Painters (JC Two, Inc.)

National Labor Relations Board - Board Decisions

Dec 20, 2007

351 N.L.R.B. 1139 (N.L.R.B. 2007)

PAINTERS DISTRICT COUNCIL 711 (JC TWO, INC.)
351 NLRB No. 72
1139
District Council 711, International Union of Painters
and Allied Trades, AFL–CIO (JC Two, Inc.) and
Costanza Builders of New Jersey, Inc. Case 4–
CC–2484
December 20, 2007
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On September 4, 2007, Administrative Law Judge
John T. Clark issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel filed limited exceptions and a supporting
brief, a brief in support of the judge’s decision, and an
answering brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and

1 Although the Respondent excepts to the finding that it violated Sec.
8(b)(4)(i) and (ii)(B) by unqualifiedly threatening to picket the jobsite,
the exception does not meet the minimum requirements of Sec.
102.46(b) of the Board’s Rules. The Respondent merely recites the
judge’s conclusion that the threat was unlawful without stating, either
in its exceptions or in its supporting brief, any grounds on which the
judge’s conclusion should be overturned. Under these circumstances,
we disregard the exception. See Holsum de Puerto Rico, Inc., 344
NLRB 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
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.
The Respondent also contends that some of the judge’s rulings, find-
ings, and conclusions demonstrate bias and prejudice. On careful ex-
amination of the judge’s decision and the entire record, we are satisfied
that the Respondent’s contentions are without merit.
In adopting the judge’s findings that the Respondent disregarded the
reserve gate system, we find it unnecessary to rely on his statement that
even if the primary employer’s four employees had entered the jobsite
through the neutral gate, one instance of misuse would be insufficient
to taint the gate system. We agree with the judge’s other reasons for
finding that the claimed misuse of the neutral gate did not privilege the
Respondent’s picketing there, including the judge’s credibility finding
that no such misuse occurred.
The Respondent argued to the judge that “merely holding banners”
does not “threaten, coerce, or restrain” under Sec. 8(b)(4)(ii)(B). We
need not pass on that argument for two reasons. First, the Respondent
did not except to the judge’s rejection of the argument. Second, it is
clear, as the judge found, that the Respondent’s activities involved
patrolling. Therefore, the legality of a stationary banner display, the
question of whether such a display would constitute picketing, and the
applicability of Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building Trades Council, 485 U.S. 568, 571 (1988), to stationary ban-
nering activities are not before us.
to adopt the recommended Order as modified and set
forth in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, District Council 711, International Union of
Painters and Allied Trades, AFL–CIO, Glassboro, New
Jersey, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Unqualifiedly threatening to picket with the object
of forcing Costanza Builders of New Jersey, Inc. to cease
doing business with JC Two, Inc.
(b) Inducing or encouraging any individual employed
by Costanza Builders of New Jersey, Inc., A.M.I. Con-
crete, Majek Fire Protection, Schindler Elevator, C.J.
Mechanical, Nelson B. Cooney and Son, Inc., or any
other person engaged in commerce or in an industry af-
fecting commerce, to engage in a strike or refusal in the
course of their employment to use, manufacture, process,
transport, load, unload, or otherwise handle or work on
any goods, articles, materials, or commodities, or to per-
form any services, where an object thereof is to force or
require Costanza or any other person to cease doing
business with JC Two, Inc., or to force or require A.M.I.
Concrete, Majek Fire Protection, Schindler Elevator, C.J.
Mechanical, Nelson B. Cooney and Son, Inc., or any
other person to cease doing business with Costanza, in
order to force or require Costanza to cease doing busi-
ness with JC Two, Inc.
(c) Threatening, coercing, or restraining Costanza
Builders of New Jersey, Inc., A.M.I. Concrete, Majek
Fire Protection, Schindler Elevator, C.J. Mechanical,
Nelson B. Cooney and Son, Inc., or any other person
engaged in commerce or in an industry affecting com-
merce, by picketing, where an object thereof is to force
or require Costanza to cease doing business with JC
Two, Inc., or to force or require A.M.I. Concrete, Majek
Fire Protection, Schindler Elevator, C.J. Mechanical,
Nelson B. Cooney and Son, Inc., or any other person to

Finally, throughout his decision, the judge mistakenly referred to
picket Frederick Macomber as Frederick “Macombe.” We correct this
inadvertent error.
3 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the judge’s findings and to the Board’s stan-
dard remedial language.
The General Counsel excepts to the judge’s failure to order the Re-
spondent to cease and desist from picketing the other neutral employers
on the jobsite “or any other person,” where an object thereof is to force
or require them to cease doing business with Costanza. We find merit
in the General Counsel’s exception, and we shall modify the language
of the Order and notice accordingly. See, e.g., Laborers Local 464
(Lycon, Inc.), 304 NLRB 544 fn. 2 (1991); Laborers Local 652 (Rich-
ard Sewell, Inc.), 238 NLRB 986 (1978); Laborers Local 676 (E. B.
Roberts Constr. Co.), 232 NLRB 388 fn. 2 (1977), enfd. 575 F.2d 1255
(8th Cir. 1978).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1140
cease doing business with Costanza, in order to force
Costanza to cease doing business with JC Two, Inc.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its union office in Glassboro, New Jersey, copies of the
attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Sign and return to the Regional Director sufficient
copies of the notice for posting by Costanza Builders of
New Jersey, Inc., A.M.I. Concrete, Majek Fire Protec-
tion, Schindler Elevator, C.J. Mechanical, Nelson B.
Cooney and Son, Inc., and JC Two, Inc., if willing, at all
places where their notices to employees are customarily
posted.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT unqualifiedly threaten to picket with the
object of forcing Costanza Builders of New Jersey, Inc.
to cease doing business with JC Two, Inc.
WE WILL NOT induce or encourage any individual em-
ployed by Costanza Builders of New Jersey, Inc., A.M.I.
Concrete, Majek Fire Protection, Schindler Elevator, C.J.
Mechanical, Nelson B. Cooney and Son, Inc., or any
other person engaged in commerce or in an industry af-
fecting commerce, to engage in a strike or refusal in the
course of their employment to use, manufacture, process,
transport, load, unload, or otherwise handle or work on
any goods, articles, materials, or commodities, or to per-
form any services, where an object thereof is to force or
require Costanza or any other person to cease doing
business with JC Two, Inc., or to force or require A.M.I.
Concrete, Majek Fire Protection, Schindler Elevator, C.J.
Mechanical, Nelson B. Cooney and Son, Inc., or any
other person to cease doing business with Costanza, in
order to force Costanza to cease doing business with JC
Two, Inc.
