Electrical Workers Local 98 (MCF Services)

National Labor Relations Board - Board Decisions

Jul 30, 2004

342 N.L.R.B. 740 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 74
740
International Brotherhood of Electrical Workers,
Local 98, AFL–CIO and MCF Services, Inc., t/a
State Electric; Wohlsen Construction Company;
United Parcel Service, Inc.

International Brotherhood of Electrical Workers,
Local 380, AFL–CIO and MCF Services, Inc.,
t/a State Electric. Cases 4–CC–2214, 4–CC–2244,
4–CB–8348, 4–CC–2240-2, 4–CB-8300–1, 4–CC–
2246, and 4–CC–2248
July 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 23, 2000, Administrative Law Judge George
Alemán issued the attached decision. The Respondents,
International Brotherhood of Electrical Workers Local
98, AFL-CIO, and International Brotherhood of Electri-
cal Workers Local 380, AFL–CIO, each filed exceptions
and a supporting brief. The General Counsel and the
Charging Parties each filed briefs in opposition to the
Respondents’ exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.2
I. INTRODUCTION
The judge found, among other things, that Local 98,
through its agent, organizer Timothy Browne, violated
Section 8(b)(4)(ii)(B) of the Act on June 8, 1999,3 by
threatening the Cheltenham School District (the District)
with picketing at its high school construction site if it
awarded a contract to State Electric (State), a nonunion
electrical contractor. The judge also found that Local 98,
again through Browne, violated Section 8(b)(1)(A) in
August 1999 by blocking State employee Vincent Ponti-
cello from performing his work at the District’s jobsite,
threatening Ponticello with physical harm, and coer-

1 The Respondents have 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.
2 We disavow any reliance on the judge’s comments in fn. 16 of his
recommended decision regarding possible 8(b)(7)(C) violations, which
have not been alleged in this proceeding.
3 All dates are in 1999, unless stated otherwise.
cively photographing him and other employees at the
site. We affirm these findings, as well as the judge’s
other findings concerning Local 98, involving similar
misconduct relating to other nonunion contractors, as
detailed in his decision.4
The judge further concluded that Local 380 was jointly
and severally liable for Local 98 Organizer Browne’s
unfair labor practices involving State, based on his find-
ing that Local 380 and Local 98 were engaged in a “joint
venture” for the purpose of organizing State’s employ-
ees. The judge relied on the Board’s decision in Sheet
Metal Workers Local 19 (Delcard Associates), 316
NLRB 426 (1995), enf. denied 154 F.3d 137 (3d Cir.
1998), which held that, in a joint venture among unions,
each union is liable for unfair labor practices committed
by the other unions in furtherance of their shared objec-
tive.5 As an alternative basis for finding Local 380 liable
for the violations, the judge found that Local 98 Organ-
izer Browne, himself, was Local 380’s agent at the times
in question.
Respondent Local 380 has excepted to the judge’s
finding that it is liable for Organizer Browne’s miscon-
duct, contesting both the judge’s reliance on the joint-
venture theory and his application of the Board’s agency
law principles. We find it unnecessary to pass on the
judge’s application of the joint-venture theory because
we agree with his alternative analysis that Local 98 rep-
resentative Browne was acting as Local 380’s agent
when he unlawfully threatened the District at its June 8
meeting and engaged in unlawful activity at the jobsite in
late August.
II. THE AGENCY FINDINGS
A. The Judge’s Factual Findings
Local 98 Organizer Browne began acting on behalf of
Respondent Local 380 as early as August 1998. It was

4 The judge’s finding that Browne unlawfully photographed State em-
ployees while contemporaneously issuing threats (i.e., telling State em-
ployee Vincent Ponticello “I know who you are, I know where you live.
We’re going to get you someday”), is consistent with Board law. See
Mike Jurosek & Son, 292 NLRB 1074 (1989) (union photographing of
employees objectionable in an election context where accompanied by the
threat, “We’ve got it on film; we know who you guys are . . . after the
Union wins the election some of you may not be here”); Auto Workers
Local 695 (T.B. Wood’s), 311 NLRB 1328, 1336 (1993) (videotaping
accompanied by threats and assaults violated Sec. 8(b)(1)(A)).
Contrary to Local 98’s contention, the fact that Ponticello did not
testify that he subjectively felt threatened by Browne’s statements is not
dispositive of the 8(b)(1)(A) allegation. The Board applies an objective
test. See Carpenters (Society Hill Towers Assn.), 335 NLRB 814, 814-
815 (2001).
5 The judge acknowledged the Third Circuit’s rejection of the
Board’s joint venture theory, but properly concluded that he was bound
to follow Board precedent. See Waco, Inc., 273 NLRB 746, 749 fn. 14
(1984).
ELECTRICAL WORKERS LOCAL 98 (MCF SERVICES) 741
then that Browne first contacted Local 380 Organizer
Kenneth MacDougall about organizing State’s employ-
ees. MacDougall agreed to take on the task of “head[ing]
up that campaign.” MacDougall and Browne then held
several conversations to discuss their strategy for orga-
nizing State’s employees.
On about August 13, 1998, Organizer Browne held a
meeting for State employees at Local 98’s office.
Browne distributed union authorization cards to the em-
ployees. Some of the cards designated Local 98 as the
bargaining representative while others identified Local
380 as the representative.
Approximately half of the cards signed at the meeting
were Local 380 cards. Browne accepted them all. Local
380 Organizer MacDougall did not attend the meeting,
but Browne later reported back to him what had tran-
spired at the meeting.
On September 25, Local 380 filed a petition with the
Board seeking certification as the bargaining representa-
tive of State’s employees. MacDougall alone signed the
petition on behalf of Local 380. Local 98 Organizer
Browne, however, continued to play an integral role in
the organizing campaign.
MacDougall and Browne’s organizing strategy in-
cluded a “salting” campaign against State and visits to
numerous jobsites to monitor State’s activities. Mac-
Dougall acknowledged that, in 1998 and 1999, he and
Browne visited employers who were doing business with
State, or were considering doing so, regarding the em-
ployers’ contracting for work with State. On one occa-
sion in about February 1999, MacDougall and Browne
actually picketed the Genuardi jobsite in East Norriton,
Pennsylvania, when State was on the job.
On other occasions, MacDougall and Browne engaged
in conversations with State employees about voting for
representation by Local 380. In one such instance,
MacDougall and Browne met with State employees, in-
cluding State Foreman Vincent Ponticello, at a residen-
tial construction site. They spoke with Ponticello and
another State employee about voting for the union and
what the union could do for them. MacDougall made
similar visits with other Local 98 representatives, but
most often accompanied by Local 98 Organizer Browne.
Browne also visited jobsites alone on some occasions.
Of particular significance to the issue of the agency re-
lationship were MacDougall and Browne’s activities
directed at the District. On about June 1, the District met
to award contracts for renovation work at Cheltenham
High School. Browne attended the meeting. The Dis-
trict awarded several contracts and proposed awarding
State the electrical work. Browne identified himself as a
representative of Local 98, objected to any award to
State, and alleged problems with State’s business prac-
tices, asserting, among other things, a lack of trained
electricians to perform the necessary work. Browne as-
serted that only a union contractor could do the electrical
work properly. The District postponed voting to investi-
gate Browne’s allegations.
Browne subsequently reported to MacDougall about
the District meeting. They discussed Browne’s allega-
tions against State as well as their shared belief that State
was violating prevailing wage laws. Browne indicated
that he would present these allegations to the District at
its next meeting. MacDougall agreed and planned to join
Browne at the meeting.
The next District meeting was held June 8. Browne,
District Director of Support Services Stephen Saile, and
the president of State, Sharon Ponticello, were present.
MacDougall also attended the meeting, although he ar-
rived late. According to Ponticello’s credited testimony,
Browne told the District that the union contractors on the
job would not work with State. He added that he “could
throw up [a] picket line in 30 days” and that “no one
would come in or out and this would cause a lot of de-
lays.” Browne warned that he had successfully caused
similar delays at a project run by another nonunion con-
tractor in the area. The District school board president
asked if there was any way to avoid picketing. Browne
responded, “Well, I don’t know. Some days I wake up
happy and some days I don’t wake up so happy.”
Neither Local 380 nor Local 98 ever picketed the high
school jobsite. Browne, however, visited the site several
times in late August 1999. Browne took pictures of em-
ployees entering and exiting the site, as well as pictures
of the license plates on their vehicles. On one such occa-
sion, Browne used his vehicle to block State Foreman
Ponticello from operating a forklift for about 1530 min-
utes.6 When Ponticello asked Browne to move his vehi-
cle, Browne responded, “I know who you are, I know
where you live. We’re going to get you some day.” On
another occasion, Browne, in his vehicle, followed Pon-
ticello, who was in his vehicle with a couple of cowork-
ers, into the jobsite parking lot, circled Ponticello’s vehi-
cle, and videotaped the occupants.
B. Analysis
The Board is guided by common law principles in de-
termining agency status. Under those principles, an
agent’s authority may be actual or apparent, and the prin-
cipal may create either type of authority expressly or by
implication. As the Board explained in Communications

6 There is no claim by the Respondent Unions that Foreman Ponti-
cello was not a statutory employee entitled to the protections of Sec.
8(b)(1)(A).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 742
Workers Local 9431 (Pacific Bell), 304 NLRB 446 fn. 4
(1991):

[A]ctual authority refers to the power of an agent to act
on his principal’s behalf when that power is created by
the principal’s manifestation to him. That manifesta-
tion may be either express or implied. Apparent au-
thority, on the other hand, results from a manifestation
by a principal to a third party that another is his agent.
Under this concept, an individual will be held responsi-
ble for actions of his agent when he knows or “should
know” that his conduct in relation to the agent is likely
to cause third parties to believe that the agent has au-
thority to act for him. (Citing Restatement 2d, Agency,
§ 27.)

Further, as described in Section 2(13) of the Act, a
principal is liable for his agent’s actions, even if the prin-
cipal did not authorize or ratify the particular acts. As
the Board explained in Bio-Medical of Puerto Rico, 269
NLRB 827, 828 (1984):

A principal is responsible for its agents’ conduct if such
action is done in furtherance of the principal’s interest
and is within the general scope of authority attributed to
the agent . . . it is enough if the principal empowered
the agent to represent the principal within the general
area in which the agent has acted.

Applying these principles, we affirm the judge’s find-
ing that Local 98 Organizer Browne was acting as Local
380’s agent when he unlawfully threatened the District at
the June 8 meeting and engaged in unlawful conduct at
the District jobsite in late August.7
1. Local 98 Organizer Browne’s threat to picket the
District’s jobsite
We affirm the judge’s finding that Local 380 was vi-
cariously liable for Browne’s June 8 threat to picket the
District’s jobsite, because the evidence in the record
demonstrates that Browne had actual authority to speak
for Local 380 at the June 8 District meeting. MacDou-
gall admitted that, although Browne had originally raised
the idea of the organizing campaign, MacDougall was
“head[ing] up” the campaign, and there is no argument

7 Contrary to our dissenting colleague, we believe that the context in
which Browne and MacDougall’s relationship arose supports our find-
ing that Local 380 had liability for Browne’s conduct. It is undisputed
that Browne and MacDougall were publicly engaged in a joint effort to
organize State’s employees for Local 380. As discussed above, Mac-
Dougall had entrusted Browne to collect authorization cards for Local
380 from State’s employees. That they had no contractual or formal
relationship is irrelevant. 19 Williston on Contracts Sec. 54:14 (4th ed.
1991) (“The creation of an agency relationship requires no special
formalities–the principal and agent need not enter into a formal contract
to create it, and the required consent need not be express.”).
that he lacked the authority to bind Local 380 to an
agency arrangement with Browne. Browne admitted that
he and MacDougall met twice and conferred several
times by telephone to plan the campaign to organize
State employees, and reported directly to MacDougall on
the results of the August 13 membership meeting with
State employees. MacDougall admitted that prior to the
District’s June 8 meeting, he and Browne discussed
State’s alleged noncompliance with applicable prevailing
wage laws and agreed that the District should be told
about these allegations, and they agreed that Browne
would raise them to the District, in an effort to create
difficulties for State and thus to weaken its resistance to
the Local 380 organizing campaign. These facts demon-
strate that MacDougall gave Browne implied, if not ex-
press, actual authority to speak on Local 380’s behalf and
to further its interests at the June 8 meeting. See Electri-
cal Workers Local 3 (Cablevision), 312 NLRB 487, 490–
491 (1993) (agency relationship found where union offi-
cer asked alleged agents to assist an organizing campaign
on the union’s behalf and know of their activities).
Our dissenting colleague says that MacDougall and
Browne never discussed action to be taken on June 8.
We disagree. It is clear that MacDougall was aware of
Browne’s presentation at the June 1 District meeting; that
MacDougall and Browne agreed that Browne would
raise their concerns about State to the District following
the June 1 meeting; that MacDougall would join Browne
at that meeting; and that the District made it publicly
known that it would take up the question of awarding
contracts to State at its June 8 meeting. Despite these
predicates, our dissenting colleague concludes that they
made no plan for further action. We agree with the judge
that these facts, coupled with MacDougall’s uncredited
explanation for his presence at the June 8 meeting, lead
to the logical conclusion that Browne had MacDougall’s
prior consent and approval to address their concerns
about State at the June 8 District meeting.
Local 380’s assertion that no Local 380 representative
was present when Browne issued his threats to the Dis-
trict on June 8 is not dispositive. The agency relation-
ship means that Browne was authorized to act on Local
380’s behalf, not simply in the presence of the principal.
See Service Employees Local 87 (West Bay Mainte-
nance), 291 NLRB 82 (1988) (no requirement that prin-
cipal be present for agent’s unlawful acts.) Local 380’s
further assertion that no Local 380 official endorsed or
ratified Browne’s picketing statement is also unavailing.
First, the Act itself dictates that Respondent Local 380’s
argument fails. As Section 2(13) provides, “in determin-
ing whether any person is acting as an ‘agent’ of another
person so as to make such other person responsible for
ELECTRICAL WORKERS LOCAL 98 (MCF SERVICES) 743
his acts, the question of whether the specific acts per-
formed were actually authorized or subsequently ratified
shall not be controlling.” Moreover, Local 380 does not
dispute that it never repudiated Browne’s threat.
As the Board explained in Bio-Medical of Puerto Rico,
supra, it is sufficient that MacDougall empowered
Browne to appear before the District in furtherance of
Local 380’s effort to become the bargaining representa-
tive of State’s employees. Further, any doubt that the
scope of Browne’s agency encompassed the picketing
statements is laid to rest by MacDougall’s agreement that
part of Local 380’s campaign strategy would be to cause
trouble for State. Thus, we affirm the judge’s finding
that Local 380 is liable for Browne’s threat to picket the
District’s jobsite in violation of Section 8(b)(4)(ii)(B) of
the Act.
Last, we disagree with our dissenting colleague’s con-
clusion that, “even assuming that MacDougall had au-
thorized Browne to bring up State’s wage policies with
the District . . .Browne stepped well beyond that author-
ity when he threatened to picket the District’s jobsite.”
Our colleague’s essential argument is that, even if
Browne were an agent of Local 380, the scope of the
agency only extended to lawful, not unlawful conduct.
Our colleague’s approach ignores the long-settled princi-
ple that a principal is held responsible for its agent’s
conduct within the general area within which the princi-
pal empowered the agent to act. See Bio-Medical of
Puerto Rico, supra; Longshoremen ILWU Local 6 (Sun-
set Line), 79 NLRB 1487, 11509 (1948).
We find that Browne’s presentation at the District
meeting, including his threat to picket, was within the
parameters of the conduct that MacDougall had empow-
ered Browne to undertake on behalf of Local 380. In-
deed, it was simply a continuation of Local 380’s orga-
nizing campaign. See Electrical Workers Local 3, 312
NLRB at 490-491 (1993) (finding union authorized its
agent’s unlawful conduct because it was a continuation
of the organizing campaign the agent had been author-
ized to pursue). As discussed above, MacDougall had
authorized Browne to speak at the District meeting in
order to advance the campaign against State. Browne’s
threat to picket was clearly designed to serve that end.
Moreover, the threat was in line with other conduct that
Browne had undertaken with MacDougall as part of the
campaign. Indeed, MacDougall, with Browne, had pick-
eted at the Genuardi’s jobsite prior to the District meet-
ing, contacted employers who were doing business with
State, and visited numerous jobsites where State was
employed. Accordingly, in these circumstances, we find
that Browne did not exceed the general scope of his au-
thority when he threatened to picket the District’s jobsite
to dissuade the District from awarding work to State.
2. Browne’s misconduct at the District’s jobsite
Similarly, we affirm the judge’s finding that Local 380
was liable for Local 98 Organizer Browne’s conduct at
the District’s jobsite in late August 1999. In this in-
stance, however, our finding is based on Browne’s ap-
parent authority to act for Local 380 in connection with
its campaign to organize State’s employees.
From the outset of the organizing campaign, Local 380
Organizer MacDougall presented Browne to third parties,
particularly State employees, in ways that reasonably
would lead them to conclude that Browne was an author-
ized representative of Local 380. At Browne’s initial
meeting with State employees, he solicited employees’
signatures on Local 380 authorization cards and accepted
the signed cards for Local 380. Then, after Local 380 filed
its representation petition, Browne accompanied MacDou-
gall to jobsites to speak to State employees about voting
for union representation. Indeed, Browne himself testified
that he and MacDougall “were always together.” The
record also shows that Browne communicated with State
on behalf of Local 380 regarding several unfair labor prac-
tice charges filed against State by Local 380. Among the
employees they visited was Vincent Ponticello, who later
became the object of Browne’s coercive conduct at the
District’s jobsite in August.
We find that, as far as State’s employees were con-
cerned Browne had apparent authority to act for Local
380. MacDougall knew, or reasonably should have
known, that, because Local 380 had allowed Browne to
solicit State employees to sign Local 380 authorization
cards, to speak with them about voting for Local 380,
and to picket at jobsites where State employees were at
work, the employees were likely to conclude that
Browne had authority to act for Local 380 in connection
with the organizing campaign. In disputing Browne’s
apparent authority to engage in the kind of coercive con-
duct he undertook at the Cheltenham jobsite, our dissent-
ing colleague again argues that Local 380 did not spe-
cifically authorize Browne to break the law on his behalf.
As discussed above, however, that is not the appropriate
inquiry. Instead, the question is whether Browne was
acting within the general area in which he had been em-
powered to act by Local 380. We find that Browne’s
conduct was within that general area. With MacDougall
at his side, he had visited State’s worksites and interacted
with State’s employees for the purpose of advancing Lo-
cal 380’s organizing campaign. MacDougall knowingly
place Browne in a position that would reasonably lead
employees to believe that Browne was soliciting on be-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 744
half of Local 380. Accordingly, when Browne engaged
in solicitation misconduct, Local 380 was responsible
therefor. We therefore affirm the judge’s finding that
Local 380 was liable for Browne’s unfair labor practices
at the District’s school construction site in late August.
III. CONCLUSION
For these reasons, we affirm the judge’s finding that
Local 380 was liable for Local 98 Organizer Browne’s
unlawful threat to the District at its June 8 meeting and
for his unlawful conduct at the District’s jobsite in Au-
gust.
ORDER
The National Labor Relations Board orders that the
Respondents, International Brotherhood of Electrical
Workers Local 98, AFL–CIO, and International Brother-
hood of Electrical Workers Local 380, AFL–CIO, their
officers, agents, successors, and assigns, and/or represen-
tatives, shall take the action set forth in the recommended
Order of the administrative law judge, amended as fol-
lows:
1. Substitute the attached notices for those of the ad-
ministrative law judge.8

