International Brotherhood Of Electrical Workers, 302

National Labor Relations Board - Board Decisions

Oct 24, 1984

272 N.L.R.B. 920 (N.L.R.B. 1984)

920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local 302 and David Garcia and William Fre
denckson d/b/a ICR Electric Case 32-CC-831
24 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 30 April 1984 Administrative Law Judge
James M Kennedy issued the attached decision
The General Counsel and the Charging Party filed
exceptions and supporting briefs, and the Respond
ent filed an answering brief
The National Labor Relations Board has delegat
ed 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 ' and
conclusions as modified 2 and to adopt the recom
mended Order
1 In fn 2 sec IV par 7 of his decision the judge relying on the
parties stipulation that there were no interruptions in the progress of
work at the jobsite between 10 and 23 August found that the Charging
Party s attorney inaccurately stated in his 9 August letter to the Union
that the picketing had caused contractors to walk off the job The stipula
tion however covered only the period of 10-23 August There was no
evidence concerning the effects of the picketing before the 9 August
letter Because the record does not support the judge s finding that the
Charging Party s letter was partially inaccurate we specifically disavow
it
2 We agree with the judge that the Respondent s picketing at the Anti
och California construction site between 10 and 23 August 1983 did not
violate Sec 8(b)(4)(1) and (i1)(B) of the Act but only for the reasons
which follow As the judge found the Respondent complied with three
of the four standards the Board established to assist in determining
whether picketing at a common situs is primary or secondary Sailors
Union (Moore Dry Dock) 92 NLRB 547 549 (1950) Thus the Respond
ent limited the picketing to times when the situs of the dispute was at the
construction site the picketing was limited to gate B the reserve gate a
place reasonably close to the location of the situs of the dispute and the
picket sign clearly disclosed that the dispute was with ICR the primary
employer But because the Respondent picketed the reserve gate during a
period it had been Informed that the primary employer would not be per
forming work or receiving supplies at the site it did not fully comply
with the requirement that at the time of the picketing the primary em
ployer must be engaged in its normal business at the site
The Moore Dry Dock criteria are evidentiary aids that are not to be me
chanically applied See Electrical Workers IBEW Local 400 (County of
Ocean) 269 NLRB 119 fn 2 (1984) Operating Engineers Local 675 (Indus
trial Contracting) 192 NLRB 1188 1189 (1971) Although observance of
these standards raises a presumption of legality the ultimate question—
one of fact—remains does the union s conduct disclose an Illegal second
ary object/ See T W Helgesen Inc v Iron Workers Local 498 548 F 2d
175 (7th Cir 1977) The record here in our view requires a negative
answer
A single picket carried a sign which was clearly addressed to the
public and which stated that the dispute was only with ICR The sign
read
To the public Please be advised that ICR Electric does not have a
contract with IBEW Local 302 and does not employ any of its mem
hers This dispute does not Involve any other employer
The picketing was confined to the reserve gate The Union did not ap
proach any neutral employers or employees nor attempt to enlist the aid
of other labor organizations The picket clearly attempted to avoid en
meshing neutral employers employees by arriving at the site after most
of the neutral employees were already working and leaving before them
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis
missed
and carrying the sign upside down when walking from his car to the re
serve gate At the time ICR left the site It had performed only 10 per
cent of its work and was clearly intending to return The reserve gate
sign remained in place during ICR s absence and ICR left a small amount
of material at the site At the time it left the site ICR did not Inform the
Union of the precise date when it would return although it did so later
No interruptions in work occurred at the site as a result of the picketing
during ICR s absence The picketing took place on a busy street at times
when the public could reasonably be expected to see the sign
Contrary to the General Counsel we find Electrical Workers IBEW
Local 595 (Hayward Electric) 261 NLRB 707 (1982) and Plumbers Local
519 (HL Robertson & Associates) 171 NLRB 251 (1968) distinguishable
In Hayward the picket signs were not addressed to the public and did not
state that the union had no dispute with any other employer The reserve
gate had been removed and the union picketed the entire site and one
neutral employee refused to cross the picket line In Robertson the pn
mary employees were scheduled to be present at the site during certain