WE WILL NOT threaten, coerce, or restrain Costanza
Builders of New Jersey, Inc., A.M.I. Concrete, Majek
Fire Protection, Schindler Elevator, C.J. Mechanical,
Nelson B. Cooney and Son, Inc., or any other person
engaged in commerce or in an industry affecting com-
merce, by picketing, where an object thereof is to force
or require Costanza or any other person to cease doing
business with JC Two, Inc., or to force or require A.M.I.
Concrete, Majek Fire Protection, Schindler Elevator, C.J.
Mechanical, Nelson B. Cooney and Son, Inc., or any
other person to cease doing business with Costanza, in
order to force Costanza to cease doing business with JC
Two, Inc.
DISTRICT COUNCIL 711, INTERNATIONAL UNION
OF PAINTERS AND ALLIED TRADES, AFL–CIO
Bruce G. Conley, Esq., for the General Counsel.
Robert F. O’Brien, Esq. (O’Brien, Belland & Bushinsky, LLC),
of Northfield, New Jersey, for the Respondent.
Marc Furman, Esq. (Cohen, Seglias, Pallas, Greenhall &
Furman, PC), of Philadelphia, Pennsylvania, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in Philadelphia, Pennsylvania, on April 10, 2007. On
January 26, 2007, the Regional Director for Region 4 of the
National Labor Relations Board (the Board) issued a com-
plaint1 and notice of hearing based on an unfair labor practice

1 The complaint refers to certain dates in calendar year 2007. The
General Counsel requests the year be corrected as 2006 in each in-
stance. The unopposed request is granted.
PAINTERS DISTRICT COUNCIL 711 (JC TWO, INC.) 1141
charge filed on December 22, 2006.2 The complaint alleges
that District Council 711, International Union of Painters and
Allied Trades, AFL–CIO (Respondent or the Union) violated
Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations
Act (the Act) by engaging in conduct having the object of forc-
ing or requiring Costanza Builders of New Jersey (Costanza or
the Charging Party) to cease doing business with JC Two, Inc.,
a nonunion company with which the Union has a labor dispute.
At the hearing the Respondent amended its answer to admit the
complaint allegations in paragraphs 2(d), (f), and 4(b), and it
agreed to delete its request for fees and costs.
On the entire record, including my observation of the de-
meanor of the witnesses, as well as my credibility determina-
tions based on the weight of the respective evidence, estab-
lished or admitted facts, inherent probabilities, and reasonable
inferences drawn from the record as a whole and, after consid-
ering the briefs filed by the counsel for the General Counsel,3
the Respondent, and the Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
Costanza, a New Jersey corporation, with offices in Cherry
Hill, New Jersey, has at all material times been engaged as a
construction manager in the construction industry. During the
year preceding the date of the complaint, Costanza in conduct-
ing its business operations performed services valued in excess
of $50,000 outside the State of New Jersey. JC Two, Inc., a
New Jersey corporation, with an office in Voorhees, New Jer-
sey, has at all material times been engaged as a commercial
painting contractor. During the year preceding the date of the
complaint, JC Two in conducting its business operations re-
ceived in excess of $50,000 from Costanza for painting ser-
vices. The Respondent admits and I find that Costanza and JC
Two are each employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Costanza is the construction manager for the construction of
condominium and retail units on the Lumberyards project in
Collingswood, New Jersey.4 JC Two has been contracted by
Costanza to perform painting services at the jobsite. The job-
site is approximately two city blocks by one city block in size.
Haddon Avenue borders its north side, Collins Avenue the east,
Night Avenue the west, and a high-speed line the south side.
During the relevant period, Michael Lee was the Charging
Party’s vice president of construction and Christopher Eattock
was the project manager. Gregory Fray was the construction
manager on the site, and he was responsible for the daily opera-

2 All dates are in 2006, unless otherwise indicated.
3 The General Counsel notes that “Local 274” is mistakenly ap-
pended to “Costanza” in the transcript caption. His request that “Local
274” be deleted from the caption of the official record is granted.
4 All locations are in New Jersey.
tions at the site. The Charging Party employed union and non-
union contractors on the site.
B. Events of December 19 and Establishment of the
Reserve Gate System
During the morning of December 19, Edward McDonald, an
organizer for the Respondent, and Michael Kisielewski, the
Respondent’s business agent, arrived at Eattock’s construction
trailer on the site and introduced themselves to Eattock as rep-
resentatives of the Union. McDonald did not testify about this
conversation with Eattock, and Kisielewski did not testify,
hence the following is based on Eattock’s credited and undis-
puted testimony. The men said that they were interested in the
painting and drywall work and mentioned JC Two and Pentel
Enterprises (Pentel was a nonunion contractor that was hired to
do the drywall). The men expressed their belief that the project
was closed to union contractors. Eattock disabused them of
that belief, and directed them to contact the corporate office.
The men went to the Collingswood mayor’s office “to discuss
the project.” When they returned they told Eattock that they
were going to picket the jobsite the next day and left.
About this same time, Fray saw them on the site. He knew
them to be union representatives and asked what they wanted.
They mentioned that JC Two was nonunion and that they
wanted a union painter on the job or they were going to picket.
Fray said he would check with his subcontractors. Fray re-
called nothing else about this conversation.
McDonald admitted threatening to picket. McDonald stated
as Fray was saying that he would speak with his subcontractors,
a woman walked by and interjected “that there won’t be no
union painters brought onto this job or whatever.” McDonald
identified her as the owner of JC Two. McDonald also stated
that he, Kisielewski, and Fray talked about JC Two not paying
scale, “they’re a lower scale than we are.” McDonald claims to
have told Fray that JC Two was a mom and pop company.
In response to the Union’s threat to picket, Lee told Eattock
to establish a reserve gate system and to prepare letters to fax to
the Respondent, as well as all the contractors and the unions
working on the site. The establishment of a reserve gate system
was not unknown to the Charging Party, one had previously
been established on the site, but after a period of time it was no
longer maintained.
Eattock prepared two signs: one listing the union contractors
(to be placed at the Haddon Avenue gate, gate A) and another
listing the nonunion contractors (to be placed at the Collins
Avenue gate, gate B). Eattock created a sign listing the union
contractors in 2-inch lettering. He attached this sign listing all
union contractors to a larger yellow sign.
The larger yellow sign, approximately 4-square feet, gave in-
structions for entering gate A with the names of the union con-
tractors attached at the bottom:
GATE “A”
THIS ENTRANCE IS
RESERVED FOR ANY
PERSON(S) HAVING
BUSINESS WITH/OR
DELIVERIES FOR
THE FOLLOWING
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1142
CONTRACTORS
• C.J. Mech • Schindler Elev.
• Nelson Cooney
• Majek Fire Prot.
• A.M.I. Constr.