MEMBER LIEBMAN, dissenting in part.
It is clear that Local 98, through its organizer Timothy
Browne, committed unfair labor practices, and the Order
we issue today appropriately requires Local 98 to fully
remedy these violations. No direct conduct by Local 380
is alleged to be unlawful. Only by stretching common
law agency principles too far (as my colleagues do), or
by basing liability on a joint-venture theory that is not
permitted by the Act (as the judge did), can Local 380
too be held liable for Browne’s actions.
I. THE AGENCY STATUS OF TIMOTHY BROWNE
The majority opinion accurately sets out the applicable
legal principles: the party asserting an agency relation-
ship must establish its existence under common law
agency principles. See Corner Furniture Discount Cen-
ter, Inc., 339 NLRB 1122 (2003); Pan-Olston Co., 336
NLRB 305 (2001); Shen Automotive Dealership Group,
321 NLRB 586, 593 (1996). An agent’s authority may
be actual or apparent, and the principal may create either
type of authority expressly or by implication. See gener-
ally Communications Workers Local 9431 (Pacific Bell),
304 NLRB 446 fn. 4 (1991) (citing Restatement 2d,
Agency, § 27).

8 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.”
While actual authorization or notification of conduct is
not necessary to prove an agency relationship, the Board
has recognized that a principal is not necessarily respon-
sible for an agent’s conduct outside the scope of his au-
thority. Pan-Olston, supra, 336 NLRB at 306.1 The bur-
den is on the party asserting the agency relationship to
establish the relationship “with regard to the specific
conduct alleged to be unlawful.” Id.
Applying these principles, I would find that the Gen-
eral Counsel failed to establish that Local 98 Organizer
Browne was acting as an agent of Local 380 when he (1)
threatened the District on June 8 with picketing at its
construction site or (2) engaged in coercive conduct at
the District’s jobsite in late August 1999.
Initially, it is important to put Local 380’s alleged li-
ability for Local 98 Organizer Browne’s misconduct in
the proper context. Local 380 had no formal relationship
with Browne. Browne was not an officer, manager, or an
employee of Local 380. They had no contractual rela-
tionship. Nor was Browne a member of Local 380. As a
result, Browne was not formally under Local 380’s con-
trol. The question therefore is whether the General
Counsel established that Local 380 nonetheless should be
held responsible for Browne’s informal, voluntary assis-
tance. I do not think the General Counsel carried this
burden.
First, as my colleagues recognize, Local 380’s liability
for Browne’s threat at the June 8 meeting must turn on
his actual authority because there is no evidence of ap-
parent authority.2 The General Counsel’s evidence of
actual authority is lacking as well.
The credited evidence establishes that Local 380 Or-
ganizer MacDougall talked with Browne about attending
the June 8 meeting, but there is no evidence that Mac-
Dougall directed Browne to attend the meeting on behalf
of Local 380. Indeed, Browne, who had attended the
District’s earlier June meeting by himself, where he iden-
tified himself solely as a representative of Local 98, was
merely informing MacDougall that he intended to follow
up with the District about State’s wage policies. Mac-
Dougall agreed that the District should be informed of

1 Sec. 2(13) provides that: “In determining whether any person is act-
ing as an agent of another person so as to make such other person re-
sponsible for his acts, the question of whether the specific acts per-
formed were actually authorized or subsequently ratified shall not be
controlling.”
2 Local 380 Organizer MacDougall did not make any statements or
engage in any conduct during the June 8 meeting that reasonably would
have led the District to believe that Browne was Local 380’s agent.
Indeed, MacDougall, who arrived late and sat in the back of the room,
did not say anything at all, or even identify himself to the District. As a
result, an essential element of apparent authority—some manifestation
by the principal that would likely to cause third parties to believe that
the agent has authority to act for him—is missing.
ELECTRICAL WORKERS LOCAL 98 (MCF SERVICES) 745
State’s wage policies, but there is no evidence that Mac-
Dougall and Browne discussed any further position or
action that would be taken by either union. In short,
there is no indication that Local 98 authorized Browne to
threaten, or even discuss, picketing. In my view, then,
the evidence fails to establish that MacDougall author-
ized “the specific conduct alleged to be unlawful.” Pan-
Olston Co., supra, 336 NLRB at 306.
In finding that Browne did not exceed the scope of his
authority in threatening to picket the District, my col-
leagues assert that Browne’s threat was designed to serve
Local 380’s organizing campaign and was in line with
other conduct that Browne had undertaken with Mac-
Dougall as part of the campaign. Browne’s intent is be-
side the point. What matters is that MacDougall had
only discussed with Browne State’s wage policies.
There is no evidence that MacDougall knew, or could
have known, that Browne would freelance on the unre-
lated subject of picketing. Browne’s threat, moreover,
was not in line with Browne’s prior conduct with Mac-
Dougall. My colleagues point to the fact that MacDou-
gall and Browne had picketed at the Genuardi’s jobsite
prior to the District meeting, contacted employers who
were doing business with State, and visited numerous
jobsites where State was employed. These activities tend
to confirm that MacDougall held the authority to commit
Local 380 to picketing and related conduct. But they do
not show that MacDougall ever authorized Browne to
independently engage in, or threaten, such conduct.
Second, there is no actual agency authority in connec-
tion with Browne’s conduct at the District’s jobsite.
There is no evidence that MacDougall, or any other Lo-
cal 380 representative, discussed with Browne his visit-
ing the District’s jobsite, knew that Browne intended to
visit the site, or later learned or approved of any of
Browne’s coercive conduct at the site. Nor is there evi-
dence of any apparent authority: Local 380 did nothing
that would lead State employees to reasonably believe
that Local 380 had authorized Browne to engage in the
conduct.
The facts are that Local 380 authorized Browne to so-
licit authorization cards, and Browne visited some of
State’s jobsites in late 1998 and 1999 to encourage sup-
port for the campaign. But, Browne’s misconduct did
not occur in these meetings.
And, as stated, there is no evidence that any Local 380
representative discussed with Brown his activities at the
District’s jobsite, knew that Browne intended to engage
in such activities, or later approved of the activities.
Further, MacDougall, Local 380’s own representative,
was “heading up” the campaign, and regularly meeting
with employees. In fact, MacDougall was with Browne
on the day Ponticello recalled meeting Browne. Accord-
ing to Ponticello’s testimony, they talked to him only
about why he should vote for the union. There is no evi-
dence that MacDougall said or did anything that would
lead Ponticello, or other State employees, to reasonably
believe that Browne was authorized months later to
threaten State employees, block State employees from
doing their work, or to engage in any other coercive con-
duct. For these reasons, I would find that the General
Counsel failed to establish that Local 98 Organizer
Browne had apparent authority to engage in the particu-
lar conduct on behalf of Local 380.
II. THE JOINT-VENTURE THEORY
Local 380 itself committed no unfair labor practices.
The judge, however, found that Local 380 was vicari-
ously liable for Local 98’s violations because the unions
were participants in a joint venture to organize State’s
employees. In NLRB v. Sheet Metal Workers Local 19,
154 F.3d 137 (3d Cir. 1998), denying enforcement to 316
NLRB 426 (1995), the United States Court of Appeals
for the Third Circuit rejected the joint-venture theory
now advanced by the General Counsel in this case and
sustained by the judge. According to the court, the Act
does not permit this theory. The court’s reasoning is
persuasive, and I would accordingly reject that theory of
Local 380’s vicarious liability.
Section 8(b) makes it an unfair labor practice for “a la-
bor organization or its agents” to engage in certain types
of conduct. 29 U.S.C. § 158(b) (emphasis added). By
the terms of the statute, then, a labor organization may be
held liable only for its own unfair labor practices or those
of its officers, employees, or other agents. As discussed,
the Board looks to common law agency principles to
decide agency issues.
The Board’s joint-venture theory, however, is not an-
chored in common law agency principles. In Seattle Dis-
trict Council of Carpenters (Cisco Construction), 114
NLRB 27, 30 (1950), the Board, referring to “well-
established principles,” but no specific authority, con-
cluded that where two or more unions engage “in a joint
course of action to accomplish their common purpose”
there is a “joint venture,” carrying joint and several li-
ability by each union for the acts of the other unions.
Ibid. The Board subsequently articulated the “well-
established principles” mentioned in Cisco. In Great
Lakes Dredge Company, the Board said that joint adven-
turers, “‘being governed by the law of partnership, are
each the agent, and by the same token, the principal of
each other.’” (quoting Poutre v. Saunders, 143 P.2d 554,
556 (Wash. 1943)) (emphasis added). The joint-venture
theory is therefore premised on partnership law, and not
common law agency principles. See Sheet Metal Work-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 746
ers Local 19, supra, 154 F.3d at 143 fn. 9. Accord:
Longshoremen (Canaveral Port Authority), 323 NLRB
1029, 1030 (1997) (expressing view that the joint-
venture theory is not a theory of common law agency),
on remand from 56 F.3d 205 (D.C. Cir. 1995).
The Third Circuit decided that the Board runs afoul of
the statutory limitation on Section 8(b) when it bases
vicarious liability on anything other than common law
agency principles. In Sheet Metal Workers Local 19,
supra, as here, several local unions joined to organize a
contractor working at a common jobsite. The Board
found that Local 19 was liable for the other locals’
unlawful picketing because the locals were acting “pur-
suant to a common plan and as a joint venture.” 316
NLRB at 434–435. The Board, however, did not find
that any of the other unions was acting as Local 19’s
agent.
In denying enforcement of the Board’s decision, the
Third Circuit emphasized that Section 8(b) applies only
to the unfair labor practices of “a labor organization or its
agents,” as determined by the “ordinary common law
rules of agency.” 154 F.3d at 142. The court observed:

Members of [a] joint venture, however, are not consid-
ered agents of the other co-venturers pursuant to com-
mon law principles of agency, but pursuant to partner-
ship law . . . . Therefore, even if the other unions were
agents of Local No. 19 under joint venture and partner-
ship jurisprudence, they were not agents pursuant to
common law principles of agency law and thus were
not agents pursuant to § 8 of the Act.

154 F.3d at 143 fn. 9 (citations omitted). For these rea-
sons, the court held that the joint-venture theory was in-
consistent with Section 8(b) and could not be relied on
by the Board as a basis for holding Local 19 liable for the
other unions’ unlawful acts. Id. at 143.
The Third Circuit’s reasoning is persuasive. I would
overrule those Board decisions applying a joint venture
theory of liability under the Act, and I would reverse the
judge’s finding here that Local 380 was vicariously liable
as a joint-venturer for Local 98’s unfair labor practices
involving State.
For all of the foregoing reasons, I would dismiss the
complaint with respect to Local 380.

APPENDIX A

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 your employer
on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties

WE WILL NOT interfere with, restrain, or coerce em-
ployees of employers performing work at the Chelten-
ham, PPH, and UPS jobsites, or of any other employer,
by threatening them with physical harm, preventing them
from performing their work duties, coercively photo-
graphing them as they enter and leave the jobsite, and
blocking them from entering or leaving their jobsites, or
in any other manner interfere with the rights guaranteed
employees by Section 7 of the Act.
WE WILL NOT picket, threaten to picket, or in any other
manner seek to restrain or coerce general contractor Ad-
ams-Bickel, the Cheltenham School District, PPH and/or
Wohlson Construction, UPS, or any other employer or
person engaged commerce or in any industry affecting
commerce, where the object of such activity is to force or
require said employers or persons to cease doing busi-
ness with State Electric, Dayspring Electric, NDC, or any
other employer with whom we may have a dispute.

