Iron Workers Local 378 (Mcdevitt & Street)

National Labor Relations Board - Board Decisions

Jun 28, 1990

298 N.L.R.B. 955 (N.L.R.B. 1990)

IRON WORKERS LOCAL 378 (MCDEVITT & STREET)
Iron Workers Union Local No. 378, International
Association of Bridge , Structural , and Orna-
mental Iron Workers, AFL-CIO and McDevitt
& Street Company. Cases 32-CC-1245 and 32-
CP-372
June 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 14, 1989, Administrative Law
Judge Earldean V.S. Robbins issued the attached
decision. The Respondent filed exceptions and a
supporting brief, to which the Charging Party filed
an opposition and the General Counsel filed a re-
sponse.
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 brief and has
decided to affirm the judge's rulings,' findings, 2
and conclusions- and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Iron Work-
ers Union Local No. 378, International Association
of Bridge, Structural, and Ornamental Iron Work-
ers, AFL-CIO, its officers, agents, and representa-
tives shall take the action set forth in the Order.
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings.
2 In a nonprejudicial factual error, the judge stated that a Mastodon
employee entered the jobsite through gate 2 on August 24 This occurred
August 25 following the theft of the neutral gate sign on the evening of
August 24
S In adopting the judge's conclusion that the Respondent's picketing
violated Sec 8(b)(4)(B) of the Act, Member Devaney relies on the Re-
spondent's conduct of August 29-30 and September 1-23, 1988, and finds
it unnecessary to pass on the Respondent's picketing before August 29
Virginia L. Jordan, Esq ., for the General Counsel.
Paul Supton, Esq. (Van Bourg Weinberg, Roger & Rosen-
feld), of San Francisco , California, for the Respondent.
Mark Thierman, Esq. (Thierman , Cooly Brown & Mason),
of San Francisco , California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
955
EARLDEAN V.S. ROBBINS, Administrative Law Judge.
This case was heard before me in Oakland, California, on
January 12, 1989. The charge in Case 32-CP-372 was
filed by McDevitt & Street Company (McDevitt), and
served on Respondent on September 23, 1988. The
charge in Case 32-CC-1245 was filed by McDevitt and
served on Respondent on August 29, 1988. The amended
consolidated complaint which issued on October 7, 1988
alleges that Respondent violated Section 8(b)(4)(i)
and/or (ii)(B) and Section 8(b)(7)(C) of the National
Labor Relations Act (the Act). During the course of the
hearing, General Counsel's motion was granted to delete
all paragraphs of the amended consolidated complaint re-
lated to Case 32-CP-372. Accordingly, the sole issue is
whether Respondent violated Section 8(b)(4)(i) and
(ii)(B) when it picketed and threatened to picket McDe-
vitt and other neutral employers in an attempt to enmesh
them in Respondent's dispute with Mastodon,, Inc.
On the entire record, including my observation of the
witnesses and after due consideration of the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Mastodon, Inc. (Mastodon), a Texas corporation with
an office and place of business in Dallas, Texas, is en-
gaged in the building and construction industry in vari-
ous locations, including the State of California, as a con-
crete subcontractor for various general contractors.
During the 12-month period preceding the issuance of
the amended consolidated complaint Mastodon, in the
course and conduct of its business operations, has per-
formed services valued in excess of $50,000 directly to
customers located outside the State of Texas.
McDevitt, a general contractor engaged in the build-
ing and construction industry, has at all times material
been the general contractor for the Days Inn-Richmond
Construction jobsite located in Richmond, California (the
jobsite or the Project). Since on or about August 1, 1988,
Mastodon has been the concrete subcontractor at the
Jobsite. Additionally, various other subcontractors (the
Subcontractors) have performed services for McDevitt
at the jobsite.
The complaint alleges, and I find, that at all times ma-
terial Mastodon has been a person and employer engaged
in commerce within the meaning of Section 2(1), (2), (6),
and (7) of the Act, and the Subcontractors and McDevitt
(the Neutrals) have been persons engaged in commerce
or in an industry affecting commerce within the meaning
of Section 2(1), (6), and (7) of the Act
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that Respondent is, and at all times material has been, a
labor organization within the meaning of Section 2(5) of
the Act.
298 NLRB No. 143
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Work commenced on the jobsite in June 1988.1
McDevitt is the general contractor, and there are ap-
proximately 25 to 30 subcontractors, both union and non-
union , on the Jobsite, including Mastodon , Inc., a non-
union contractor.
