Bricklayers, Local 1

National Labor Relations Board - Board Decisions

Jun 11, 1971

191 N.L.R.B. 52 (N.L.R.B. 1971)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bricklayers-Stone & Marble Masons Union , Local 1,
AFL-CIO (Don Salisbury Bricklaying Company, et
al.) and Congress of Independent Unions, Local 99.
Case 14-CC-626
June 11, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On January 26, 1971, Trial Examiner John M. Dyer
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in the unfair
labor practices alleged in the complaint and recom-
mending that the complaint be dismissed in its entirety,
as set forth in the attached Trial Examiner's Decision.
Thereafter, General Counsel filed exceptions, and a
brief in support thereof, to the Decision. Respondent
has filed a brief in answer to General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
The Trial Examiner found, and we agree, that Re-
spondent did not violate Section 8(b)(i) and (ii)(B) of
the Act. Our dissenting colleague would find that Re-
spondent's picketing on September 28 and 29, and
again on October 20 through 22, failed to comport with
the Moore Dry Dock' criteria and is thus unlawful.
While the facts concerning the picketing on those dates
are not in dispute, the conclusion drawn from them
can, in our view, be sustained only if the picketing on
those occasions is considered in a vacuum.
The undisputed evidence in the record before us es-
tablishes that Respondent first picketed the jobsite on
September 21 by posting a single picket at the two
entrances on Highway 61-67, the only entrances to the
project. Shortly thereafter, the entrances on Highway
61-67 were blocked and two entrances were developed,
opening on to Tenbrook Road. Later, but still within
the week of September 21, one of the original entrances
on Highway 61-67 was reopened and one of the en-
trances on Tenbrook Road was closed. An undisclosed
type of sign was posted at the gates during the first week
' Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547, 549
of picketing. On September 28 and 29 "reserve" and
"neutral" gate signs were posted at the entrances then
open onto the project. Salisbury removed these signs
when it left the jobsite on September 29 and did not
reestablish them when it returned on October 7. Re-
spondent's pickets also left the jobsite at this time.
Upon returning on October 7, Salisbury remained at
the jobsite continuously without posting gate signs, al-
though Respondent's pickets were present until Octo-
ber 20, when the "reserve" and "neutral" gate signs
were again posted. Thus, Respondent picketed the job-
site whenever Salisbury was present, a total of 25 days,
yet "reserve" and "neutral" gate signs were only posted
during 5 of those days.
The Board has long held that the Moore Dry Dock
standards are not to be applied on an indiscriminate
"per se" basis or with "mechanical precision" but are
to be applied with "common sense."2 While the Board
has held that picketing at locations other than at prop-
erly marked gates may indicate noncompliance with
Moore Dry Dock standards,' the mere posting of signs
does not limit the situs of the dispute.4 The purpose of
the separate 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 substan-
tial impairment of the effectiveness of the picketing in
reaching the primary employers."5
In light of these principles, and the foregoing recital
of the facts involved herein, we are not satisfied that
Respondent's picketing of the neutral gate on Septem-
ber 28 through 29 and again on October 20 through 22
breached the Moore Dry Dock standards. The designa-
tion of the gates and the posting of signs by Salisbury
fell short, in our view, of the clarity necessary to pro-
vide reasonable assurance to Respondent that, by
confining its picketing to the Tenbrook Road gate, its
message would be carried to all within the legitimate,
direct appeal of its picket signs.' And this is so whether
or not the confusion in Salisbury's designation of the
gates was deliberate.'
1 Local 761, IUE (General Electric Co.), 366 U S 667, 677, Plauche
Electric Inc., 135 NLRB 250, 255.
Local Union 519, United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry, etc (Center Plumbing and Heating
Corp), 145 NLRB 215, 223
4 Suburban Development Co., 158 NLRB 549.
Crystal Palace Market 116 NLRB 856, 859.
See International Brotherhood of Electrical Workers, Local 640, AFL-
CIO (Timber Buildings, Inc), 176 NLRB No 17.