INTERNATIONAL BROTHERHOOD OF ELECTRI-
CAL WORKERS, LOCAL 98, AFL–CIO

APPENDIX B

NOTICE TO MEMBERS
POSTED BY ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated 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 on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties

ELECTRICAL WORKERS LOCAL 98 (MCF SERVICES) 747
WE WILL NOT threaten the Cheltenham School Board
with picketing at its high school construction jobsite so
as to force it to cease doing business with MCF Services,
Inc., T/A State Electric, with whom we have a dispute.
WE WILL NOT interfere with, restrain, or coerce em-
ployees employed at the Cheltenham jobsite in the exer-
cise of the rights guaranteed them by Section 7 of the Act
by threatening them with physical harm, preventing them
from performing their work duties, coercively photo-
graphing them as they enter and leave the jobsite, and
blocking the ingress and egress of employees from the
Cheltenham jobsite.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 380, AFL–CIO

Donna D. Brown, Esq., for the General Counsel.
Richard B. Sigmond & Stephen J. Holroyd, Esqs., for the Re-
spondents.
Stephen J. Sundheim, Esq., for Wohlson Construction Co.
Arlene J. Angelo, Esq., for MCS Services Inc. t/a State Electric.
Gary M. Tocci, Esq., for United Parcel Service.
DECISION
GEORGE ALEMÁN, Administrative Law Judge. Pursuant to
unfair labor practice charges filed by MCF Services, Inc., t/a
State Electric (State Electric), Wohlson Construction Company
(Wohlson), and United Parcel Service, Inc. (UPS),1 the Re-
gional Director for Region 4 of the National Labor Relations
Board (the Board) issued a consolidated complaint on October
4, 1999,2 alleging that the Respondents, Local 98 and Local 380
of the International Brotherhood of Electrical Workers, AFL–
CIO, had violated Section 8(b)(1)(A), (4)(i) and (ii)(B) of the
National Labor Relations Act. 3

1 The charges in Cases 4–CC–2214, 4–CC–2244, 4–CC–2248, and
4–CB–8348 were filed by State Electric; the charges in 4–CC–2240–2
and 4–CB–8300–1 were filed by Wohlson, and the charge in 4–CC–
2246 was filed by UPS.
2 All dates are in 1999, unless otherwise indicated.
3 Sec. 8(b)(1)(A) makes it unlawful for a labor organization or its
agents to restrain or coerce employees in the exercise of the rights
guaranteed in Sec.7 of the Act.
Sec. 8(b)(4)(i)(B) prohibits a labor organization or its agents from
engaging, inducing or encouraging any individual employed by any
person engaged in commerce or in an industry affecting commerce to
engage in, a strike or a refusal in the course of his employment to use,
manufacture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities or to perform any services;
or, under Subsec. (ii), to threaten, coerce, or restrain any person en-
gaged in commerce or in an industry affecting commerce where, in
either case, an object thereof is to force or require any person to cease
using, selling, handling, transporting, or otherwise dealing in the prod-
ucts of any other producer, processor, or manufacturer, or to cease
doing business with any other person, or forcing or requiring any other
employer to recognize or bargain with a labor organization as the repre-
More specifically, as to the charges filed by State Electric,
the complaint alleges that Local 98 violated Section
8(b)(4)(ii)(B) by threatening to picket Adams-Bickel Associ-
ates, a general contractor retained to do construction work at St.
Bellamine Catholic Church who subcontracted the electrical
work at the project to State Electric, in order to force it to cease
doing business with State Electric. The complaint further al-
leges that Local 98 and Local 380, as joint venturers, violated
Section 8(b)(4)(ii)(B) by threatening the Cheltenham School
District of Pennsylvania with picketing at a high school con-
struction site in order to force the school District to cease doing
business with State Electric, which had been awarded the elec-
trical subcontracting work, and violated Section 8(b)(1)(A) by
implicitly threatening State Electric employees with physical
harm, photographing them and their vehicles, and blocking
employees from returning to work.
Regarding the Wohlson charges, the complaint alleges that
Local 98 violated Section 8(b)(4)(ii)(B) by picketing the Phila-
delphia Protestant Home (PPH) in Philadelphia, PA, where
Wohlson was a general contractor engaged in certain renova-
tion work for PPH (the Webb Pavilion project), and threatening
employees of contractors working on the project, in order to
force PPH to cease doing business with Wohlson and other
nonunion contractors. As to the UPS charges, the complaint
alleges that Local 98 further violated Section 8(b)(4)(i) and
(ii)(B) by threatening to picket, and thereafter picketing, UPS in
order to force it to stop doing business with Network Dynamic
Cabling (NDC), a UPS contractor.
The Respondents, in separate answers, deny having engaged
in any unfair labor practices. A hearing in the matter was held
before me in Philadelphia, Pennsylvania, from November 1 to
3, during which all parties were afforded a full opportunity to
present oral and written evidence, to examine and cross-
examine witnesses, to argue orally on the record, and to file
briefs setting forth their respective positions. On the basis of the
entire record before me, including my observation of the de-
meanor of the witnesses, and after considering briefs filed by
the General Counsel, the Respondents, and Charging Parties
State Electric, Wohlson, UPS, I make the following4
FINDINGS OF FACT
I. JURISDICTION
State Electric, a Pennsylvania corporation with an office and
principal place of business in Norristown, Pennsylvania, is
engaged as an electrical contractor in the construction industry.
During the year preceding issuance of the complaint, State

sentative of his employees, unless such labor organization has been
certified as the representative of such employees under the provisions
of Sec. 9; provided that nothing contained in this clause shall be con-
strued to make unlawful, where not otherwise unlawful, any primary
strike or primary picketing.
4 State Electric has moved, without objection, to correct certain typo-
graphical and spelling errors contained in the transcript of the proceed-
ings. Having reviewed the proposed corrections, I agree with State Elec-
tric that the changes are warranted. Accordingly, and in the absence of
objection from any of the parties herein, I grant the motion to correct and
shall make it part of the record as CP Exh. 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 748
Electric has performed services valued in excess of $50,000
outside the Commonwealth of Pennsylvania.
UPS, an Ohio corporation, with terminals located throughout
the United States, including one at 15 Oregon Avenue, Phila-
delphia, Pennsylvania (the Oregon facility), is engaged in the
interstate transportation and distribution of parcel packages.
During the year preceding issuance of the complaint, UPS de-
rived gross revenues in excess of $500,000, and, during the
same period, purchased and received goods valued in excess of
$50,000 directly from points located outside the State of Ohio
and the Commonwealth of Pennsylvania.
Wohlson, a Pennsylvania corporation, with headquarters in
Lancaster, Pennsylvania, is engaged as a general contractor in
the construction industry. During the year preceding issuance of
the complaint, Wohlson, in the conduct of its business, pur-
chased and received goods valued in excess of $50,000 directly
from points located outside the Commonwealth of Pennsyl-
vania.
The complaint alleges, the Respondents admit, and I find that
State Electric, UPS, and Wohlson are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. I further find that the Respondents are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The State Electric Cases (Cases 4–CC–2214; 4–CC–2244;
4–CC–2248; and 4–CB-8348)
1. The joint venture
The Respondents, Local 98 and Local 380, as noted, are sis-
ter locals affiliated with the International Brotherhood of Elec-
trical Workers. In August 1998, the Respondents began a joint
effort to organize employees of State Electric (Tr. 356, 387).
Local 98 organizer Timothy Browne and Local 380 organizer
Kenneth MacDougall, both admitted agents of their respective
Locals, were the individuals primarily involved in that en-
deavor, and were assisted in this effort by Local 98 agent, Ray
Della Vella, and Local 380 agent, Mike Hnatkowsky. MacDou-
gall testified that Browne contacted him sometime in the fall of
1998 and asked him to head up the organizing drive because,
according to MacDougall, State Electric fell within Local 380’s
jurisdictional bounds. MacDougall agreed to do so. According
to Browne, he and MacDougall met twice, and had several
phone conversations, to discuss how to go about organizing
State Electric’s employees. (Tr. 357, 359.) The record reflects
that on or about August 13, 1998, a meeting was held among
State Electric employees at Local 98’s office during which
authorization cards were signed. Half of the cards signed that
day by State Electric employees designated Local 98 as bar-
gaining representative, and the other half Local 380. While
MacDougall did not attend the meeting, he was nevertheless
kept abreast by Browne of what had transpired (Tr. 378). On
September 25, 1998, Local 380 filed a petition with the Board
seeking to represent State Electric’s employees (GC Exh. 37).5

5 Processing of Local 308’s representation petition was blocked by
the charges filed against the Respondents herein.
In furtherance of the organizing drive, Browne and Mac-
Dougall also began a “salting” campaign by having union
members apply for work at State Electric in the hopes of orga-
nizing the latter from within, and visited various employer job-
sites, including the Adams-Bickel and Cheltenham High School
jobsites, to ascertain if State Electric was on the job (Tr. 386–
387).6 Both MacDougall readily concedes that he and Local 98
representatives, including Browne, contacted various employers
who were doing business, or attempting to do business, with
State Electric. At one such jobsite, a Genuardi’s supermarket
construction site, Browne and MacDougall actually picketed
the site and engaged in discussions with employees. MacDou-
gall’s testimony regarding his activities with Browne, and
Browne’s own testimony that he and MacDougall “were always
together,” bespeaks of a high level of cooperation between
Browne and MacDougall, and implicitly Local 98 and Local
380, in their joint effort to organize State Electric. Hnatkowsky
and Della Vella also took part in similar activities. According to
MacDougall, the teams visiting the various jobsites communi-
cated with each other regarding their visits to the various em-
ployers.
The complaint, as noted, alleges that the Respondents’ com-
bined effort to organize State Electric’s employees amounted to
a joint venture. To show that a joint venture has been created
among unions, the party asserting the existence of such a rela-
tionship, here the General Counsel (joined by State Electric)7
must establish that the unions participated in a planned course
of action that was jointly conceived, coordinated, and adopted
so as to attain a mutually agreed-upon object. Sheet Metal
Workers Local 19 (Delcard Associates), 316 NLRB 426, 434
(1995).8 The evidence here, more particularly Browne’s and
MacDougall’s own testimony, fully supports a finding of a joint
venture. Thus, it is undisputed that in August 1998, Local 380
and Local 98, on Browne’s advice and recommendation, agreed
to and in fact embarked upon a planned course of action to
organize State Electric’s employees under Local 380’s auspices
and under MacDougall’s direction. The activities of the joint

6 MacDougall initially testified that he and Browne only contacted
governmental agencies (townships) in Pennsylvania. However, on
further questioning by the General Counsel, MacDougall admitted that
he and Browne also contacted private companies to determine if State
Electric was performing work for them. Among the other employers
visited or contacted by the Respondents’ agents were the World Bank
in King of Prussia, Pennsylvania, various Pennsylvania township of-
fices (e.g., Chalfont, Lower Merion), and the East Norriton, Pennsyl-
vania Fire Department. Among the private employers contacted by the
Respondents were Gallagher Fluid Seal, IMC Construction, E. Allen
Reeves, Cedarsville Church in Pottstown, Pennsylvania, and Genu-
ardi’s Supermarkets.
7 The burden of establishing the existence of a joint venture is on the
party asserting that the relationship exists. See generally 46 Am.Jur.
Joint Ventures. The burden of establishing the existence of a joint ven-
ture is on the party asserting that the relationship exists. See generally,
46 Am.Jur. Joint Ventures Sec. 69 (1969); 48 C.JS. Joint Adventures
Sec. 12(h) (1947).
8 A Third Circuit U.S. court of appeals in Sheet Metal Workers Local
19 v. NLRB, 154 F.3d 137 (1998), denied enforcement of the Board’s
holding in Delcard that a joint venturer union was liable for the unfair
labor practices committed by a coventurer.
ELECTRICAL WORKERS LOCAL 98 (MCF SERVICES) 749
venture were jointly coordinated by MacDougall and Browne,
with assistance from Hnatkowsky and Della Vella. Their activi-
ties in this regard, as noted, included coordinating a card sign-
ing meeting with State Electric employees, joint visits to differ-
ent employer jobsites to determine if State Electric was per-
forming subcontracting work, and engaging in joint picketing
and discussions with employees at one such jobsite. The above
evidence convinces me, and I so find, that the Respondents in
August 1998 did, in fact, create a joint venture for the purpose
of organizing State Electric’s employees.
2. The Adams-Bickel jobsite
In early July 1998, Adams-Bickel began work as a general
contractor on a project known as the Robert Bellamine Catholic
Church jobsite. Pursuant to a bidding process, State Electric
was retained by Adams-Bickel to perform the electrical work at
the project. The record is silent on whether other contractors
were retained by Adams-Bickel to work at the jobsite. Adams-
Bickel’s vice president, Gustavo Perea, testified, without con-
tradiction, that on or around July 29, 1998, Browne called his
office and left a message asking why no union contractors had
been asked to bid on the project, stating that he intended to
picket the jobsite, and asking Perea to call him back.9 Perea
returned Browne’s call the next day and had a 15-minute con-
versation with Brown during which the latter reiterated his
belief that no union electrical contractors had been asked to bid
on the project. Perea, however, disagreed with Browne’s asser-
tion. Browne again insisted that no union contractors had been
allowed to submit bids and stated he could not allow the project
to go forward without an electrical union contractor on the job
and that he intended to picket the site and engage in “mass
demonstrations” if that was the case. Perea again denied that
“affiliation with any organization” played a role in the bidding
process and agreed to furnish Browne with the list of contrac-
tors who submitted bids in response to Adams-Bickel requests
for such bids. The conversation ended with the parties agreeing
to discuss the matter further in the near future. (Tr. 405.)
Browne again called Perea on or about August 31, 1998 to
“resolve the issues” at the St. Bellamine project. Browne, ac-
cording to Perea, knew before this conversation that State Elec-
tric had been retained by Adams-Bickel as the electrical sub-
contractor on the job. Browne told Perea that he could not “al-
low the project to go forward without a union contractor doing
the work.” Perea replied that he was already under contract
with State Electric and that unless the latter did something
wrong or breached its contract, he, Perea, was under no obliga-
tion to throw State Electric off the job. Browne replied, “If
that’s the way it’s going to be, then the line has been drawn; let
the games begin.” (Tr. 407.) He went on to tell Perea that if
State Electric remained on the job, he, Browne, would create “a
media event” by picketing and passing out leaflets at the
Church “so that the Church and the members . . . would know

9 A message slip showing a call placed to Perea from Browne on
July 29, and reflecting Browne’s intent to picket the jobsite, was re-
ceived into evidence as GC Exh. 39, and corroborates Perea’s testi-
mony. Despite being present at the hearing and testifying as to other
matters, Browne was not asked about, and consequently did not refute,
any of the testimony provided by Perea regarding their conversations.
that we were using an inferior contractor, or a contractor that
did not pay their people well, or treat their people well.”
Browne, however, did assure Perea that he would give the latter
prior notice any action he intended to take. (Tr. 407–408.)
a. Discussion
The General Counsel and State Electric contend, and Local
98 denies, that Browne’s August 31, remarks to Perea
amounted to threats of the type proscribed by Section
8(b)(4)(ii)(B) of the Act. I find merit in the General Counsel’s
and State Electric’s contention.
Initially, I credit Perea’s unrefuted version of his August 31,
conversation with Browne and find that Browne did threaten to
picket and to otherwise create a “media event” if Adams-Bickel
allowed State Electric to remain on the job. Browne’s com-
ments make clear, and Local 98 does not contend otherwise,
that the latter’s dispute was with State Electric, the primary
employer, and not with Adams-Bickel, a neutral employer. The
Board has held that “where a union makes an unqualified threat
to a neutral general contractor to picket a jobsite where an of-
fending primary employer would be working, and has reason to
believe that persons other then the primary would be at work on
the site, it has an affirmative obligation to qualify its threat by
clearly indicating that the picketing would conform to Moore
Dry Dock standards,10 or otherwise be in uniformity with Board
law.” (Footnote added.) Teamsters Local 456 (Peckham Mate-
rials), 307 NLRB 612, 619 (1992); Meat & Allied Food Work-
ers Local 248, (Milwaukee Independent Meat Packers), 230
NLRB 189 (1977), enfd. 571 F.2d 587 (7th Cir. 1978).
Nothing in Perea’s description of Browne’s remarks sug-
gests that Browne gave Perea assurance that the picketing
would comply with the Moore Dry Dock requirements and be
restricted to, and directed only at, the primary, State Electric. In
fact, Browne’s threat to create a media event at the jobsite and
to picket and leaflet the Church and its members makes clear
that Local 98 had no intentions of restricting any such picketing
to State Electric, but intended instead to picket neutral parties
having no involvement in its dispute with State Electric, pre-

