International Union Of Operating Engineers, Local No. 12, Afl-Cio

National Labor Relations Board - Board Decisions

Nov 30, 1987

286 N.L.R.B. 1203 (N.L.R.B. 1987)

OPERATING ENGINEERS LOCAL 12 (MCDEVI F & STREET) 1203
International Union of Operating Engineers, Local
No. 12, AFL-CIO and' McDevitt & Street
Company . Case 21-CC-2955
30 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 29 April 1987 Administrative Law Judge
James S. Jenson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent Union 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 only to the extent consistent with this
Decision and Order.
The judge dismissed the complaint and found
that the Respondent did not violate Section
8(b)(4)(i) and (ii)(B) by picketing for 5 days near a
gate reserved for neutrals at the Charging Party's
construction site. The picketing was in support of
an area standards dispute with McDevitt & Street
Company.' The judge relied on his fording that
uses of the neutral gate during the period of the
picketing by a sanitation service and by a food
service, characterized by the judge as "suppliers"
of the primary employer, along with four uses of
an unmarked gate by McDevitt & Street employ-
ees, together constituted more than a " de minimis"
violation of the reserve gate system. The judge
thus found the neutral gate was sufficiently com-
promised to excuse the Respondent's otherwise un-
lawful picketing.2 We disagree and, for the reasons
i The picketing took place along the fenced perimeter of the site from
the gate reserved for the primary employer , McDevitt & Street, and its
"personnel , visitors, and suppliers" on the eastern boundary to the south-
west intersection of the main highway on the south and an unimproved
dirt road on the west leading to the neutral gate located approximately
120 feet north of the intersection . Because the dirt road provided the sole
access to the neutral gate for persons approaching from the main high-
way, we agree with the judge 's implicit finding that the third Moore Dry
Dock standard was not met , i e., the picketing did not take place reason-
ably close to the location of the gate reserved for the primary employer
Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950) See Nashville
Building Trades Council (H. E Collins Co.), 172 NLRB 1138 (1968). This
finding supports our conclusion that the Respondent 's picketing was de-
signed to enmesh the employees of the neutrals in the labor dispute.
2 Regarding certain of the Respondent 's claims that the reserve gate
system was tainted , the judge found that the neutral gate had not been
used by McDevitt & Street 's personnel and that the Respondent had
failed to show that the neutral gate had been used by applicants for em-
ployment with McDevitt & Street or its nonunion subcontractors. Addi-
tionally , the judge found that the use , on 4 of the 5 days of picketing, by
McDevitt & Street surveyors of a temporary, unauthorized , and un-
marked entrance from the main highway did not justify any picketing of
set forth below, find that the Respondent violated
the Act as alleged.
Picketing began on Friday, 27 June 1986, and
continued the following week, Monday through
Thursday, 30 June through 3 July, from "about 7
a.m. until after the noon hour." In addressing the
issue of whether the neutral gate itself had been
sufficiently tainted by persons required to use the
reserve gate on the east, the judge found that,
during the 5 days of picketing, trucks of a sanita-
tion service under contract to McDevitt & Street
to provide portable toilets for employees of all em-
ployers on the jobsite used the neutral gate, either
to enter or exit, on 3 of the 5 days (Friday,
Monday, and Wednesday). Further, the judge
found that a lunch truck used the neutral gate,
either to enter or exit, on each of the 5 days. Sig-
nificantly, the judge noted that Jonathan Wain-
wright, McDevitt & Street's project manager, testi-
fied that there was no contractual agreement be-
tween the primary employer and the independent
lunch truck operator, but that permission had been
granted by the Company to enter and sell food to
both union and nonunion personnel.
The judge distinguished Carpenters Local 1622
(Specialty Building Co.), 262 NLRB 1244 (1982),
which found that the once-a-week visit of a sanita-
tion service truck was "not a cognizable breach of
the (reserve gate) system." Id. at 1245. The judge
found that the use of the neutral gate three times
by the sanitation truck and five times by the lunch
truck during the 5 days of picketing constituted, in
this case, more than de minimis violations of the
neutral gate.
