Corporation, Heckett Division (Heckett)
to process and dispose of slag, a byproduct of the
steelmaking process. The legal dispute involved arose from
a strike by the Union against Levy which took place from
October 12 until October 18, 1991. At no time relevant to
this proceeding was the Union involved in a labor dispute
with either LTV Steel or Heckett. During the strike, most of
Heckett’s employees, also members of the Union, crossed
picket lines established by the Union and continued to work.
As a result of their actions, the Union brought internal
charges against them and was prepared to try them on these
charges until these employees secured an injunction from a
Federal district court.1 As can be seen from the statement of
661OPERATING ENGINEERS LOCAL 150 (HARSCO CORP.)
the object is to pressure Heckett to cease doing business with LTV
in order to pressure LTV to cease doing business with Levy. Local
150 has appealed this order to the United States Court of Appeals
for the Seventh Circuit.
2 According to some handwritten notes secured by Respondent
pursuant to subpoena, ‘‘Bill Haas and Keith McCarthy [another offi-
cial with Heckett] assured Hereda that they can man the mtce. oper-
ation for our RTV’s, slag pots and digging pits. In addition, they can
even supply Levy with people if Levy c/n meet their needs.’’ Haas
explained this note. Sometime in late August or early September,
Haas had a meeting with Dave Hereda, LTV Steel’s general manager
of transportation. Hereda asked Haas if Heckett employees did not
cross a picket line what would he do. Haas responded that he would
have the supervisors perform maintenance work on the slab carrier
equipment. Haas added that Heckett would bring supervisors from
its other facilities to man its own equipment. According to Haas, at
no time did he offer to perform any work performed by Levy if
Levy was struck. He told Hereda that Heckett could not do the work.
The notes introduced by Respondent are dated October 12, 1991,
and were taken by labor relations personnel of LTV Steel, either
Dennis Fillippo, LTV Steel’s manager of labor relations, or persons
reporting to him. At the time of the introduction of these notes, at
the end of the hearing, Fillippo had been excused from the hearing
and was out of town and unable to return to the hearing to offer
any testimony about the notes. These notes, in the absence of any
other evidence that Heckett did anything with respect to performing
Levy’s work, including submitting a bid for the work or preparing
to do the work, do not prove anything. I accept Haas’ explanation
of his contact with Hereda as fact.
3 Steve Cisco, Respondent’s recording secretary and union nego-
tiator for the last Heckett contract, offered some very unconvincing
testimony that this clause did not prohibit sympathy strikes. Cisco
did not negotiate the clause as it predates his participation in nego-
tiation. The language of the clause appears to me to cover all strikes,
and by not specifically excluding so-called sympathy strikes from its
terms, includes them. There is no evidence that anyone involved in
this proceeding other that Cisco believed that the Heckett no-strike
provision excluded sympathy strikes or meant anything other than a
plain reading of the provision would indicate. I find that Respondent
has failed to prove that the involved no-strike provision excludes
sympathy strikes. Indianapolis Power Co., 291 NLRB 1039 (1988).
the case and the issues framed by the complaint, the primary
considerations are whether the Union engaged in lawful pick-
eting at the LTV Steel facility during the strike, and whether
its actions relative to Heckett employees thereafter were law-
ful.
Levy performs slag reclamation work from LTV Steel’s
blast furnaces. When iron is processed in the blast furnaces,
the impurities or byproduct which is known as slag, is
skimmed off the top of the furnace ladles and dumped on the
ground. After the slag cools, Levy digs up the slag and hauls
it in trucks to its work area on the LTV Steel premises where
the slag is crushed and processed into finer material, which
is then sold by Levy and transported off the LTV Steel site
by Levy’s trucking subsidiary, Indian Trucking.
Heckett has two contracts with LTV Steel, one to perform
the slag reclamation work from the basic oxygen furnaces,
and the other is a vehicle lease and maintenance contract.
Heckett utilizes the following process in its slag operations:
the slag is poured from the basic oxygen furnace into a ladle
and transported by Heckett employees to the Heckett work
area. After the slag cools it is processed in order to revert
any metallic materials back to LTV Steel. The slag from the
basic oxygen furnace has a higher metallic content than the
slag which Levy processes. Heckett also has a second con-
tract with LTV Steel known as the R.T.V. or slab carrier
agreement. Under the terms of the slab carrier contract, LTV
Steel leases four vehicles from Heckett to haul steel slabs
around the facility. In addition to renting the vehicles to LTV
Steel, Heckett also performs maintenance on them.
As noted, Heckett and Levy are competitors. Neither
Heckett nor Levy perform any services for one another. Prior
to Levy being awarded the contract to process the blast fur-
nace slag, Vulcan Materials had the contract. Prior to this,
Heckett had the contract. Heckett has not had a contract to
process the LTV Steel blast furnace slag for about 10 years.
Heckett bid unsuccessfully on the contract awarded to Levy.
If the Levy slag operation were to be shut down for a long
enough period of time, LTV Steel would be forced to stop
its blast furnace operation. In this regard, Heckett has the
necessary equipment and expertise to perform the Levy
work. According to Heckett’s facility superintendent, Wil-
liam Haas, during a 1983 strike against Heckett by the
Union, some of its work was performed by a competitor
using union employees. Heckett would have performed
Levy’s work if it had been given a contract from LTV Steel
of at least 3 years’ duration. However, LTV Steel did not ask
Heckett to submit a bid for this work during the strike by
the Union against Levy. There is no evidence that Heckett
performed any of the Levy work at any time relevant to the
instant dispute.2
Haas supervises about 75 hourly employees and is in
charge of the overall operations of Heckett at the facility.
Heckett and Respondent Union are parties to a collective-bar-
gaining agreement which is effective by its terms from Sep-
tember 16, 1990, until September 30, 1995. The Respondent
is the exclusive representative of all production and mainte-
nance employees of Heckett at the LTV Steel facility.
Respondent is also the collective-bargaining representative
of Levy’s production and maintenance employees at the LTV
Steel facility, and, as pertinent, their collective-bargaining
agreement expired at the end of September 1991. Negotia-
tions over a new contract between Levy and Respondent
began in August or September 1991. The wage rates offered
by Levy became a strike issue during negotiations and even-
tually a strike was called against Levy by Respondent. As
noted above, the strike began October 12 and ended on Octo-
ber 18, 1991.
Prior to the strike, Heckett’s employees became worried
about what they would do in the event of a strike by Re-
spondent against Levy. The Heckett contract contains a no-
strike clause which reads: ‘‘There shall be no strikes, work
stoppages, slowdown, interruption, or impeding of work dur-
ing the period of this agreement. There shall be no lockouts
during the period of this agreement.’’3 Many of these em-
ployees feared that they would lose their jobs in the event
a strike occurred and they did not report for work. They ex-
pressed these concerns to their union representatives and re-
ceived what at best can be termed a mixed message.
Timothy Scheub is a Heckett employee and a member of
Respondent Union. He testified that about a week prior to
the strike he spoke with Raymond Connors, the Respondent’s
current financial secretary and then slag industry business
agent, telling him he had heard rumors that there would be
a strike at Levy. Connors indicated that he did not think that
there would be a strike.
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Cisco testified and did not deny DeGoey’s testimony.
5 Dobbs also testified without contradiction that Connors had pre-
viously told him, ‘‘God help the man that crosses our picket line,’’
and that Dobbs could be fined up to $5000 for crossing the Union’s
picket line.
Terry Sherer is another Heckett employee and member of
the Union who prior to the strike had a conversation with
Connors. This conversation took place on October 10 on the
jobsite when Connors and Respondent’s organizer, Dave
Fagan, approached a group of Heckett employees. The em-
ployees wanted to speak with the union officials because
they were concerned about what the Union expected of them
if Levy was struck and whether they would lose their jobs
if they honored a picket line and did not report to work dur-
ing the strike. According to Sherer, Connors told them that
if there was a strike, a neutral gate would be established
within 3 days. Connors told the employees that he was not
telling them not to cross a picket line because that would
constitute an illegal secondary boycott. Connors also said
that he had an understanding with Heckett that its employees
would be allowed to miss up to 3 days of work with no dis-
ciplinary action taken against them. Sherer later asked
Heckett’s superintendent, William Haas, about this under-
standing and was told that he had never discussed the matter
with Connors. Haas corroborated that he had never told Re-
spondent’s officials that he had no objection to Heckett’s em-
ployees missing work if Levy was struck.
Connors testified that he does not remember this conversa-
tion with Sherer though he did remember having a number
of conversations with Heckett employees prior to the strike
in which he told them that he did not believe that there
would be a strike. This testimony is totally contradicted by
Connors’ actions at a union meeting held October 10, when
the Union’s chief negotiator with Levy told members that
there would be a strike and Connors read the membership
some rights of members during a strike. Connors denies tell-
ing Heckett employees anything about a secondary boycott.