10 In Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950), the
Board established four criteria by which to measure the presumptive
lawfulness of picketing in common situs situations. Such picketing is
deemed to be presumptively lawful if: (a) the picketing is strictly lim-
ited to times when the situs of the dispute is located on the secondary
employer’s premises; (b) at the time of the picketing the primary em-
ployer 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 primary em-
ployer.
In addition to the Moore Dry Dock standards adopted to minimize
the potential for unnecessarily involving neutrals in a primary dispute,
the Board and courts have recognized the right of employers to desig-
nate at a common site a gate specially reserved for the exclusive use of
the primary employer, his employees, suppliers, and materialmen for
entry and departure and to establish other gates for use by neutral em-
ployers, employees and others having business relationships with the
neutral employers. Where separate gates are thus designated and le-
gitimately maintained, the union must confine its picketing activities to
the primary gate and avoid implicating neutrals by picketing the gates
set aside for the neutrals’ sole use, or else risk violating Sec. 8(b)(4)(B)
of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750
sumably in the hope that said pressure on neutrals would in turn
force Adams-Bickel to cease doing business with State Electric.
Accordingly, I find that by threatening to enmesh neutrals in its
dispute with State Electric, Local 98, through Browne, violated
Section 8(b)(4)(ii)(B) of the Act, as alleged.
3. The Cheltenham jobsite
The record reflects that in furtherance of some renovation
work to be done at the District’s high school facility, the Chel-
tenham. school board convened on June 1, 1999 and awarded
the electrical work at that project to State Electric. The minutes
of that meeting, received into evidence as General Counsel
Exhibit 40, reflect that the renovation work would require other
contractors to be on the jobsite along with State Electric. Chel-
tenham school district director of support services, Stephen
Saile, recalls Browne being present at that meeting. Saile testi-
fied, without contradiction, that during the meeting, Browne
expressed opposition to State Electric being awarded the work
on grounds that the latter was not properly staffed, had several
liens against it, and utilized improper hiring practices, and
claiming that only a union contractor (which State Electric was
not) could do the job properly. In light of Browne’s allegations,
and to insure that the general contractor’s paperwork was in
order, the school board voted to postpone granting the award.
Shortly after the June 1 meeting, Browne visited Saile at his
office and dropped off a report which Browne claims supported
his assertion that State Electric was not qualified to do the elec-
trical work at the high school and thus should not be awarded
the contract.11 Browne contacted Saile several days later and
asked his opinion about the report Browne had given him. Saile
replied that he had reviewed the report but had found nothing
therein that would cause him to change his recommendation
that the school board award the contract to State Electric.
Browne, according to Saile, expressed disbelief that Saile in-
tended to adhere to his recommendation notwithstanding the
report, and then made reference to the fact that he was having
similar problems with nonunion contractors at another con-
struction site (Circuit City) and that the Cheltenham school
board could expect the same “kind of performance” at its job-
site as was occurring at the Circuit City site. Saile did not ask
Browne to explain what he meant, but assumed that Browne
was referring to having a union presence at the high school
jobsite.
On June 8, The Cheltenham school board held a public
meeting to discuss the award. In attendance were Saile,
Browne, MacDougall (who arrived late), and State Electric
president, Sharon Ponticello. Ponticello and Saile both testified
as to comments made by Browne at the meeting. Ponticello
testified that prior to the start of the school board meeting,
Browne looked over at her and commented that things didn’t
have to be like this, that eventually she would be union, and
that she was only making it harder on herself. Ponticello claims
she simply turned away at that point. She further recalls that
when the subject of the electrical contracting work was dis-
cussed by the school board, Browne addressed the board and
stated that the board would have problems on the project be-

11 The report was received into evidence as GC Exh. 33.
cause while the general and plumbing contractors were union,
two other subcontractors were not, and that the two groups
would not be able to work together. Browne, according to Pon-
ticello, also mentioned that he could throw up a picket line in
30 days and that no one would be allowed to come in or out of
the jobsite, resulting in delays for the Cheltenham project.
Browne went on to describe to the School Board how he’d been
successful in causing similar delays at another project run by
another general contractor, R. M. Schumacher, adding that if
the union contractors were forced to cross the picket line, “he
would exercise his rights and sue.” Asked by the school board
president if there was any way to prevent the establishment of a
picket line, Browne purportedly replied, “Well, I don’t know.
Some days I wake up happy and some days I don’t wake up so
happy.” When again asked what it would take to avoid a picket
line, Browne offered no response.
Saile likewise recalls Browne addressing the school board
and expressing opposition to State Electric being awarded the
electrical contracting work and citing, in support thereof, in-
formation contained in General Councel’s Exhibit 33. Saile,
like Ponticello, also recalls Browne telling the school board that
he could legally set up a picket line for 30 days and that union
contractors on the site would not cross it. The school board
voted to award the contract to State Electric over Browne’s
objections. In response to Browne’s picketing pronouncement
at the meeting, and on advice of legal counsel, a two-gate sys-
tem was set up at the jobsite so that the union and nonunion
contractors at the site could enter and leave through their re-
spective gates without problems. There is no evidence to sug-
gest, or claim being made, that Local 98 in fact engaged in
picketing at the Cheltenham jobsite. Nor is there any indication
that the threat to picket made by Browne at the June 8, meeting
was ever retracted by Browne or Local 98.
The record reflects that in late August, after State Electric
had received the contract, Browne visited the Cheltenham job-
site on several occasions. Thus, Saile testified that on one occa-
sion, Browne walked onto the site purportedly searching for a
Local 98 employee employed by the mechanical contractor at
the site. Not certain if Browne had a right to be on the premises,
Saile permitted Browne to continue searching for the Local 98
employee. He recalls Browne was carrying a camera at the time
and taking pictures of the work being done, and repeatedly
threatening to file charges. After finding the Local 98 em-
ployee, Browne engaged in some conversation with the con-
struction manager and, at one point, called the local police from
his cell phone to complain that he had been threatened by Pon-
ticello on the jobsite. According to Saile, he heard Browne
describe himself to the police as a physically handicapped sen-
ior citizen who was fearful for his safety and simply trying to
get back to his vehicle. When the police arrived, Browne con-
tinued to complain about being threatened, stated he was not
feeling well, and was going to sit in his car and wait for his
attorney. Saile allowed Browne to remain on the jobsite for
another hour and a half and then asked him to leave. When
Browne refused, Saile called the police at which point Browne
drove his car off the jobsite and stationed it outside the nonun-
ion gate reserved for State Electric where he remained for sev-
eral more hours.
ELECTRICAL WORKERS LOCAL 98 (MCF SERVICES) 751
Saile recalled Browne showing up again the following day,
accompanied by several other individuals who stationed them-
selves outside the nonunion gate. Saile then observed Browne
taking pictures of individuals entering and leaving the jobsite.
He was unsure, however, if any of the other individuals who
accompanied Browne also had cameras. This same scenario,
according to Saile, was repeated by Browne the next 2 days.
Saile admits that neither Browne nor any of the individuals
with him on those days engaged in any picketing at the jobsite.
However, he testified that, at one point, employees on the job-
site expressed concern about the photographs which Browne
had been taking of them.
State Electric foreman, Robert Mortensen, testified that
while at the Cheltenham jobsite in late August, he observed
Browne at the nonunion gate taking pictures of “everybody”
who drove in and out of the jobsite, and further recalled that
other individuals who were with Browne also had cameras but
gave no indication if they too were taking pictures.12 On seeing
Browne taking pictures, Mortensen pulled out his own camera
and began taking pictures of Browne.
Two State Electric employees, apprentice Christopher
Wilczynski and Foreman Charles DeShields, testified that they
were at the Cheltenham jobsite in August and observed Browne
taking pictures of them. Wilczynski recalled that as he drove
towards the nonunion gate to enter the jobsite, he stopped his
vehicle near two storage bins located at the gate. As he did so,
he observed Browne through his rear view mirror taking pic-
tures of the rear of his vehicle. Wilczynski then approached
Browne and complained that he did not like being photo-
graphed, and asked Browne to remove the film from the cam-
era. When Browne asked if Wilczynski was threatening him,
the latter said no and then called the police. The police, how-
ever, advised Wilczynski that Browne was not doing anything
wrong because he was not on the school property. (Tr. 476–
477.) DeShields recalls seeing Browne at the jobsite on three
separate occasions in late August. On one such occasion, as he
drove his truck to the jobsite, he saw Browne sitting on the
storage bins taking pictures. After loading his truck, DeShields
went over to Browne and asked what he was doing. When
Browne replied that he was taking pictures, DeShields removed
the tags from the rear of his truck and said to Browne, “This is
one you won’t get,” to which Browne replied, “I already got it.”
(Tr. 480.) On another occasion, he observed Brown videotaping
each employee who entered and exited the jobsite on foot or in
a vehicle. DeShields further recalls that on one such occasion,
he observed Browne use his vehicle to prevent Vincent Ponti-
cello, a job foreman and Sharon Ponticello’s brother-in-law,
from continuing with his job assignment consisting at the time
using a “loll” or forklift to dump waste into a trash dumpster.

12 Although Mortensen admitted on cross-examination that he could
not tell for sure if Browne was actually taking pictures or merely point-
ing the camera, I seriously doubt that Browne was simply going
through the motions and not taking pictures. Rather, it is, in my view,
safe to assume, as Mortensen indeed testified, that if someone is point-
ing a camera in a picture-taking position that a picture is in fact being
taken. Thus, employees who might have observed Browne pointing a
camera at them could reasonably have assumed that their picture was
being taken.
Vincent Ponticello corroborated DeShield’s testimony re-
garding Browne’s interference with his job duties.13 Thus, he
testified that as he drove his forklift to the dumpster, Browne
drove his vehicle, a black Lincoln Continental, between the
forklift and the dumpster. When Vincent Ponticello approached
Browne and asked him to move his vehicle, Browne told Vin-
cent Ponticello, “I know who you are, I know where you live.
We’re going to get you some day.” Asked if he understood
what Browne meant by his remark, Vincent Ponticello testified
that he read Browne’s remarks to mean that Browne would
someday get State Electric to go union. Vincent Ponticello
claims he walked away at that point, and that Browne kept his
car in the same blocking position for about 15–30 minutes, thus
preventing him from completing his chore, after which he
drove away. He further testified to having observed Browne
and two other individuals taking pictures of State Electric’s
employees as they entered and exited through the nonunion
gate, and believes Browne may have also photographed his
vehicle. Vincent Ponticello recalled one incident that occurred
on or around August 28, during which Browne followed his
vehicle through the nonunion gate into the jobsite parking lot,
and circled his (Ponticello’s) vehicle twice videotaping the
occupants. Vincent Ponticello testified that he and the other
vehicle occupant got out of their truck, got into the pickup truck
of a coworker, and left. Browne, according to Vincent Ponti-
cello, continued to photograph and videotape him and other
employees as they went about their business. Nervous and up-
set by Browne’s conduct, Vincent Ponticello called the police
and filed an incident report, a copy of which was received into
evidence as General Counsel’s Exhibit 44. To his knowledge,
however, no charges were ever brought against Browne.
While Browne testified at the hearing, he was not asked
about, and consequently did not refute, any of the testimony
provided by Saile, Sharon Ponticello, Vincent Ponticello, Mort-
enson, Wilczynski, and DeShields.14 Accordingly, their ver-
sions of the individual conversations they had with Browne, of
what Browne may have said at the June 8 School Board meet-
ing, and of Browne’s conduct and activities at the jobsite, re-
main uncontroverted and are credited.15

13 Local 98’s assertion on brief (p. 33), that Vincent Ponticello was
the only witness to Brown’s interference with his job duties, is clearly
erroneous for DeShield testified without contradiction, and credibly in
my view, to have personally witnessed the incident.
14 Browne was called and examined by the General Counsel as an
adverse witness under Rule 611(c) of the Federal Rules of Civil Proce-
dure. Following the General Counsel’s direct examination of Browne,
the Respondents chose not to cross-examine Browne nor to call him as
their own witness. In fact, the Respondents rested their case following
the General Counsel’s presentation of his case-in-chief without calling
any witnesses whatsoever.
15 From my observation of their demeanor on the witness stand, I
a.m. persuaded that Saile, Sharon Ponticello, Vincent Ponticello, Mort-
enson, Wilczynski, and DeShields all testified in an honest and truthful
manner. In this regard, I reject as without merit Local 98’s claim, on
brief, that Sharon Ponticello should not be credited because she is “a
biased party with an interest in the outcome” of this proceeding, and
because her testimony regarding Browne’s response to the School
Board’s inquiry on what could be done to avoid the picketing, was not
corroborated by Saile. The fact that a witness may have an interest in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752
b. Discussion
1. The 8(b)(4)(B) allegation
The General Counsel and State Electric contend that Local
98 violated Section 8(b)(4)(ii)(B) when, in his June 8 remarks
to the Cheltenham School Board, its admitted agent Browne
unlawfully threatened to set up a picket line at the jobsite for 30
days during which no one would be allowed to enter or leave
the site, arguing, in support thereof, that the object of Browne’s
threat was to force the School Board, a neutral entity, into not
doing business with State Electric, with whom Local 98 was
having a dispute, and to having it award the electrical contract-
ing work to a union contractor.
While not denying that Browne made the remark attributed
to him by Saile, Local 98 nevertheless argues on brief (p. 32)
that Browne’s comment about picketing for 30 days was only
“a clear reference to the window allotted for recognitional pick-
eting under Section 8(b)(7) of the Act” and, as such, neither
threatening nor coercive.16 Local 98’s assertion in this regard
would be entitled to some consideration had Browne so testi-
fied. Browne, however, offered no testimony whatsoever re-
garding his June 8 comments, much less an explanation of what
he meant by his remarks. Nor do I find anything in Saile’s or
Sharon Ponticello’s description of Browne’s remark that can be
construed as supporting Local 98’s claim that Browne was
simply expressing its right under Section 8(b)(7)(C) to engage
in recognitional picketing for a 30-day period. Thus, Local 98’s
interpretation of what Browne may have intended by his remark
is based on supposition, speculation and conjecture, and not on
any evidence of record. Its claim in this regard is therefore
rejected.
Browne’s unexplained threat to picket the Cheltenham
school jobsite, a neutral entity, for 30 days, like his above-

the outcome of a proceeding does not, without more, serve as a basis
for rejecting the witness’ testimony, or render it biased. As noted, from
a demeanor standpoint, Sharon Ponticello came across as a sincere,
honest, and straightforward witness. Further, Saile’s failure to corrobo-
rate Sharon Ponticello’s testimony as to how Browne responded to the
School Board’s inquiry, does not, in my view, render her testimony
suspect, for Saile readily admitted that he was not paying full attention
when Browne addressed the School Board (Tr. 424). It is therefore
quite possible that Browne did make the remarks attributed to him by
Sharon Ponticello and that Saile simply did not hear them because his
attention at the time was on other matters. Sharon Ponticello, on the
other hand, credibly explained that she paid close attention to what
Browne was saying to the school board because she was concerned that
State Electric might not get the contract (Tr. 401). In these circum-
stances, I see no reason to reject Ponticello’s testimony. Rather, I fully
credit her testimony as to what Browne said to her and to the school
board on June 8.
16 While there is no allegation here that Browne’s threat to picket
was unlawful under Sec. 8(b)(7)(C), it should be noted that for pur-
poses of Sec. 8(b)(7)(C), a threat to picket continues in effect until it is
retracted. Such a threat to picket for a proscribed object thus remains
operative until such time as the union clearly indicates it no longer
intends to pursue the threatened picketing Local No. 73 Service Em-
ployees, AFL–CIO (A-1 Security Service Co.), 224 NLRB 434, 436, fn.
8 (1976). As Browne apparently never withdrew his threat, it is quite
likely that the threat might also violate Sec. 8(b)(7)(C). However, I
make no such finding here as that question is not before me.
described threat to Perea at the Adams-Bickel jobsite, contained
no assurance that said picketing would comply with the Moore
Dry Dock requirements and be restricted solely to and directed
at, the primary employer, State Electric. As noted, absent such
assurances, and where, as here, a union has reason to know that
persons other than the primary employer would be working at
the jobsite,17 a threat by that union to picket the representative
of a neutral employer violates Section 8(b)(4)(ii)(B). Teamsters
Local 456 (Peckham Materials), supra; Meat & Allied Food
Workers Local 248 (Milwaukee Independent Meat Packers),
supra. In light of these facts, I find that Browne’s unqualified
remark to picket the Cheltenham jobsite for 30 days violated
Section 8(b)(4)(ii)(B).
2. The 8(b)(1)(a) allegations
The General Counsel and State Electric also contend, and I
agree and therefore find, that Local 98, through its agent
Browne, violated Section 8(b)(1)(A) by interfering with and
preventing Vincent Ponticello from doing his work duties, by
telling Vincent Ponticello that he, Browne, would get him some
day, and by photographing employees and their vehicles as
their entered and left the jobsite.
The blocking of employee access to and from a jobsite has
long been found by the Board to be coercive and violative of
Section 8(b)(1)(A). General Maintenance Service Co., 329
NLRB 638 (1999) (“nonviolent conduct, including efforts to
prevent employees from reporting to work by impeding access
to an employer’s facility . . . proscribed by [Section
8(b)(1)(A)]”); Sheet Metal Workers Local 19 (Delcard Associ-
ates), supra at 431 (“blocking an entrance or an exit even for a
short period of time constitutes restraint and coercion”); Car-
penters Philadelphia District Council (Delran Builders), 307
NLRB 172 (1992) (preventing supervisor in presence of em-
ployee from entering jobsite unlawful); Mine Workers District
17 (Dehue Coal Co.), 275 NLRB 715 (1985) (“preventing . . .
employees from entering [jobsite] to perform assigned tasks
and [blocking] ingress and egress” unlawful); Laborers Local
275 (S. B. Apartments), 209 NLRB 279, 286 (1974) (“obstruct-
ing an employee wishing to leave was restraint and coercion”).
Clearly, the right of an employee to carry out his job functions
free of union interference, restraint and coercion is no less pro-
tected than the statutory right of employees to cross a picket
line without similar union interference. Thus, while Browne
here may not have blocked Vincent Ponticello from entering or
leaving the jobsite, his interference with Vincent Ponticello’s
right to perform his work duties had the same coercive purpose
and effect associated with the unlawful denial of access to a
jobsite. Accordingly, I find that Browne’s conduct in prevent-
ing Vincent Ponticello from performing his job duties violated
Section 8(b)(1)(A) of the Act.