On June 11, Respondent's business agent, Ray
Trujillo,2 visited the jobsite and introduced himself to
McDevitt's project manager, Lawrence Thompson. Tru-
jillo asked who would be performing the structural steel
and iron work on the job. Thompson said Romak Iron, a
union contractor, would be doing the structural steel. He
further said no determination had been made as to who
would be doing the reinforcement steel work but that
McDevitt was negotiating with Mastodon.3 Trujillo
asked if Mastodon was a union signatory. Thompson said
he did not think so. Trujillo asked how he could contact
Mastodon. Thompson said he did not know.
Mastodon began work on the jobsite on August 3. On
that day Trujillo returned to the jobsite and inquired as
to who was tying the rebar. Upon being informed by
Thompson that it was Mastodon, Trujillo again asked if
Thompson knew how to contact Mastodon. Thompson
said he did not know Mastodon's office address or con-
tact person but, as to manpower, he was dealing with a
Mastodon foreman on one of McDevitt's other jobs. Tru-
jillo asked if Thompson had a problem with him talking
to employees on the job but gave no reason for doing so.
Thompson said he did, that the employees were not in-
volved with Mastodon's decision regarding being union-
ized and he would obtain, for Trujillo, information as to
how to contact the proper people at Mastodon to discuss
that issue.
According to Thompson, on August 5 he left a tele-
phone message for Trujillo that he had some informa-
tion. Trujillo did not return the call but did visit the job-
site on August 9, at which time Thompson gave him
Mastodon 's telephone number and the name of Masto-
don's president.
On August 23 the contractors working on the Jobsite
were Mastodon and O. C. Jones. Around 6:30 a.m. that
day, Trujillo and seven to nine other persons began pick-
eting the entrance to the Jobsite at Garrity Way and
Blume Road 4 with signs, the legend on which read:
MASTODON
UNFAIR
IRONWORKERS
When Thompson asked Trujillo what was going on, Tru-
jillo said he had attempted to reach Mastodon but Masto-
don had not returned his telephone calls so he had no
choice but to picket the jobsite.
' All dates are in 1988 unless otherwise indicated
2 Respondent admits that Trujillo is an agent of Respondent
3 According to Thompson , he first learned that Mastodon was going to
work at the Jobsite around the third week in July
4 Blume Road is a paved , public thoroughfare , Garrity Way is a
graded, dirt road
Later that day, around 9 or 10 a.m., McDevitt estab-
lished separate gates at the jobsite, both on Garrity Way.
Gate 1 was established on Garrity Way about 450 feet
from the intersection of Garrity Way and Blume. Gate 2
was established approximately 125 feet from the intersec-
tion. He also obtained guards from a security service.
The printed sign posted at gate 1 read:
STOP-READ GATE # 1
THIS GATE IS RESERVED FOR
PERSONNEL, VISITORS AND SUPPLIERS
OF THE CONTRACTORS LISTED BELOW;
MASTODON [HANDWRITTEN]
ALL OTHERS MUST USE GATE #2
The sign posted at gate 2 read:
STOP-READ GATE #2
THIS GATE MAY NOT BE USED BY
PERSONNEL, VISITORS OR SUPPLIERS
OF THE CONTRACTORS LISTED BELOW;
MASTODON [HANDWRITTEN]
ALL OTHERS MUST USE THIS GATE
On that same day, Thompson instructed Mastodon to
use only gate 1. Also, McDevitt sent a telegram to Re-
spondent notifying it of the establishment and location of
a separate gate. In relevant part it reads:
THIS IS TO CONFIRM THAT THERE IS A SEPARATE
ENTRANCE FOR EMPLOYEES, SUPPLIERS, AND MATE-
RIAL MEN OF (NAME OF UNIONIZED SUBCONTRAC-
TORS ) TO THE MCDEVITT AND STREET CONSTRUC-
TION SITE LOCATED ON THE PROPERTY OF 3150 GAR-
RITY WAY RICHMOND CALIFORNIA.
THIS SEPARATE ENTRANCE IS LOCATED 480 FEET
EAST OF THE BLUME DRIVE AND GARRITY WAY
INTERSECTION, WITH, THE SIGN CLEARLY INDICAT-
ING THAT IT IS FOR THE USE OF EMPLOYEES, SUPPLI-
ERS, AND MATERIAL MEN OF THE ABOVE-LISTED
SUBCONTRACTORS ONLY.