In a related court injunction proceeding, he indicated that he
did not know if he used the words secondary boycott. He
cannot remember being asked about what the Heckett em-
ployees should do if there was a strike or answering such a
question. I find Connors to be an evasive witness with a very
selective memory. As will be discussed in more detail, much
of Connors’ testimony was disingenuous and lacking in can-
dor. Moreover, the witnesses who gave testimony which con-
flicted with that given by Connors appeared to be more truth-
ful. I credit the testimony of Sherer over that of Connors
with respect to their conversation. I also note that Dave
Fagan testified and did not deny Sherer’s testimony.
William DeGoey is an hourly employee of Heckett and
union member. He has been employed by Heckett for about
25 years. He participated in a 1983 strike against Heckett,
which lasted about 13 weeks. During this strike other union
members not employed directly by Heckett continued work-
ing at the LTV Steel facility and evidently performed some
of Heckett’s work. About half of Heckett’s present hourly
employees were also employed by Heckett in 1983. Prior to
the Levy strike, there was a rumor among the Heckett union
employees to the effect that they were to honor the Levy
picket lines or face serious trouble. DeGoey testified that
during a strike by the Union at another steel plant the year
before, all union members were told to strike, and some were
permanently replaced. He was worried that if he honored the
picket lines, he would be terminated by Heckett and perma-
nently replaced.
DeGoey attended a union meeting on October 10, 1991, at
the Union’s office in Merrillville, Indiana. Steve Cisco, the
recording secretary of the Union, told the membership that
Levy had made a 1950s’ offer and that there would be a
strike.4 Connors also addressed the membership. He read
from a card that said there were five things to do if a mem-
ber sees a picket line. These five things were:
Good Union members respect picket lines. A good
union member is extremely careful when confronted
with a picket line situation. When a picket line is estab-
lished on a job where he is working:
1. He leaves. He does not talk—just leaves.
2. He reads the picket sign as he leaves.
3. He does not hang around near the job.
4. He knows that once a picket line is established,
his Business Agents and other Union officials are le-
gally gagged and handcuffed from giving advice per-
taining to that job. They can only tell him if the Picket
Line is authorized.
5. He does not allow himself to be drawn into con-
versation with anyone at the job site.
At the outset of the strike, several cards were left in the
employees’ locker room at Heckett wherein these five admo-
nitions were listed and in addition, the cards listed four rights
that a member has in a picket line situation.
A Good Union Member knows his rights:
a. He has the right not to work behind any picket
line.
b. He has the right to decide for himself whether to
walk off a job being picketed.
c. He understands that his trade may be under attack
next.
d. He knows that a two gate system means a picket
line and he has the right not to work, no matter how
many gates the employer sets up.
This message had also been included in previously pub-
lished articles by Cisco and Connors in a union newsletter
and was admitted to be the union philosophy. The total mes-
sage set out above will be referred to as Charging Party’s
Exhibit 1.
Randall Dobbs is a Heckett employee and a member of the
Union. He was union steward at Heckett until relieved of
those duties by Connors after the strike. He attended a regu-
lar meeting of stewards at the union hall on the morning of
October 12. Connors told the stewards that the Levy employ-
ees had voted to strike, but that pickets would not go up
until Monday. Connors told Dobbs to pass out the rights of
members cards (C.P. Exh. 1) at the plant, giving Dobbs
about 30 copies of the card. Dobbs testified that at the stew-
ards meeting, one of the stewards told Connors that he would
honor the Union’s picket line until a safe gate was estab-
lished.5 Dobbs went to the LTV Steel facility that morning
and passed out some of the cards to members and left the
remainder of the cards in the Heckett locker room.
663OPERATING ENGINEERS LOCAL 150 (HARSCO CORP.)
6 Byers did not testify and thus this testimony by Scheub is
uncontradicted.
7 This testimony is uncontradicted.
8 There is conflicting testimony whether the gate was last used in
1986 or 1990. Whether it was so used in 1 of those 2 years or the
other is immaterial.
9 According to the testimony, the so-called Burma Road and the
Burma Road gate are reached by a public road named Front Street.
Front Street leads to a public park called Whiting Park, to an en-
trance to Burma Road belonging to the Amoco Oil Company and
a public point where Burma Road ends. Front Street ends at Whiting
Park and there are no businesses in that area besides Amoco Oil.
Whiting Park is a public park which is adjacent to Lake Michigan
and Amoco Oil and it affords picnicking, swimming, and fishing to
the public. The Amoco Oil entrance is a paved road with a gate
which is closed most of the time, and a road on the Amoco property
runs alongside Burma Road. Suppliers and contractors of Amoco Oil
use this entrance and the connecting road. There is a sign posted on
the Amoco Oil gate depicting the property as belonging to Amoco
Oil. Also at the time of the strike in question, there was a sign
which read, ‘‘Amoco Employees Only,’’ which is presently not post-
ed at the gate. These signs relate only to the Amoco Oil gate and
paved road. To the right of the Amoco gate is the entrance to Burma
Road, which is public property. Burma Road is a gravel road where
it intersects with Front Street, and then about 150 to 200 yards past
the intersection it is paved. The unpaved section of Burma Road at
the outset of the strike was overgrown with weeds and Burma Road
was difficult to make out. As the strike progressed, truck traffic gen-
erated by Levy made it obvious. To the right of Burma Road is
property belonging to EJE, which contains railroad tracks running
along Burma Road, so that Burma Road lies between the Amoco Oil
gate and the EJE property. The Burma Road entrance on Front Street
usually has a pole across it to keep children from going down it be-
cause there is a lake front park adjacent to Burma Road near the
LTV Steel property. Burma Road curves around Amoco property,
and immediately before the LTV Steel entrance is a lake front park
with access to Lake Michigan. That park is used by the public for
fishing, swimming, and picknicking during the summertime. Public
traffic in the vicinity of Burma Road, except for times when the
parks are in use, is relatively light compared with public traffic near
the East and West Bridge gates of LTV Steel. During the strike, the
Union confined its picketing to the entrance of Burma Road on
Front Street. As its picketers would not have had to trespass on pri-
vate property to reach the LTV Steel gate abutting the Burma Road,
there was no reason why picketing could not have taken place at the
gate itself. Indeed in the 1983 strike against Heckett, the Respondent
Union picketed at the gate itself as well as at the Front Street en-
trance to Burma Road.
Many of the Heckett employees reported for work on Sat-
urday, October 12, 1991, some hours before the strike began.
Timothy Scheub was one such employee. At lunchtime, he
spoke with Union Steward Bill Byers. Byers told him and
some other employees that the Union was putting pickets up
and that the employees could finish their shift and then leave
or be considered as working across the line. Scheub com-
mented that he heard that there was supposed to be a safe
gate set up, and Byers said that he thought that Cisco was
working on it and it should be in place by Monday or Tues-
day.6 This was important to Scheub because of the no-strike
clause in the Heckett contract. He was fearful of losing his
job if he honored the picket line. Scheub testified that a
number of Heckett employees had discussed this prior to the
strike and believed that Heckett would fire them if they
failed to report for work during the strike.
Russell Goin is a Heckett employee and union member.
He was working on the morning the strike started, and there
were no pickets when he reported to work. He was told of
the strike that day by Steward Byers. In response to Goin’s
question about what he should do, Byers could not tell him
whether or not to cross the picket line, but to do what he
thought was right. Byers also said that he had planned on
missing a day or two of work because it would take a couple
of days to establish a safe gate.7 Based on this comment,
Goin assumed the Union was working on setting up a safe
gate.
Connors offered testimony about the strike’s inception. He
testified that about a week and a half before the strike, he
spoke with some Heckett management officials and some
members and said he did not believe there would be a strike.
He cannot remember speaking with Heckett employees prior
to the strike about what they should do in case of a strike
against Levy. He cannot remember what he said about the
possibility of a strike at the October 10 union meeting
though he was there and spoke. He testified that he learned
that a strike would occur when a vote of the Levy employees
was taken on the morning the strike began. He did not sus-
pect a strike would take place prior to the vote. Again, be-
cause of the vagueness of Connors’ testimony, his loss of
memory on a number of important points, and his general
evasiveness, I do not credit his testimony when it conflicts
with that of other witnesses.
After the vote had been taken, Connors had the member
employees of Levy get together and designated which mem-
bers would go to which LTV Steel gate. There are three en-
trances to the LTV Steel facility, designated as the East
Bridge gate, the West Bridge gate, and the Burma Road gate.
Connors sent pickets to each of these three entrances. The
East Bridge gate and West Bridge gate are the entrances nor-
mally used for access to the facility by employees and ven-
dors, with the West Bridge gate being the entrance used by
Heckett employees. The Burma Road gate is used only as an
entrance to the facility for primary employers in strike situa-
tions and had been last used for this purpose in 1986, and
before that in 1983.8 In 1983, this entrance was used as re-
serve gate for Heckett in a strike by Respondent Union
against Heckett. During that strike, the Union confined its
picketing to this entrance only.9
Later that day, he personally visited the pickets at each of
the gates, the East and West Bridge gates and the Burma
Road gate. He was unable to remember which members were
at which gate. He denied designating a picket captain, saying
that he performed that duty. He testified that he did not ask
any of the picketers if they were aware of a reserved gate
system.