The Trial Examiner concluded that the Employer had earlier attempted
to deceive Respondent when it claimed that its employees were union and
receiving the prevailing area wages when in fact they were nonunion and
were paid less than the area wage standard.
191 NLRB No. 5
BRICKLAYERS, LOCAL 1 53
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner and hereby orders that the com-
plaint herein be , and it hereby is, dismissed in its en-
tirety.
MEMBER KENNEDY , dissenting:
Because I am of the view that my colleagues' dis-
missal of the complaint in the instant case represents a
departure from well-settled precedent , I am unable to
join them in such action.
It is clear that picketing at a common situs ostensibly
to inform the public that a contractor is paying sub-
standard wages or is otherwise providing substandard
working conditions is not exempt from the standards
for common situs picketing set forth by the Board in
Sailors' Union of the Pacific, AFL, (Moore Dry Dock
Company), 92 NLRB 547; Millwright's Local Union
No. 1102 (Dobson Heavy Haul, Inc.), 155 NLRB 1305.
In Nashville Building & Construction Trades Council
(HE. Collins Contracting Company, Inc.), 172 NLRB
No. 105, the Board recently held that even though
entry to a jobsite was possible at various points other
than the gates reserved for neutral and primary em-
ployees, the fact that the primary employees had en-
tered the site only through the gate reserved for them
during the periods of the union's picketing made the
picketing of the neutral gate unlawful as failing to meet
the Board's Moore Dry Dock standards. The Board
rejected the Trial Examiner 's conclusion, based partly
on his opinion that the unsettled nature of the jobsite
(900 feet of unenclosed land between the gates fronting
on a public highway, all of which could be used to gain
entry to the site on foot) invited entry at unauthorized
and unreserved locations , and partly on the alleged
disregard of the reserved gate by nonunion or primary
employees several days after the gates were posted, that
the picketing at the neutral gate was unlawful and pri-
mary. The Board held that although there was evidence
that the primary employees might have disregarded the
gate reserved for neutrals after the period of picketing
in question, during this period they had in fact entered
the site only through the gate reserved for them. More-
over, the Board, concluded, even assuming that the pri-
mary employees had entered the site at unauthorized
points along the highway during the period in issue, no
primary employees were alleged to have entered
through the neutral gate.
In the instant case, on September 28, a reserved gate
sign and a neutral gate sign were posted by the primary
employer at entrances which were then open onto the
construction site. Notwithstanding the posting of such
signs , the Respondent Union continued to picket at
both the reserved gate and the neutral gate . The Trial
Examiner found that the reserved gate and the neutral
gate signs were posted at the construction site while the
pickets were present, and thus there can be no doubt
that the Respondent was aware of the posting of such
signs. There was no evidence that during the period of
September 28 and 29 , and again October 20 through 22,
when picketing was conducted at the neutral gate as
well as the reserved gate, the employees of the primary
employer entered or left the project other than through
the reserved gate . Similarly, there is no evidence that on
these dates any supplier of the primary employer en-
tered through the neutral gate , or if so, that it was other
than de minimis. See Local 761, IUE, (General Electric
Co.) v. N.L.R.B., 366 U.S. 667.
Upon the foregoing , it appears to me that the picket-
ing at the neutral gate on September 28 and 29, and
again on October 20 and 22 , failed to comport with the
Moore Dry Dock criteria because it was not restricted
to the primary gate , where its impact on neutral em-
ployers at the site would have been niminized without
at the same time affecting the appeal of the picket line
on the primary employees . "The Board has long held
that picketing must be conducted so as to minimize its
impact on neutral employers insofar as this can be done
without substantial impairment of the effectiveness of
the picketing in reaching the employees of the primary
employer." H. E. Collins Contracting Company, Inc.,
supra. I do not believe that the picketing here was
conducted in such a manner . Although the Trial Exam-
iner found that a substantial amount of confusion as to
the posting of the gates existed , there apparently was no
confusion as to the location of the gate reserved for the
use of the primary employer, and its utilization by its
employees and suppliers. Having established a separate
gate for its use, and it appearing that such gate was in
fact used by the primary employer and its suppliers, the
primary employer restricted the area of the dispute.