Concerning the sanitation truck, the record does
not support the judge's distinction because the Re-
spondent failed to meet its burden of showing,that
it knew, prior to its picketing at 7 a.m. on 27 June
1986, that the sanitation truck had passed through
the neutral gate. Rather, the record shows only
that the truck used the neutral gate on dates on
which picketing had occurred, and it does not
make it clear whether such use of the gate had
been observed before the picketing commenced. So
far as the evidence shows, the Union may have al-
ready set up and maintained a picket line near the
neutral gate before it observed what turned out to
be an every-other-day pattern of use of the neutral
gate by the sanitation truck.3 Inasmuch as it is the
the properly designated neutral gate . (There were no exceptions to these
findings ) Based on this last finding , the judge should therefore not even
have counted these four incidents as part of his rationale for finding that
the neutral gate had been compromised.
s See Nashville Building Trades Council (H E. Collins Co), supra, 172
NLRB at 1139- 1140. (Illegal picketing cannot be justified by after-the-
fact incidents of violation of neutral gate by employees of primary em-
ployers.)
286 NLRB No. 114
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent's burden to justify its disregard of the reserve
gate system, we shall resolve this ambiguity against
the Respondent.'
Regarding the appearances on the jobsite by the
lunch truck, we find that the proprietor of the
lunch truck was not a "supplier" of the primary.
That truck, which was permitted to come onto the
worksite to sell food to all employees at the site, is
unlike the entities that the Board has generally rec-
ognized as "suppliers" for the purpose of construc-
tion site picketing. Unlike the gravel supplied to
the primary employer in Operating Engineers Local
450 (Linbeck Construction), 219 NLRB 997 (1975),
enfd. 550 F.2d 311 (5th Cir. 1977), or the lighting
fixtures delivered to the primary (an electrical sub-
contractor) in J. F. Hoff Electric Co. v. NLRB, 642
F.2d 1266 (D.C. Cir. 1980), cert. denied 451 U.S.
918 (1981), the food provided by the lunch wagon
was neither supplied solely to the employees of the
primary nor, since it was not the only possible
source of food for the employees, was it "essential"
to the primary's operations. Compare J. F Hoff
Electric Co. v. NLRB, supra, 642 F.2d at 1275.
Because we have found no evidence that the Re-
spondent commenced its picketing in response to
breaches of the neutral gate by suppliers, the Re-
spondent's defense fails. Accordingly, we find that
by commencing picketing near the neutral gate on
27 June 1986, the Respondent violated Section
8(b)(4)(i) and (ii)(B) of the Act.5
CONCLUSIONS OF LAW
1. McDevitt & Street Company is an employer
engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(2), (6),
and (7) and Section 8(b)(4) of the Act.
2. The Respondent, International Union of Oper-
ating Engineers, Local No. 12, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. By commencing picketing, the Embassy Suite
Hotel project on 27 June 1986, with an object of
forcing neutral subcontractors to cease doing busi-
ness with McDevitt & Street Company, the Re-
spondent has engaged in an unfair labor practice
within the meaning of Section 8(b)(4)(i) and (ii)(B)
of the Act.
4 Because we rind no evidence of breach prior to the commencement
of the Respondent's picketing , we need not decide whether the sanitation
truck was a "supplier" of the primary employer
6 Given the basis on which we have decided this case, we have no
occasion to pass on the question of how many breaches of the gate by a
supplier would constitute a "pattern of destruction " of the reserve gate
system . See Plumbers Local 48 (Calvert Contractors), 249 NLRB 1183 fn
2 (1980), and Electrical Workers IBEW Local 76 (KSTW-TV), 268 NLRB
230, 234 ( 1983), enfd . 742 F 2d 498 (9th Cir 1984).
THE REMEDY
Having found that the Respondent has engaged
in an unfair labor practice, we shall order it to
cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act. 6
ORDER
The National Labor Relations Board orders that
the Respondent, International Union of Operating
Engineers , Local No. 12, AFL-CIO, its officers,
agents, and representatives, shall
1. Cease and desist from engaging in, inducing,
or encouraging any individual employed by any
person engaged in commerce or in any industry af-
fecting commerce to engage in a strike or 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 threatening , coercing,
or restraining any person engaged in commerce or
in an industry affecting commerce when in either
case an object thereof is to force or require that
person to cease doing business with McDevitt &
Street Company.