ALL OTHERS USE GATE “B”
(GC Exh. 5.)
Eattock prepared another sign listing the nonunion contrac-
tors, again in 2-inch lettering:
• Pentel • Coffey Bro. • AFA
• JC Two • Frontier • A+
• RNR • East Coast
• Crea • Mid-Atlantic
• Becksted • TJ’S
• Bryant • TC’S
(GC Exh. 6.)
He similarly attached this sign listing all nonunion contrac-
tors to another yellow 4-foot-by-4-foot sign. This larger sign
contained language identical to the yellow sign used at gate A,
only replacing “gate A” with “gate B.”
Eattock told Fray to post the sign listing the union contrac-
tors at gate A (Haddon Avenue) and the sign listing the nonun-
ion contractors at gate B (Collins Avenue). Fray testified that
he installed the signs at gates A (union contractors) and B
(nonunion contractors) on December 19 or 20. Although Lee
and Fray believe that Fray posted the signs at the proper gates
on December 20, they and Eattock aver that the signs were in
place before they arrived at the site during the morning hours of
December 21. General Counsel’s Exhibit 7 is a photograph of
the gate A sign at the Haddon Avenue entrance. A security
guard was also stationed at each gate. The guard at gate A was
ordered to only allow union contractors to enter. The guard
may be seen at the far right of General Counsel’s Exhibit 7(b),
(Tr. 92).
On December 20 at 7:29 p.m. the Charging Party faxed a let-
ter to Kisielewski at the Respondent’s office in Glassboro. (GC
Exh. 2.) The letter announced the establishment of the reserve
gate system and specifically identifies the actions taken by the
Charging Party. McDonald denies receiving the fax. The
Charging Party faxed a similar letter to Cooney Electric, a un-
ion contractor on December 20 at 7:32 p.m. (GC Exh. 4.)
C. The Picketing on December 21
Fray testified that he arrived at gate A between 6:30 and 6:45
a.m. on December 21. Fray testified that the signs at both gates
were up because he had attached both signs the previous day.
He noticed two people at the gate who were unknown to him
and who he assumed were pickets because of where they were
standing. The security guard was at his post and the gate was
closed. At approximately 7 a.m. Fray observed that the two
men had picket signs and that McDonald had arrived. Fray told
McDonald that the pickets were at gate A and that they would
have to move to gate B, the gate for the nonunion contractors,
located on Collins Avenue. Fray testified that McDonald re-
plied that “they were going to stay there and we would have to
do what, you know, whatever we had to do to get them off
there.”
Fray testified that he had given the guard at gate A a list of
the contractors who were permitted to use the gate A. He also
testified that during his periodic inspections of gate A he ob-
served the guard properly performing his duties. Fray further
testified that he never saw any improper use of the gate by any-
one, including JC Two employees. He testified that no one,
including McDonald, either picket, or the guard, informed him
of any improper use of gate A by any contractor, including JC
Two.
Lee arrived on site at approximately 6:45 a.m., as he drove
past gate B he observed two pickets. When he arrived at gate A
he observed one picket who was an older man with gray hair.
His description matches that of Frederick Macombe, who is the
picket standing furthest to the right in General Counsel’s Ex-
hibit 7(a). As he drove past the picket he told him that he was
at the wrong gate. The picket told Lee that he would have to
speak to his supervisor who would be arriving soon. Shortly
before 7 a.m. Lee saw McDonald standing next to the two pick-
ets. The pickets had sandwich board signs hung from their
necks with “JC Two Painting unfair, does not meet area stan-
dards established by Painters DC #711,” with the union logo
beneath the writing. Lee testified that he informed McDonald
that a reserve gate system had been established and that the
Respondent was picketing the wrong gate. Lee testified that
McDonald indicated that he was aware that the pickets were at
the wrong gate but he told Lee, “You’ll have to do what you
have to do.” Lee took pictures of McDonald and the pickets
standing next to the sign at gate A. (GC Exh. 7.)
Lee spent 3 or 4 hours on the site during which time he was
told by the operator for Schindler Elevator, the union elevator
contractor, that he would have to leave and remain off the site
as long as the picket line was up. He also spoke with other
contractors, including JC Two, to ensure that they understood
the reserve gate system. While on the site, Lee did not witness
any infractions of the reserve gate system, nor were any re-
ported to him.
Eattock testified that he was on the site from about 8 a.m.
until 1 p.m. on December 21. When he arrived he saw two
pickets standing and walking in front of gate A, wearing sand-
wich board signs. Eattock’s office is adjacent to gate A and he
did not observe any irregularities at gate A, nor were any re-
ported. He testified that only 4 of the 35–40 unionized em-
ployees scheduled to work on December 21, actually worked.
McDonald testified that when he arrived at gate A on De-
cember 21, he met Macombe, the picket line captain. The time
was between 6 and 6:15 a.m. He claims that there was no sign
posted at gate A. McDonald met with the four union members
and assigned two of them to picket each gate. McDonald esti-
mates that the gate A sign was posted between 6:45 and 7 a.m.
He admits that he read the sign and confirms that JC Two was
not written on the sign. (Tr. 138–140.) He also states that the
picture of him and the two pickets standing next to the gate A
sign was taken between 6:30 and 6:45 a.m. (Tr. 153). On
cross-examination, McDonald states that Lee took the pictures,
and that they were taken before he and Lee spoke (Tr. 157).
McDonald’s statement on cross-examination contradicts what
PAINTERS DISTRICT COUNCIL 711 (JC TWO, INC.) 1143
he said on direct examination. He stated on direct that Lee
drove up to gate A between 7 and 7:30 a.m. and that he was
barely out of his car when he was screaming at McDonald that
“he’s not going to put up with this shit,” and that “I’ll fix this.”
(Tr. 148.) His testimony is further muddled by his acknowl-
edgment that Lee was approaching as he spoke to McDonald
(Tr. 158) but that he does not recall if the sign, which he admits
he was standing next to in the pictures (GC Exh. 7), was posted.
He claims that his recollection is impaired because Lee was
screaming at him. (Tr. 158, 162.) I note that no one was
screaming at him when he testified that it was Lee who took the
pictures and that he did so before they spoke.
McDonald said that Lee stated that “we don’t have no right
to be here, to be on the picket, to put this line here.” To which
McDonald replied, “we do” and “do what you got to do,” after
which Lee went to his office. A few minutes later five police
cars arrived and the police spoke to McDonald. When testify-
ing about his conversation with the police McDonald confirmed
the testimony of the Charging Party’s witnesses’ that a guard
was on duty at gate A (the guard can be seen at the far right of
GC Exh. 7(b)) and that gate A was locked. When asked by the
Respondent’s attorney the amount of time he spent at the site
that morning McDonald said, “I had a luncheon and I was out
of there by 11:30” (Tr. 140). His office lunch was scheduled to
begin at 11:30 a.m. in Atlantic City. Accordingly, he had to
leave earlier than 11:30 a.m. In response to the question did he
leave any instructions for the pickets, he says that he told
Macombe that “if anything changes I’ll call you.” McDonald
claims that it was at the lunch that he learned, for the first time,
of the Charging Party’s letter outlining the reserve gate system.