hours but the union picketed the entire jobsite when no primary employ
ees were present and neutral carpenter employees did not work dunng
the picketing
We find that the factors indicating a primary objective outweigh the
technical breach of one of the Moore Dry Dock criteria We therefore
conclude that the Union s picketing did not violate Sec 8(b)(4)(1) and
(n)(B) of the Act and shall dismiss the complaint
DECISION
STATEMENT OF THE CASE
JAMES M KENNEDY Administrative Law Judge This
case was tried before me in Oakland California on Janu
ary 16 1984 pursuant to a complaint issued by the Re
gional Director for the National Labor Relations Board
for Region 32 on September 28 1983 1 and which is
based on a charge filed by David Garcia and William
Frederickson d/b/a ICR Electric (the Charging Party
or ICR) on August 8 The complaint alleges that Interna
tional Brotherhood of Electrical Workers Local 302
(Union or Respondent) has engaged in certain violations
of Section 8(b)(4)(1) and (n)(B) of the National Labor Re
Wiens Act (the Act)
Issue
Whether Respondent violated Section 8(b)(4)(1) and
(u)(B) when it picketed a construction site in Antioch
California for 8 days during a 13 day period in August
when ICR was temporarily off the site
All parties were given full opportunity to participate
to introduce relevant evidence to examine and cross ex
amine witnesses to argue orally and to file briefs All
parties filed briefs which have carefully been considered
On the entire record of the case and from my obser
vation of the witnesses and their demeanor I make the
following
1 All dates herein refer to 1983 unless otherwise indicated
272 NLRB No 140
ELECTRICAL WORKERS IBEW LOCAL 302 (ICR ELECTRIC) 921
FINDINGS OF FACT
I THE EMPLOYER S BUSINESS
At the hearing Respondent admitted that the Charging
Party is a California corporation having its principal
place of business in Antioch where it is engaged in the
construction business as an electrical contractor It fur
ther admits that during the past 12 months ICR has pur
chased and received goods valued in excess of $50 000
from California suppliers who had obtained such goods
from outside the State and thus it meets the Board s indi
rect inflow jurisdictional standard Accordingly it
admits ICR is an employer engaged in commerce within
the meaning of Section 2(2) (6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that at all material times
it has been a labor organization within the meaning of
Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The construction site is owned by one Gerald Jeffrey
He has contracted with Mid State Construction a gener
al contractor to erect an office building Mid State in
turn has subcontracted portions of the construction to at
least 23 subcontractors The electrical subcontractor is
the Charging Party ICR Electric
The project in question is located at the intersection of
West Tregallas Road and Lone Tree Way not far from
downtown Antioch The evidence shows that Lone Tree
Way is a major thoroughfare in that city To the north is
the downtown business district and to the south are a
large shopping center the city airport and recreational
facilities Opposite the construction site on Tregallas
Road is a small shopping center adjacent to the intersec
tion of Tregallas and Lone Tree are on and off ramps to
Highway 4 a freeway serving northern Contra Costa
County and a commute route to Oakland San Francisco
The testimony shows that there is both heavy vehicular
and pedestrian traffic on Lone Tree Way
The construction site itself is an isosceles triangle with
the apex at the intersection The building configuration is
a modified triangle designed to fit the lot There is a
parking lot running parallel to the base of the triangle it
has two entrances one on Tregallas known as Gate A
and one on Lone Tree Way known as Gate B The dis
tance from each of those two gates to the intersection is
200 feet the distance between the two gates via the
parking lot appears to be nearly 300 feet Although each
gate could be seen from the other during the initial
stages of construction as the building rose the view
became blocked
According to a stipulation of the parties on about July
29 Mid State notified Respondent that a dual gate system
had been established at the site Gate A was posted with
a sign reserving entry exclusively for the employees and
suppliers of 22 named contractors It stated that all other
persons must use the gate on Lone Tree Way Gate B
That gate was posted with another sign containing the
following legend This gate reserved exclusively for the
employees and suppliers of I C R Electric All other
persons must use gate located on West Tregallas Road
[Gate A] The record does not reflect what prompted
the general contractor to post the signs at this time
Nonetheless on August 3 Respondent wrote ICR a
letter asserting that it understood that ICR had engaged
employees to perform the electrical work on the job