17 The evidence makes clear that Browne knew that other contractors
would be working at the Cheltenha.m. jobsite. Minutes of the Chel-
tenha.m. school board meeting attended by Browne, and at which he
raised objections to the use of State Electric as the electrical contractor,
reveal that other contractors being used at that jobsite were discussed.
Sharon Ponticello’s credited testimony further reveals that during his
address to the school board, Browne himself made reference to the
plumbing and general contractors working at the jobsite.
ELECTRICAL WORKERS LOCAL 98 (MCF SERVICES) 753
Further, Browne’s statement to Vincent Ponticello about
knowing who he was and where he lived, followed by his
“we’re going to get you someday” remark was, in my view, a
veiled threat of physical harm to Vincent Ponticello. Browne,
as noted, made his remarks as he unlawfully prevented Vincent
Ponticello from performing his work duties and after Vincent
Ponticello demanded that Browne move his vehicle and allow
him to proceed. Browne offered no explanation at the hearing
as to what he meant by his remark, and nothing in Vincent Pon-
ticello’s testimony suggests that Browne provided him with any
such explanation. However, given confrontational nature in
which the remark was made, there can be little doubt, and I so
find, that the intent behind Browne’s remark was to further
coerce, harass, and intimidate Vincent Ponticello because of his
relationship to State Electric president, Sharon Ponticello. I
reject in this regard Local 98’s suggestion that Browne’s re-
mark was neither coercive or unlawful because Vincent Ponti-
cello may not have viewed it as such, for the test of coercion
and intimidation is not whether the misconduct proves effec-
tive, but rather whether the misconduct is such that, under the
circumstances existing, it may reasonably tend to coerce or
intimidate employees in the exercise of rights protected under
the Act. NLRB v. Mine Workers of America, 429 F.2d 141, 146
(3d Cir. 1970); Operating Engineers Local 542 v. NLRB, 328
F.2d 850, 852–853 (3d Cir. 1964); Service Employees (GMC
Janitorial), 322 NLRB 422, 414 (1996); Graphic Arts Interna-
tional Union 96 B (Williams Printing), 235 NLRB 1153 (1978)
The fact that Vincent Ponticello may not have felt personally
threatened or coerced by Browne’s remark, therefore, has no
bearing on whether Browne’s remark is or is not unlawful. As
previously discussed, the coercive context in which the remark
was made, and the very nature of the remark itself, persuades
me that Browne’s remark did not have the benign purpose at-
tributed to it by Vincent Ponticello in his testimony, and was
instead meant to be a veiled threat of physical harm. See, Culi-
nary Workers Local 226 (Casino Royale), 323 NLRB 148,
160–161 (1997), where virtually identical remarks as that di-
rected here by Browne to Vincent Ponticello were found by the
Board to be coercive and violative of Section 8(b)(1)(A). Ac-
cordingly, I find that Browne’s remark was in fact unlawful and
violative of Section 8(b)(1)(A).
Finally, Browne’s photographing of employees entering and
leaving the jobsite through the nonunion gate for 3 days, and
his repeated photographing and videotaping of Vincent Ponti-
cello and fellow employees on August 28 while circling the
latter’s vehicle, and on subsequent occasions, was also unlaw-
ful. Browne offered no explanation for taking the photographs.
The Board has on prior occasions found such conduct to be
coercive. Auto Workers Local 695 (T. B. Wood’s), 311 NLRB
1328, 1329 (1993); Laborers Union Local 383 (Carter-Glogau
Laboratories), 260 NLRB 1340, 1342–1343 (1982). Here,
Browne’s activity in photographing employees entering and
leaving the jobsite could reasonably have led employees to
believe that the photos might be used by Local 98 in the future
to harass, intimidate, or retaliate against them. Indeed, Saile’s
testimony, that employees expressed concern to him about
Browne’s conduct in photographing them, amply supports such
an inference. Accordingly, I find that Browne’s picture-taking
activity was indeed coercive and violative of Section 8(b)(1)(A)
of the Act.
3. Local 380’s liability for Browne’s conduct
The General Counsel and State Electric contend, and I
agree, that Local 380 is jointly and severally liable with Local
98 for the unlawful conduct engaged in by the latter after the
joint venture was created in August 1998. Thus, as the judge,
with Board approval, pointed out in Delcard, supra, “[a] joint
venture relationship carries with it responsibility on the part of
the participants for each other’s actions, including any conse-
quent unfair labor practices.” See also Seattle District Council
of Carpenters (Cisco Construction), 114 NLRB 27, 30 (1950),
cited by the judge in Delcard, supra. Local 380, however, con-
tends that it cannot be held liable for any unlawful conduct
Browne may have engaged in, citing in support the court’s
refusal in Sheet Metal Workers Local 19 v. NLRB, 154 F.3d 137
(3d Cir. 1998), to enforce the Board’s joint venture holding in
Delcard, and arguing further that the General Counsel here has
not established that Browne was acting as agent of Local 380. I
disagree.
An administrative law judge is bound by Board law unless
or until the Supreme Court or the Board rules otherwise. Iowa
Beef Packers, 144 NLRB 615, 616 (1963); See also Overnite
Transportation Co., 329 NLRB 990 (1999); Zimmerman
Plumbing and Heating Co., 325 NLRB 106, 115 (1997). Thus,
while a Federal appeals court has in fact disagreed with the
Board’s position in Delcard on the joint venture question, I find
nothing in subsequent Board decisions to suggest that the Board
has abandoned the views expressed in its Delcard and Cisco
decisions regarding a joint venturer’s liability for the unfair
labor practices committed by a coventurer. Accordingly, I am
bound to follow Board precedent on this matter and, consistent
therewith, find, in agreement with the General Counsel and
State Electric, that Local 380, as a joint venturer with Local 98,
is vicariously liable for the unlawful threats directed by Browne
to the Cheltenham school board and for Browne’s unlawful
threat of physical harm to Vincent Ponticello, his unlawful
interference with the latter’s performance of his work duties,
and by unlawfully photographing Vincent Ponticello and other
employees as they entered and exited from the Cheltenham
jobsite.
The record in any event supports a finding that Browne was
acting as Local 380’s agent when he attended and addressed the
Cheltenham school board and when he visited the Cheltenham
jobsite, thus making Local 380 responsible for his actions. Lo-
cal 380’s attempt on brief to downplay Browne’s involvement
in its organizational drive, by suggesting that Browne merely
provided “some guidance to MacDougall during the cam-
paign,” is contradicted by MacDougall’s and Browne’s own
testimony which clearly reveal that Browne was an active par-
ticipant in that campaign and not a mere advisor to MacDou-
gall. Thus, as previously discussed, Browne’s activities in-
cluded, among other things, calling and visiting different em-
ployers to ascertain if State Electric was doing any electrical
work for said employers, sending union members out to apply
for work with State Electric as part of a “salting” campaign,
participating with Local 380 in the picketing of at least one
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754
such employer, and talking to employees presumably about
Local 380’s campaign. Further, MacDougall’s own testimony
and conduct make clear that Browne attended the Cheltenham
school board meeting following joint consultations on the mat-
ter. Thus, MacDougall testified that following joint discussions
regarding State Electric, he and Browne agreed that the Chel-
tenham school board should be made aware of the wages State
Electric was paying employees. His admission in this regard,
and his and Browne’s subsequent appearance at the school
board meeting, leads me to believe that Browne’s attendance
and remarks made at the school board meeting were done with
MacDougall’s prior consent and approval. MacDougall’s sug-
gestion that went to the school board meeting simply to take an
employee who wished to attend, and that he and Browne had
not planned any such visit, is rejected as not credible. Browne,
who might have corroborated MacDougall in this regard was
not questioned about his discussions with MacDougall regard-
ing the Cheltenham visit, leading me to doubt that he would
have done so had he been asked.
In light of the above, I find that Browne was speaking for
and on behalf of Local 380 when he threatened the Cheltenham
school board with picketing for 30 days, and was similarly
acting on its behalf when he engaged in the above-described
unlawful conduct at the Cheltenham school jobsite. Accord-
ingly, I find that Local 380 violated Section 8(b)(4)(ii)(B) by
threatening, through its agent Browne, the Cheltenham school
board on June 8 with unlawful picketing, and 8(b)(1)(A) when,
in late August, Browne threatened Vincent Ponticello with
physical harm, interfered with the latter’s performance of his
work duties, and photographed employees entering and exiting
the Cheltenham school jobsite.
B. The Wohlson Cases (4-CB-8300-1; 4-CC-2240-2)
Wohlson, as previously noted, is a general contractor hired
by PPH to renovate four wings and two floors of PPH’s Webb
Pavilion located on the PPH grounds in Philadelphia, PA. Work
on the project began in February and was completed in July. To
perform the various parts of the project, Wohlson retained
Lower Bucks Heating and Cooling to do the heating and air-
conditioning work, Dayspring Electric to perform the electrical
work, and David Smith Plumbing to do the plumbing work.
Another company, Sharp’s Landscaping, performed landscap-
ing work for PPH but was not part of the Webb Pavilion con-
struction project. PPH had three entrances to its facilities: a
construction entrance located on Magee St. for use by construc-
tion employees (Gate 1); a main entrance located on Martin’s
Mill Road and Tabor Road (Gate 2); and a resident/employee
entrance also located on Magee St. (Gate 3), some 50 yards
from the construction entrance.
On May 24, Local 98 began picketing at all three PPH en-
trances. Michael Bierds, at the time Wohlson’s construction
superintendent on the PPH-Webb Pavilion project,18 testified
that he arrived at the jobsite around 7:20 a.m. on May 24, and
immediately observed approximately 20 pickets at the construc-
tion entrance carrying signs identifying themselves as being

18 At the time of the hearing, Bierds was no longer employed by
Wohlson.
with Local 98 and Local 19. On looking towards the resi-
dent/employee entrance, Bierds observed some 6 or 7 pickets
stationed there as well also carrying signs containing the same
wording. Bierds then went to Gate 2 (main entrance) and found
some 20 pickets there carrying similar signs. Following consul-
tations with a local law enforcement official, and to avoid any
incidents, Bierds instructed his employees and contractors to go
home.
Lower Bucks Heating and Cooling mechanic and crew
leader, Peter Paolella, testified that on May 24, he arrived at the
PPH site around 6 a.m. and observed no pickets at that time, but
that by around 7:30 a.m., when he left the site through the con-
struction entrance to retrieve tools from his truck, observed
some 15–20 pickets at the entrance. While he had no difficulty
getting out of the jobsite, he was blocked from entering the
premises by the pickets who gathered together shoulder-to-
shoulder to prevent him going in. During this incident, one of
the pickets, according to Paolella, yelled out, “F___k you! Do
you want to start something?” Paolella replied that he was not
looking for trouble and only wanted to get his helper and tools
out of the jobsite, at which point someone in the group called
him a “f___king bum” and told him he was not getting through
the line. Paolella then returned to his truck and waited until his
helper came out around 9 a.m. (Tr. 97–98.) Paolella’s testimony
is unrefuted and is accepted as true.
Dayspring Electric employee Michael Rearick testified that
on May 24, as he and a fellow passenger drove towards Gate 1
to enter the jobsite, he observed some 15 pickets at the entrance
standing around a vehicle with its hood opened. When he
turned towards the employee gate, he observed some six to
seven pickets also standing at that gate. Wanting to find out
what was going on, Rearick parked his truck and walked to-
wards the construction entrance. As he approached the group,
the pickets, according Rearick, positioned themselves shoulder-
to-shoulder blocking the entrance and did not move even when
Rearick and his coworker continued walking towards it.
Rearick admits that no words were exchanged between him and
the pickets. He explained, however, that “there was no need for
me to say anything” because he understood from the manner in
which the pickets positioned themselves that they were not
about to let him proceed to the jobsite. (Tr. 130.) Rearick
claims that after waiting around for 15 minutes or so, he called
his boss who instructed him to return to the shop. Rearick’s
testimony was unrefuted and is accepted as true.
James Ward, Dayspring Electric’s Estimator and Project
Manager, testified that early on May 24, he received a call from
his superior, Tom Richie, who informed him that his employ-
ees, presumably Rearick and his coworker, were returning from
the PPH jobsite. Ward went to the jobsite around 8 a.m. and, on
driving around the site, observed pickets at all three PPH en-
trances, some carrying signs which read, “NOTICE, PHILA-
DELPHIA PROTESTANT HOME IS UNFAIR TO
ELECTRICIANS, LOCAL 98, IBEW.” He testified, without
contradiction, that he then went to the main entrance, inquired
of the picketers gathered there who was in charge, and was
directed to Hnatkowsky who was standing nearby. On inquiring
from Hnatkowsky what was going on, the latter replied that the
pickets were not there for him but for PPH because they did not
ELECTRICAL WORKERS LOCAL 98 (MCF SERVICES) 755
want PPH using nonunion labor on their construction projects.
Hnatkowsky further told Ward that the pickets would be there
again the next day handing out pamphlets, and would continue
to block the entrances for the next month.
Ward testified that while he was at the jobsite observing and
photographing the pickets, he saw two trucks, one belonging to
Neighborhood Health Care and the other to Superior Moving,
attempt to enter the PPH grounds through the main entrance but
were forced to turn away because the entrance was blocked by
pickets.
Picketing by Local 98 continued on May 25. Bierds testified
that he arrived at the jobsite around 6:45 a.m., observed six to
seven pickets at the construction entrance carrying Local 98
signs and blocking the entrance, and four to five more pickets
at the residents/employee entrance. Some 15 minutes later, a
Wohlson truckdriver sought entry through the construction
entrance but could not get through because the pickets contin-
ued to block the entrance. Around 7:15 a.m., Bierd instructed
employees to retrieve some reserve gate signs from the rear of
the truck and had them posted on the three entrances.19 The
sign posted at gate 1 read:

GATE #1
This gate is reserved for the exclusive use of employees, sup-
pliers, and visitors of the contractor(s)

The signs posted at gates 2 and 3 were identical and read as
follows:

GATE #
“This entrance may not be used by employees, suppliers, and
materialmen of the contractors or visitors. Employees, suppli-
ers and materialmen of the contractors must use Gate # 1.”