Having shown that picketing was engaged in beyond
the area of dispute , in circumstances where there was
no evidence of the entry onto the jobsite by employees
of the primary employer or by its suppliers other than
by the gate so reserved , the General Counsel, in my
view , established a prima facie case . The fact that the
reserve gate was located off a secondary road rather
than the main highway does not require a different
conclusion . Cf. Orange Belt District Council ofPainters
No. 48 (Calhoun Drywall Company), 154 NLRB 997.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Trial Examiner; On October 5, 1970'
Clark Libhart , business manager of Local 99, Congress of
Independent Unions, heremafter referred to as the CIU, filed
' Unless specifically stated otherwise , all dates herein are in 1970.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a charge alleging that Bricklayers -Stone & Marble Masons
Union , Local 1, AFL-CIO , herein variously called Respond-
ent, the Bricklayers , or Local 1 , violated Section 8(b)(4)(i)
and (ii)(B) by inducing or encouraging individuals employed
by Midwest Engineering & Construction Co., the general
contractor (herein called the general or Midwest ) for the
Tenbrookjob , and individuals of other subcontractors , herein
called subs, employed at this construction site, to strike or
refuse to use or perform services and that Local 1 threatened,
coerced, and restrained the general and the subs with the
object of requiring them to cease doing business with Don
Salisbury , d/b/a Don Salisbury Bricklaying Company,
herein called Salisbury or the primary. The construction site
is located in Arnold , Missouri , a suburb of St. Louis, near the
intersection of the Lemay Ferry Road , also called Highway
61-67 and Tenbrook Road , herein called the Tenbrook site,
where the general is engaged in the erection of a building for
National Food Stores . The Director of Region 14 issued the
complaint on October 26, alleging in substance that Local 1
had violated Section 8(b)(4)(i) and (ii)(B) by its picketing and
other actions on or after September 28, at the Tenbrook-site.
Injunctive proceedings were held on or about October 28 and
an injunction forbidding Local l 's picketing was issued. Local
1 has not picketed the Tenbrook site since that time and in
fact did not picket the Tenbrook site after October 22, when
Salisbury went to another location to work.
In its answer Local 1 admitted the service of the charge;
that the other subs were doing business with Midwest at the
Tenbrook construction site; that Local 1 had a labor dispute
with Salisbury and not with any of the other companies at the
Tenbrook construction site ; and that both Local 1 and the
CIU are labor organizations within the meaning of the Act.
The answer stated Local 1 was without knowledge of the
jurisdictional data but during the hearing and in its brief
Local 1 conceded that the companies concerned come within
the jurisdictional criteria of the Board . Respondent denied
that it picketed with an object of coercing or restraining the
various companies or their employees in a secondary manner
and affirmatively stated that it picketed the Tenbrook con-
struction site in conformance with the Board 's Moore Dry
Dock criteria.
The parties are in agreement about most of the facts in this
case except for the length of time that "reserved gate" and
"neutral gate" signs were posted at the construction site. This
case was heard on November 16 and all parties were afforded
full opportunity to appear , to examine and cross -examine
witnesses , and to argue orally. General Counsel and Re-
spondent have both filed briefs which have been carefully
considered.
Upon the entire record in this case , including my evalua-
tion of the reliability of the witnesses based on the consistency
or inconsistency of the various statements and to some extent
the demeanor of several witnesses, I make the following:
FINDINGS OF FACT
1 THE BUSINESS OF RESPONDENT
Don Salisbury is an individual doing business as Don Salis-
bury Bricklaying Company with his principal office and place
of business in Missouri ; Midwest Engineering & Construction
Co., Big Boys Steel Erection , Inc., and Community Electric
Company, Incorporated , are each Missouri corporations.
Each of the four organizations within the past year purchased
goods or services directly from States outside the State of
Missouri valued in excess of $50,000.
Respondent Local 1 admits and I find that the corporations
and Don Salisbury , d/b/a Don Salisbury Bricklaying Com-
pany are each engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
The parties agree and I find and conclude that Local 1 and
the CIU are each labor organizations within the meaning of
Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
Background and Facts
Salisbury secured a contract from Midwest to lay the brick
for the store building and started laying brick in August.