2. Take the following affirmative action necesary
to effectuate the policies of the Act.
(a) Post at its business office and meeting halls
copies of the attached notice marked "Appendix."7
Copies of the notice, on forms provided by the Re-
gional Director for Region 21, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent 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 the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Sign and mail sufficient copies of the notice
to the Regional Director for Region 21 for posting
by McDevitt & Street Company and its subcon-
tractors on the Embassy Suite Hotel project,
should they wish to do so, at all locations where
notices to employees are customarily posted.
6 As part of the remedy, the General Counsel seeks an order that will
include a visitatonal clause authorizing the Board , for compliance pur-
poses, to obtain discovery from the Respondent under the Federal Rules
of Civil Procedure under the supervision of the United States court of
appeals enforcing the Order We have concluded that under the circum-
stances of this case such a clause is not warranted
7 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
OPERATING ENGINEERS LOCAL 12 (MCDEVITT & STREET)
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES AND 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT engage in or induce or encourage
any individual employed by any person engaged in
commerce or in an industry affecting commerce to
engage in a strike or a refusall in the course of his
employment to use, manufacture, process, trans-
port, or otherwise handle or work on any articles,
materials, commodities, or perform any services;
and WE WILL NOT threaten, coerce, or, restrain any
person engaged in commerce or in an industry af-
fecting commerce when in either case an object
thereof is to force or require that person to cease
doing business with McDevitt & Street Company.
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS, LOCAL No. 12,
AFL-CIO
Robert J. Petering, for the General Counsel.
Alexander B. Cvitan , Esq. (Reich, Adell & Crost), of Los
Angeles, California , for the Respondent.
Anthony J. Oncidi, Esq. (Sheppard, Mullin, Richter &
Hampton), of Los Angeles, California, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. I heard
this case in San Diego, California, on 6 January 1987
pursuant to a consolidated complaint that was issued on
25 July 1986.1 The consolidated complaint alleges, in
substance, that Respondent Local No. 12 violated Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act by picketing near a
gate reserved for neutrals at the Charging Party's Em-
bassy Suite La Jolla project. In addition to a broad
cease-and-desist order, the General Counsel requests a vi-
sitatorial provision. The Respondent admits it has been
engaged in a labor dispute with McDevitt & Street, but
' pn 21 October 1986 the Regional Director issued an order severing
cases, approval of unilateral settlement agreement , and withdrawal of
consolidated complaint dnd notice of hearing in Case 2l-CC-2954, in-
volvmg 8(b)(4Xi) and (ii)(B) allegations against International Association
of Bridge , Structural and Ornamental Iron Workers, Local Union No.
229, AFL-CIO, filed by the instant Charging Party All dates are in 1986
unless stated to the contrary
1205
denies the commission of any unfair labor practices on
the ground the gate system maintained at the Embassy
Suite project was not a valid reserve gate system. All
parties were afforded full opportunity to appear, to intro-
duce evidence, to examine and cross-examine witnesses,
and to file briefs. The General Counsel and Respondent
filed briefs, which have been carefully considered.
On the entire record in the case, including the demean-
or of the witnesses, and having considered the posthear-
ing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
McDevitt & Street is a general contractor in the build-
ing construction industry and since March 1986 has been
engaged in the construction of the Embassy Suite Hotel
project in San Diego, California. During the past year,
the Company purchased and received doors, frames, and
hardware valued in excess of $100,000 at its San Diego
construction site, which were shipped and received in
California directly from a supplier located in the State of
Arkansas. It is found that McDevitt & Street is an em-
ployer engaged in commerce and in an industry affecting
commerce within the meaning of Sections 2(2), (6), and
(7) and 8(b)(4) of the Act.