Connors testified that at the outset of the strike, he and
some of the picketers approached the East Bridge gate en-
trance and were told by LTV Steel plant security to picket
at the intersection of Riley and Dickey Road, a public inter-
section just off LTV Steel property and a point some dis-
tance from the LTV Steel East Bridge gate entrance. This is
a point at which the steel haulers union had picketed in an
earlier strike. He testified that no plant security personnel
told him in this contact that the Union should picket at the
Burma Road gate entrance. However, General Counsel pre-
sented the testimony of the only LTV Steel security person-
nel on duty at the East Bridge gate entrance during the time-
frame Connors identified as being the time he received the
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Fillippo testified that Levy’s management personnel told him
that they had informed the Union of the reserve gate system. For
this reason and others given below, he did not send notice of the
system to the Union.
11 I believe and credit Fillippo’s testimony. It was corroborated by
McQuaide and no persons who engaged in picketing at the West
Bridge gate or any other LTV Steel entrance on October 12 offered
testimony.
direction from plant security. Two of these security person-
nel, Mario Castillo and Alfonzo Best, testified credibly that
they had no contact with any of the picketers on October 12.
A third security employee, Arliss Ray Aaron, a sergeant in
the LTV Steel security department, testified that on October
12, he was instructed by management to tell any picketers
who showed up that they would have to go to the Burma
Road entrance to picket. On October 12, he approached four
picketers at the LTV Steel property line nearest the East gate
entrance and informed them that they would have to picket
at the Burma Road location. He was one-tenth of a mile
from the East gate entrance when he contacted these picket-
ers. After he had given his instructions, the picketers left in
the direction of the West gate entrance. I credit the testimony
of Sergeant Aaron, as well as the testimony of Castillo and
Best. Thus, if Connors was given any instructions on Octo-
ber 12, near the East Bridge gate, as he testified he was, it
was the instructions given by Aaron to picket at the Burma
Road gate. Connors testimony about this contact with LTV
Steel security personnel is vague, as was most of his testi-
mony, whereas Sergeant Aaron’s testimony was clear and
consistent with all the other actions LTV Steel took on Octo-
ber 12 with respect to the establishment of a reserve gate for
Levy.
Connors also testified that on the afternoon of October 12,
while he was in the vicinity of the East Bridge gate, he did
not look to see if any signs establishing a reserve gate sys-
tem had been posted at the guard post. He testified that it
was possible that such a sign had been posted, but he just
did not see it.
During the strike, Connors remembers having contact with
LTV Steel security personnel on two other occasions. The
first of these occurred when he went onto LTV Steel prop-
erty to bring back a picketer who was talking with a truck
driver in an LTV Steel parking lot in the vicinity of the West
Bridge gate entrance. A security person in an LTV Steel se-
curity vehicle told him that he would have to leave the LTV
Steel property. He said he would and did. According to Con-
nors, this incident occurred on the second or third day of the
strike early in the morning. He had another encounter with
this security person at the intersection of Riley and Dickey
Roads and was told by the security person to keep moving.
Connors denies ever observing a reserved gate sign during
the strike. He denies being informed of the reserve gate set
up by anyone from LTV Steel or Heckett or Levy.10 On the
other hand, he never asked anyone, including the picketers,
whether there was such a system in place.
Dennis Fillippo, manager of labor relations for LTV Steel
at its Indiana Harbor facility, testified that he, on October 12,
in the company of LTV Steel’s regional manager for secu-
rity, Thomas McQuaide, visited the three gates between 3
and 4 p.m. The purpose of the visit was to make sure that
the signs that LTV Steel had erected at the gates were up.
At the East Bridge gate, there was a sign posted at the guard
shanty. The sign said:
This gate reserved solely and exclusively for the use of
LTV Steel Company, its employees, its suppliers, its
delivery men, its outside contractors and all others hav-
ing business with LTV Steel Company except employ-
ees of Levy, its suppliers, its delivery men and all oth-
ers having business with Levy. All of Levy’s employ-
ees, their suppliers, their delivery men, their subcontrac-
tors and all others having business with Levy may not
use this gate under any circumstances. They must use
the Burma Road gate which has been reserved solely
and exclusively for Levy’s employees, their suppliers,
their delivery men, their subcontractors and all others
having business with Levy.
These signs were erected at the East and West Bridge
gates and were about 3 feet by 4 feet in size. The lettering
was about an inch and a half high. These signs were visible
from the picketers’ locations, but the wording would not be
legible.
At the Burma Road gate, LTV Steel posted a sign on Oc-
tober 12, which reads:
All of Levy’s employees, their suppliers, their delivery
men, their subcontractors and all others having business
with Levy, may not use the East Bridge or West Bridge
under any circumstances. They must use this gate. The
East Bridge and West Bridge gates are reserved solely
and exclusively for the use of LTV Steel Company, its
employees, its suppliers, its delivery men, its outside
contractors and all others having business with LTV
Steel Company except Levy’s employees, their suppli-
ers, their delivery men and all other having business
with Levy.
In the area of the West Bridge gate, Fillippo observed
seven pickets. They were standing on traffic islands about
300 feet from the West Bridge gate. He and McQuaide ap-
proached the pickets and one of them identified himself as
the picket captain. Fillippo told him that LTV Steel had post-
ed signs reserving the East and West Bridge gates for LTV
Steel employees and that a Levy gate had been set up at the
Burma Road entrance to the facility. The picket captain stat-
ed that the union business agent, Connors, had instructed the
pickets to picket all three entrances as their intent was to im-
pact not only Levy employees, but Heckett employees and
other employees at the facility. Fillippo replied that LTV
Steel expected the pickets to picket only at the Burma Road
entrance and would take what legal action it had to. This
conversation took place within 3 or 4 feet of the other pick-
ets.11
Fillippo and McQuaide then went to the East Bridge gate,
where they saw seven more pickets about four-tenths of a
mile from the gate. They approached the pickets and asked
who was in charge. One of the pickets responded that the
picket captain was at the West Bridge gate. Fillippo told the
pickets that the Burma Road gate had been reserved for pick-
eting and that signs to that effect had been posted at each
entrance. He said that he expected the picketing to be con-
fined to the Burma Road location. The pickets said they were
picketing pursuant to instructions from their picket captain.
665OPERATING ENGINEERS LOCAL 150 (HARSCO CORP.)
12 Although Respondent suggests that LTV Steel personnel fab-
ricated this conversation, a talk by Steve Cisco given to the union
membership on November 14, 1991, strongly supports both the
truthfulness of the conversation as well as the proposition that the
Respondent’s intent was to impact Heckett and LTV Steel.
This conversation took place with all seven pickets within
hearing distance.
McQuaide and Fillippo then went to the Burma Road loca-
tion where they found two pickets about a mile from that fa-
cility entrance very near the point where Burma Road enters
Front Street. At this point there is a paved entrance with a
gate maintained by the Amoco company. At the time of this
encounter, the public, gravel road that parallels Amoco Oil’s
paved road, was overgrown and its use barred by a pole that
laid across it. The pole was removed after their visit. Fillippo
spoke with the picketers and told them they were picketing
on Amoco Oil property and should move to the other side
of the road. He and McQuaide then drove about a mile down
Burma Road to the Burma Road gate where they found the
reserve gate sign in place. As noted above, the Burma Road
entrance is used only for strike situations and had been last
used for this purpose in 1986 and before that in 1983. The
1983 strike was one in which Respondent struck Heckett for
a period of 13 weeks. During that strike, the Union confined
its picketing to the Burma Road entrance, picketing at both
the Front Street entrance to Burma Road and at the Burma
Road gate itself. There is nothing that would have prevented
the picketers in the instant strike from also picketing at the
Burma Road gate, rather than just at the Front Street en-
trance to the Burma Road. Fillippo indicated that he did not
call the Union’s officials about the reserve gate set up be-
cause the Union had already established pickets at the Burma
Road location, which, as noted, is used only as a reserve gate
for primary employers in strike situations.
Respondent’s organizer, Dave Fagan, was involved in co-
ordinating the pickets during the strike. He was first present
at the strike site on October 13, and remained there until the
strike ended on October 18. Although he submitted photos
to establish that the entrance to Burma Road did not appear
to be an entrance to the facility because the road was ob-
scured by overgrowth, he testified that he was told by pickets
that Levy’s trucks were using this entrance and in fact, saw
them himself. No one told him during the strike about a re-
serve gate system at the LTV Steel facility and he denied
ever seeing the reserved gate signs. He testified that he did
not try to find out if there was a reserved gate system from
anyone with LTV Steel; however, he testified that he may
have asked the picketers, but could not positively recall
whether he did or not.
With respect to the issue of whether the Union had notice
of the reserved gate system established by LTV Steel, I find
that the record best supports the following factual conclu-
sions. LTV Steel did not give written notice of the system
to Respondent, nor did any of its officials call any union of-
ficials and notify them of the establishment of the system.