Some steel erection was proceeding at the same time.
After learning of the awarding of the contract , Local 1
through its financial secretary sent a letter to Salisbury asking
whether it was paying the prevailing area rate and whether
its men were in the Union. Salisbury testified that he didn't
think he replied to the letter but then was shown a letter on
Salisbury's stationery to Local 1, which stated , "In answer to
your letter , the employees of Salisbury Bricklaying Co., are
union and.receiving prevailing rate for journeymen bricklay-
ers." After being shown the letter Salisbury acknowledged
that he wrote it. In explaining this letter Salisbury testified
that he did not intend to mislead Local 1, but that to his
knowledge the men were union . He then testified that he did
not check with his men to see if they did belong to the CIU
but said that he required his men to be union. Thereafter
Salisbury testified he did not advertise for bricklayers advis-
ing that they would not have to be union . When shown an
advertisement placed by his company advertising for brick-
layers "$5 to $5. 50 per hour, no union card necessary, steady
employment," and giving one of the telephone numbers at
which, his company could be reached , he acknowledged the
ad and said that his company may have so advertised . I found
Don Salisbury .to be an evasive witness and put little credence
in his testimony . Salisbury was an officer in a bricklaying
company which Tom Tosie (Salisbury's superintendent for
this job) headed. This company had a contract with Local 1
and Salisbury admitted he was familiar with the Local 1
contract and acknowledged the $6-per-hour wage for jour-
neymen bricklayers set forth in that contract was the prevail-
ing area wage.
The business representative of Local 1, Thaller, testified
that he checked with men at the Tenbrook site and was told
by one of the employees that he was getting about $3 an hour
and another employee said he was getting about $5 an hour.
Thaller testified that Local 1 then placed a picket at the
Tenbrook site on the morning of September 21. The picket,
Charles Kroll, testified that he started picket duty at 9:30 a.m.
on September 21, picketing on the Highway 61-67 side of the
project : Highway 61-67 is a busy four-lane highway on the
west side of the site, while Tenbrook Road on the south is a
two-lane road which deadends at Highway 61-67.
The construction site of the store is approximately 150 feet
east of Highway 61-67 and some 350 to 500 feet north of
Tenbrook Road . The lower corner of this construction site at
the intersection of Highway 61-67 and Tenbrook Road is
unimproved land and not part of the construction site, so that
the Tenbrook construction site is an upside-down L shape,
with the store being built along the base facing south. The
remainder of the land to the side and in front of the store is
being improved for and will be used as parking areas. It was
testified that the men working on the construction site usually
park adjacent to the Highway 61-67 entrance to the construc-
tion site.
When Kroll started picketing there were two entrances to
the property from Highway 61-67, some 50 to 75 feet apart.
Either at that time or shortly thereafter an entrance or en-
trances were cut into the project from Tenbrook Road on the
south of the project. There is no fence, barricade, or wire of
any type surrounding the property. There is more unim-
proved land on the east side of the property and a high bank
BRICKLAYERS , LOCAL 1
with a retaining wall on the north side. Testimony indicates
there is a natural drainage ditch along the shoulder, of the
road on Highway 61-67 which continues around on Ten-
brook Road and further up Tenbrook Road there is a creek.
Entranceways onto the property had to be provided and im-
proved with dirt and gravel.
Sometime after the picketing commenced, both entrances
from Highway 61-67 were blocked, apparently by earthmov-
ing equipment owned by Don Salisbury and Salisbury's su-
perintendent, Tom Tosie, and two entrances some 50 feet or
more apart and connecting into one road some 50 to 75 feet
from the entrances in an upside-down Y shape were opened
from Tenbrook Road. At a later time one of these entrances
on Tenbrook Road was blocked and the main entrance on
Highway 61-67 was reopened.
On September 24 a second picket Mr. Loncaric was added
and Mr. Kroll picketed on Tenbrook Road while Loncaric
picketed on Highway 61-67.