Macombe is a retired union member who claims to have
been on hundreds of picket lines. He testified that he arrived at
gate A some time before 6:30 a.m. on December 21. Macombe
said that he was certain that there was no sign on the gate.
Macombe said that he took notes during the picketing, but
that he did not need his recollection refreshed because “there
wasn’t much happening on the first day. Nevertheless, he was
given his notes and he identified them as his recopied notes of
“what went on the first day we were there” (R. Exh. 1). His
notes indicate that the picket line went up at 6:30 a.m. At 6:45
a.m. about 35 union trades men refused to cross the picket line.
At 7:30 a.m. four painters crossed the line. At 8:45 a.m. all
union trades left the site. The line came down at 2:30 p.m.
Regarding the four painters, Macombe stated that it was an
employee of a union contractor that alerted him to the men who
were wearing “painter whites” and were accompanied by a
female, as they walked by. The individual identified the female
as the owner of the company. Macombe looked over and saw
the painters passing through the gate. Although Macombe
stated that McDonald left the site at about 11:30 a.m. there is
no evidence that he told McDonald that he saw the painters
entering through gate A.
Macombe initially stated that he was not asked to leave or
move while he was picketing. On cross-examination, he stated
that he did not remember (Tr. 128). He also stated that he did
not remember Lee either speaking to him or talking to McDon-
ald. Macombe avers that he did not see the sign at gate A and
he reaffirms his denial after being shown the picture of himself,
McDonald, and Cobella, the other gate A picket. Macombe
denies knowing Cobella’s name. Macombe does remember
McDonald telling him to take the line down at 2:30 p.m. and
that the line is down until after the holidays.
D. The Picketing on December 22
Fray testified that when he arrived at 6:45 a.m. on December
22 the picket line was setup. He testified that the picketing
began at around 6:45 a.m. with two pickets at each gate. Fray
testified that the only person he recognized was McDonald.
Eattock testified that he arrived around 8 a.m. and saw the same
picket at gate A as the day before. Both Fray and Eattock fur-
ther testified that no union contractors worked on December 22,
except for A.M.I. Construction. Fray testified that the picketing
concluded at about noon.
McDonald denies being at the site on December 22. He ad-
mits that he is responsible for establishing picket lines and he
denies that there was any picket line on the site on December
22.
III. LEGAL PRINCIPLES
[W]here a union makes an unqualified threat to a neutral gen-
eral contractor to picket a jobsite where an offending primary
employer would be working, and has reason to believe that
persons other than the primary would be at work on the site, it
has an affirmative obligation to qualify its threat by clearly in-
dicating that the picketing would conform to Moore Dry Dock
standards or otherwise be in uniformity with Board law.
Teamsters Local 456 (Peckham Materials), 307 NLRB 612,
619 (1992) (citations omitted).
The Act draws a distinction between picketing directed at a
primary employer—an employer with whom the union has a
labor dispute—and picketing directed at neutral or secondary
employers who have no dispute with the union in order to force
those employers to stop doing business with the primary em-
ployer. Section 8(b)(4)(ii)(B) “makes it unlawful for a labor
organization or its agents to threaten, coerce, or restrain any
person engaged in commerce or in an industry affecting com-
merce, where an object thereof is forcing or requiring any per-
son to cease doing business with any other person.” Teamsters
Local 122 (August A. Busch & Co.), 334 NLRB 1190, 1191 fn.
6 (2001), enfd. 2003 WL 880990 (D.C. Cir. 2003) (quoting
Mine Workers District 29 (New Beckley Mining), 304 NLRB
71, 72 fn. 11 (1991), enfd. 977 F.2d 1470 (D.C. Cir. 1992)). In
order for the picketing to be unlawful, the secondary object
need only be “an object”—not the sole object—of the picket-
ing. Denver Building Trades Council v. NLRB, 341 U.S. 675,
689 (1951).
The picketing here occurred on a construction jobsite, that
was jointly occupied by the primary employer, JC Two, and by
neutral employers, including Constanza. When analyzing un-
ion picketing at a “common situs,” the Board must give effect
to the “dual congressional objectives of preserving the right of
labor organizations to bring pressure to bear on offending em-
ployers in primary labor disputes and of shielding unoffending
employers and others from pressures in controversies not their
own.” Denver Building, supra at 692. To accommodate these
often conflicting objectives, the Board established the follow-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1144
ing guidelines to help determine whether picketing at the com-
mon situs is lawful primary picketing or picketing with a pro-
scribed secondary object:
[P]icketing . . . is primary if it meets the following conditions:
(a) The picketing is strictly limited to times when the situs of
dispute is located on the secondary employer’s premises; (b)
at the time of the picketing the primary employer is engaged
in its normal business at the situs; (c) the picketing is limited
to places reasonably close to the location of the situs; and (d)
the picketing discloses clearly that the dispute is with the pri-
mary employer.
Sailors Union of the Pacific (Moore Dry Dock), 92 NLRB 547,
549 (1950). Although failure to comply with one or more of
the Moore Dry Dock standards does not constitute a per se vio-
lation of the Act, it creates a strong but rebuttable presumption
that the picketing had an unlawful secondary object. See Elec-
trical Workers Local 332 (W.S.B. Electric), 269 NLRB 417,
421 (1984); accord: Electrical Workers Local 970 (Interox
America), 306 NLRB 54, 58 (1992).
The Supreme Court has approved the use of the reserve gate
system as a means to isolate the situs of a dispute on a common
worksite. See Electrical Workers Local 761 v. NLRB, 366 U.S.
667 (1961). Under a reserve gate system, one entrance or gate
is reserved for the exclusive use of the primary employer and
its employees, suppliers, and customers, and the other gates are
reserved for the exclusive use of neutral employers and their
employees, suppliers, and customers. The purpose of the sepa-
rate gate “is to permit lawful picketing that will be conducted
so ‘as to minimize its impact on neutral employees insofar as
this can be done without substantial impairment of the effec-
tiveness of the picketing in reaching the primary employees.’”