The signs it posted giving notice of the system were visible
to picketers and Connors on at least several occasions,
though the wording may not have been legible.
On the other hand, it seems clear to me that Respondent
had no intention of honoring a reserve gate system during the
Levy strike. As found above, the employees of Heckett be-
lieved that such system would be established as it had been
in a previous strike by the Union at the LTV Steel facility,
and Respondent’s steward Byers confirmed that the Union
was working on such a system. LTV Steel, through Fillippo
and McQuaide, specifically informed the picketers, including
a picket captain whom I find existed even given Connors’
denial, that such a system was in place and that picketing
should be confined to the Burma Road gate. This picket cap-
tain responded to the information from Fillippo by saying
that Connors had specifically instructed them to picket all
gates as their intent was to impact not only Levy employees
but also Heckett employees, ironworkers, and other employ-
ees.12
Sergeant Aaron of LTV Steel security also informed pick-
eters, most likely including Connors, on October 12, that
picketing should be confined to the Burma Road gate. I can-
not be absolutely certain that Connors was among these pick-
eters as Aaron did not identify him as one of the persons to
whom he gave directions. However, all of the other evidence
points to the conclusion that this was the person that Connors
testified gave him instructions on where to picket. In any
event, whether or not Connors was among this group of
picketers, this is yet another clear instruction given to pickets
to confine their picketing to the Burma Road location. All
of the Heckett employees were aware of the reserve gate sys-
tem, yet Respondent’s officials would not speak to them dur-
ing the strike. All of Levy’s business during the strike was
conducted through the Burma Road gate and this fact was
known to the Union. Therefore, virtually all the affected
members of Respondent, both Levy employees and Heckett
employees, knew that a reserve gate system had been estab-
lished, yet Respondent’s officials closed their eyes and ears
to this aspect of the strike and refused to accept the obvious
fact of the reserved gate system. Connors and Dave Fagan
were at the picket line on a regular basis throughout the
strike, but Connors denies and Fagan could not remember
being told by anyone that a reserve gate system was in place.
I do not believe their testimony. If it is true it is only be-
cause they refused to let anyone tell them about it. It defies
common sense that picketers are told by LTV Steel officials
to move to another gate and refuse to do so without discuss-
ing the matter with their union representatives. Respondent’s
officials’ refusal to hear about the reserve gate system is
borne out by Heckett employees who tried to contact Con-
nors during the strike.
Raymond Williams is a Heckett employee and member of
the Union. He received charges from the Union about his
crossing the picket line during the course of the strike. He
called the union hall and spoke with Connors. Connors told
him he had lost his job and hung up on him. Connors testi-
fied that he did not remember speaking with Williams after
the strike and denies telling any member that he would lose
his job. I credit Williams’ testimony as it is consistent with
events that followed and Connors proved to be less than a
credible witness.
On or about October 14, 1991, Respondent, through Con-
nors, filed internal union charges against 53 of its members
employed by Heckett and charged them with the following
violations:
It is my understanding that the member of this Union
identified below has refused to honor the picket line
and has worked at LTV Steel on various occasions
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
since the picketing began. Working on a job when a
strike is called or refusing to come off a job when noti-
fied to do so by a business representative is specifically
prohibited by Article IX, Section 7(i) of the by-laws of
Local 150, I.U.O.E. Such conduct is also a violation of
Article IX, Sections 6(A)(C)(E)(H) as well as Article
7(J).
The members so charged are listed in Appendix A, at-
tached to this decision. All the members were notified of the
charges by Cisco during the strike or immediately following
the strike. On November 22, 1991, William Dugan, president
and business manager of Respondent, notified the charged
members of their trial which was scheduled for December
12, 1991, at the Respondent’s District 7 office in Merrillville,
Indiana. When the Heckett employees did not honor Re-
spondent’s picket line during the Levy strike, Connors con-
sidered them to be in violation of Respondent’s philosophy
behind Charging Party’s Exhibit 1 and Respondent’s bylaws.
The provisions of the bylaws referred to in the letter from
Connors are set out below:
Article IX. Rights, Responsibilities and Obligations of
Each Member.
Section 6. General Responsibilities and Obligations—
Every Member of this Local Union shall have the fol-
lowing responsibilities and obligations and, in consider-
ation of the benefits of membership, agrees as follows:
(a) that he will not violate the international Constitu-
tion, these By-Laws and any other laws, rules, the obli-
gation or ritual and the decisions, rulings, orders and di-
rections of the International Union, this organization,
and the trade rules in the locality in which the member
works;
(c) that he will not abuse any officer or representa-
tive, foster secession or dissension among the member-
ship or conduct himself in a manner unbecoming a
member of this organization, or in a fashion detrimental
to its good and the welfare or the good and welfare of
its membership;
. . . .
(e) that he will not interfere with the elected officers
or business representative in the performance of their
legally constituted duties;
. . . .
(h) he shall acquire, read, have knowledge of and
abide by the Constitution of the International Union and
By-Laws of this Local;
Section 7. Specific Prohibited Acts—In accordance with
the provisions of Section 6 of this Article, no member
shall commit any of the following acts:
(i) Work on a job where a strike is called or refuse
to come off when notified by the authorized Business
Representative of Officers of the Local Union.
(j) Create dissension among the members or seek to
destroy the interest and harmony of this organization.
Randall Dobbs was removed from his steward position
after the strike by Connors. According to Connors, he was
removed because he crossed the picket line during the strike
as well as a general dissatisfaction with his performance of
his steward duties. In this regard, Connors testified that
Dobbs initiated grievances when he should have first con-
sulted with Connors or other union officials. He said that
Dobbs’ conduct was inconsistent with the good working rela-
tionship the Union had with Heckett officials. The person
Connors selected to replace Dobbs did not cross the picket
line. Prior to Dobbs’ termination as steward, he had not been
told by anyone from the Union that there existed a possibility
that he might be removed from his position. About 4 or 5
months prior to the strike, another Heckett steward, Bill
Byers, complained that he was going over Connors’ head by
filing grievances. Connors did not speak to him about this
and Connors gave him no reason when he fired him. Dobbs
tried to call Connors during the strike, but Connors would
not make himself available.
Timothy Scheub, in the week following the strike, spoke
with Jim Daniels, a member of the Union’s advisory board.
Daniels told him that he was in a lot of trouble for crossing
the picket line and was going to be fined $5000 and have
his union membership revoked. Russell Goin received
charges from the Union on October 15. In December, he met
with Union Business Agent Bill Jansma. Jansma ‘‘chewed
our butt and told us that he thought we had done wrong.’’
He tried to get the Heckett employees to sign a paper indi-
cating that they would not file a suit or go to the NLRB.
Jansma then vaguely threatened Goin’s wife and children,
and the conversation ended. William Lippincott is a Heckett
employee and member of the Union. On October 28, after
earlier receiving charges from the Union, he went to the
union hall to get a copy of the Union’s bylaws. He there met
Delbert Watson, the dispatcher for the Union, who gave him
a copy of the bylaws. While at the hall, he overheard Watson
tell some other members that ‘‘when everything hit the fan
that he would be having a lot of orders for people out at
Plant 7 [Heckett].’’
This testimony, which I accept as fact, indicates to me that
the Union not only intended to fine the Heckett
member/employees who crossed the picket line, but cost
them their jobs with Heckett as well.
There was a union meeting held on November 14, 1991.
At this meeting, Steve Cisco spoke, and inter alia, stated:
That strike, Ray mentioned it earlier, that the final offer
given by Levy was a pretty shitty offer. And we did go
on strike as of rightfully. It was a strategically planned
strike. It was done on Saturday, Saturday before Co-
lumbus Day, a federal holiday, where they couldn’t get
a court injunction against us for our pickets to stay out
and we could get this thing resolved. My personal be-
lief that these guys would not have crossed that picket
line, by Sunday that strike would have been over. That
strike lingered on until the following Friday, when it
was resolved. Other people, lot of tradesmen, lot of
guys you know that got rules, guys at Bailey Town,
guys all working for Reith Riley in South Bend, Boston
and Schererville, guys at Amoco, guys working for
other companies, because of the gates, they [sic] way
the gates were set up lost a days wages, a couple of
days wages. Some guys lost a week. And this could
have all been resolved if everybody would have hon-
ored that picket line. That strike would have been bro-
ken by the weekend. But it lasted a week. We will be
667OPERATING ENGINEERS LOCAL 150 (HARSCO CORP.)
in lawsuits. We will be sued. We had to shut Beth-
lehem down. We had told Bethlehem we shut, we went
for Indian Trucking, which went into Bethlehem. We
will be involved in lawsuits. It will cost this local a lot
of money for what forty-nine, or fifty-three people did,
when it was an easy strike and should have been re-
solved in a couple hours. That is all I have to say. I
will be here next month to testify, as Ray will, and
bring the rest of the charges forward on that.