II. LABOR ORGANIZATION
It is admitted and found that International Union of
Operating Engineers, Local No. 12, AFL-CIO is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
The construction site involved in this proceeding is
rectangular in shape and is bounded on the east by
Towne Centre Drive, on the south by La Jolla Village
Drive, on the west by an unimproved dirt street to be
dedicated and known as Executive Way, and on the
north by a residential complex and vacant lots. Work
started on the project in March, and in mid-April a chain
link fence was erected around the premises and two
gates were established. Gate 1 was located on the east
side of the project on Towne Centre Drive near McDe-
vitt & Street offices and was marked with a sign that
read
STOP-READ-GATE 1
This Gate is Reserved for
Personnel , Visitors & Suppliers
of the Contractors Listed Below:
McDevitt & Street Padre
Triple A Cone. West Coast Iron
Merit Resteel Felix Thompson
V.S.L. Corp . Mission Pools
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ALL OTHERS MUST USE GATE 2
Gate 2, the neutral gate, was located on the west side of
the project on Executive Way and was marked with a
sign that read
STOP-READ-GATE 2
This Gate May Not Be Used By
Personnel, Visitors or Suppliers
of the Contractors Listed Below:
McDevitt & Street Padre
Triple A Conc. West Coast Iron
Merit Resteel Felix Thompson
V.S.L. Corp. Mission Pools
ALL OTHERS MUST USE THIS GATE
Project Manager Jonathan Wainwright testified that all
employees on the project were informed of the Compa-
ny's open-shop philosophy and which gate they could
and could not use.
On Friday, 27 June, approximately 28 pickets from
Iron Workers Local 229, and 5 from Respondent Local
12 commenced picketing from the vicinity of gate 1 on
Towne Centre Drive, along La Jolla Village Drive to
the intersection of that street and Executive Way. Re-
spondent Union's picket signs stated
McDEVITT
&
STREET
UNFAIR
LOCAL 12
INTERNATIONAL UNION OF
OPERATING ENGINEERS
Picketing lasted from about 7 a.m. until after the noon
hour. A crane operator employed by Cal Crane refused
to enter the jobsite, making it impossible for other crafts
to perform scheduled work. Cal Crane's operator was a
member of Respondent Local 12. There is no evidence
to indicate anyone encouraged him not to work. On the
same date , Wainwright sent both a letter and mailgram
to Respondent Local 12, notifying it of the establishment
of the reserve gate system. The letter included a request
that the Union notify the Company if it had any informa-
tion that supplies were not being delivered in accordance
with the reserve gate system so that corrective action
could be taken. Wainwright credibly testified that similar
picketing occurred again on Monday, 30 June, and con-
tinued through 3 July. On 1 July, the Company informed
Cal Crane that it would go "bare rental" because its
crane operator would not cross an "illegal picket line."
On 2 July McDevitt & Street had another operator
working the crane and other craft work resumed. Picket-
ing after 3 July was confined to gate 1.
1. Positions of the parties
The General Counsel argues that the Company estab-
lished a valid reserve gate system and that the Respond-
ent Union violated the Act by picketing at or near neu-
tral gate 2 , thereby enmeshing neutral employers in a dis-
pute not their own. Any alleged misuse of the reserve
gate system , it is argued , was de minimis or isolated and
"insufficient to overcome the strong presumption that a
union has an unlawful secondary object of enmeshing
neutral persons when it pickets at an otherwise properly
established neutral gate."
The Respondent Union contends it commenced picket-
ing on 27 June because McDevitt & Street was not
paying its employees the area standard wage . It is further
contended that McDevitt & Street personnel used neutral
gate 2 and an unmarked entrance in the chain link fence
surrounding the project on La Jolla Village Drive; that
sanitation trucks and lunch trucks that serviced all em-
ployees on the job premises used both gates; and that ap-
plicants for employment with McDevitt & Street also
used the gate reserved for neutrals. In light of these
facts, it is argued , "a valid reserve gate system was never
established or maintained ," and that the picketing of gate
1 and along La Jolla Village Drive to the entrance of
Executive Way was not unlawful.