under wages and conditions which are substandard
The letter advised that Respondent intended to picket
ICR s project to protest the substandard wages and con
ditions It went on to explain that such wages and condi
tions threatened benefits negotiated by Respondent for its
own members and undermined the ability of union signa
tory contractors to obtain work for its members The
letter asserted the picketing would not be for the pur
pose of seeking representation rights for ICR s employ
ees and that it did not seek to obtain a contract covering
those employees or to compel ICR to abide by the terms
of the master contract It said The single purpose of
the picketing would be to call to the attention of all con
cerned that the work was being performed under sub
standard conditions
Respondent then offered to remove the pickets on the
presentation of evidence that ICR s employees were re
ceiving comparable wages and benefits and advised ICR
that the total economic outlay for employee benefits
under the master agreement amounted to $30 33 for each
straight time hour It offered to explain how that figure
was calculated It repeated that its object in this matter
is solely to bring pressure to eliminate the competitive
advantage which you have over other employers under
their contracts with us by paying substandard wages and
benefits It concluded by stating if ICR proved that the
level of benefits had been met you may rest assured
that we will engage in no protest activities Almost si
multaneously the picketing commenced There is an in
consequential dispute with respect to when it actually
began The General Counsel asserts it was August 1 Re
spondent asserts it was August 3 In any event the Union
picketed Gate B with the following legend IBEW
Union Local 302 protests the fact that ICR Electric does
not pay prevailing wages for electrical work There is no
dispute with any other employer
On August 9 ICR answered Respondent s letter and its
picketing by two separate communications First ICR s
attorney Paul V Simpson wrote union attorney Peter
Nussbaum a letter which inter aim advised that ICR
did not employ any electricians saying the two owners
did all the work themselves Simpson contended the
picketing could not therefore have the area standards
object which Respondent was claiming 2 The second
2 Simpson s letter also fired a broadside salvo He asserted that the
picketing had caused contractors to walk off the job and thus violated
Sec 8(b)(4)(B) he also said because ICR employed no unit personnel
Sec 8(b)(7)(C) was also being violated for the picketing had a perceived
organizational or recogrutional purpose He threatened a Sec 303 damage
suit as well as a defamation action in connection with certain handbills
which were also being distributed (The handbills were distributed at lo
cations other than the construction site and are not in issue here ) The
parties later stipulated that no contractor or its employees had walked off
the job Thus Simpson s letter was partially Inaccurate furthermore
there is no contention that the picketing actually violated Sec 8(b)(7)(C)
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
message was a mailgram sent by Simpson directly to the
Union It contended the picketing was illegal as ICR did
not employ anyone to perform the work except its two
owners He also asserted that the owners total compen
sation exceeded that set forth in the IBEW contract He
advised that NLRB charges had been filed and threat
ened civil action unless the picketing and handbilling
ceased
That same day as a response to both communications
the Union s business manager John A Hunter sent a
mailgram to ICR reconfirm[ing] the fact that IBEW
Local 302 was not interested in organizing your employ
ees obtaining representative rights for them obtaining a
contract or having [ICR] abide by the terms of our
master agreement He said the Union was interested in
informing the public that ICR did not have a contract
with the Union and did not employ its members He con
eluded In order to advise the public of these facts
Local 302 will engage in purely informational picketing
at the project
Simultaneously Respondent changed its picket sign to
read To the public Please be advised that ICR Electric
does not have a contract with IBEW Local 302 and does
not employ any of its members This dispute does not in
volve any other employer
Also on August 9 attorney Simpson on behalf of ICR
sent another mailgram to the Union He advised that ef
fective August 10 ICR would not perform work or re
ceive supplies at the project until further notice He
asked that the pickets be removed The Union did not re
ceive this mailgram until August 11
Prior to receiving ICR s two communications of
August 9 Respondent had picketed Gate B each day
commencing at 6 45 a m After receiving the August 9
communications Respondent delayed picketing until 8
a m After receiving Simpson s second mailgram on
August 11 Respondent continued with its new schedule