Although I rely on the evidence set forth earlier in reach-
ing my conclusion that the Union had notice of the reserve
gate system and chose to ignore it in furtherance of its un-
lawful secondary object, this speech by Cisco certainly sup-
ports this finding and conclusion. It strongly states that the
Union strategically planned to picket all the LTV Steel gates
in the obvious hope that if its picket lines were honored by
its members and other unions, the facility would have been
virtually shut down and the strike won quickly.
Another union meeting was held December 12, 1991,
where the trials of the Charging Parties were to take place.
However, an injunction from the Federal court had been se-
cured and thus the trials were not held.
C. Were Heckett and LTV Steel Neutral Employers?
It is undisputed that the only labor dispute involved in the
October 1991 strike was between the Respondent Union and
Levy. However, Respondent on brief argues that Heckett
could be construed as an ‘‘ally’’ of Levy, thus casting into
doubt Heckett’s position as a neutral employer, citing Oper-
ating Engineers Local 459 (Royal Typewriter), 111 NLRB
317 (1955), enf. denied 228 F.2d 553 (2d Cir. 1955). An em-
ployer may become an ally to the primary employer either
because the former undertakes to perform struck work on be-
half of the primary employer or because of the relationship
between two employers, their interests are said to be allied
in interest, i.e., they are a single employer or they constitute
a straight line operation. Here, there is no evidence whatso-
ever to support the proposition that Levy and Heckett are in
any way commonly owned, commonly controlled, integrated
in any way, or in any way dependent on one another. To the
contrary, the evidence establishes that the two employers are
independent, serious competitors of one another.
Respondent apparently relies on the fact that Heckett has
the experience, skill, and equipment on site to perform the
Levy work to support its ‘‘ally’’ theory. In addition to hav-
ing the ability to perform such work, Respondent points to
the fact that Heckett employees had lost work to other Local
150 members during a 1983 strike which lasted 13 weeks.
It also relies on some notes made by unidentified LTV per-
sonnel at the outset of the strike as indicating that there was
a real possibility that Heckett might have performed the Levy
work if the strike had lasted longer. In pertinent part, these
notes, based on a report from Dan Hereda, LTV Steel’s man-
ager of transportation, to Fillippo, indicate that Heckett will
continue to perform under its equipment lease and mainte-
nance contract and, ‘‘In addition, they can even supply Levy
with people if Levy c/n (cannot) meet their needs.’’ As noted
earlier, Heckett’s superintendent, Haas, testified that he spoke
with Hereda in August or September and assured him that
Heckett would honor its equipment lease and maintenance
agreement with LTV Steel in the event Heckett employees
did not cross a picket line. He denied that Heckett volun-
teered to provide Levy with people or to in any way perform
Levy’s work. I have heretofore credited Haas’ testimony in
this regard.
Aside from the notes mentioned above, virtually unex-
plained in the record except for Haas’ testimony, there is no
evidence to support a finding that Heckett can be construed
as an ‘‘ally’’ of Levy, and to the contrary, all other evidence
supports the proposition that Heckett was a neutral employer.
Respondent did not become aware of the notes relied on until
the hearing on this dispute. There is no evidence that Heckett
performed any of the Levy work during the strike, and even
Connors acknowledges that he knows of no Levy work per-
formed by Heckett. There is no evidence that any efforts
were made by Heckett to prepare to perform work for Levy.
Though Respondent notes that Heckett’s work was per-
formed by Local 150 members employed by another em-
ployer in a 1983 strike by the Union against Heckett, there
is no showing that Heckett has ever undertaken to use its
employees to perform the work of another struck employer.
Given the total absence of any probative evidence to support
Respondent’s assertion that Levy and Heckett were ‘‘allies,’’
I find that as a matter of fact and law, Heckett was a neutral
employer in the dispute between Respondent and Levy and
was not involved in or concerned with the dispute.
Respondent makes no contention that LTV Steel was not
a neutral employer in the dispute and I find that under the
tests formulated to decide whether one employer is allied
with another and thus loses its neutral position, LTV is not
an ‘‘ally’’ of Levy.
Certain forms of secondary activity, including secondary
picketing conducted by a union, constitute unfair labor prac-
tices within the meaning of Section 8(b)(4)(B) of the Act.
Secondary activity occurs when a union applies economic
pressure to a neutral employer (such as I have found Heckett
and LTV Steel to be in the instant case) to force the neutral
employer to cease doing business with, and thereby increase
the pressure on, the employer with whom the union does
have a labor dispute. NLRB v. Operating Engineers Local
825, 400 U.S. 297 (1971).
The language of Section 8(b)(4) is clear that if an object
of the union’s conduct is unlawful under that section of the
Act, the Act has been violated; it is immaterial that the union
may have other legitimate objectives. NLRB v. Enterprise
Assn. of Steam Pipefitters Local 638, 429 U.S. 507 (1977).
To avoid violating Section 8(b)(4)(B) of the Act, picketing
at a site where both the primary and secondary employees
are working must be ‘‘engaged in so as to have as little im-
pact on neutral employers and employees as possible.’’
Teamsters (Ready Mixed Concrete), 200 NLRB 253 (1972);
Retail Clerks Local 1017 (Crystal Palace), 116 NLRB 856
(1956), enfd. 249 F.2d 591 (9th Cir. 1957). A reserved gate
system is a ‘‘method by which secondary [neutral] employers
may restrict the situs of a dispute with the primary employer
to a particular area or areas’’ in order to minimize the impact
of such picketing on neutral employers. Iron Workers Local
433 v. NLRB, 598 F.2d 1154 (9th Cir. 1979). (‘‘The Supreme
Court has authorized employers at a common situs [a site
where both primary and secondary employers are working]
to set up separate gates through which the primary employ-
ees and secondary employees may enter. By maintaining a
separate gate for access to the site, the employees, suppliers
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Though not urged on brief, Respondent may contend on excep-
tions that the Moore Dry Dock principles do not apply to its picket-
ing, based on the argument that the removal of slag is an integral
part of the steelmaking process, and that the common situs picketing
which was conducted by Respondent in this case should be evalu-
ated under the related work test articulated by the Supreme Court
in Electrical Workers UE Local 761 (General Electric) v. NLRB,
366 U.S. 667 (1961). Regardless of whatever the merits of this argu-
ment would be if LTV Steel were the struck employer, it is clear
that this so-called ‘‘reverse GE’’ argument has been specifically re-
jected by the Board. The related work doctrine is applicable only
where the primary dispute is with the operator of a plant or other
industrial concern which is the occupier of the premises. It is not
applicable ‘‘where the primary dispute is against an independent
contractor supplier of services and not the separate employer occu-
pier of the premises to whom the services [are] supplied.’’ Service
Employees Local 32B-32J (Dalton Schools), 248 NLRB 1067
(1980). The decision in Dalton Schools was recently reaffirmed by
the Board in Teamsters Local 315 (Atchison Railway), 306 NLRB
634 (1992).
14 On the other hand, the signs themselves were visible to the
picketers, as demonstrated by a photograph taken by Fagan from the
picketers’ location.
15 Though not contended on brief, much evidence was adduced at
the hearing by Respondent to support an argument that the Burma
Road gate was improperly established because its location prevents
Respondent from effectively communicating its message to members
of the public. There is no question but that picketing at the Burma
Road gate would have preserved the right of the Union to bring
pressure on the Employer in the primary labor dispute and shield
neutralemployers from pressures in a dispute not their own. Picket-
ing at any of the other gates, as the Union did, would necessarily
enmesh neutral employers in the dispute. In a recent case, Electrical
Workers IBEW Local 970 (Interox America), 306 NLRB 54 (1992),
the Board held that ‘‘As a general rule, a reserved primary gate on
a public road is not improperly established simply because there is
little traffic by the general public at that gate.’’ In that case, the re-
served gate was in such a location that virtually no member of the
public would receive the message conveyed by the union’s picketing.
Even in this extreme case, the Board held, ‘‘the Respondent’s inter-
est in communicating its message to the passing public must yield
to the attainment of the Congressional objective of shielding neutral
employers and their employees from enmeshment in the Respond-
ent’s dispute with primary employers. This is particularly so in this
and delivery men of neutral employers operating at a com-
mon situs, thus, can be insulated from disputes involving
other [primary] employers at the site, in that pickets can op-
erate only at the gate of the employer with whom they have
a grievance.’’) Id.
In Sailors Union (Moore Dry Dock), 92 NLRB 547
(1950), the Board established standards for evaluating the le-
gality of common situs picketing.13 Moore Dry Dock set
forth four criteria that a union must meet in common situs
picketing situations: (1) the picketing must be strictly limited
to times when the situs of the dispute is located on the sec-
ondary employer’s premises; (2) the primary employer must
be engaged in its normal business at the situs; (3) the picket-
ing is limited to places reasonably close to the location of
the situs; and (4) the picketing discloses clearly that the dis-
pute is with the primary employer. Failure to comply with
any one of the Moore Dry Dock criteria creates a presump-
tion that the picketing is for an unlawful secondary purpose
and therefore violates Section 8(b)(4)(B) of the Act. Elec-
trical Workers IBEW Local 332 (W.S.B. Electric), 269 NLRB
417 (1984); Landgrebe Motor Transportation v. Machinists
District 72, 763 F.2d 241 (7th Cir. 1985). ‘‘Picketing of
[clearly established and properly maintained neutral] gates
[is] plainly aimed at inducing strike action by employees of
[neutral employers] with whom [the union] has no dispute,
and therefore violates Section 8(b)(4)(i)(ii)(B) of the Act.’’