Broadcast Employees NABET Local 31 (CBS, Inc.), 237 NLRB
1370, 1375 (1978), enfd. 631 F.2d 944 (D.C. Cir. 1980) (over-
ruled in part on other grounds United Scenic Artists Local 829
(Theatre Techniques, Inc.), 267 NLRB 858 (1983) (quoting
Electrical Workers Local 640 (Timber Buildings, Inc.), 176
NLRB 150 (1969)). Use of a neutral gate by employees, sup-
pliers, or other invitees of the primary employer may compro-
mise the integrity of the gate, “which would result in destroying
its immunity from primary picketing.” CBS, supra at 1375.
“[O]ne or two such violations are insufficient to destroy the
reserved gate system.” Iron Workers Local 378 (McDevitt &
Street), 298 NLRB 955, 959 (1990). “If the integrity of a re-
served gate system has been maintained, and the primary em-
ployer or their employees or suppliers have not used or at-
tempted to use one of the neutral gates, then picketing of the
primary employer must be confined to the area reasonably close
to the reserved primary gate, and cannot be conducted at the
neutral gates.” Interox America, supra at 58. When a valid
reserve gate system is in effect, picketing at a neutral gate vio-
lates Moore Dry Dock and therefore gives rise to a presumption
that the union is pursuing an unlawful secondary objective. See
Electrical Workers Local 98 (Telephone Man), 327 NLRB 593,
600 (1999); Operating Engineers Local 150 (Harsco Corp.),
313 NLRB 659, 668 (1994), enfd. 47 F.3d 218 (7th Cir. 1995);
W.S.B. Electric, supra at 421; accord: Interox America, supra at
59. If the union claims that it is picketing because the employer
fails to meet area standards, wages, and benefits, the burden is
on the union to establish that it has made reasonable inquiry to
ascertain if its contentions are accurate. If the union fails to
meet its burden the area standards picketing may be deemed
pretextual, and evidence of improper motive found. Operating
Engineers Local 150 (All American), 296 NLRB 933 (1989).
Having once picketed at a designated neutral gate, the burden is
on the union to justify its disregard of the reserve gate system.
Operating Engineers Local 12 (McDevitt & Street), 286 NLRB
1203, 1203–1204 (1987).
IV. DISCUSSION
The complaint alleges that on December 19, 2006,
Kisielewski and McDonald threatened to picket the Lumber-
yards jobsite in violation of Section 8(b)(4)(i) and (ii)(B) of the
Act. Although the Respondent’s answer denies the allegation it
made no effort to deny Eattock’s credible testimony regarding
the threat at either the hearing or in its brief. Kisielewski did
not testify and McDonald did not address this allegation in his
testimony.
McDonald did address his conversation with Fray, and his
testimony essentially admits that he made an unqualified threat
to picket the site to Fray. Moreover, the Respondent does not
contend otherwise in its brief. Based on the credited and un-
disputed testimony of Eattock and Fray, I find, that on Decem-
ber 19 shortly after Kisielewski and McDonald unsuccessfully
sought the painting work that was assigned to JC Two, both
men, during two separate conversations, made unqualified
threats to picket the Lumberyards jobsite.
Accordingly, I find that the Respondent’s unqualified threat
to picket the Lumberyards jobsite made by its admitted agents,
Kisielewski and McDonald, violated Section 8(b)(4)(i) and
(ii)(B) of the Act, as alleged. E.g., Electrical Workers Local 98
(MCF Services), 342 NLRB 740, 749–750 (2004); Contra:
Plumbers Local 32 v. NLRB, 912 F.2d 1108, 1110 (9th Cir.
1990) (denying enf. of a Board order because the Board could
not presume that a union’s threat to picket is unlawful when the
picketing may be conducted in a lawful manner); accord: Sheet
Metal Workers Local 15 v. NLRB, 491 F.3d 429, (D.C. Cir.
2007).
The Respondent opines that there is conflicting testimony as
to when the gate signs were “posed” on the gates. In fact the
record establishes that there is no issue regarding the sign at-
tached to gate B on Collins Avenue. Fray’s credible testimony
is that he attached the sign himself on either December 19 or
20, and the Respondent points to no credible record evidence to
the contrary.
Regarding gate A, the neutral gate, the Respondent merely
acknowledges that McDonald and Macombe contend that there
was no sign at gate A when they arrived at the gate during the
early morning hours of December 21. As will be seen the Re-
spondent’s reticence is understandable. There are significant
contradictions between Macombe’s and McDonald’s testimony,
McDonald’s own testimonial inconsistencies, and the demon-
strable inconsistencies between their statements and the testi-
mony of other witnesses, and the photographic evidence.
McDonald avers that he is positive that the sign appeared on
gate A sometime after the picket line went up. He claims that
PAINTERS DISTRICT COUNCIL 711 (JC TWO, INC.) 1145
the sign was not up when he arrived at 6:15 a.m. The security
guard is the only other person in the photograph (GC Exh. 7
(b)), of McDonald and the two pickets. There is no evidence
that the photograph is not authentic or that it has been altered,
and the Respondent does not argue otherwise. McDonald testi-
fied that picture was taken between 6:30 and 6:45 a.m. and that
he read the sign. It is also evident by the way the men are fo-
cused on the photographer that there are no other distractions in
the vicinity. The sign is clearly visible. Yet when asked if his
testimony was that he did not see the sign McDonald answers,
obliquely, that the sign was not there when he arrived in the
morning. When asked if he knows when the sign was ap-
pended to gate A he states, “No, I don’t,” (Tr. 162). Surely a 4-
by-4 foot sign could not have been surreptitiously attached to
the gate. Moreover, even assuming that the sign was attached
during the 15-minute window between when the picket line
went up and the photograph taken, McDonald made no mention
of this to Macombe. Macombe was tasked as the Respondent’s
scribe, as well as the picket line captain. McDonald read the
sign and presumably knew its significance. It would seem that
he would want to memorialize when he first observed that the
Charging Party was establishing a reserve gate system.
McDonald contradicts himself when testifying about the
point in time that Lee took the pictures at gate A. He initially
testifies that Lee got out his car screaming at McDonald, went
inside his trailer, and shortly thereafter the police arrived (Tr.
148–151). He is then asked if he had anymore conversations
with Lee, he twice answers, “No.” But he then claims that Lee
came “back out with a camera taking pictures” (Tr. 152).
When asked once again if he was certain that it was Lee or
someone else, he answers that it was either Lee “or the other
guy” (Tr. 152). He then states that he is “not too positive” who
took the pictures. When asked about the time when the pictures
were taken, McDonald responds 9 or 9:30 a.m. The only other
pictures in evidence are pictures of the individual signs. Those
pictures were taken during daylight hours in April and are
clearly marked as such (GC Exhs. 5 and 6). I believe McDon-
ald was attempting to identify those pictures, until council di-
rected him to the pictures taken on December 21, and stressed
to McDonald that “it’s dark.” McDonald replies, “Well, I don’t
know about these pictures, I just know about the time that he’d
come out, the other guys come out with a camera” (Tr. 153).