After the signs were posted, Bierd attempted to distribute a
letter to Hnatkowski and the picketers who were gathered at the
main entrance (gate 2) advising them of the establishment of
the reserve gate system, and instructing that all picketing
should be restricted to gate 1 (GC Exh. 15). Hnatkowski and
the pickets, however, refused to accept copies of the letter from
Bierd, at which point Bierd read the letter aloud. The record,
however, does not make clear whether Hnatkowski or any of
the pickets paid any attention to Bierd as he read the letter, or if
Bierd attempted to hand out or read the letter aloud to the pick-
ets that had gathered at Gates 1 and 3.20 I credit Bierd’s above
unrefuted testimony.
Soon after the signs were posted, Dave Smith Plumbing em-
ployees Eric Blair and Jim Pearsey attempted to drive their van
into the jobsite through the construction entrance but were pre-
vented from doing so by the pickets. Blair, the driver of the
van, testified that he observed some seven to eight pickets at

19 Bierd admits that prior to posting the signs on May 25, the en-
trances had no signs instructing employees or members of the public
which entrance to use. However, he testified that all contractors knew
before the job was started that gate 1 was to be their entrance.
20 As Local 98 correctly points out on brief, the letter is somewhat
ambiguous in that it states that certain contractors were to use gate 1,
and others, gate 2, without identifying which contractors would be
using gate 1 and which would be using gate 2.
the construction entrance, along with other individuals wearing
suits and badges who appeared to be police officers and that, as
he sought to drive through, two of the pickets stepped forward
from the group and blocked the entrance, with one of them
telling Blair, “You don’t want to cross this line.” Bierd’s testi-
mony that he was nearby and heard one of the pickets tell the
Dave Smith Plumbing driver not to cross the picket line cor-
roborates Blair’s account. Blair was then instructed by his supe-
riors to leave the premises and go home. Blair, however, claims
that he made an attempt to enter the jobsite through the em-
ployee entrance but was again unsuccessful. (Tr. 113.) Blair’s
testimony is undisputed and is accepted as true.
At around 9:15 a.m., some 2 hours after the signs were put
up, Bierd modified the Gate 1 sign by inserting the phrase “per-
forming work on Webb Pavilion” at the end, so that the sign
now read, “This gate is reserved for the exclusive use of em-
ployees, suppliers, and visitors of the contractors performing
work on Webb Pavilion.” He similarly modified the signs at
Gates 2 and 3 by adding the words, “for Webb Pavilion” at the
end, so that the signs now read, “This entrance may not be used
by employees, suppliers, and materialmen of the contractors or
visitors. Employees, suppliers, and materialmen of the contrac-
tors must use Gate No. 1 for Webb Pavilion.” (See GC Exhs. 3,
4, 5)
The record reflects that around 9–9:15 a.m. on May 25, two
trucks driven by employees of Sharp’s Landscaping sought to
enter the PPH grounds through the main entrance. Eric Gold-
smith, who drove the lead truck, testified that he observed four
pickets standing at the entrance wearing signs, and that other
individuals were also milling around. He claims that as he tried
to drive through the entrance, the four pickets positioned them-
selves in front of his truck, and that one of the pickets told him
that he and the other driver were not allowed in, and should go
home (Tr. 117). Each picket then took turns standing in front of
his truck so as to prevent it from proceeding forward onto the
PPH grounds. Sharp then backed away from the entrance and
tried unsuccessfully to go through one of the other entrances.
Another attempt to enter through the main entrance also proved
unsuccessful because the picketers continued to block the en-
trance. According to Bierd, the pickets were still present at the
entrances when he left the site around 11 a.m. that day.
1. Discussion
a. The 8(b)(4)(B) allegation
The General Counsel and Wohlson contend that Local 98’s
picketing of the PPH facility violated Section 8(b)(4)(B), as it
was directed at PPH, a neutral employer, and not at some other
employer working at the Webb Pavilion site with whom it had a
dispute, and that its purpose was to force PPH into ceasing to
do business with the nonunion contractors at the jobsite. Local
98 contends that its picketing was directed at Dayspring Elec-
tric, not at PPH, and that the picketing was at all times lawful
and complied with the Board’s Moore Dry Dock standards. I
find merit in the General Counsel’s and Wohlson’s contention
as the weight of the evidence clearly reveals that PPH, not Day-
spring Electric, was the target of Local 98’s picketing.
Thus, while Local 98 claims its dispute was with Dayspring
Electric and not PPH, the picket signs carried by its members,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756
as described above, identified only PPH as the target of the
picketing, and made no mention of any ongoing dispute be-
tween Local 98 and Dayspring Electric. The picket signs, in
fact, contained no reference whatsoever to Dayspring Electric,
or so much as identified it as a nonunion contractor. Local 98’s
attempt, on brief (p. 21), to explain away this discrepancy by
suggesting that the reference to PPH on the picket signs was an
“error,” and that it had simply “misidentified” PPH as the party
with which it was having a dispute, is devoid of evidentiary
support and is, more importantly, inconsistent with Hnat-
kowski’s representation to Dayspring Electric’s project man-
ager, Ward, on May 24, regarding the true reason for the pick-
eting. Ward, as noted, testified without contradiction, and
credibly in my view, that Hnatkowski assured him the pickets
were not there for Dayspring Electric but rather for PPH be-
cause the latter was using nonunion contractors on the Webb
Pavilion project. Hnatkowski, for whatever reason, was not
called to refute Ward’s above testimony, warranting an adverse
inference that Local 98 chose not to do so because Hnatkowski
would not have supported its claim. Jim Walters Resources,
324 NLRB 1231, 1233 (1997). The evidence of record there-
fore makes clear, and I so find, that PPH, not Dayspring Elec-
tric, was the true target of Local 98’s picketing. I am also con-
vinced, and thus find, from the wording on the picket signs and
Hnatkowski’s admission to Ward, that the true purpose behind
Local 98’s picketing was to pressure PPH into forcing its gen-
eral contractor, Wohlson, to stop doing business with the vari-
ous nonunion subcontractors working at the Webb Pavilion
jobsite, including Dayspring Electric. Such attempts to pressure
a neutral employer to cease doing business with nonunion con-
tractors are unlawful and violative of Section 8(b)(4)(B). Nash-
ville Building & Construction Trades Council (H. E. Collins
Contracting), 172 NLRB 1138, 1140 (1968), enfd. 415 F.2d
385 (6th Cir. 1970); Building & Construction Trades Council
of Philadelphia and Vicinity, 149 NLRB 1629, 1630 (1964),
enfd. 359 F.2d 62 (3d Cir. 1966).
A finding that Local 98’s picketing violated Section
8(b)(4)(B) would be warranted even if Local 98’s claim that its
dispute was only with Dayspring Electric were found to be true.
Clearly, if Local 98 was involved in a labor dispute with Day-
spring Electric, it was certainly free under the proviso to Sec-
tion 8(b)(4)(B) to picket Dayspring Electric as the primary
employer at PPH’s Webb Pavilion jobsite, provided, of course,
said picketing conformed to the Moore Dry Dock standards. Its
picketing of the PPH facility clearly did not, for, as previously
discussed, Local 98 never identified Dayspring Electric on its
picket signs as the object of its picketing nor as the employer
with whom it was having the dispute, as required by the fourth
Moore Dry Dock standard. Nor did Local 98 confine its picket-
ing to places reasonably close to the situs of the dispute, e.g.,
Gate 1, which had been expressly reserved for Dayspring Elec-
tric and other contractors, as required by the third Moore Dry
Dock standard.21 Instead, Local 98 picketed at all three PPH

21 Contrary to Local 98’s claim on brief, I find no confusion in the
reserve gate signs posted by Wohlson at all three gates. The sign at
Gate 1, for example, clearly identified the entrance as being for the
exclusive use of contractors, their employees, and visitors, while the
entrances, including gate 2, the facility’s main entrance, and
gate 3, which was reserved exclusively for PPH residents and
employees.
Local 98 admits that it picketed at all three PPH gates on
both May 24 and May 25 (see Local 98 brief, p. 22). It argues,
however, that as no reserve gate system was in place when it
began picketing on May 24, its picketing of all three entrances
that day was lawful and did not violate the third Moore Dry
Dock requirement. As to the picketing that occurred after the
reserve gate system was established on May 25, Local 98 ar-
gues that the system set up by Wohlson was flawed because the
signs failed to specifically identify the contractors entitled to
use the various gates, and that, consequently, “employees of
Dayspring Electric would have had no idea” which gate they
were to enter through (Local 98 brief, p. 20). I find Local 98’s
arguments to be without merit.
First, the signs posted by Wohlson at all three PPH en-
trances were neither confusing nor ambiguous, as claimed by
Local 98. The gate 1 sign, for example, clearly and unambigu-
ously stated that that particular entrance was to be used exclu-
sively by contractors, and their suppliers, employees, and visi-
tors. The signs at gates 2 and 3 likewise expressly notified con-
tractors that they were not to use either of these entrances to
gain access to, or exit from, the facility, but were to enter and
leave the jobsite only through gate 1. All three signs therefore
clearly and unambiguously instructed all contractors that they
were to enter through gate 1 only. Thus, I find it highly unlikely
that employees of Dayspring Electric, or for that matter any
other contractor, would have been confused by the lack of spe-
cific mention of contractors on the signs, or otherwise been
misled as to which gate they were to use, given the explicit
directive on all three signs that all contractors, without excep-
tion, were to use gate 1 exclusively to enter and exit the PPH
facility.22 Local 98, it should be noted, cites no record evidence,
nor have I found any, to suggest that employees of Dayspring
Electric in fact found the signs confusing or were uncertain as
to which gate to use. Its assertion, therefore, that “employees of
Dayspring Electric would have no idea of where they were to

signs posted at gates 2 and 3 made clear that contractors were not to use
either of these two gates but instead were to enter or exit the premises
of PPH through gate 1. clearly and unambiguously for the signs, in my
view, clearly and unambiguously directed at gate 1 clearly stated that
this entrance was to be used by all contractors message nothing confus-
ing about the signs identifying the that the signs were confusing is
without merit.
22 Nor is it likely that employees of Dayspring Electric would have
been confused as to which gate to use following Wohlson’s modifica-
tion of the signs to include the words “working on Webb Pavilion.” The
modification, as noted, limited the use of gate 1 to contractors working
at the Webb Pavilion project. The change meant only that employers
doing business with PPH and not associated with the Webb Pavilion
project, such as Sharp’s Landscaping, Neighborhood Health Care, and
Superior Moving, all of which, as noted, were affected by Local 98’s
picketing, were to use either gate 2 or gate 3. Thus, the change simply
clarified that only Webb Pavilion contractors, such as Dayspring Elec-
tric, were to use gate 1. However, as employees of Dayspring Electric
and other contractors working at the Webb Pavilion jobsite were, prior
to the modification, already required to use gate 1, the change could
hardly have been confusing to employees of the contractors.
ELECTRICAL WORKERS LOCAL 98 (MCF SERVICES) 757
enter,” is simply devoid of any evidentiary support and
amounts to nothing more than rank speculation. Finally, Bierd’s
testimony, which I credit, that he personally instructed all con-
tractors before the picketing began on May 24, to use Gate 1 to
enter and leave the jobsite, establishes rather convincingly that
employees of Dayspring Electric and other contractors working
on the Webb Pavilion project knew full well that Gate 1 had
been reserved for their exclusive use. Accordingly, I reject as
without merit Local 98’s claim that Wohlson’s failure to iden-
tify the various contractors by name on the signs placed at the
PPH’s three entrances rendered the reserve gate system invalid.
Electrical Workers Local 970 (Interox America), 306 NLRB
54, 60 (1992)
In sum, I find that the reserved gate system established by
Wohlson at the PPH facility for contractors working at the
Webb Pavilion jobsite was valid. Local 98 does not contend,
nor is there any evidence in the record to show, that the gate
system had been misused, violated, or otherwise compromised
which might have justified Local 98’s picketing at all three
entrances. Iron Workers Local 433 (Oltmans Construction),
272 NLRB 1182 (1984). Absent evidence that breach of the
reserve gate system had occurred, Local 98 was obligated to
confine its picketing to Gate 1. By its own admission, it clearly
did not do so, and in fact continued to picket all three gates
even after Wohlson modified the signs to further clarify that
Webb Pavilion contractors, including Dayspring Electric, were
restricted to gate 1.
Thus, if, as claimed by Local 98, its dispute was only with
Dayspring Electric and not with any other employer working at
PPH’s facilities, then its noncompliance with the third and
fourth Moore Dry Dock requirement, and the conduct of its
picketing members in blocking employees of the various neu-
tral employers with whom it had no dispute from entering
PPH’s facility (some of which, e.g., Sharp’s Landscaping,
Neighborhood Health Care, Superior Moving had no connec-
tion with the Webb project), provides strong evidence that Lo-
cal 98’s picketing had a secondary objective. The above evi-
dence makes patently clear that rather than trying to resolve its
alleged dispute directly with Dayspring Electric, the primary
employer, Local 98 sought instead to achieve its goal in that
dispute by bringing pressure to bear on the various neutral em-
ployers working at the PPH facility, whether or not engaged in
the Webb Pavilion project, with the expectation that they would
in turn pressure PPH and/or Wohlson to cease doing business
with Dayspring Electric. By engaging in such conduct both on
May 24 and 25, Local 98, I find, violated Section 8(b)(4)(i)(B)
of the Act, as alleged. While it is true that no reserve gate sys-
tem had yet been established on May 24, when Local 98 began
its picketing, that fact alone does not render lawful Local 98’s
May 24, picketing, for the determining factor as to whether
picketing, or other union conduct, is primary or secondary is
the objective of the union, e.g., whether it seeks to pressure the
primary or the secondary employer, not whether a reserve gate
system is in place. Here, Local 98’s failure to identify the em-
ployer with whom it the dispute when it began picketing on
May 24, and its conduct in blocking employees of neutral em-
ployers Neighbor Health Care and Superior Moving from enter-
ing the PPH facility, both of whom Local 98 could reasonably
have known had no involvement with the Webb Pavilion pro-
ject, suggests, and I so find, that its May 24, picketing, like its
conduct following the creation of the reserve gate system, was
intended to put unlawful secondary pressure on neutrals, and
thus violated Section 8(b)(4)(i)(B) of the Act.
b. The 8(b)(1)(A) allegations
The General Counsel and Wohlson further contend that Lo-
cal 98 violated Section 8(b)(1)(A) when on May 24 and May
25, its pickets prevented employees from entering or leaving
the PPH facility, and threatened employees with harm if they
crossed the picket line. I find merit in their contention.
As previously discussed, employees have a Section 7 right
to cross a picket line and report for work, and a union’s inter-
ference with that right, such as by blocking employee ingress
and egress from a jobsite, even if for a short period of time,
violates Section 8(b)(1)(A). See General Maintenance Service
Co., supra, and other cases cited in section II(a) above. The
mere massing of a hostile crowd of pickets or protesters by a
union at the entrance to a worksite is by itself also deemed to be
coercive even if the protesters do not effectively prevent em-
ployees from passing through their midst. Meat Packers (Hor-
mel & Co.), 287 NLRB 720, 721 (1987); also, SEIU Local 525
(General Maintenance Service), supra. The record evidence
here makes clear that on May 24 and May 25, Local 98 pickets
did indeed prevent employees from entering or leaving PPH’s
facility.
On May 24, for example, Lower Bucks Cooling and Heating
employee Paolella was prevented by Local 98 pickets from
reentering the jobsite after he had exited momentarily to re-
trieve something from his truck. Dayspring Electric employee
Rearick similarly testified that as he tried to report for work that
day, he and a coworker were prevented from doing so by Local
98 pickets amassed at gate 1. Local 98’s claim on brief, that
neither Paolella nor Rearick had in fact sought entry to the job-
site that day, is simply wrong and a gross mischaracterization
of their testimony. Thus, Paolella testified, credibly and without
contradiction, that he was in fact attempting to reenter the job-
site but that as he did so, the pickets stood shoulder to shoulder
“and wouldn’t let me pass.” (Tr. 97.) Rearick provided a similar
credible and unrefuted explanation of what occurred to him and
his coworker as they sought to report for work.23 The above
testimony thus makes patently clear, and I so find, that both
Paolella and Rearick were in fact attempting to enter the jobsite
on May 24, but were effectively prevented from doing so be-
cause Local 98 pickets (which Paolella and Rearick recalled
numbered about 15) physically blocked the Gate 1 entrance
with their bodies so as to make entry to the jobsite without
force or confrontation virtually impossible. Indeed, Paolella’s
further testimony, again unchallenged by Local 98, that one of
the pickets sought to provoke him by asking if he wanted to
start some trouble by crossing the picket line, suggests that the