Nashville Building Trades Council (Markwell & Hartz), 164
NLRB 280 (1967). Thus, the picketing of neutral reserved
gates is clear evidence of secondary object; it constitutes
noncompliance with the third Moore Dry Dock requirement
that picketing be limited to places reasonably close to the
situs of the dispute.
In the instant case, the Respondent Union chose to picket
all three gates to the LTV Steel facility, contending that LTV
Steel failed to establish a valid reserve gate system because
it failed to give the Union proper notice of the establishment
of such a system. In support of this contention, it correctly
points out that LTV Steel, or for that matter, Heckett or
Levy, did not send any written notice to the Union about the
establishment of a reserve gate system nor did they telephone
any union official and inform them of the establishment of
such a system. It correctly points out that the signs posted
at the East and West Bridge gates guardhouses were too far
from the picketers’ locations to be read.14 Further, in this re-
gard, it notes that its picketers were instructed on more than
one occasion not to enter onto LTV Steel property by LTV
Steel security personnel. As the East and West Bridge gates
are a reasonable distance inside the LTV Steel property lines,
the picketers were unable to get close enough to the
guardhouses to read the signs.
Were this the only evidence on the subject of notice of the
establishment of the reserve gate system, I would agree with
the Union that insufficient notice had been given by LTV
Steel. However, there is substantial evidence that proper no-
tice was given and the Union chose to ignore it and I so
find. I have heretofore found that Fillippo and McQuaide, on
October 12, 1991, told picketers at both their East and West
Bridge gate picket sites that there was a reserve gate system
in effect and that the Burma Road gate had been reserved
for Levy and picketing against Levy. Sergeant Aaron of LTV
Steel security told a group of picketers the same thing at the
outset of the strike. Connors was at the picket line on Octo-
ber 12 and thereafter. Fagan was on the picket line on Octo-
ber 13 and thereafter. Both were monitoring the picket line
activity and talking with the picketers. It is disingenuous for
them to suggest that the only topic not discussed was the es-
tablishment of a reserve gate system. As noted earlier, Fagan
did not deny such discussions, he simply could not remember
them. I believe and find that the notice given by Fillippo and
McQuaide to the picketers and to the individual identified as
the picket captain constitutes sufficient notice of the estab-
lishment of the reserve gate system, especially in light of the
past history of the use of reserve gates during labor disputes
at the LTV Steel facility. In a previous strike by this Union
at the LTV Steel facility in 1983, a reserve gate system had
been established with the Burma Road gate being reserved
for the primary employer and the Union had confined its
picketing to that location. Thus, there was a past history of
using the Burma Road gate as the reserve gate for primary
employers and the Union knew it. Indeed, it sent pickets to
this location at the outset of the strike even though the gate
is used only in strike situations.15 In the earlier strike, the
669OPERATING ENGINEERS LOCAL 150 (HARSCO CORP.)
case where (1) there is no showing that the reserved gate system at
the construction site was unreasonable, or established in bad faith,
and (2) where both Congressional objectives could have been ac-
complished if the Respondents had picketed at the reserved primary
gate on the construction site itself.’’ In the instant case, by picketing
at the Front Street entrance to Burma Road, the Union’s picketing
was visible to a portion of the public, that which visited the Amoco
Oil facility or used Whiting Park. Picketing at this location and at
the Burma Road gate itself would have effectively reached Levy, its
employees, its suppliers, and all others doing business with it at the
LTV Steel facility. I do not find that the reserve gate system was
improperly established because the Burma Road gate was reserved
for picketing. Its past usage in strike situations would also bolster
such a finding.
16 The proviso to Sec. 8(b)(1)(A) states: ‘‘shall not impair the right
of a labor organization to prescribe its own rules with respect to the
acquisition or retention of membership therein.’’
Union had picketed at the Burma Road gate itself, whereas
in the instant strike, it chose not to approach the gate (where
the sign indicating the reserve gate system would be visible),
but instead, picketed only at the Front Street entrance to
Burma Road. These actions indicate to me and I find that the
Union consciously chose to ignore the reserve gate system
and thus its complaints about proper notice are without merit.
Further support for the proposition that the Union never
intended to comply with a reserve gate system may be found
in the conversation Fillippo and McQuaide had with the
picketers on October 12, and in Charging Party’s Exhibit 1,
which embodies the Union’s strike philosophy. In the noted
conversation, the Union’s picket captain admitted that the
Union’s intent was to impact not only Levy employees, but
also Heckett employees, ironworkers, and other employees.
The statements of the pickets are admissible as evidence of
the Union’s objective in conducting the picketing and may
be utilized to ascertain the true motivation for the Union’s
actions. Amalgamated Meat Cutters (Iowa Beef Processors),
233 NLRB 839 (1977); Carpenters Local 1622 (Robert
Wood & Associates), 262 NLRB 1211 (1982); Electrical
Workers IBEW Local 6 (International Hotels), 286 NLRB
680 (1987). Inter alia, the Union’s published advice to its
members (C.P. Exh. 1) states: ‘‘A good union member
knows he has the right not to work behind any picket line,’’
and ‘‘knows that a two gate system means a picket line and
he has the right not to work, no matter how many gates the
employer sets up.’’ As noted earlier, Connors had Charging
Party’s Exhibit 1 specifically distributed to Heckett employ-
ees through Dobbs on the morning of October 12. The dis-
tribution of identical information to neutral employees has
been found to violate Section 8(b)(4)(B) of the Act. Iron
Workers Pacific Northwest Council (Hoffman Construction),
292 NLRB 562 (1989). Its distribution to Heckett’s employ-
ees in connection with the strike and picketing activities is
unlawful and constitutes evidence of secondary object and
would make the picketing violative of Section 8(b)(4)(i) and
(ii)(B) of the Act. Iron Workers Local 433 (Barry-Wehmiller
Co.), 303 NLRB 287 (1991).
For all the reasons set forth above, I find that Respond-
ent’s picketing at the gates reserved for neutrals violated Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act.
D. Do the Internal Union Charges Filed Against
Heckett Employees Violate the Act?
I have heretofore found that the Respondent’s picketing of
the East and West Bridge gates of LTV Steel during the in-
volved strike had as one of its purposes an unlawful second-
ary object, the enmeshing of at least the neutral employer
Heckett with a goal of putting increased pressure on the neu-
tral employer LTV Steel to cease doing business with Levy.
I also believe that bringing internal union charges against the
employees of Heckett who are Local 150 members and who
crossed the illegal picket line during the strike is likewise un-
lawful and in violation of Section 8(b)(1)(A) and Section
8(b)(4)(i)(B) of the Act. Respondent’s actions in this regard
were in furtherance of the same secondary object, were
therefore unlawful, and clearly restrained and coerced the in-
volved member/employees in the exercise of their Section 7
rights. See Longshoremen ILA Local 30 (Borax & Chemical
Corp.), 223 NLRB 1257 (1976); Mississippi Gulf Coast
Building Trades Council (Roy C. Anderson Jr., Inc.), 222
NLRB 649 (1976), enfd. 542 F.2d 573 (5th Cir. 1976).
Even assuming, arguendo, that Respondent is correct in its
assertion that its picket line was lawful, I would still find
that it violated the same sections of the Act by the filing of
internal charges against the Heckett employees. In this re-
gard, the Respondent relies primarily on NLRB v. Allis-
Chalmers Mfg. Co., 388 U.S. 175 (1967), in support of its
position that it did not violate the Act by filing internal
charges against the Heckett employees and threatening to
fine them and take away their union cards and jobs because
they violated an internal union bylaw. This reliance is mis-
placed. The Board has distinguished Allis-Chalmers and re-
lied on Scofield v. NLRB, 394 U.S. 423 (1969), where the
Supreme Court stated:
Section 8(b)(1)(A) leaves a union free to enforce a
properly adopted rule which reflects a legitimate union
interest, impairs no policy Congress has imbedded in
the labor laws, and is reasonably enforced against union
members who are free to leave the union and escape
the rule.
The Board held in Carpenters (J. A. Stewart Construc-
tion), 242 NLRB 585, 587 (1979):
We have no trouble finding that such discipline not
only frustrates the policy reflected in the secondary
boycott provisions of the Act, which forbids labor orga-
nizations from enmeshing neutral employers in primary
labor disputes, but, as alleged, would also require a
finding of unlawful secondary boycott activity. We are
guided to this conclusion by Board precedent.