picketing Gate B each weekday beginning at 8 a m and
stopping at 2 30 p m Respondent s assistant business
manager Foster Whitehurst testified that the picket was
instructed to patrol during those hours because those
were the most convenient hours for people driving by
to see [the] sign
It is obvious that picketing during those hours tended
to minimize the impact it might have had on neutral em
ployees entering the site during the early morning hours
or those leaving in the afternoon Thus it is fair to con
elude that by the time the picket appeared at 8 a m most
of the neutrals employees other than deliverymen were
already on the site and that he had left before the neutral
personnel left for the day The picket a college student
engaged in summer employment was under strict in
structions to patrol Gate B and to go no further than a
city bus stop 40 feet away There is no evidence that he
ever breached those instructions In addition when
going to or from his parked automobile which was
parked in the lot of the small shopping center on Tregal
las he always carried his sign upside down The picket
testified that while he was at Gate B pedestrians and ye
hides on occasion stopped to read his sign He observed
that there is a bicycle lane on Lone Tree Way as well as
the bus stop which made it relatively easy for vehicles
to pull over to read his sign Foot traffic to and from a
nearby convenience store also read the sign There is no
evidence that any employee of a neutral contractor while
on his way to or from Gate A ever stopped Indeed the
parties have stipulated that the picketing had no effect
whatsoever and that no work stoppages occurred
On August 19 Simpson advised the Union that ICR
would return to the project on Tuesday August 23 ICR
did return to the site on August 23 the picketing contin
ued unchanged
It should be observed that during the 13 day period in
question Respondent picketed only 8 of those days as its
policy was to picket during weekdays not weekends Al
though no owner or employee of ICR actually per
formed electrical work during its 13 day absence it is
undisputed that it had performed only 10 percent of the
work it had contracted to do for Mid State In other
words 90 percent of the job remained to be done On
one or more occasions during the 8 days in question one
of Respondent s owners Daniel Garcia parked a compa
ny pickup truck across the street from the entrance to
Gate B approached the picket and engaged him in con
versation Almost daily Garcia using a company pickup
truck visited a liquor store across from the site with
which ICR maintains a charge account Also during that
period Respondent left a small quantity of plastic conduit
at the site and on another occasion one of its suppliers
attempted to make a delivery but was rebuffed as Gate B
was locked Despite being locked the gate continued to
display the reserve gate sign placed there in late July by
Mid State
IV ANALYSIS AND CONCLUSIONS
The only period of picketing alleged to be unlawful is
that conducted by Respondent between August 10 and
August 23 when ICR temporarily absented itself from
the jobsite The General Counsel contends that because
ICR was not physically present during that period Re
spondent must have had a cease doing business objec
tive 3
Although the statutory language has long been recog
nized to be somewhat unclear it can fairly be said that
the provision prohibits a labor organization from involv
ing neutral employers in disputes which are not their
own Of course it is also recognized that every primary
labor dispute may have incidental effects upon secondary
3 In pertinent part Sec 8(b)(4)(1) and (11)(B) reads as follows
Section 8(b) It shall be an unfair labor practice for a labor organiza
non or its agents—
(4)(1) To engage in or to induce or encourage any individual ern
ployed by any person engaged in commerce or in an Industry affect
mg 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 (n) to threaten coerce or restrain any
person engaged in commerce or in an industry affecting commerce
where in either case an object thereof is
(B) forcing or requiring any person to cease doing business
with any other person Provided That nothing contained in this
clause (B) shall be construed to make unlawful where not otherwise
unlawful any primary strike or primary picketing
ELECTRICAL WORKERS IBEW LOCAL 302 (ICR ELECTRIC) 923
or neutral persons The mere fact that incidental second
ary effects may occur does not convert lawful primary
picketing into secondary picketing Oil Workers Local
346 (Pure 011 Co) 84 NLRB 315 (1949) Sometimes the
fact pattern makes it quite difficult to determine whether
or not picketing is primary or secondary in nature
Nonetheless the Board has said on many occasions that
in determining the lawful or unlawful nature of the
union s object one should look to all the surrounding cir
cumstances be realistic and apply common sense to such