Sidney Bierman, president of Midwest, testified that he
talked to Local 1 Business Representative Thaller on Septem-
ber 21, the first day the pickets were on the job. At that time
no "gate" signs were posted, and on that day the other subs
left the Tenbrook site. Bierman asked Thaller the purpose of
the picketing and was told by Thaller that the picketing was
purely informational and was directed only at Salisbury and
that he was not trying to get Salisbury fired from the job.
According to Bierman on that first day of picketing, the other
subs left the job and did not return to the job unless Bierman
called them and told them to come back. He further testified
that when he needed work done by the other subs he would
request Salisbury to leave the job and after Salisbury left the
other subs would return. Bierman testified that the pickets
were only present when Salisbury was working on the job and
that when Salisbury left the pickets went with him. He tes-
tified that when he wanted Salisbury back on the job he would
inform the other subs that Salisbury was coming back and
that when Salisbury came back the pickets came back with
him and none of the other trades or subs were on the job at
that time.
Some sort of signs were posted on the construction site
during the first week of the picketing but were later taken
down. On September 28 a "reserve gate" sign and a "neutral
gate" sign, which had been prepared by Libhart of the CIU,
were given to Salisbury and posted by Salisbury at the en-
trances which were then open onto the construction site.
These postings on a 2 by 4 were with the permission of the
general. The entranceways were framed by a 2 by 4 at either
side.
The General Counsel does not claim that the picket signs
were unclear or that they in any way violated the Moore Dry
Dock standards. The legend of the picket signs is as follows:
Notice to Public
Local Union No. 1
of Missouri
B.M. & P.I.U. of A
AFL-CIO
Protest substandard wages
55
Benefits and conditions of
SALISBURY BRICKLAYING CO.
We have no dispute with any
other persons or companies on this job
Bierman stated that on one occasion he did see a picket
talking to one of the employees of the subs but did not know
what was said. Picket Kroll testified that on the first day of
picketing one or two of the employees of the other subs came
out and looked at the signs and that a job steward came out
and asked him about it. Kroll referred the job steward to
Business Representative Thaller who was standing some-
where near the entrance. According to Thaller, the steward
for the sheetmetal workers came out and said he saw the signs
and asked what it was. Thaller told him that he could look
and read it. The steward for the sheetmetal workers then said,
"Well, I will call my business agent. We do not cross picket
lines on informational pickets." Thaller stated that he did not
advise him not to work on the job and the only thing he did
was to tell the steward to contact his local office. Thaler also
corroborated Bierman regarding their conversation but said
that it took place on the second day of the picketing and that
he told Bierman that it was an informational picket for sub-
standard wages and conditions and that the Union was not
picketing against anybody on the job other than Salisbury
Bricklaying Company. Thaller's testimony was corroborated
by the pickets that the instructions concerning picketing
given to them were not to cross in front of the entrances but
to picket alongside the roadside and not come within 5 yards
or so of crossing into the entranceway. It was disputed
whether on September 28 the pickets crossed the entrance-
ways or part of the entranceways. The pickets were positive
that thereafter they did not cross over the entranceway but
may have walked close to it.
After the "reserve" and "neutral" gate signs were put up
on September 28, Local 1 continued to picket both on High-
way 61-67 and on Tenbrook Road. It is unclear just what
gates were open on that day, that is, whether the "reserve
gate" and the "neutral gate" were both on Tenbrook Road
or whether the "reserve gate" was on Tenbrook Road and the
"neutral gate" back on Highway 61-67.2 In any event the
Union continued to picket at both locations until September
29 when Salisbury left the Tenbrook site and went to another
unrelated construction site and the pickets went with them.
Salisbury removed the "reserve gate" and the "neutral gate"
signs and took them to the unrelated construction site on
Sterling Airport Road, herein called the Sterling site. Salis-
bury worked at the Sterling site until late on October 7, when
they returned to the Tenbrook site. The "reserve gate" and
"neutral gate" signs apparently were posted at the Sterling
site, and there were no allegations of illegal picketing at the
Sterling site. According to the notes kept by picket Kroll they
returned with the Salisbury employees to the Tenbrook site
at approximately 2:45 p.m. on October 7. The pickets are
emphatic that the "reserve gate" and "neutral gate" signs
were not reerected at that time and were not put back up until
I do not credit the testimony that the pictures, G.C. Exhs 8, 9, and 11,
were all taken by Libhart on September 28 with a Polaroid camera G.C.