Therefore, Respondent’s discipline of its Heckett members
is not privileged by the proviso to Section 8(b)(1)(A) of the
Act.16 Id. See also Painters Local 1621 (Alameda Glass),
242 NLRB 1011 (1979).
The Board has found that a union violates Section
8(b)(1)(A) of the Act by imposing internal union discipline
on certain employees in order to induce or encourage them
to withhold their services from a neutral employer with an
object of forcing or requiring the neutral employer to cease
doing business with a primary employer. Plumbers Local 444
(Hanson Plumbing), 277 NLRB 1231 (1985); Carpenters
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 It makes no difference that Respondent attempted to impose dis-
cipline after the strike against Levy was over. It was the act of initi-
ating discipline during the presence of the strike which constituted
unlawful inducement under Sec. 8(b)(4)(i)(B) of the Act and the un-
lawful restraint and coercion under Sec. 8(b)(1)(A) of the Act. The
‘‘cease doing business’’ language of Sec. 8(b)(4)(B) applies to both
existing as well as prospective business relationships. Commercial
Industrial Constructors, supra; J. A. Stewart Co., supra; and Ala-
meda Glass, supra.
18 Because the charging of the Heckett employees is not privileged
by the proviso to Sec. 8(b)(1)(A), they are not required to exhaust
Respondent’s internal remedies. Commercial Industrial Constructors,
supra; Alameda Glass, supra. It is also irrelevant whether the no-
strike clause contained in Heckett’s collective-bargaining agreement
with Respondent contained a provision sanctioning sympathy strikes
(which I have found it did not). The Board has held that whether
a no-strike provision in a contract prohibits sympathy strikes is irrel-
evant because the issue in this type of case involves not the right
of employees to engage in a sympathy strike, but the validity of a
union’s discipline of its members for refusing to take part in activity
not countenanced by the Act and meant to enmesh neutrals in a pri-
mary dispute. Alameda Glass, supra.
(Commercial Industrial Constructors), 259 NLRB 541
(1981).
In addition, the Board has also found that a union violates
Section 8(b)(4)(i)(B) of the Act by fining members who
work for a neutral employer during a labor dispute involving
another employer. Electrical Workers IBEW Local 153
(Belleville Electric), 221 NLRB 345 (1975); Sheet Metal
Workers Local 252 (S. L. Miller), 166 NLRB 262 (1967). In
finding a violation of Section 8(b)(1)(A) and (4)(i)(B), the
Board has considered of no significance whether the picket
line is lawful. Belleville, supra; S. L. Miller, supra; and Han-
son Plumbing, supra. The Board has also held that charges
brought by a union against its members for having worked
behind a picket line under similar legal circumstances and
the resulting fine to the member is itself in violation of Sec-
tion 8(b)(1)(A) and (4)(i)(B) of the Act. Plumbers Local 388
(Daily Heating), 280 NLRB 1260 (1986).
In the instant case, Connors, the Union’s business rep-
resentative, filed charges with Cisco, the recording secretary,
against employees of Heckett who crossed Respondent’s
picket line and worked for Heckett during Respondent’s
strike against Levy. The charged members were notified of
a trial scheduled for December 12, 1991, by Respondent’s
president, Dugan. Through its conduct, Respondent induced
and encouraged the Heckett employees to cease performing
work for a neutral employer.17 Such union discipline of neu-
tral employees has the same ‘‘induce and encourage’’ effect
on them as a picket line in front of a gate reserved for their
ingress and egress and involves the same proscribed object.
J. A. Stewart, supra. Based on the facts found and the legal
precedent cited, I find that the Union violated Section
8(b)(1)(A) and (4)(i)(B) of the Act by charging the
member/employees of Heckett with violations of Respond-
ent’s constitution and bylaw, irrespective of the legality of
the picket line.18
E. Are the Bylaws Pursuant to Which Respondent
Attempted to Discipline its Heckett Employee-Members
Unlawful?
The principle section of the bylaws that the Heckett em-
ployees were charged with violating is that contained in arti-
cle IX, section 7(i), which reads:
(i) Work on a job where a strike is called or refuse to
come off when notified by the authorized Business
Representative of Officers of the Local Union.
As this provision draws no distinction between single and
common situs situations or between lawful (primary) and un-
lawful (secondary or unprotected) strikes, it is contended that
it is overly broad and can be used, as in the instant case, as
authorization for unlawful activity, such as the enforcement
of secondary boycotts since members are required to honor
any picket line, regardless of its legality. General Counsel re-
lies on a number of cases where the Board has found similar
provisions contained in collective-bargaining agreements to
be unlawful, but cites no case in which the Board has found
the same or similar bylaw provision to be unlawful.
In Painters Local 1621 (Alameda Glass), supra, a union
violated Section 8(b)(1)(A) of the Act when it imposed inter-
nal union discipline on its members who were working for
a neutral employer at a common situs where a picket line
was established by another union. In Alameda Glass, the
General Counsel only alleged that the union violated Section
8(b)(1)(A) of the Act, and did not allege a violation of Sec-
tion 8(b)(4). However, where a union brings internal charges
against its members for refusing to honor a picket line under
the circumstances set forth in the instant case, that union vio-
lates not only Section 8(b)(1)(A), but also Section
8(b)(4)(i)(B) of the Act. Commercial Industrial Constructors,
supra.
In Alameda Glass, the union maintained the following pro-
vision in its bylaws, and charged certain members with vio-
lating that provision: ‘‘Members shall not pass or work be-
hind a picket line recognized by the Building Trades Council
. . . in areas where work is being performed.’’ Although the
Board had not considered the legality of the bylaw provision,
the circuit court on appeal did consider this issue and stated
that by maintaining this provision, the union encouraged its
members to place secondary pressure on their employer, in
violation of Section 8(b)(4) of the Act. NLRB v. Painters
Local 1621 (Alameda Glass), 632 F.2d 89, 92 (9th Cir.
1980). The court added:
It is even clear that union discipline of members who
elect to work for neutral employers impairs the policy
against the application of secondary pressure. The Dis-
trict of Columbia Circuit has held that contractual
picketline clauses protecting employees who treat neu-
tral gates as if those gates were guarded by imaginary
picket lines sanction secondary boycott activity in vio-
lation of Section 8(e) of the Act. Bricklayers Local 2
v. NLRB, supra, 562 F.2d at 784–86. Similarly, to allow
unions to enforce an internal rule against working for
a neutral employer at a construction site would be to
give legal sanction to the institutionalization of the
imaginary picket line by use of an ever-present threat
671OPERATING ENGINEERS LOCAL 150 (HARSCO CORP.)
19 App. A is intended to list all members of Local 150 against
whom charges were preferred for their activity during the involved
strike. In the event a name is omitted, the omission is inadvertent
and the list should be corrected to include all persons so discrimi-
nated against by Respondent.
of union discipline, a result hardly consonant with the
policies underlying Section 8(b)(4)(B).
In concluding that the union’s bylaw provision violated
Section 8(b)(1)(A) and (4), the court relied on Board prece-
dent which has held overly broad contractual picket line
clauses violate Section 8(e) of the Act.
Where, as here, a union publishes a guideline for its mem-
bers during a strike, Charging Party’s Exhibit 1, which is un-
lawful and encourages its members to cease working for neu-
tral employers during a strike at a common situs, and where
the union attempts to unlawfully enforce its bylaw provision
to discipline its members who refused to cease work for a
neutral employer during a strike against a primary employer
at a common situs, I believe the General Counsel’s argument
that the bylaw provision in question is overly broad and
would tend to coerce and induce members to engage in un-
lawful secondary activity is well taken. Accordingly, I find
that Respondent’s bylaw article IX, section 7(i), to be in vio-
lation of Section 8(b)(1)(A) and (4)(B) of the Act as that
bylaw provision is presently written. Given Respondent’s ap-
parent disregard for those portions of the labor laws which
do not further its immediate goals, I believe that public pol-
icy concerns override the usual Board policy of allowing
unions to handle internal matters without interference, and
override the proviso to Section 8(b)(1)(A) for reasons similar
to those articulated by the court in Painters Local 1621,
supra.
F. Does the Confidentiality Clause in the Union’s
Bylaws Violate the Act?
Respondent maintains a clause in its bylaws at article XXI,
section 1, which states: ‘‘Business Confidential—All busi-
ness transactions of the Local Union within the knowledge
of any member shall be held inviolate, confidential and pri-
vate from persons outside of the organization.’’ During the
hearing, Respondent’s counsel reminded member-witness
DeGoey that he had taken an oath to honor the Union’s by-
laws, one of which was to maintain the confidentiality of the
Union’s meetings. Specifically, during the hearing held May
18, 1992, DeGoey was asked the following questions by Re-
spondent’s counsel:
Q. Mr. DeGoey, you took an oath right before you
testified here today, right?
A. Yes.
Q. You also took an oath when you joined the union
did you not?
A. Yes.
Q. One of the things that you agreed to do when you
joined the union was to honor the union’s by laws,
right?
A. That is right.
Q. One of the things was to maintain the confiden-
tiality of the union meetings, right?
A. Yes.
Q. And another of those obligations is to honor
union picket lines, right?
A. Yes.
General Counsel contends that the existence of the con-
fidentiality provision is violative of the Act because it im-
pedes access to the Board and its processes.