a determination Indeed Electrical Workers Local 861
(Plauche Electric) 135 NLRB 250 (1962) was the
Board s specific response to court criticism of the rigid
somewhat unrealistic rule of law set forth in Teamsters
Local No 67 (Washington Coca Cola) 107 NLRB 299
(1953) enfd 220 F 2d 380 (DC Cir 1955) In Plauche
the Board expressly overruled Washington Coca Cola
which had held that picketing at a common situs was un
lawful when the primary employer had a regular place
of business elsewhere which could be picketed Indeed
that is one of the arguments the Charging Party makes
here that ICR had an office located elsewhere in Anti
och which could easily have been picketed instead 4 Fur
thermore the trial examiner in Plauche had observed that
the picketing at the common situs had continued during
the day even though the primary s employees temporan
ly left the site for coffeebreaks lunch and the like The
Board thought a violation in that circumstance was
absurd Instead it applied the Moore Dry Dock 5 stand
ards to the case Even so it said the Moore Dry Dock
standards were to be applied with common sense and
stated not for the first time that they are not to be ap
plied on an indiscriminate per se basis but are to be re
garded merely as aids in determining the underlying
question of statutory violation Thus the standards
themselves which will be discussed below are not rules
of law but are designed to assist the trier of fact to deter
mine the true object of the picketing 6 Indeed the Board
has within the last month reaffirmed the nature of the
Moore Dry Dock standards as evidentiary aids which are
not to be mechanically applied See Electrical Workers
Local 400 269 NLRB 119 (1984) Earlier admonitions of
a similar nature are found in Operating Engineers Local
675 (Industrial Contracting Co) 192 NLRB 1188 (1971)
Operating Engineers Local 450 (Linbeck Construction
Corp ) 219 NLRB 997 (1975) and Carpenters Local 1245
(New Mexico Properties) 229 NLRB 236 (1977)
Because a union usually can lawfully picket a common
situs if it complies with the Moore Dry Dock criteria and
4 Its office was on a side street which offered little traffic
5 Sailors Union (Moore Dry Dock) 92 NLRB 547 (1950)
6 The Moore Dry Dock cntena were recently scrutinized in a Sec 303
action Constar Inc v Plumbers Local 447 568 F Supp 1440 (E D Cal
1983) (notice of appeal filed August 23 1983 9th Cir docket #83-2316)
In that case also involving reserve gates the court found the Moore Dry
Dock cntena to be of limited utility in determining a union s object
particularly where only technical breaches had occurred I commend the
case to the Board both for its recognition of construction site game
playing as well as for its thoughtful analysis of Moore Dry Dock I note
that the Charging Party s counsel here was plaintiff's counsel there Were
similar games being played in this dispute? If so can Moore Dry Dock re
alistically be expected to deal appropriately with them ? Board litigation
over such game playing appears both unbecoming and inexpedient
because such picketing often has lawful incidental effects
upon neutral employers—resulting in work stoppages
which are not cognizable under Section 8(b)(4)(B) the
so called reserve gate tactic was adopted The reserve
gate permits with court approval 7 the physical if fic
tonal separation of the primary disputant from the neu
trals This is usually done as here by arranging for sepa
rate entrances for both the primary disputant and the
neutrals When that occurs what previously had been a
common situs within the meaning of Moore Dry Dock
and Denver Building & Construction Trades Council v
NLRB 341 U S 675 (1951) becomes something less than
that
By operation of law as well as by the physical separa
tion, the primary disputant can reasonably be said to
have a location or situs separate from that of the neu
trals Literally of course both the neutrals and the pn
mary are actually present simultaneously at the site
Nonetheless a legal fiction has been created placing the
neutrals at the gate reserved for them and the primary at
the gate reserved for it Thus it cannot be said that the
Moore Dry Dock evidentiary aids are as effective in de
termining the lawful or unlawful objective of the union
as they would be had the situs remained truly common
This is undoubtedly because the proviso of Section
8(b)(4)(B) specifically protects primary picketing (see fn
3 supra) stating that nothing in the clause shall be
construed to make unlawful where not otherwise unlaw
ful any primary picketing
The Moore Dry Dock criteria were specifically de
signed to determine what is primary picketing and what
is not Those criteria are (a) The picketing must be
strictly limited to times when the situs of the dispute is
located on the secondary (neutral) employer s premises
(b) At the time of the picketing the primary employer
must be engaged in its normal business at the site (c)
The picketing must be limited to places reasonably close