Exh. 11 was taken with a Polaroid camera but G.C Exhs. 8 and 9 were not
taken with a Polaroid camera but were developed and printed by a commer-
cial photographer and were not from the same roll of film, G.C Exh has
a legend "Sep. 70" on the print while G.C. Exh. 9 has a legend "Nov. 70"
indicating that the prints were made at two different times. With this as
background we can only say that G.C. Exh. 8 may have been taken on
September 24 or some time thereafter but neither it nor G.C. Exh 9 or 11
can be used to establish where the "gates" were on September 28.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 20. General Counsel's witnesses stated that they
thought the signs may have been down for a week or so. On
further examination Salisbury's job superintendent, Tom To-
sie, testified he could not say how long the signs were down,
and that it might have been until October 20. As to records,
Tosie testified that he did not maintain any records of when
the signs were down or up and on cross-examination, direct-
ing himself to counsel for Local 1, said that the Union would
have better records of what went on than he did. Picket Kroll
did keep records.
I find that Kroll's testimony is more persuasive. Tosie did
not have any recollection of just what he did and when.
Thaller was not sure but thought the signs were back up on
October 7 for a day or two. It is clear that General Counsel
misunderstood Thaller when Thaller testified as to how long
the signs were up. Thaller's testimony was that they were up
possibly for a grand total of 12 days or so, not that they were
up for 12 days continuously from the time that Salisbury
returned to the job on October 7. All parties agreed that the
picket signs were up on October 20 and remained up until
October 22 or so and possibly thereafter, but Salisbury left
again for another unrelated construction project on Highway
141 on October 22. Salisbury did not return from this project
until after the court issued its injunction against Local l's
picketing at the Tenbrook site, so that when Local l's pickets
left with Salisbury on October 22 they did not thereafter
return to the Tenbrook site.
Regarding the signs, I find and conclude that the "reserve
gate" and "neutral gate" signs were posted at the construc-
tion site on September 28 and 29 and October 20 through 22
while the pickets were present. The pickets were present at
the site from September 21 through 29 and October 7 through
22.
Picket Kroll testified that on October 9, in addition to a
Salisbury supplier, Breckingridge Materials Company,
another supplier or subcontractor was also on the Tenbrook
site . He testified that Bitco Paving brought in a grader on a
flatbed truck and that Bitco Asphalt and Paving also left a
bulldozer on the jobsite or brought it in on that date. On the
preceding day, October 8, Salisbury supplier Breckingridge
went on the jobsite at 8:10 a.m.; Blue Plumbing Company ran
a trenching machine on the jobsite from 9:45 until 10:50;
Majestic Materials (a Salisbury supplier) went in at 10:30; a
Community Electric Company truck (a subcontractor of
Midwest) went in at 10:10; National Brick Company (a Salis-
bury supplier) went in at 10; Miracle Plumbing Company
(apparently a supplier for another sub) went in at 10:30; and
the employees of those companies went on the jobsite and
actually worked on the job 'or left supplies there.
There was no testimony that entrance through the "re-
serve" and "neutral" gates was enforced or controlled in any
way. General Counsel 's testimony in this regard was that
Bierman of Midwest and Don Salisbury both of whom visited
the site only occasionally were unaware of the gates being
other than properly used. Tom Tosie testified that he was not
on'the job all the time, although he was Salisbury's superin-
tendent for this job, and only kept track of what gate the
trucks were using on September 28.
Testimony was that employees parked near the entrance
from Highway 61-67. They might have used either entrance.
Picket Kroll testified to various trucks going on the property
but did not identify which gate they used. It might be reason-
able to assume his observations were more of the "reserve
gate" since he picketed on Tenbrook Road most of the time.
In effect there is a dearth of testimony as to whether the
"reserve gate" and "neutral gate" were maintained and their
"proper" use observed by those who entered the property.