23 Local 98’s assertion that Rearick walked up to the picketers for the
sole purpose of reading the wording on the picket signs, and not to
enter the facility, is a further mischaracterization of Rearick’s testi-
mony, for Rearick testified that he read the sign only as he approached
the pickets in his attempt to enter the jobsite.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758
crowd of pickets amassed at Gate 1 may indeed have been a
hostile one itching for a confrontation.
In these circumstances, I find that on May 24, Local 98, as
alleged in the complaint, violated Section 8(b)(1)(A) by inter-
fering with, restraining, and coercing employees Paolella and
Rearick in the exercise of their Section 7 rights by blocking the
entrance to the Webb Pavilion jobsite, effectively preventing
them and, according to Ward’s credited testimony, others from
reporting for work. Further, I agree with the General Counsel
that the provocative remark directed at Paolella by one of the
pickets constituted a threat of physical harm and was itself
coercive and violative of Section 8(b)(1)(A). Local 98’s asser-
tion on brief that no 8(b)(1)(A) violation can be found here
because neither Paolella nor Rearick ever made a verbal request
to the pickets to let them onto the jobsite is so lacking in merit
as to warrant little, if any, discussion. Clearly, Paolella’s cred-
ited testimony that on approaching the pickets, he was told he
“wasn’t getting through the line,” makes clear that a request by
Paolella to the pickets to let him enter would have been a futile
gesture. As to Rearick, while no words were exchanged be-
tween him and the pickets as he approached the gate, the ac-
tions of the pickets in closing ranks and standing shoulder to
shoulder to block his entry clearly conveyed to Rearick, as he
so testified, the pickets’ determination not to allow him to en-
ter. Like Paolella, therefore, any such request by Rearick to the
pickets to let him onto the jobsite would have been an act of
futility.
Local 98 further violated Section 8(b)(1)(A) on May 25,
when its pickets prevented employee Blair from driving his
Dave Smith Plumbing truck onto the jobsite through the gate 1
entrance, and blocked Sharps Landscaping driver Goldsmith
from entering the PPH grounds through the gate 2 main en-
trance. As with the May 24, incidents, Local 98 claims that had
Blair and Goldsmith asked the pickets to allow them entry to
the PPH premises, they would have done so, and points, in
support thereof, to the fact that Goldsmith was in fact allowed
to enter after making such a request. The record does not bear
out Local 98’s claim. Goldsmith, for example, testified, credi-
bly and without contradiction, that when he attempted to enter
through the main gate, the pickets stood in front of his lead
truck to block it from entering, told him he and the other truck
behind him were not allowed in, and instructed him to go home
(Tr. 117.) Thus, Goldsmith’s testimony suggests that he was
not even given a chance to seek entry before being told he was
not allowed to work at the site and to go home. Any subsequent
request to the pickets by Goldsmith for entry to the PPH
grounds would I am convinced have fallen on deaf ears and
been a futile gesture. Although subsequently allowed to enter
the premises on his second try, Goldsmith testified, and Local
98 admits (br., p. 24), that he was still denied entry for several
minutes. (Tr. 121.)
Blair, contrary to Local 98’s assertion, also sought entry
through the construction entrance at gate 1, but was prevented
from doing so by two pickets who stood in front of his vehicle
as he attempted to drive through the gate and told him, “you
don’t want to cross this picket line.” Blair’s testimony as to
what transpired and was said by the picketers as he approached
gate 1 makes clear that the picketers knew full well what
Blair’s intentions were, e.g., to enter the facility. There was no
need, therefore, for Blair to verbalize either his desires or inten-
tions to the picketers, and for him to have done so, as Local 98
claims he should have done, would more likely than not have
been an exercise in futility. Accordingly, I find that Local 98’s
conduct on May 25, in blocking Blair and Goldsmith from re-
porting to work constituted violations of Section 8(b)(1)(A) of
the Act.24
C. The UPS Case (4–CC–2246)
As indicated, UPS is an international parcel delivery service
operation. It maintains several facilities in the greater Philadel-
phia, Pennsylvania area, including one at Philadelphia Interna-
tional Airport and a main Philadelphia facility situated on Ore-
gon Ave. The Oregon facility is a large complex having four
separate gates or entrances, all approximately 30 ft. wide, used
by different personnel to enter and exit the facility. The facility
is bordered by Oregon Ave. on the south, and Weccacoe St. on
the east. Gate 1, located on the Oregon Ave. side of the com-
plex, is an employee entrance. Gate 2 is for use by UPS’ trac-
tor-trailer drivers. Gate 3 serves a dual purpose. Thus, it is used
by employees working in that part of the facility, by the brown
UPS vehicles commonly seen making deliveries, and also
serves as a tractor-trailer entry/exit point. Gate 4 is a vendor
entrance for use by contractors (and their subcontractors or
vendors) retained by UPS.25 Gates 2, 3, and 4 are all located on
Weccacoe St., with Gate 4 situated at the northernmost part of
Weccacoe St (See GC Exh. 25). In addition to these four gates,
the Oregon facility has four large overhead doors fronting Ore-
gon Ave., located just east of Entrance 1. (See GC Exh. 25.)
The record reflects that UPS had contracted with Network
Dynamic Cabling (NDC) to perform some cabling work at its
Oregon and airport facilities, and with G.M. Shuhart Electric to
perform some electrical work, both of which apparently were
nonunion companies (Tr. 165). Frank Maxwell, the labor rela-
tions manager of UPS’ Metro Philadelphia District, testified
that on May 11, Bill Corazo, an admitted agent of Local 98,
called to express concerns about UPS’ use of a particular con-
tractor, and asked if Maxwell would meet with him outside the
facility. Maxwell agreed to do so, and thereafter met with

24 Local 98’s claim that no violation should be found, on de minimis
grounds, regarding the denial of entry to Goldsmith is without merit.
The short delay referenced by Local 98 of the Sharps Landscaping
trucks occurred during Goldsmith’s second attempt at entry. Goldsmith
had, by then, already been refused entry by Local 98 pickets once be-
fore. The refusal to allow Goldsmith entry during his first attempt by
itself amounted to a violation of Sec. 8) (b)(1)(A). As to the second
attempt, Goldsmith did testify that he was detained for only a short
period of time. However, as previously indicated, a denial of ingress or
egress even for a short period of time can constitute unlawful interfer-
ence, restraint and coercion and violate Sec. 8(b)(1)(A). See, e.g.,
Shopmen’s Local 45 (Stokis Multi-Ton Corp.), 243 NLRB 340 (1979)
(pickets refusal to allow truck to exit facility for several minutes found
to be unlawful).
25 Gate 4 is normally kept padlocked. When a contractor seeks to en-
ter the facility, it must first report to the security guard stationed at Gate
3, who provides the contractor with a pass and redirects it to gate 4 for
entry. The security guard then walks over to gate 4, unlocks it to allow
the contractor to enter, and then relocks it. (Tr. 250–251.)
ELECTRICAL WORKERS LOCAL 98 (MCF SERVICES) 759
Corazo and Della Vella on the sidewalk in front of the facility.
At this meeting, Corazo identified NDC as the contractor the
Union was having problems with, stating in particular that un-
fair labor practices had been filed against it, and that NDC was
generally not a good contractor for UPS. Unaware of the con-
tractual arrangement between UPS and NDC, Maxwell agreed
to look into Corazo’s allegations.
Three weeks later, on June 2, Maxwell received a call from
a security guard stationed outside the Oregon facility informing
him that Corazo and Della Vella were outside and wished to
speak with him again. Maxwell, accompanied by Labor Man-
ager Mark Aaron, went outside and met with Corazo and Della
Vella. According to Maxwell, Corazo reiterated much of what
he had said earlier about NDC, and added that NDC was in
violation of city codes, did not have proper permits and li-
censes, had not paid its business privilege or City wage taxes,
and was generally a substandard employer. Corazo also men-
tioned that he had union contractors that could do the work for
UPS that NDC was doing at a price that would not cost UPS
any more money, and indicated he would like UPS to use such
union contractors. Maxwell did not respond to Corazo’s sug-
gestion that UPS use union contractors, but did express a will-
ingness to receive from Corazo a list of union contractors that
UPS would include in the bidding process for any future work
that might become available in the Philadelphia area. He further
agreed to look into whether or not NDC was complying with
the city licensing and taxing requirements, made clear to
Corazo and Della Vella that UPS was bound by its contract
with NDC and that the latter would remain on the property until
the work was completed. Della Vella responded that while he
and Corazo had already spoken to Maxwell twice regarding
NDC and “had tried to be nice” to Maxwell, the latter’s re-
sponse had been to shrug his shoulders and state he had a con-
tract with NDC. Della Vella then remarked that this was not all
he and Corazo could do, that “we can come back, not just the
two of us, but en masse, but that’s not a threat.” Della Vella
also complained to Maxwell about UPS’ use of another nonun-
ion contractor, Shuhart Electric, at the Oregon facility. Con-
cerned by Della Vella’s remarks, Maxwell turned to Corazo,
whom he described as the calmer of the two, stated he would
look into the allegations regarding the NDC’s lack of permits,
and asked Corazo to give him advance notice of any action
Local 98 might be thinking of taking at the Oregon facility.
Corazo agreed to do so. (Tr. 163–164.) Neither Corazo nor
Vella Della testified in this proceeding. Consequently, Max-
well’s above testimony remains unrefuted. I found Maxwell to
be a wholly credible witness. Accordingly, I accept his unre-
futed account of his meeting with Corazo and Della Vella and
find that Local 98, through admitted agent Della Vella, in-
formed Maxwell of its intent to engage in mass picketing if
UPS did not agree to end its contractual arrangement with
NDC.
Following his June 2 conversation with Local 98’s agents,
Maxwell looked into Corazo’s allegations regarding UDC, and
was told that the cabling contract was awarded to NDC based
on its competitive pricing, and that NDC had been approved by
the region as a special provider of cabling service. He also
learned that a union contractor had been included by UPS in the
bidding process and asked to submit a bid, but failed to do so.
The next day, June 3, in response to his discussion with Corazo
and Della Vella, and following consultations with fellow Labor
Manager Mark Aaron, Maxwell had signs, approximately 8-1/2
x 11 inches in size, posted at entrances 1, 3, and 4. Entrance 2
already had a sign that was posted in 1997 in response to a
strike and read:

“THIS ENTRANCE IS RESERVED FOR THE
EXCLUSIVE USE OF UNITED PARCEL SERVICE
VEHICLES ONLY”

At Entrance 4, the gate reserved for vendors, the following
sign was posted:

Northern Weccacoe St. Entrance
This entrance is reserved for the exclusive use of Network
Dynamic Cabling and G.M. Shuhart Electric, and their employ-
ees, vendors or sub contractors.

The signs posted at Entrances 1 and 3 on June 3, read:

This entrance is reserved for the exclusive use of United Par-
cel Service Inc., its employees, customers, vendors, agents,
agents or sub contractors.
Employees of Network Dynamic Cabling and G.M. Shuhart
Electric may not use this entrance, but must use the Northern
Weccacoe Street entrance.

It is undisputed, and Respondent Local 98 admits in its an-
swer, that it engaged in picketing at the Oregon facility on June
24. UPS area security manager, Gene McGlone, testified that
early in the morning of June 24, while still at home, he received
a call from one of his supervisors, Doug McQueen, who re-
ported that picketers were starting to congregate at all the en-
trances to the Oregon facility. McGlone left for facility imme-
diately and, on arriving around 6:40 a.m., circled the facility in
his car during which he observed approximately 50–60 picket-
ers standing around entrances 2, 3, and 4, carrying signs identi-
fying them as being with Local 98.26 Soon thereafter, he walked
over to entrance 3, which was where the largest group of pick-
eters had congregated, and asked who was in charge. One of the
picketers pointed to Della Vella. After introducing himself to
Della Vella, McGlone asked why they were there, and Della
Vella responded that they were protesting because one of UPS’
contractors was nonunion. McGlone then advised Della Vella
that all UPS’ vendors were required to use entrance 4 and that
whatever picketing was to take place should be restricted to that
entrance. He admits, however, not having mentioned to Della
Vella that NDC was not on the jobsite at the time. When

26 Local 98 asserts, on brief, that the signs also identified NDC as the
employer with whom it had a dispute (R. Br. 25). There is, however, no
evidence to support that assertion for the witnesses at the hearing who
were asked about the wording on the signs recalled only seeing some
reference to the IBEW or Local 98, not NDC, on the signs. (Tr. 263,
313.) The General Counsel, it should be noted, offered a videotape into
evidence showing some of the picketing that took place at the Oregon
facility on June 24. While the videotape shows pickets wearing signs,
the wording on the signs is not readily discernible from a plain viewing
of the video.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 760
McGlone asked if Della Vella was going to let any of UPS’
vehicles in or out of the Oregon facility, the latter replied, “No
way, no fucking thing’s coming in and out of this building.”
Della Vella, as noted, was not called to testify. As to McGlone,
I found him to be quite credible. Accordingly, I credit his unre-
futed account of his conversation with Della Vella and find that
Della Vella indeed made the above remarks.
Consistent with Della Vella’s remarks, certain vehicles
seeking to enter and leave the Oregon facility were in fact pre-
vented from doing so by Local 98 pickets. Thus, McGlone
testified, credibly and without contradiction, that he personally
observed four tractor-trailers attempt to gain entry to UPS’
facility that morning through gate 3, but were prevented from
doing so by pickets blocking the entrance, that a delivery vehi-
cle from Corporate Express carrying general office supplies to
the Oregon facility was likewise prevented from entering
through entrance 3 by pickets, and that a tractor-trailer carrying
next day air products from the Oregon facility to a UPS air
service center in downtown Philadelphia was also prevented by
pickets from exiting the Oregon facility.
One trailer, carrying A-4 canisters used to deliver high pri-
ority, time-sensitive packages, also was denied entry to the
Oregon facility by the pickets.27 McClone testified, without
contradiction, that on informing Della Vella that the packages
were scheduled for next-day delivery and asking the latter to
allow the shipment through. Della Vella repeated that “nothing
was going in and out of this building again.” McClone then
instructed the driver of the A-4 trailer, UPS preload supervisor,
Dennis Craig, to drive to the western side of the Oregon facility
and attempt to enter the premises through an old unused gate.28
Craig worked the midnight shift, from 11 p.m. to 10 a.m..
He testified, credibly and without contradiction, that at around
6:50 a.m. on June 24, he observed some 30 pickets standing in
front of entrance 2 and approximately 30 more at entrance 3.
Corroborating McGlone, Craig further testified that after sev-
eral unsuccessful attempts to drive the A-4 trailer through en-
trance 3, McGlone directed him to enter through the unused
gate. On finding the unused gate welded shut, Craig, on further
instructions from McGlone, crashed through the gate. (Tr. 238,
265–267.)
UPS Metro Philadelphia Operations Manager Bruce Trotter
testified to receiving a call from Oregon facility preload man-
ager, Rich Barbazon, around 6:50 in the morning advising him
of the pickets at that facility. On arriving at the facility some 25
minutes later, Trotter observed Local 98 pickets at the em-
ployee entrance, and in front of the four large overhead doors.
He credibly recalled there being around five to seven pickets
stationed in front of each overhead door wearing Local 98
signs. On asking the pickets who was in charge, Trotter was
directed to Corazo. Corazo, accompanied by Della Vella, then
approached Trotter and told the latter that Local 98 had gotten
no satisfaction from talking with Maxwell regarding NDC, and
that the picketers were not going to move (Tr. 305). Trotter

27 It is unclear if this is one of the four trailers observed by McGlone
trying to enter the Oregon facility.
28 Craig replaced another driver in the trailer, a member of the
Teamsters’ union, who refused to cross the picket line.
replied that he had time-sensitive packages that needed to be
delivered in a timely fashion, and informed Corazo that NDC
was not on the premises. Corazo then left for a few minutes to
make a call on his cell phone. When he returned Trotter took
Corazo aside and asked what it was “going to take . . .to get the
pickets from in front of my building and get these packages out
for delivery.” Corazo responded that it was going to take UPS
meeting “with the Local and talk about making sure that we
don’t use NDC, and that we give them a chance at doing work
on Oregon Ave.” (Tr. 305–306.) Trotter agreed to meet with
Corazo the following day and to keep NDC out of the Oregon
facility in the meantime. According to Trotter, the pickets dis-
persed within 3–4 minutes of his conversation with Corazo. He
testified, however, that operations at the Oregon facility were
disrupted for at least 2 hours because of the pickets.
Around 12:30 p.m. that same day, Trotter received a call
from Corazo complaining that he had seen an NDC truck going
into UPS’ airport facility. Trotter replied that he had no knowl-
edge of the NDC truck being at that facility and agreed to re-
move the NDC truck consistent with his earlier promise to
Corazo that NDC would be kept of UPS’ facilities.
Maxwell testified that he first learned of Local 98’s June 24
picketing of the Oregon facility while in Baltimore, Maryland
from a UPS manager who called him to report that IBEW pick-
ets were blocking all entrances to the facility. By the time
Maxwell got back to the Oregon facility around 2 or 3 p.m., the
picketing had ended. Presumably on learning of the discussion
between McClone and Corazo regarding the airport facility,
Maxwell posted a sign at the airport entrance which was simply
a modification of the entrance 1 and 3 signs, and similarly
modified the latter two signs. Thus, the airport sign, and the
signs at entrance 1 and 3 now read:

This entrance is reserved for the exclusive use of United Par-
cel Service Inc., its employees, customers, vendors, delivery
agents, and sub contractors; except, employees of Network
Dynamic Cabling and G.M. Shuhart may not use this en-
trance. Employees of Network Dynamic Cabling and G.M.
Shuhart Electric must use the Northern Weccacoe Street en-
trance.