to the location of the situs (d) The picketing must clear
ly disclose that the dispute is with the primary employer
If these criteria are met a rebuttable presumption of
lawful objective has been created If not the presump
tion is not as clear Even so a single failure to comply
with one criterion does not result in an automatic con
elusion of unlawfulness See Industrial Contracting Co
Lmbeck Construction and New Mexico Properties all
supra Such a conclusion would amount to an irrebutta
ble presumption—not countenanced by Section 10(c) of
the Act or the Plauche evidentiary aid approach Such
methodology must be rejected Presumptions are not
proof
Even assuming that the construction site here was a
true common situs it is clear that the Union complied
with three of the four criteria Obviously the construc
tion site is the situs of the dispute for it was there that
ICR was accused of failing to employ Respondent s
members furthermore the picketing was limited to Gate
B a place reasonably close to the location of the situs of
the dispute and the picket sign clearly disclosed that the
7 See Electrical Workers Local 761 (General Electric Go) v NLRB 366
US 667 (1961)
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute was with ICR the primary employer The only
real question is whether or not the picketing was in corn
phance with Moore Dry Dock criteria (b) Did the picket
mg occur at a time when the primary employer was en
gaged in its normal business at the site?
ICR s normal business is electrical contracting in the
building and construction industry It performs that busi
ness on construction sites The installation of electrical
wiring and fixtures at construction sites is normally per
formed on a staged basis 1 e according to schedules in
which various crafts including electricians appear and
often reappear at the site as the project progresses In
this particular case ICR had performed only 10 percent
of its contract When it left the site on August 9 or 10 it
obviously had every intention of returning shortly and it
cannot be said that its absence was permanent More
over it did not advise Respondent when it would return
though it promised to do so Indeed although the prom
ise was later kept the Charging Party s attorney made
factual assertions in his letter which were not accurate
Could the Union fully trust the Charging Party here,
Considering the fact that ICR s Garcia also occasionally
appeared at or near his primary gate the Union had
ample reason to believe that ICR was still present
Thus using the Moore Dry Dock rules as evidentiary
aids to determine Respondent s object here it appears
that Respondent complied with three of the four criteria
and partially complied with the fourth Both before
August 9 and after August 23 Respondent had fully
complied During that 13 day period even though ICR
was absent from the site the Union continued to picket
on 8 weekdays Yet the picketing was at a location
which the general contractor had dedicated and had
publicly posted as ICR s Thus even if ICR was not ac
tually on the site and even if the Union knew it to all
appearances insofar as the public and the neutrals were
concerned Respondent was picketing ICR at a place
where ICR was supposed to be Indeed the general con
tractor had taken steps to remove the neutrals from that
location by placing their entry nearly 300 feet away a
location which could not even be seen from the primary
gate Thus there were no neutrals to even be enmeshed
at that location
Since it was not a pure common situs due to the re
serve gate arrangement the Moore Dry Dock rules are
not as useful as they might be to determine the Union s
object We must also look to the Union s acts and con
duct with respect to its treatment of the neutral employ
ers on the site Section 8(b)(4) (i) condemns the induce
ment of the employees of neutrals not to perform work
as evidencing an unlawful object In this case there is ab
solutely no evidence whatsoever that any inducement of
neutrals occurred independent of the picketing itself
Similarly subsection (n) bans threatening coercing or
restraining neutral persons (employers) having a cease
doing business object Yet there is no evidence whatso
ever that Respondent approached any neutral in an un
lawful manner 8 Indeed it appears that the Union took
8 There is some rejected evidence that the Union engaged in handbill
mg the owner of the project elsewhere in the city but that was not part
pains to picket only after the neutrals employees had
gone to work and to leave before they left thus minimiz
ing the likelihood that they would be induced by the
sign itself In addition the picket was careful to carry his
sign upside down and to give the appearance of not pick
eting while walking between Gate B and the place
where he parked his car Nor is there evidence that Re
spondent enlisted the assistance of any other unions
Finally there is the Union s assertion that its picketing