Analysis
General Counsel offered no testimony that the pickets or
representatives of Local 1 ever made any request, appeal, or
threat to any employees of the general, the other subs, their
suppliers, or any neutral employee to act in a secondary
manner, nor that any request, appeal, threat, or coercion was
offered to the general, the other subs, their suppliers, or any
neutral employer with the object of having Salisbury fired
from the Tenbrook site. General Counsel's case rests solely
on the establishment of the "reserved" and "neutral" gates on
September 28, the picketing thereafter, and the inferences to
be drawn therefrom as is admitted in his brief.
Further, General Counsel makes no contention that any of
Local l's picketing or conduct prior to September 28 was
illegal. In his brief, however, General Counsel implies that
the picketing prior to September 28 was illegal since he argues
that Salisbury's absences from the Tenbrook construction
site, which were at Bierman 's directions on and after Septem-
ber 21, were caused by the misconduct of Local 1. Since, the
arrangement between Bierman and the subs as to when and
how the subs were to be called to the construction site was
made on September 21, a time when General Counsel con-
cedes Local l's picketing was legal, then the arrangements for
the absences of Salisbury or the other subs could not have
been as a result of misconduct by Local 1.
Additionally, General Counsel seems to be under the im-
pression that the "neutral" and "reserve" gates established on
September 28 remained the same gates from then on with
only occasional lapses when the signs were down due to
vandalism. The testimony set out above does not substantiate
such a belief. There is inexactitude as to when the two gates
were established on Tenbrook Road and when the "neutral"
gate there was moved back to Highway 61-67. Presumably
Loncaric continued to picket on Highway 61-67 when both
gates were on Tenbrook Road. Secondly, the signs were
removed by Salisbury to an unrelated jobsite on September 30
and, as I have found above, were not put back up until
October 20 by Salisbury.
General Counsel's position is that the picketing on High-
way 61-67 in the vicinity of the "neutral gate" (whenever it
was established there) wes designed solely to enmesh neutrals
in Local l's dispute with Salisbury, and that Local 1 made no
attempt "to avoid enmeshment of neutrals in the dispute."
However, the picket sign is clear that there is no dispute with
anyone but Salisbury and the Union's explanation to Bierman
further made this position clear, so that General Counsel's
statement that no attempts to avoid enmeshment of neutrals
is not borne out by the facts.
It is Local l's position, and they produced testimony to the
effect, that Salisbury was the only bricklaying company they
knew of operating in the area of Local l's jursidiction who
did not have a contract with Local 1. Local l maintained, and
Salisbury agreed, that the area standards were the rates in
their contracts. Local l's contracts established a wage of $6
per hour for journeymen bricklayers and provided other
fringe benefits which the CIU contract did not appear to
provide.
There were intimations from Don Salisbury that there
might be other bricklaying companies in the area which did
not have contracts with Local 1, however he mentioned none.
I conclude therefore that Local l's contract, with the rates
and fringe benefits applying to some 250 bricklaying compa-
nies in the area, was the area standard, a fact which Salisbury
acknowledged.
From Salisbury's letter to Local 1 and the advertisement
Salisbury ran in a local paper for bricklayers, it seems a fair
conclusion that Salisbury was attempting to deceive Local 1
when he replied that his employees were union and receiving
BRICKLAYERS , LOCAL 1
the prevailing area wages. The parties agree that there was a
dispute between Local 1 and Salisbury in that Salisbury was
not paying the prevailing area wage rates.
After the first few days picketing by one picket, Local l's
picketing continued with two pickets in the same manner
from September 24 on while Salisbury was at the Tenbrook
site until the injunction. While so engaged, except for suppli-
ers and possibly one or more other subs working on the
Tenbrook site on October 8 and 9 (picket Kroll's testimony),
there were no other subs neutral employees at the Tenbrook
site who would have gone on the premises. The only indica-
tion in this record as to why the employees of the other subs
were not present is a statement reportedly made by a sheet
metal steward to Thaller on September 21 that "We do not
cross picket lines on informational picket."