His inability to recall the photographer is difficult to believe
because in both pictures he and the pickets are looking directly
at the photographer (GC Exh. 7). The three men in the picture
do not appear to have had anyone recently screaming at them.
Notwithstanding his failure, at that point, to be able to identify
the photographer, McDonald still insists that the sign attached
to the gate in the picture, was attached after the picket line went
up, which he claims was between 6:30 and 7 a.m.
On cross-examination, McDonald is asked if he recalls Lee
taking the pictures on the morning of December 21. He an-
swered, “Yeah, I remember some flashes going off.” When
asked if the pictures were taken before or after Lee allegedly
yelled at him, he answers “before.” (Tr. 157–158.) Thus, his
testimony on cross-examination is inconsistent with what he
said on direct. On direct, he claimed that Lee drove to the gate
between 7 and 7:30 a.m. (which is later than when he claims
the pictures were taken), and that Lee was screaming at him
while he was getting out of his car. McDonald never men-
tioned pictures or a camera during his initial testimony. It was
not until the police departed that McDonald claims that Lee, or
other guys, came out of the trailer and took pictures. Thus, it
appears that McDonald is possibly confused about the identity
of the photographer. If he does believe that Lee is the photog-
rapher, he appears confused about whether Lee took the pic-
tures immediately after getting out of his car, but before he
started to scream at him, or if Lee came out later and took the
pictures. In any case McDonald attributes Lee’s screaming as
the reason he did not notice the sign that is clearly visible in the
picture of him and the pickets.
Macombe’s testimony regarding the sign on gate A, although
more consistent, is no more credible than that of McDonald’s.
Notwithstanding Macombe’s proximity to the sign he insists
that he did not see it until December 28. Notwithstanding,
Macombe staring directly at the camera, behind which Lee is
standing, Macombe claims that he does not remember ever
seeing Lee before the hearing. His denial is contradicted by
Lee, who testified that he told Macombe he could not picket at
gate A as he drove pass him. And it also is inconsistent with
McDonald’s testimony about his dealings with Lee at gate A.
Although some confusion might be expected from all wit-
nesses, McDonald’s testimony is replete with contradictions
and inconsistencies. He clearly is of the belief that there is no
reason to give a direct answer, if an indirect answer will suffice.
One example is his response to the question if he recalls Lee
taking the pictures, he responds, “Yeah, I remember some
flashes going off” (Tr. 157).
Based on my observations of Lee, I find McDonald’s version
of their encounter implausible and incredible. Lee did not ap-
pear to have the demeanor of a person prone to anger. More-
over, this was the first time Lee had met McDonald, increasing
the implausibility of McDonald’s statement. Unlike McDonald
and Macombe, I was impressed by Lee’s favorable testimonial
demeanor. He appeared to be doing his best to give an accurate
and truthful account of what occurred. Accordingly, I fully
credit Lee’s testimony that the sign on gate A was posted when
he arrived at the gate on the morning of December 21. I note
that his testimony is consistent with and corroborated by Fray.
I find that Lee told Macombe that he was at the gate reserved
for union contractors. I find that Lee later told McDonald that a
reserve gate system was established and that he was picketing
at the wrong gate. I also find that McDonald corroborated
Lee’s testimony insofar that Lee told him that he was at the
wrong gate and that there was another gate.
McDonald’s evasive and defensive response to questioning
is best illustrated by the colloquy between McDonald and the
Charging Party’s attorney concerning when McDonald learned
that the site had two gates (Tr. 168–171). The following ex-
change occurs after Macombe’s notes have been admitted—
clearly indicating that there are two gates at the site, and
Macombe has testified that he was aware of both gates because
McDonald said “two men on this gate [gate A] and ‘I’m putting
two men on the other gate’” (Tr. 118). Even after admitting
that Macombe acknowledges, both in his written report and his
testimony, the existence of a second gate, McDonald refuses to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1146
acknowledge that he knew that gate B was located on Collins
Avenue. At one point he claims that he only learned the loca-
tion of gate A from his boss, Peter Cipparulo. He claims that
he assumed that there was a second gate when he dispatched
the second pair of pickets to “go that way.” Later he says that
he is not sure when he learned that the gates were designated
“A” and “B,” and that he was not sure if he even went to gate B
on December 21.
A similar dialogue transpires over McDonald’s alleged
knowledge of the wages JC Two was paying its employees.
Initially he denies making any inquiries because “we already
knew what the rates were.” When asked specifically if he knew
that the Lumberyards was a prevailing rate project, he once
again evades the question and replies, “[W]e already knew
what their rates were.” He next responds that he knew what the
rates were suppose to be. As counsel for the Charging Party
continues to press for a response to this basic question McDon-
ald retorts, “I don’t understand what you’re getting at.” Even-
tually he comes full circle and states, “[W]e just know from
past dealings,” and admits that he made no inquiries as to the
JC Two pay rates.
Based on the foregoing I find that the Respondent failed to
make any inquiry, let alone a “reasonable inquiry” concerning
the wage rates paid by JC Two to its employees working on the
Lumberyards project. Accordingly, I conclude that the Re-
spondent’s purported area standards picketing was a pretext
from which an inference of unlawful secondary motive may be
found. E.g., Carpenters Local 1622 (Iacono Structural Engi-
neer), 250 NLRB 416 (1980).
All three of the General Counsel’s witnesses, Lee, Eattock,
and Fray exhibited impressive testimonial demeanor coupled
with extremely thoughtful, detailed recollection of the events.
Moreover, the testimony of the three witnesses is very similar.
I have previously credited Lee’s testimony that he told
Macombe, and later McDonald, that they were picketing the
wrong gate and that the reserve gate system was established. I
also credit Fray’s testimony that he specifically told McDonald
that he was picketing gate A and that they would have to picket
the nonunion gate, which was B on Collins Avenue. I also find
that McDonald told them that the pickets would remain where
they were and that the Charging Party would have to do what it
had to in order to get them to move from gate A.
The Respondent contends that because the letter notifying
that the Charging Party had established a reserve gate system
was faxed after business hours, and not to the picket organizer,
the pickets had not been notified of the reserve gate system
until the afternoon of December 21. The fax notifying the Re-
spondent of the reserve gate system was transmitted at 7:29
p.m. on December 20. It was faxed to the attention of
Kisielewski, the Respondent’s business agent, at the Respon-
dent’s office in Glassboro. McDonald works in the same of-
fice. It is undisputed that Kisielewski was acting in his official
capacity when, on December 19, he threatened Eattock that the
Respondent would picket the Lumberyards project. The fax
was received at the Glassboro office by at least 7:14 a.m., when
an unidentified individual forwarded it to Peter Cipparulo at his
Springfield office. Cipparulo is Painters District Council 711’s
director of organizing and McDonald’s boss. I agree that the
letter was not faxed during normal business hours on December
20. I do find that the fax was received by the Respondent at
least by 7:14 a.m. on December 21, when it was forwarded
from the Respondent’s Glassboro office to Cipparulo. Accord-
ingly, I also find that the information contained in the letter was
known to the Respondent by at least 7:14 a.m. on December 21.