The legality of picketing at a common situs in the con-
struction industry, including picketing at or near gates
reserved exclusively for neutral contractors at the
project, is determined under the Moore Dry Dock stand-
ards.2 The issue in this case revolves around the third
Moore Dry Dock standard: whether the picketing took
place reasonably close to the location of the primary dis-
putant, McDevitt & Street. So long as the Moore Dry
Dock limitations are met , a union may legitimately picket
at a common work situs in such a way that all employ-
ees, suppliers, and customers of the primary are reached
by the pickets.
2. Discussion
The General Counsel and Respondent each called two
witnesses who contradicted the testimony of the wit-
nesses for the other side. Thus, credibility becomes a ma-
terial issue. Respondent's witnesses testified that both
Project Manager Wainwright and Project Superintendent
Oldfield used gate 2 on 27 June, thereby violating its
neutrality. Wainwright and Oldfield denied they ever
used gate 2. Respondent's witnesses both testified that
surveyors employed by McDevitt & Street went through
an unmarked opening in the chain link fence along La
Jolla Village Drive on 27 June and succeeding days, and
identified the purported fence opening in a photographic
exhibit taken a month earlier. The Company's witnesses
denied there was an opening on La Jolla Village Drive
at the time of the picketing. Both sides introduced photo-
graphs into evidence to support their respective posi-
tions. In making my credibility findings, I have given
consideration to the demeanor of the witnesses while
they were on the stand, the positions occupied by the
witnesses and their possible interest in the outcome of
the litigation, whether other witnesses could have been,
but were not, called to corroborate evidence, and the in-
herent probabilities in the accounts that they gave in
light of the photographic exhibits. To the extent that I
2 Sailors Union (Moore Dry Dock), 92 NLRB 547 ( 1950).
OPERATING ENGINEERS LOCAL 12 (MCDEVITT & STREET)
credit a witness only in part , I do so on the evidentiary
rule that it is not uncommon "to believe some and not all
of the witness 's testimony ." NL.RB v. Universal Camera
Corp., 179 F.2d 749, 754 (2d Cir. 1950).
B. The Unmarked Entrance
Fritz Umscheid, a business representative for Iron
Workers Local 229,3 testified the chain link fence on La
Jolla Village Drive had been cut and the fence pulled
back creating an opening, approximately 16 feet wide,
about 100 to 120 feet from the corner of Executive Way,
and that dirt had been piled up to the curb so vehicular
traffic could enter and exit. A photograph (R. Exh. 1),
which indicates on its back that it was taken in "May
86," shows what appears to be an opening with one
fence post removed near that location.' Also shown in
the picture are two Iron Workers' pickets. Umscheid tes-
tified the opening was still in the fence at that location
through 3 July and that it was not posted as reserved for
either the primary or neutral employers. He testified that
on Monday, 30 June, and on 1, 2, and 3 July, he ob-
served two McDevitt & Street surveyors exit the project
through that fence opening and reenter through either
that opening or through gate 1 . Harris testified he ob-
served McDevitt & Street surveyors pass through the
opening in the fence on 27 and 30 June. Wainwright at
first denied there was ever either an entrance or opening
through the chain link fence. He contended the sitework
contractor, Paul Hanson, had been passing pipe from
onsite to offsite and that the fence had been pushed
down at one point, and that Hanson was put on notice
"that they could not pass or enter through that area and
that it was remedied right away." He estimated the open-
ing was there for 2 days and that Hanson had created
the opening without authorization. He contended the
opening was no more than 2 feet, but later testified "it
was more than a couple of feet but not 20 feet." Wain-
wright identified an aerial photograph taken 17 June (G.