Since Salisbury took the "reserve gate" and "neutral gate"
signs to the unrelated construction site on Sterling Airport
Road, there were no such gates or signs present for the em-
ployees of the other subs to see or such gates to use when they
returned to the Tenbrook site on September 30. Further, since
Salisbury's Superintendent, Tosie, only observed the use of
the "gates" on September 28, there is no way of knowing
what entrances were used when the general and the other
subs were there on September 30 thru October 7 and after
October 22. From the testimony it would appear that the
"reserve gate" and "neutral gate" signs were visible (that is
on the premises) for the employees of the general and the
other subs after October 22 when Local 1 was not picketing
the site.
The pickets were instructed to patrol along the roadside
and not to cross the entranceways onto the property and in
fact not to come within 5 yards of the posted signs on the 2
by 4's marking the "gates." For the most part the pickets
followed such instructions but may on occasion have come
closer to or even into the entranceways. They were also in-
structed not to talk to anyone but to direct all inquiries to the
Union.
The area near the entrance on Highway 61-67 was the area
closest to the point at which Salisbury was working on the
building. There was also testimony that Salisbury employees
and others parked their cars in the area adjacent to the High-
way 61-67 entrance.
Local 1 believes that it had a right to make its disagreement
with Salisbury known not only to Salisbury employees but
also to the general public as general information. It felt that
Salisbury's location of the "reserve gate" on a less traveled
two-lane road, hidden by a tree and some bushes, was an
attempt to isolate its picket and render him visible only while
the gate was being used since this location was the farthest
from the site at which Salisbury's employees worked. Pickets
on Highway 61-67 were visible not only to the general public
but also to the Salisbury employees where they parked their
57
cars and probably could be observed from where the Salis-
bury employees worked.
In general the picketing conformed to the Moore Dry Dock
standards since the picketing was limited to times when Salis-
bury's employees were working at the construction site per-
forming their regular and normal functions of laying brick
and Salisbury's agents were there directing them. The signs
clearly disclosed that Local l's dispute was only with Salis-
bury and that it had no dispute with any other person or
company on the job. The picketing was conducted both close
to where Salisbury employees were working on the job and
at the "reserve gate" which they may have used. I find that
the picketing was in substantial compliance with the Moore
Dry Dock Standards.
Salisbury was apparently able to create and move entrances
when it pleased him to do so. Thus, we have the aspect of
entrances being closed, new ones created, and one of them
closed and a return (as the "neutral gate") to one entrance
from Highway 61-67. Concurrently, we have the signs put
up, taken down and moved to an unrelated construction site,
and put back up some 13 days after return to the Tenbrook
site. With Salisbury's ability to create new entrances, it could
and did manipulate the rules of the game, establishing new
rules to fit its ideas. I do not believe the "reserve" and "neu-
tral" gates were erected as a legitimate attempt to insulate
neutrals but rather as a measure to find some way to get rid
of Local l's picketing and prevent its viewing by the general
public. Taking all things together, including the lack of any
means to regulate the "gates," their mobility, and the elusive-
ness of any concrete evidence by the General Counsel, dic-
tates that no violation occurred.
The Board has passed on a number of cases where picket-
ing has been conducted in a similar manner, but in each case
where violations of the Act were found, the Board found that
appeals to employees or threats and appeals were made to
neutral employers. Where the picketing was proper and no
appeals made, no violations were found. See Local 134,
IBEW (Polly Electric Co.), 175 NLRB No. 88; Local 379,
Building Material & Excavators, IBT (Catalano Brothers),
175 NLRB No. 74; Drivers, Salesmen, Warehousemen, Local
695, IBT (Tony Pellitteri Trucking Service, Inc,), 174 No.
115; and Operating Engineers, Local 12 (Van Construction
Company), 176 NLRB No. 125.
The present case is more like IBEW, Local 640 (Timber
Buildings, Inc.), 176 NLRB No. 17, in which the general
contractor and the primary caused confusion as to when the
primary's employees were at the construction site and no
violation was found.
I conclude and find that the General Counsel has not
shown that the picketing of Local 1 was designed to and had
the purpose and effect of enmeshing neutrals and will there-
fore recommend that this complaint be dismissed in its en-
tirety.