was simply for the purpose of advertising to the public
the fact that ICR did not have a contract with Respond
ent or employ any of its members That language of
course tracks the publicity proviso of Section
8(b)(7)(C) 9 It appears moreover that Respondent had
chosen a reasonably good location to publish its message
Gate B is located on a main thoroughfare in Antioch
which has heavy vehicular and foot traffic There is evi
dence that individuals stopped to read the sign and its
message was conveyed
Oddly the General Counsel argues that because Re
spondent did not picket after 2 30 in the afternoon that it
could not have had a publicity object for he observes
that removing the picket in midafternoon meant missing
evening commute traffic However the General Counsel
obviously wants it both ways because had Respondent
picketed during the commute period it would have in
creased the probability of inducing or otherwise enmesh
ing the employees of neutrals as they left the site Had
that occurred the General Counsel undoubtedly would
then have argued that it was Respondent s purpose to
enmesh the neutrals The General Counsel cannot have it
both ways to do so would effectively deny the existence
of the right to engage in primary picketing
Thus looking at the Union s conduct as well as its
statements its object appears clear It had a dispute with
ICR and wished to advertise it at a location where ICR
could be seen by the public to be engaged in business It
made every effort to avoid enmeshing neutral employees
and employers In fact it succeeded for the parties have
stipulated that at no time did the picket cause any neutral
employees or employers to cease performing work at the
site 1 ° Thus there were not even any incidental second
ary effects arising from this dispute
Given all this the only objective which can be seen is
that stated by the Union in its letters and its sign—to
publicly announce that ICR did not have a contract with
it or employ its members The mere fact that one of the
Moore Dry Dock criteria was not fully met during an 8
day period in August is hardly sufficient to conclude that
its objective was otherwise Indeed the General Counsel
has not complained that the pre August 9 picketing or
the post August 23 picketing when ICR was actually
present at the site was ever unlawful Thus in effect the
of this complaint It is apparently conceded that the handbilling was pro
tected by the publicity proviso of Sec 8(b)(4)
9 In pertinent part the proviso to Sec 8(b)(7)(C) states nothing in this
subparagraph (C) shall be construed to prohibit any picketing or other
publicity for the purpose of truthfully advising the public (including con
sumers) that an employer does not employ members of or have a con
tract with a labor organization
''' By this observation I do not suggest that Inducements or threats
need be successful before a violation occurs
ELECTRICAL WORKERS IBEW LOCAL 302 (ICR ELECTRIC) 925
General Counsel concedes that Respondent s picketing
before and after that 13 day period was lawful Since Re
spondent s objective never changed during that entire
time including the 13 day period in question the only
thing in the General Counsel s opinion which trans
forms the picketing from lawful to unlawful is ICR s
temporary absence from the site Given the Plauche Elec
trzc admonishment against the wooden and mechanical
application of the Moore Dry Dock rules which are not
fully applicable in any event given the reserve gate divi
sion of this otherwise common sans 11 it seems inappro
pnate to find that Respondent violated the Section
8(b)(4)(B) of the Act I might have reached a different
conclusion had the General Counsel been able to show
that Respondent was reckless in its picketing or that it
had engaged in proscnbed (i) or (n) conduct away from
the picket line 12 However it did not do so thus the pn
mary picketing proviso of Section 8(b)(4)(B) must con
trol Accordingly I shall recommend dismissal of the
complaint
On the foregoing findings of fact and on the entire
record I make the following
CONCLUSIONS OF LAW
1 David Garcia and William Frederickson d/b/a ICR
Electric is an employer within the meaning of Section
2(2) (6) and (7) and Section 8(b)(4) of the Act
2 Respondent is a labor organization within the mean
ing of Section 2(5) of the Act
3 Respondent has committed no unfair labor practice
within the meaning of Section 8(b)(4)(1) and (n)(B) of the
Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed"
ORDER
The complaint is dismissed in its entirety
" For this reason Electrical Workers IBEW Local 595 (Hayward Elec
tric) 261 NLRB 707 709 (1982) is factually distinguishable During the
absence period no reserve gate was in effect there It was therefore a
true common situs
" See e g Electrical Workers IBEW Local 11 (L G Electric Contrac
tors) 154 NLRB 766 (1965)
i3 no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
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 pur
poses
i