C. Exh. 15), showing an opening "where [Paul Hanson's]
workers were going through," but claims it was "totally
repaired" at the time of the picketing for security rea-
sons. According to Wainwright, General Counsel's Ex-
hjbit 16, a photograph of an area about five or six fence
posts to the east of the fence opening shown in General
Counsel's Exhibit 15, shows the point at which Hanson's
employees pushed the fence down while passing pipe off
the job premises. Thus, it is seen that Hanson's employ-
ees passed pipe over the fence at the place shown in
General Counsel's Exhibit 16, and had an opening in the
fence to the west of that spot as shown in General Coun-
sel's Exhibit 15. While acknowledging that McDevitt &
3 As previously noted , the instant case was initially consolidated with
Case 21 -CC-2954, alleging Iron Workers Local 229 violated Section
8(bX4)(1 ) and (a)(B) by picketing gate 2 on the same and additional dates
as Respondent Local 12. On 21 October, following approval of a unilat-
eral settlement agreement in that case, the Iwo cases were severed Ums-
cheid admitted he was in charge of the pickets located at the entrance to
Executive Way on 27 June. Thus, he was not a "disinterested" witness as
counsel for Respondent claims.
* Ronald Hams , business agent for the Respondent , first testified the
photograph was taken on 27 June. With prompting from counsel , he testi-
fied it was taken in May, but that the condition of the gate was the same
on 27 June
1207
Street employed two surveyors and that each of two
other employers employed two surveyors throughout the
picketing period, Wainwright testified that he had no
knowledge of them having gone through the fence open-
ing on La Jolla Village Drive, but that all employees had
been instructed to use only gate 1. The issue of the open-
ing in the fence from 27 June through 3 July could have
been cleared up definitively had one of the McDevitt &
Street surveyors been called to testify. None was, nor
was any explanation given for the failure to call one of
them. An inference adverse to the party who fails to call
witnesses otherwise available to it, or neglects to explain
the failure to call such witnesses, has been established
law since the early days of the Board. Freuhauf Trailer
Co., 1 NLRB 68 (1935), reversed 85 F.2d 39 (6th Cir.
1936), reversing circuit and enforcing the Board 301 U.S.
49 (1937). Martin Luther King, Sr., Nursing Center, 231
NLRB 15 fn. 1 (1977). Accordingly, I conclude there
was an unmarked opening in the fence along La Jolla
Village Drive approximately 125 feet to the east of Exec-
utive Way during the period 27 June through 3 July and
that it was utilized by McDevitt & Street surveyors.
Contrary to the position of the Respondent Union that
use of the fence opening along La Jolla Village Drive
automatically invalidated the entire reserve gate system,
the Board has consistently held that while the entry or
exit from a jobsite through an unauthorized and un-
marked point might well justify picketing of that area, it
would not justify the picketing of the gate reserved for
neutrals unless there is evidence that its neutrality has
been compromised. Nashville Building Trades Council
(H. E. Collins Co.), 172 NLRB 1138 (1968). A union
may picket only at the gates utilized by the employer
with whom it has a dispute and not at the neutral gate
unless the neutral gate's immunity from picketing has
been destroyed by its utilization by the primary employ-
er's employees or suppliers, which brings us to the ques-
tion of the use of gate 2.
C. The Neutral Gate
1. Wainwright and Oldfield
Umscheid testified he observed Wainwright exit
through gate 2 about 8 a.m. on 27 June and return 15 or
20 minutes later followed by a semitractor/trailer loaded
with oil pipe; that Wainwright reentered gate 2, parked,
and walked back outside and instructed the semitruck
driver to stay there pending unloading arrangements.
Umscheid contended he was standing on La Jolla Vil-
lage Drive about 20 or 25 feet from the corner of that
street and Executive Way when Wainwright left and at
the corner of those two streets when he returned. Ums-
cheid was not carrying a picket sign but was in charge of
the picketers. Gate 2 appears to be located a substantial
distance north of the intersection of La Jolla Village
Drive and Executive Way.5 Umscheid testified that a
pile of pipe shown outside gate 2 in General Counsel's
Exhibit 4 was the pipe involved in the above-described
b The back of R Exhs. 2 and 3 indicate gate 2 is 600 feet north of La
Jolla Village Drive
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
incident . He testified that about 15 minutes later Oldfield
appeared, walked out through gate 2 followed by a fork-
lift, and that Oldfield instructed the forklift, driver where
to unload the pipe. He contended he then went to gate 2
where the pipe was being unloaded and told Oldfield he
wanted to talk to Wainwright and inform him that he
and Oldfield had "tainted the gate." He claimed Oldfield
referred him to Wainwright, whom he tried to call, but
that his calls were not returned.