As agreed, Local 98 officials met with UPS officials the
next day, June 25. In attendance for UPS were Trotter, Max-
well, Aaron, and TSG Manager Rolf Stutzer. Corazo, Della
Vella, John Daugherty, and Hnatkowsky were there for Local
98. Trotter began the meeting by giving Local 98 the opportu-
nity to express their concerns. Trotter recalls that Daugherty did
most of the talking and began by identifying himself as the
head of Local 98, describing his various political and other
connections, and pointing out that, if necessary, he would use
those connections to secure work for his Local 98 members at
the Oregon facility. Daugherty, he further recalled, described
NDC as a substandard contractor which had been having labor
disputes with Local 98 all over the place and mentioned that
unfair labor practice charges involving NDC were pending
before the Board. Corazo chimed in that “he wanted to take
over for NDC,” that “he didn’t think they were properly li-
censed . . . and didn’t have all the licenses that they needed to
have, and that NDC shouldn’t be working in our building.” (Tr.
ELECTRICAL WORKERS LOCAL 98 (MCF SERVICES) 761
310.) Daugherty, according to Trotter, also brought up the air-
port work and indicated he had a union company that could do
the work.
Maxwell generally corroborated Trotter’s above account of
the meeting. He also recalled, however, Daugherty mentioning
that charges were either pending or to be filed against NDC
with the Equal Employment Opportunity Commission regard-
ing one of Local 98’s members, and stating that he had strong
political ties to various Philadelphia officials, including the
current and former mayors of Philadelphia. Daugherty pointed
out that Philadelphia was a union town and that it was very
important for him to have union members at UPS’ Oregon and
airport facilities. Daugherty claims that he and Trotter both
informed the Union representatives that their picketing had
been improper, amounted to illegal secondary picketing, and
should not have taken place. Daugherty responded that he was
simply exercising his First Amendment rights. Daugherty,
Maxwell recalls, also indicated his awareness of another UPS
job to be done at the airport facility and expressed his interest
in getting that work for his members wanted to work with UPS
officials in that regard. Maxwell, however, responded that Lo-
cal 98 had a funny way of demonstrating its willingness to
work with UPS and that shutting down the UPS facility for an
hour and half the previous day was no way to show that he
wanted the UPS work. Daugherty, Maxwell claims, became
upset at that point and replied that “if you want to fight the
fight, he’ll fight it,” adding that “if it’s a big fight, it just means
a big win for him.” Daugherty then boasted of having fought
bigger companies before, naming AT&T and Home Depot as
examples, and stated that he “would do whatever they had to do
to get our work at the Oregon Avenue and at the Philadelphia
Air Hub facility.” The meeting essentially ended with Maxwell
again agreeing to look into Local 98’s allegations that NDC
lacked the proper licenses and was not paying its business
privilege taxes, and promising to get back to Local 98 after the
July 4th holiday.
Soon after the meeting, Maxwell, concerned about possible
future picketing by Local 98, called Corazo to obtain assurance
that Local 98 would not again engage in mass picketing at the
Oregon facility. Corazo informed him that “as long as UPS
keeps NDC off [the] property, there would be no Union activ-
ity.” (Tr. 180, 182.) The record is silent on what, if anything,
may have occurred between the parties after June 24. There is,
however, no indication that Local 98 engaged in further picket-
ing of any of UPS’ facilities.
a. Discussion
The General Counsel and UPS contend, and Local 98 de-
nies, that Della Vella’s June 2 remark to Maxwell, and the
picketing that occurred at the UPS site on June 24, violated
Section 8(b)(4)(B) of the Act. I find merit in the General Coun-
sel’s and UPS’ contention.
Thus, I am convinced that Della Vella’s June 2, remark was
intended as a threat to mass picket the UPS facility if UPS did
not cease doing business with NDC. There is no disputing, and
indeed Local 98 does not deny, that it objected to UPS’ use of
NDC as an electrical contractor. That sentiment was expressed
to Maxwell during his May 11 meeting with Corazo when the
latter referred to NDC as an “inappropriate contractor” for
UPS. While Corazo may not have expressly conveyed to Max-
well during that May 11, meeting Local 98’s wish that NDC be
replaced with a union contractor, Della Vella’s subsequent June
2, remarks leave no doubt that this indeed was Local 98’s true
goal. Thus, annoyed at Maxwell’s insistence that UPS intended
to retain NDC as its electrical subcontractor, Della Vella, as
noted, warned that Local 98 could come back with “picketing,”
“handbilling,” and “come back . . . en masse.” There can be no
doubt, and I so find, that Della Vella’s warning, following as it
did on the heels of Maxwell’s insistence that NDC would be
retained, was intended as a coercive threat by Local 98 to en-
gage in mass picketing at the UPS facility unless UPS agreed to
stop doing business with NDC. While Della Vella attempted to
downplay the significance of his remark by telling Maxwell
that his remark should not be taken as a threat, at no time did
either he or Corazo, both of whom knew that contractors other
than NDC would be working at the UPS facility, provide Max-
well with assurances that any such picketing would be carried
out in conformity with the Moore Dry Dock standards or other
applicable Board law.29 Teamsters Local 456 (Peckham Mate-
rials), supra. Accordingly, I find that Della Vella’s June 2,
remark amounted to an unlawful threat under Section
8(b)(4)(ii)(B).
Support for the above finding can also be gleaned from Lo-
cal 98’s subsequent conduct. Thus, it is clear that Della Vella’s
threat to engage in mass picketing was not an idle one for, as
discussed above, Local 98 on June 24, in fact picketed the UPS
facility. The clear object of that picketing, I am convinced, was
to force UPS into replacing NDC with a union contractor. That
this indeed was Local 98’s intent is evident from Local 98’s
failure to restrict its picketing to the gate (entrance 4) reserved
for NDC, its employees, and suppliers, in clear contravention of
the third Moore Dry Dock standard. Local 98 admits knowing
that gate 4 was established as the primary gate and further con-
cedes on brief (p. 26) that the sign on gate 4 was neither con-
fusing nor ambiguous but rather “fairly clear.”
Local 98, however, does contend that the signs posted at
gates 1, 2, and 3 were not so clear. Thus, it argues that the signs
posted at gates 1 and 3, while reflecting that these entrances
were intended for the exclusive use of UPS employees and
vendors, did not provide guidance to vendors and suppliers of
NDC as to which gate they were to use. The absence of any
such instructions to NDC vendors and suppliers on the signs
posted at these three gates, argues Local 98, rendered the signs
confusing as it created the likelihood that said vendors and
suppliers would enter the UPS facility through gates 1 or 3
unaware that they were restricted from doing so. It makes a
similar claim with respect to gate 2, arguing, for example, that
while the sign at gate 2 states that this entrance was “reserved
for the exclusive use of United Parcel Service vehicles only,” it

29 Della Vella’s reference during his June 2 conversation with Max-
well to Shuhart Electric, another nonunion contractor, being on UPS’
premises makes clear that Local 98 had knowledge that employers
other than the primary employer, NDC, was working at the UPS facil-
ity. It is not clear, however, if Local 98 was also having a dispute with
Shuhart Electric.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 762
did not “sufficiently advise Local 98 that the gate would not be
used by NDC employees, subcontractors, or suppliers.” Local
98 asserts that the confusing nature of the signs rendered the
entire reserve gate system flawed and justified its decision to
picket at all UPS entrances. I disagree.
First, Local 98 makes no claim, nor do I find any evidence
to show, that the neutrality of gates 1, 2, and 3 had been
breached, or otherwise compromised, by vendors or suppliers
claiming to be under contract to NDC, or by employees of
NDC itself. Indeed, the record reveals, and Local 98 readily
concedes on brief (p. 26), that NDC was not using any vendors,
suppliers, or subcontractors at the UPS jobsite, thus making it
highly unlikely that any such breach would have occurred.
Local 98’s claim of a potential taint of the neutral gates by
NDC vendors or suppliers is, therefore, based on nothing more
than supposition, conjecture, and speculation, rather than any
credible evidence of record. Nor was there anything particularly
confusing about the wording on the signs at gates 1, 2, and 3.
Thus, the wording on the signs at gates 1 and 3 were identical
and stated in clear and unambiguous language that these en-
trances were to be used exclusively by UPS employees and its
vendors; the gate 1 sign likewise stated clearly and unambigu-
ously that this entrance was for the exclusive use of UPS vehi-
cles. I therefore find it highly unlikely, given the clear and plain
language of the signs at these three neutral gates, that any ven-
dor or supplier would have become confused by the wording
thereon and attempted entry through those gates. Local 98, as
noted, makes no claim or produced evidence to show that any
such misunderstanding in fact occurred among suppliers visit-
ing the jobsite. Nor is there any evidence to suggest that Local
98’s members who took part in the June 24, picketing found the
signs confusing. Again, Local 98 made no effort to call any of
the pickets to testify in this regard. Accordingly, I reject as
without merit Local 98’s claim that the reserve gate system was
rendered invalid, and that it was justified in picketing the entire
UPS facility, simply because the signs posted at gates 1, 2, and
3 did not contain explicit language prohibiting potential NDC
vendors and suppliers from using said gates. Iron Workers Lo-
cal 433 (Barry-Wehmiller Co.), 303 NLRB 287, 291–292
(1991); Elevator Constructors (Long Elevator), 289 NLRB
1095, 1097 (1988); Carpenters Local 1622 (Robert Woods &
Associates), 262 NLRB 1211, 1217 (1982).
Local 98’s failure to restrict its picketing to the gate re-
served for the primary employer, NDC, with whom it had the
dispute raises a presumption that the picketing had an unlawful
secondary purpose. Della Vella’s remark to McGlone, that
Local 98 had no intention of allowing vehicles belonging to
UPS, or for that matter any other contractor, including neutrals,
to enter or leave the UPS facility through any gate, and
Corazo’s statement to Trotter that the picketing would end
when UPS stopped using NDC and instead gave Local 98’s
members a chance to do the work being done by NDC, pro-
vides ample, if not irrefutable, proof, that Local 98’s goal in
picketing the entire facility was to pressure UPS into replacing
NDC with a union contractor more suitable to Local 98. By
engaging in the above-described conduct, Local 98, as alleged
in the complaint, violated Section 8(b)(4)(i)(B) of the Act.
Electrical Workers Local 369 (Garst-Receveur Construction
Co.), 229 NLRB 68 (1977).
CONCLUSIONS OF LAW
1. State Electric, Wohlson Construction, and United Parcel
Service are employers and persons engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondents Local 98 and Local 380 of the International
Brotherhood of Electric Workers, AFL–CIO, are labor organi-
zations within the meaning of Section 2(5) of the Act.
3. In August 1998, Respondents Local 98 and Local 380
created a joint venture to organize employees of State Electric.
4. Respondents Local 380 and Local 98, as joint venturers
and through their agent, Timothy Browne, violated Section
8(b)(ii)(B) of the Act by, on June 8, 1999, threatening to picket
the Cheltenham jobsite in order to force the Cheltenham school
board it to cease doing business with State Electric, and Section
8(b)(1)(A) of the Act by threatening Vincent Ponticello with
physical harm and interfering with his right to engage in work
activity, by photographing him and other employees as they
entered and exited the Cheltenham jobsite, and by blocking
employee and vehicle egress and ingress at that jobsite.
5. Local 98 has further violated Section 8(b)(1)(A) of the
Act by blocking the egress and ingress of employees and vehi-
cles at the UPS and PPH jobsites.
6. By threatening to picket general contractor Adams-Bickel
with the object of forcing it to cease doing business with State
Electric at its Robert Bellamine jobsite, and threatening to picket
UPS with the object of forcing it to cease doing business with
NDC, Local 98 has violated Section 8(b)(4)(ii)(B) of the Act.
7. By picketing at gates reserved by UPS for neutral em-
ployers, their employees and suppliers at its Philadelphia facil-
ity with the object of forcing UPS to cease doing business with
NDC, and by picketing at gates reserved by Wohlson Construc-
tion at the PPH facility for neutral employers, their employees
and suppliers with the object of forcing Wohlson Construction
to cease doing business with nonunion contractors and/or Day-
spring Electric, Local 98 has violated Section 8(b)(4)(i)(B) of
the Act.
8. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that Local 98 and Local 380 have violated
Section 8(b)(1)(A) and Section 8(b)(4)(i) and (ii)(B) of the Act,
I shall recommend that they be ordered to cease and desist from
such violations, and to post appropriate notices.
The General Counsel and State Electric urge that a broad
order be imposed on Local 98 requiring it to cease and desist
from any conduct prohibited by Section 8(b)(4)(B) of the Act.
A broad order is fully justified here. As the General Counsel
correctly points out on brief, Local 98 is a repeat offender of
the Act, having recently been found by the Board in Electrical
Workers Local 98 (The Telephone Man), 327 NLRB 1113
(1999), to have engaged in similar 8(b)(4)(B) conduct. In Tele-
phone Man, supra, the Board, agreeing with an administrative
law judge’s recommendation, issued a broad cease-and-desist
ELECTRICAL WORKERS LOCAL 98 (MCF SERVICES) 763
order against Local 98 because, as explicated by the judge,
Local 98 had by its conduct demonstrated a “proclivity for
violating the Act” and a “general disregard for the fundamental
rights of employees and neutral employers.” As evident by its
conduct here, Local 98 has not changed its ways. Indeed, Local
98 has, by its conduct herein, demonstrated a deliberate and
near contemptuous disregard for the Board’s processes and
remedial orders, and has again shown its proclivity to violate
the Act as well as a general disregard for the fundamental rights
of employees and neutral employers. In these circumstances, a
broad order is both appropriate and necessary here.30
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended31
ORDER
A. The Respondent, International Brotherhood of Electrical
Workers, Local 98, AFL–CIO, Philadelphia, Pennsylvania, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing employees of
employers performing work at the Cheltenham, PPH, and UPS
jobsites, or of any other employer, by threatening them with
physical harm, photographing them as they enter and leave
their workplace, and blocking them and their vehicles from
entering or leaving their jobsites or, in any other manner inter-
fering with the rights guaranteed to employees by Section 7 of
the Act.
(b) Picketing, threatening to picket, or in any other in manner
or by any other means seeking to restrain or coerce general
contractor Adams-Bickel, the Cheltenham school board, PPH
and/or Wohlson Construction, UPS, or any other employers or
persons engaged in commerce or in any industry engaged in
commerce, where the object of such picketing or threats to
picket is to force or require said employers or persons to, in
turn, cease doing business with State Electric, Dayspring Elec-
tric, NDC, or any other employer with whom it may have a
dispute.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
business offices and all meeting halls located in the State of
Pennsylvania copies of the attached notice marked “Appendix
A.”32 Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by Local 98’s author-
ized representative, shall be posted by Local 98 immediately
upon receipt and maintained for 60 consecutive days in con-

30 No similar broad order has been requested for Local 380’s con-
duct, nor do I find any to be warranted here with respect to Local 380.
31 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
32 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.”
spicuous places including all places where notices to members
are customarily posted. Reasonable steps shall be taken by
Local 98 to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Within 14 days after service by the Region, mail a copy
of the attached notice marked “Appendix A” to all of its mem-
bers. The notice shall be mailed to the last known address of
each member after being signed by Local 98’s authorized rep-
resentative.
(c) Sign and return to the Regional Director sufficient copies
of the notice for posting by Adams-Bickel, the Cheltenham
School District, Wohlson Construction, PPH, and UPS, if will-
ing, at all places where notices to employees are customarily
posted.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Local 98 has taken to comply.
B. The Respondent, International Brotherhood of Electrical
Workers, Local 380, AFL–CIO, Collegeville, Pennsylvania, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening the Cheltenham school board with picketing
of its high school construction jobsite with the purpose of forc-
ing the school board to cease doing business with State Electric,
with whom Local 380 has a dispute.
(b) Restraining or coercing employees employed at the Chel-
tenham jobsite in the exercise of the rights guaranteed them by
Section 7 of the Act by threatening them with physical harm
and preventing them from performing their work duties, photo-
graphing them as they enter and leave the jobsite, and blocking
the ingress and egress of employees and vehicles from the
Cheltenham jobsite.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following action necessary to effectuate the poli-
cies of the Act.
(a) Within 14 days after service by the Region, post at its
meeting hall and office copies of the attached notice marked
“Appendix B.”33 Copies of the notice, on forms provided by the
Regional Director for Region 4, after being signed by Local
380’s authorized representative, shall be posted by Local 380
immediately upon receipt 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 Local 380 to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Within 14 days after service by the Region, mail to the
Regional Director copies of the signed notice for posting by the
Cheltenham school District, if willing, at all places where no-
tices to employees are customarily posted.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official,
on a form provided by the Region, attesting to the steps Local
380 has taken to comply.

33 See fn. 32, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 764