The picket line most likely went up before 7:14 a.m. Based
on the credited testimony of Fray, however, he went to
McDonald as soon as he saw that the men at gate A had picket
signs. Fray informed McDonald of the establishment of the
reserve gate system and told McDonald that he was at gate A
and that he would have to picket at the nonunion gate, which
was B on Collins Avenue. Fray stated that McDonald’s re-
sponse was that he was going to stay there and that the Charg-
ing Party would have to do what they would have to do to move
the pickets. Fray credibly testified that both gate signs were
hung by him on December 19 or 20 and that both were in place
when McDonald arrived, that gate A was locked, and that the
security guard was at his post and had been informed of his
duties. Thus, the Respondent through McDonald, its admitted
agent, had notice of the Charging Party’s reserve gate system
before it began to picket.
I also find that the Respondent’s nonchalant response to re-
ceipt of the Charging Party’s notification that it had established
a reserve gate system, is additional evidence of its unlawful
secondary intent. There was no attempt to convey the sub-
stance of the Charging Party’s letter to either McDonald or
Kisielewski. Both men had gone to the Lumberyards jobsite on
December 19 and threatened to picket the site. McDonald
states that he was on the road and thus was unaware that the fax
had arrived. Kisielewski did not testify. It appears that no
attempt was made to discover who in the Respondent’s Glass-
boro office forwarded the fax to Cipparulo, and why. Certainly
McDonald, the person who was in charge of instituting the
picket line, should have kept his office informed of his where-
abouts and activities. If nothing else McDonald testified that he
was going to call Macombe from Atlantic City while Macombe
was on the picket line, thereby establishing that Macombe, at
least, had a cell phone.
Cipparulo states that he received the fax between 8:45 and 9
a.m., shortly after his office opened. Cipparulo had authorized
area standards picketing at the jobsite, based on a request by
McDonald. Although Cipparulo testified that he was “quite
surprised” that the fax was addressed to Kisielewski, he took
absolutely no action to attempt to contact Kisielewski or
McDonald. In fact Cipparulo apparently thought so little of the
substance of the letter that he decided to wait until he met
McDonald at lunch to tell him about it, and even then he did
not bring the letter with him to show McDonald.
I find the Respondent’s conduct after receipt of the Charging
Party’s notification that it had established a reserve gate system
supports an inference that it never intended to abide by the
reserve gate system. McDonald read the sign at gate A to en-
sure that he was setting up the picket line at the correct gate—
to enmesh neutral employers. As Macombe stated, “[W]e put
the line up early to catch them.”
Accordingly, based on all the foregoing and the record as a
whole, I find that the Respondent violated Section 8(b)(4)(i)
PAINTERS DISTRICT COUNCIL 711 (JC TWO, INC.) 1147
and (ii)(B) of the Act by picketing at the gate reserved for neu-
trals at the Charging Party’s Lumberyards project in Collings-
wood, New Jersey, on December 21.
The Respondent contends that its picketing of the neutral
gate was justified because the gate was tainted when the em-
ployees of JC Two entered the site through gate A. The Re-
spondent’s contention is based solely on the statement of
Macombe. Macombe is the individual standing next to the gate
A sign who testified that he did not see that sign on December
21.
Macombe testified that he has been a union member for 26
years. Macombe has been retired for 7 years and during that
time he has been a picket, picket line captain, and observer
hundreds of times for the Respondent. Macombe testified that
he makes notes of the things that happen while he is on picket
duty. He indicated that he understood the importance of his
notes because he rewrites them to make sure they are legible
and he gives them to the union office for safe keeping and,
apparently, to refresh his recollection during unfair labor prac-
tice hearings. He identified his notes as “what went on the first
day we were there” (R. Exh. 4).
His notes for December 21 indicate that he reported at some
unspecified time to the Haddon Avenue entrance. He incor-
rectly identifies the “scab” as “T”.C. Painting. He writes that
the line went up at 6:30 a.m. and that there were two gates and
two pickets at each gate. Thereafter, he has the following en-
tries: 6:45 and 8:45 a.m. indicate that the employees of the
union contractors refuse to cross the picket line and leave the
site, 2:30 p.m. is when he closed the line down, and 7:30 a.m. is
when four “painters (scabs) crossed our line.” Although
Macombe felt it necessary to record the weather conditions he
does not identify the three other pickets by name or at which
gate the pickets were stationed; he does not mention that the
picket line was photographed by a management representative;
he does not mention that five police cars arrived at the site, and
that McDonald spoke to the police; he does not mention that
McDonald spoke with the construction manager, Fray (or at
least a management representative); he does not mention that
the project manager, Eattock (or at least a management repre-
sentative) crossed the picket line just before 8 a.m.; and he does
not mention that McDonald left the site at approximately 11:30
a.m.
Based on the contents of his notes, or more accurately the
lack of content, I had reservations concerning the thoroughness
and probity of Macombe’s note taking even before he testified
about the painters entering gate A. His testimony about that
alleged incident further damaged his credibility. Macombe was
asked about two significant events, the alleged tainting of the
gate by the painters and if the picket line was up on December
22. My sense when listening and observing him testify was
that his testimony was scripted, but that he did not have imme-
diate recall of all his lines.
After several questions by the Respondent’s counsel it was
clear from Macombe’s testimony that four men dressed in
painter whites walked up to the guard at gate A who let them
in. Counsel, however, was not satisfied and asked if they had
any equipment with them. Macombe responds with what
sounds like a generic description of painter jeans and the possi-
ble equipment they might carry. In the middle of his statement
he abruptly changes course and inexplicably starts the scenario
from the beginning. This time he provides that he was talking
with two electricians, who were waiting to see if they could
cross the picket line. One says, “Freddy, them 4 guys that just
went by, they’re the painters on the job. A matter of fact, that’s
the girl. She’s the owner of the company.” (Tr. 111.)
Both his demeanor and the inherent implausibility of the
scenario leads me to conclude that it did not occur. Macombe
fails to explain why he had to be alerted to four men in painter
whites, and a women, going toward the one area on which his
attention should have been focused. He fails to explain why he
did not record that the owner of the company also crossed the
picket line, or even mention that she did in his initial version. It
is significant that McDonald, who was still at gate A at that
time, was not asked to corroborate Macombe’s testimony. Nor
was Cobella, Macombe’s fellow picket at gate A, called to
corroborate his account. I also note Macombe’s tendency to
prevaricate set out above, as well as his testimony that he did
not see the sign on gate A on which he was almost standing.