Harris testified on direct examination that he took a
photograph of Oldfield "as the truck's coming up," and
that he walked "outside there with a forklift and every-
thing and tells where to unload that pipe." The photo-
graph (R. Exh. 2), indicating on the back it was taken
"June 86," shows Oldfield standing at the gate entrance.
On cross-examination Harris testified that when he saw
Wainwright leave through gate 2, he left the intersection
of La Jolla Village Drive and Executive Way where he
had been picketing, walked to his car some distance
away where he procured his camera, and walked up to
gate 2." That took approximately 15 minutes, he testified,
and when he arrived at gate 2, Wainwright had already
reentered and Oldfield came out and told the driver
where to unload. Thus, it is seen that while he testified
on direct examination that he took the photograph (R.
Exh. 2), as the truck was arriving , on cross-examination,
he claimed Wainwright had already reentered gate 2,
and had "supposedly" already given instructions where
to unload, indicating the truck was already there when
he arrived.
Both Wainwright and Oldfield stated unequivocally
that they had never passed through gate 2, Wainwright
insisting the pipe identified by Respondent 's witnesses
did not arrive at the premises until 12 July. Oldfield testi-
fied also that he was not hired until 23 June and that he
did not see much of the jobsite the first week of employ-
ment because he was "basically in the trailer." He stated
that he was not aware that Respondent's Exhibit 2 had
been taken, that any time he did go to the gate he "went
right to the limit that I know the gate to be," and that
the photo shows his feet to be within the jobsite. He
identified the pipe as having been delivered to the jobsite
to West Coast Air during the second week of July and
was offloaded by West Coast Air equipment and opera-
tors.
Having considered the demeanor of the witnesses as
they testified, and the inherent probabilities in the ac-
counts they gave, I am convinced that the Respondent's
witnesses' testimony about Wainwright and Oldfield
using gate 2 on 27 June was fabricated. First, I have a
great deal of doubt about the truthfulness regarding
when the Respondent's photographic exhibits were taken
in that none of them provides a numerical date and the
first one was taken in May. Respondent's Exhibit 2 does
not, in my view, show Oldfield as having passed through
gate 2. Had Harris, as he testified, gone to the effort to
procure his camera to record evidence of the gate viola-
tions the Respondent claims, he could have recorded a
better example, if it existed, of Oldfield having violated
the integrity of the gate , and because of its importance, I
believe he would have recorded the specific date on the
exhibit. The most significant fact Respondent's Exhibits 2
and 3 disclose is that, according to Harris, gate 2 is lo-
cated 600 feet north of La Jolla Village Drive. La Jolla
Village Drive appears to be a heavily traveled thorough-
fare. The time was about 8 a.m. on a Monday and the
corner of La Jolla Village Drive and Executive Way
was, according to Respondent's exhibits, 600 feet from
gate 2 .6 Under these conditions, it would have been im-
possible for Umscheid to have overheard a conversation
taking place between Wainwright and the driver of a
truck, or between Oldfield and a forklift driver at gate 2
as he testified. Further, had a gate violation occurred as
Respondent's witnesses claim, there is no doubt in my
mind but that Harris , who claims to have had a camera
in his possession , would have indeed photographed Old-
field outside the gate as the truck was being unloaded. I
further have little doubt that picketing would have im-
mediately commenced at that location. In short, I do not
credit the testimony of Umscheid and Harris, but credit
Wainwright and Oldfield and find that neither violated
the integrity of gate 2.
2. Sanitation trucks, lunch trucks, and applicants for
employment
Both Umscheid and Harris testified they observed sani-
tation trucks and lunch trucks enter through one and exit
through the other gate on a daily basis. They also testi-
fied that some applicants for employment were parking
on Executive Way and entering through gate 2. They
apparently surmised from the fact those individuals asked
who the general contractor was that they intended to
apply for employment with McDevitt & Street. It is
equally valid to surmise that the applicants could read
the gate 2 warning, and being satisfied that applicants for
employment with all other employers could use the gate,
entered and applied for jobs with the neutral employers.