I cannot find that the existence of this provision has in any
way impeded the Respondent’s members access to the Board
or in any way stifled their participation in the Board’s proc-
ess. I cannot find that the Union has threatened any member
with discipline for availing himself or herself of the Board’s
processes, unless one considers the questions by Respond-
ent’s counsel in the heat of the trial to be a threat, and I do
not. As no authority is cited for the position advanced by
General Counsel, and as the Union may have very legitimate
reasons for wanting to maintain the confidentiality of its
meetings, Board proceedings aside, I will not find the main-
tenance of this bylaw provision to be a per se violation of
the Act in the absence of any showing of actual harm it has
caused in violation of public policy. This bylaw provision
does not encourage unlawful action by members as did the
bylaw provision discussed in the previous section of this de-
cision.
CONCLUSIONS OF LAW
1. Harsco Corporation, Heckett Division, and LTV Steel
Company, Inc. are employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. International Union of Operating Engineers, Local 150,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By inducing and encouraging individuals employed by
persons engaged in commerce, or in an industry affecting
commerce; by picketing at gates reserved for neutrals, to en-
gage in a strike or refusal in the course of their employment
to use or work on any goods or materials or to perform serv-
ices; and by the aforesaid picketing, threatening, coercing,
and restraining persons engaged in commerce, or in an indus-
try affecting commerce, with an object of forcing or requir-
ing those persons to cease doing business with LTV Steel
Company, Inc. and/or Harsco Corporation, Heckett Division,
the Union has engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B).
4. By distributing pamphlets to its members for the pur-
pose of inducing its members who are employees of a neutral
employer to cease work, Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(4)(i)(B).
5. By maintaining its overly broad bylaw provision, article
IX, section 7(i), which has the secondary object of coercing
or encouraging members to engage in unlawful secondary ac-
tivity, the Respondent has engaged in unfair labor within the
meaning of Section 8(b)(4)(i)(B).
6. By preferring charges and threatening to impose dis-
cipline on its members listed in Appendix A,19 Respondent
has restrained and coerced employees and otherwise engaged
in conduct in violation of Sections 8(b)(1)(A) and
8(b)(4)(i)(B) of the Act.
7. The above recited unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 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.
21 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.’’
8. The Respondent did not commit an unfair labor practice
by maintaining a confidentiality provision in its bylaws as al-
leged.
THE REMEDY
As I have found that Respondent has engaged in conduct
in violation of Section 8(b)(1)(A), (4)(i), and (ii)(B) of the
Act, I recommend that Respondent be ordered to cease and
desist therefrom and take the following affirmative action
necessary to effectuate the policies of the Act.
Having found that Respondent unlawfully preferred
charges against the member/employees listed in Appendix A,
threatened them with fines and other discipline, and sched-
uled internal trials to impose such discipline, and further, that
it was necessary for these member/employees to secure legal
counsel to prevent injury resulting from such unlawful ac-
tion, I recommend that Respondent be ordered to make these
member/employees whole for all legal and other expenses
they incurred, with interest computed in the manner set forth
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
I further recommend that Respondent be ordered to withdraw
and remove from its records all references to the charges
filed against the member/employees listed in Appendix A,
cease and desist from scheduling any trials pursuant to those
charges, and not use these charges to discriminate against
these member/employees in any way in the future. Respond-
ent should also be ordered to notify each of these
member/employees in writing that these things have been
done.
I also recommend that Respondent be ordered to rescind
or clarify the provision found in its bylaws in article IX, sec-
tion 7(i).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, International Union of Operating Engi-
neers, Local 150, AFL–CIO, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Inducing and encouraging individuals employed by
persons engaged in commerce, or in an industry affecting
commerce, by picketing at gates reserved for neutrals, to en-
gage in a strike or refusal in the course of their employment
to use or work on any goods or materials or to perform serv-
ices, and by the aforesaid picketing, threatening, coercing,
and restraining persons engaged in commerce, or in an indus-
try affecting commerce, with an object of forcing or requir-
ing those persons to cease doing business with LTV Steel
Company, Inc. and/or Harsco Corporation, Heckett Division.
(b) Distributing pamphlets to its members for the purpose
of inducing its members who are employees of a neutral em-
ployer to cease work or in any other manner disseminating
the same or similar material that violates Section
8(b)(4)(i)(B) of the Act.
(c) Maintaining an overly broad bylaw provision, article
IX, section 7(i), which has the secondary object of coercing
or encouraging members to engage in unlawful secondary ac-
tivity.
(d) Preferring charges and threatening to impose discipline
on its member employees thereby restraining and coercing
employees and inducing and encouraging them to withhold
their services from their neutral employer.
(e) In any like or related manner restraining or coercing
employees in the rights guaranteed them by Section 7 of the
Act, including processing internal union charges against
member/employees, and scheduling trials pursuant to those
charges.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make the 53 Harsco Corporation, Heckett Division em-
ployees listed in Appendix A whole for all legal and other
expenses they incurred because of our unlawful discrimina-
tion against them, with interest, as directed in the remedy
section of this decision.
(b) Withdraw and remove from its records all references
to the charges filed against the employees listed in Appendix
A, cease and desist from scheduling any trials pursuant to
those charges, and not use these charges to discriminate
against these member/employees in any way in the future.
(c) Notify each of these employees in writing that these
things have been done.
(d) Rescind or clarify the provision found in its bylaws in
article IX, section 7(i).
(e) Post at its offices and meeting halls copies of the at-
tached notice marked ‘‘Appendix B.’’21 Copies of this notice
on forms provided by the Regional Director for Region 13,
after being signed by Respondent’s authorized representative,
shall be posted by Respondent for 60 consecutive days, in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Sign and return to the Regional Director for Region 13
sufficient copies of the attached notice marked ‘‘Appendix
B’’ for posting by Harsco Corporation, Heckett Division, and
LTV Steel Company, Inc., if willing, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX A
Russell Goin John Sacek
Douglas L. Pearson John W. Ream
John Szozda Jimmy R. Stanford
Dan Henewich Darren King
Robert E. Motyka Paul Janovick
King T. Robinson Glen A. Baumgartner
Robert Watkins Marko Roknic
673OPERATING ENGINEERS LOCAL 150 (HARSCO CORP.)
Gary Hegyi Jacquelyn Warner Rollins
Bruce Caruso William A. Lippincott
Andrew Caruso Harland Ronk, Jr.
William P. Convery Stephen Postlethwait
Michael W. Simac Joe C. Goss
Mathew J. Preshiren David R. Wallen
William J. DeGoey Raymond J. Williams
Ted Rajzer David H. Farmer
Joseph J. Dybowski Leo W. McDaniel
Randall L. Dobbs William S. Callahan
Terry D. Sherer Gerald S. Ziants
Lonny J. Shifley Timothy Scheub
James W. Brady Henry U. Rail
Phillip Kiger Frank T. Wolotka
George Pezan Anthony J. Chmielewski
Wilbur Ray Benson Vernardo C. Morris
Robert L. Howisen Glen E. Williams
Ivan Pustik Wayne Groskopf
Albert S. Alonzo Charles Kincade
Edgar Walker
APPENDIX B
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 induce and encourage individuals employed
by persons engaged in commerce, or in an industry affecting
commerce, by picketing at gates reserved for neutrals, to en-
gage in a strike or refusal in the course of their employment
to use or work on any goods or materials or to perform serv-
ices, and by the aforesaid picketing, threatening, coercing,
and restraining of persons engaged in commerce, or in an in-
dustry affecting commerce, with an object of forcing or re-
quiring those persons to cease doing business with LTV
Steel Company, Inc. and/or Harsco Corporation, Heckett Di-
vision.
WE WILL NOT distribute pamphlets to our members for the
purpose of inducing our members who are employees of a
neutral employer to cease work or in any other manner dis-
seminate the same or similar material.
WE WILL NOT continue to maintain our overly broad
bylaw provision, article IX, section 7(i), which has the sec-
ondary object of coercing or encouraging members to engage
in unlawful secondary activity.
WE WILL NOT prefer charges and threaten to impose dis-
cipline on our members, thereby restraining and coercing
them and inducing and encouraging them to withhold their
services from their neutral employer.
WE WILL NOT in any like or related manner restrain or co-
erce our members in the rights guaranteed them by Section
7 of the Act, including processing internal union charges
against them, and scheduling trials pursuant to those charges.
WE WILL make whole the 53 Harsco Corporation, Heckett
Division employees against whom we filed charges and
threatened with discipline for all legal and other expenses
they incurred because of our unlawful discrimination against
them, with interest.
WE WILL withdraw and remove from our records all ref-
erences to the charges filed against these 53 members, cease
and desist from scheduling any trials pursuant to those
charges, and not use these charges to discriminate against
these members in any way in the future.
WE WILL notify each of these members in writing that
these things have been done.
WE WILL rescind or clarify the provision found in our by-
laws in article IX, section 7(i) to ensure that it does not pro-
mote an unlawful object.
INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, LOCAL 150, AFL–CIO