Had the incident happened I would still be disinclined to find
that the reserve gate system was tainted. The record establishes
that the Charging Party took every reasonable precaution to
ensure the integrity of the reserve gate system, and I would not
find that one instance of misuse would be sufficient to destroy
the reserve gate system. Operating Engineers Local 18
(Dodge-Ireland), 236 NLRB 199 (1978). Moreover, illegal
picketing cannot be justified by after-the-fact violations of the
neutral gate by employees of a primary employer. Nashville
Building Trades Council (H. E. Collins Co.), 172 NLRB 1138,
1139–1140 (1968), enfd. 425 F.2d 385 (6th Cir. 1970). Fur-
ther, there is no evidence that the Respondent’s continued pick-
eting at the neutral gate was in response to the alleged incident
on which it now relies. Iron Workers Local 378 (McDevitt &
Street), 298 NLRB 955, 959 (1990).
Macombe’s testimony regarding ingress and egress at gate A
is also at odds with the testimony of other, credited, witnesses.
Thus, Macombe denies seeing anyone exit through gate A
while he was there. That statement is in conflict with Lee who
testified that he left the site between 10 and 11 a.m. and Eattock
who testified that he left the site at approximately 1 p.m. I also
note, above, that Lee and Eattock parked and entered through
gate A. Macombe also denies that any vehicles crossed the
picket line. That statement is disputed by Fray who credibly
testified that trucks were being permitted and denied access
through the gate (Tr. 81).
Macombe’s attempt to support the Respondent’s contention
that it did not picket the site at all on December 22, because the
Respondent was closed for the holidays not only fails, but it
contradicts McDonald’s testimony concerning the incident.
Macombe is asked how long he left the line up on December 20
and he says 2:30 p.m. He is asked why he left it up until 2:30
p.m. and he replies: “Ed McDonald had to go back to the union
hall for a luncheon so he told me ‘Freddy, take the line down at
2:30.’ So I said, ‘all right I’ll go over and let the other two peo-
ple know later.’” Counsel asks if McDonald said anything else
and Macombe answers, “No, he said as far as the line, the line
is down until after the holidays. Once again Macombe’s state-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1148
ments are disjointed and lack the ring of truth. Macombe then
states that he told the other two pickets that the line is dead
until after the holidays and he reaffirms this statement after
council asks if he repeated, to the other people, what he was
told by McDonald. And yet none of the other pickets testified.
When McDonald is asked if he left any instructions for the
pickets before he left for his luncheon he answers, “I told
Freddy if anything changes I’ll call you.” “And I got a hold of
him and told him to—after I talked to [Cipparulo] and he said
to take it down in the afternoon.” Several questions later coun-
sel repeats the question about leaving instructions for Macombe
and McDonald repeats his answer about taking the line down at
2:30. Counsel, perhaps recognizing that subtlety is not work-
ing, asks McDonald if he left Macombe with any instructions
when it was going back up. McDonald answers, “And it wasn’t
going to go back up until after the holidays.” When asked if he
told Freddy he replies, “Yes, sir ‘cause I didn’t know nothing
until I got to the luncheon.” (Tr. 140–141.) Cipparulo supports
McDonald’s statements that it was he who told him to take the
line down for the holidays. Aside from the fact that McDonald
keeps saying that he “left instructions” with Macombe to take
the line down when he testified that he later “called” Macombe
there was only one other Freudian slip. McDonald responds,
“Take it down for the weekend—I mean for the holiday’s” after
being asked if Cipparulo told him to move the line to the right
location or simply to take it down. Cipparulo admitted that he
did not know for a fact that the picket line was not up on De-
cember 22. I find that Macombe and McDonald’s testimony
was contrived and inconsistent with each other. Contrary to
their exceedingly poor testimonial demeanor, Eattock and Fray
both exhibited the demeanor of honest witnesses who also had
excellent recall of the events. I fully credit their testimony that
the Respondent picketed each gate on December 22 and the
pickets were wearing the same signs. As a result of the picket-
ing most of the employees of the union contractors refused to
cross the picket line.
The Respondent’s final attempt to avoid an adverse ruling is
that the Respondent’s conduct at the neutral gate on December
21 does not fall under the legal definition of “picketing” be-
cause merely holding banners does not amount to “threat, coer-
cion or restraint.”
The photographs show the pickets at gate A standing, wear-
ing sandwich board picket signs. Eattock credibly testified,
without refutation, that he observed the pickets walking back
and forth in the driveway of gate A (Tr. 59). In any case “[t]he
important feature of picketing appears to be the posting by a
labor organization . . . of individuals at the approach to a place
of business to accomplish a purpose which advances the cause
of the union, such as keeping employees away from work or
keeping customers away from the employers business. Carpen-
ters Local 2797 (Stoltze Land & Lumber Co.), 156 NLRB 388,
394 (1965). The only “message” on the signs was that JC Two
fails to meet area standards, a message I have found to be a
pretext in order to disguise the Respondent’s real motive for
picketing which was to enmesh neutrals. Macombe testified
that the picket line is put up “early to catch them [union mem-
bers] so they [union members] don’t cross the line” (Tr. 119).
The sandwich boards are tantamount to the traditional picket
sign attached to a stick, and the pickets patrolled across the
driveway at gate A. It is clear that this case does not involve
bannering or leafleting and as such removes the Respondent’s
conduct from the purview of Edward J. DeBartolo Corp. v.
Florida Gulf Coast Building Trades Council, (DeBartolo II),
485 U.S. 568, 571 (1988). Absent the protection elucidated in
(DeBartolo II), the Respondent’s argument fails.
Accordingly, based on the foregoing and the record as a
whole I find, as alleged in the complaint that the Respondent
violated Section 8(b)(4)(i) and (ii)(B) of the Act by threatening
to picket with the object of forcing Costanza, to cease doing
business with JC Two and by picketing at gate A, a gate re-
served for neutral employers.
CONCLUSIONS OF LAW
1. By unqualifiedly threatening to picket with the object of
forcing Costanza Builders of New Jersey, Inc., to cease doing
business with JC Two, Inc., at its Lumberyards jobsite in Col-
lingswood, New Jersey, the Respondent, District Council 711,
International Union of Painters and Allied Trades, AFL–CIO,
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(b)(4)(i) and (ii)(B) and Section
2(6) and (7) of the Act.
2. By picketing and patrolling at the gate reserved for neu-
trals at the Lumberyards jobsite the Respondent has violated
Section 8(b)(4)(i)(ii)(B) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]