In any event, the record fails to show any of those enter-
ing through gate 2 actually applied for employment with
anyone. In these circumstances I conclude that the Re-
spondent Union has failed to establish that the integrity
of the gate system was violated by applicants for em-
ployment entering through gate 2.
It is argued by Respondent that since the lunch trucks
and sanitation trucks that supplied goods and services to
all employers and employees on the project used both
gates, the integrity of the gate system was breached.
Wainwright testified that McDevitt & Street had con-
tracted with a firm to s'zpply sanitation services to the
jobsite and that it was responsible for cleaning the
"porta-potties" every other day. He claimed the contrac-
tor had been instructed by the former assistant superin-
tendent to use gate 1. Oldfield did not know if the sanita-
tion truck had ever entered through gate 2, but did not
believe it had in light of directions not to. Wainwright
further testified that there was no contractual arrange-
6 As the site plan , G C Exh. 3, and aerial photographs, G C Exhs 4
and 15 show, the distance from the corner of La Jolla Village Drive and
Executive Way to Gate 2 is not five times the distance from the un-
marked opening on La Jolla Village Drive to the intersection of Execu-
tive Way, which Umscheid testified was no more than 120 feet. I view
Harris' estimate of 600 feet as an attempt, albeit unsuccessful , to distance
the picketing from gate 2
OPERATING ENGINEERS LOCAL 12 (MCDEVITT & STREET)
ment with the lunch truck operator. At one time two
lunch trucks serviced the project, one through each of
the two gates . Permission to enter the premises was
granted by McDevitt & Street to, service both union and
nonunion personnel. Again it is noted that neither the
sanitation nor lunch truck operators were called to testi-
fy.
In Carpenters Local 1622 (Specialty Building Co.), 262
NLRB 1244 (1982), cited by the General Counsel to sup-
port his argument that use of gate 2 by the lunch and
sanitation trucks did not violate the neutral gate system,
the primary employer had arranged and paid for a
person to service the portable toilets that were for the
use of everyone on the project. He entered through the
neutral gate once a week in the early morning hours,
before the day's project work began . The administrative
law judge, who was affirmed by the Board, found the
once-a-week visit "not to be a cognizable breach of the
[reserve gate] system," citing Operating Engineers Local
18 (Dodge-Ireland), 236 NLRB 199 (1978), which is also
cited by the General Counsel here for the proposition
that "de minimis or isolated misuse of a neutral gate is
insufficient to overcome the strong presumption that a
union has an unlawful secondary object of enmeshing
neutral persons when it pickets at an otherwise properly
established neutral gate." In Dodge-Ireland, it was noted
that the evidence "as to actual misuse of the gates" was
slight. The Board found that four instances of misuse of
a neutral gate by suppliers of the primary employer,
which had taken place over a period of several weeks,
were not sufficient to justify picketing at a neutral gate.
1209
In the instant case, the picketing took place on only 5
days, and the record shows the lunch trucks used both
gates on each of those days, as did the sanitation trucks
on 27 and 30 June and on 2 July.7 The record also
shows, as earlier set forth, that McDevitt & Street sur-
veyors used an unmarked gate on La Jolla Village Drive
on 4 of the 5 days. As is seen, there were approximately
12 violations of the reserve gate system over a period of
5 days. I do not view that as minimis. I conclude and
find that the neutrality of gate 2 was compromised and
that the Respondent Union did not violate the Act by
picketing at or near gate 2 as alleged in the complaint,
and therefore recommend it be dismissed.
CONCLUSIONS OF LAW
1. McDevitt & Street Company is an employer en-
gaged in commerce and in an industry affecting com-
merce within the meaning of Sections 2(2), (6), and (7)
and 8(b)(4) of the Act.
2. Respondent Local 12 is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent Local 12 has not engaged in the unfair
labor practices alleged in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]
' This case is distinguishable from Iron Workers Local 433 (Oltmans
Construction), 272 NLRB 1182 (1984), in which the supplier of the porta-
ble toilets and the mobile lunch wagons used only the neutral gate