On August 24, at or about 8:30 a.m., gate 1 was relo-
cated to Blume Drive, approximately midway between
Garrity Way and the next street, Hill Top Drive. After 4
p.m. on the same day gate 2, the neutral gate, was relo-
cated to the entrance at the corner of Garrity Way and
Blume. However, picketing continued throughout the
day at the intersection of Blume and Garrity Way. At
some time during the day McDevitt sent another tele-
gram to Respondent, the body of which read, inter alia:
PLEASE DISREGARD TELEGRAM SENT YESTERDAY.
THIS TELEGRAM IS TO CONFIRM THAT THERE IS A
SEPARATE ENTRANCE FOR EMPLOYEES, SUPPLIERS,
AND MATERIALMEN OF OC JONES NATIONAL ELEVA-
TOR GHELLOTTI BROTHERS ROMAK STEEL PINASCO
SISCO ERECTORS TO THE MCDEVITT & STREET CON-
STRUCTION SITE LOCATED ON THE PROPERTY OF
3150 GARRITY WAY RICHMOND CALIFORNIA. THIS
SEPARATE ENTRANCE IS LOCATED EAST OF THE
INTERSECTION AT BLUME AND GARRITY WAY WITH
IRON WORKERS LOCAL 378 (MCDEVITT & STREET) 957
A SIGN CLEARLY INDICATING THAT IT IS FOR THE
USE OF EMPLOYEES , SUPPLIERS , AND MATERIAL MEN
OF THE ABOVE-LISTED SUBCONTRACTORS ONLY.
On the evening of August 24 the gate 2 sign was stolen,
which caused some confusion , and on that day Mastodon
entered the jobsite through gate 2.
On August 25 and 26 Respondent picketed both gates
1 and 2. On August 26, McDevitt sent a telegram to Re-
spondent again notifying them that gate 1, located off of
Blume Drive , was reserved for the exclusive use of Mas-
todon, and that gate 2, located 100 feet north of gate 1,
was reserved for the use of McDevitt and all other sub-
contractors; and that Mastodon would not be on the job-
site on Monday , August 29, 1988, or at any time thereaf-
ter until further notice. The telegram further stated that
during the past week picketing had occurred at gate 2,
gate signs had been removed and/or defaced and that
the picketers were harassing and threatening the neutral
employees on the jobsite.
Picketing continued at both gates on August 29 even
though Mastodon was not present on the Jobsite. On
that day at Gate 2, according to Thompson . he asked
Trujillo if Respondent had received McDevitt's telegram
stating that Mastodon would not be at the Jobsite on
August 29 . Trujillo said he had not received anything
and he would picket whether Mastodon was there or
not. Further , during another conversation in late August
between Thompson, Trujillo, and Tom Watson, business
agent for the Carpenters Union. Trujillo and Watson said
they would need signed union contracts if any of their
members were going to work on the job. Thompson said
he was sure McDevitt would not sign any agreement.
Trujillo said "then the pickets will continue."
On the morning of August 30 the superintendent for
Romak Iron said his employees would not enter the job-
site with the Ironworkers picketing . During this conver-
sation it was agreed that Mastodon would leave the job-
site for the remainder of the day so that Romak employ-
ees could work that day. According to Thompson 's daily
report, Mastodon did leave the jobsite that day prior to
performing any work. Picketing at both gates com-
menced prior to 6:30 a.m . but the picketers left around
8:30 or 9 a.m.
On August 30, McDevitt sent Respondent a telegram
stating that the National Labor Relations Board had con-
cluded that Respondent had violated Section 8(b)(4)(B)
of the Act and that injunctive relief would be sought
unless illegal picketing ceased immediately . On that same
day another telegram was sent by McDevitt to Respond-
ent: stating that Mastodon was returning to work on
August 30 and would use only gate 1.
On August 31 there was no picketing . Trujillo came
on the jobsite around 9 a.m. and asked Thompson if Mas-
todon was' on the site. When Thompson answered in the
affirmative Trujillo said he was going to get his picket-
ers. Thompson asked if he had received the telegram that
indicated the NLRB had determined the picketing to be
illegal. Trujillo said he had not received it; that his attor-
ney handled such things.
Picketing at both gates continued on every workday in
September ' 1 through 23. Trujillo picketed on September
6, 7, 20, 21 , 22, and 23. On September 1, the gate loca-
tions were changed . Gate 1 was changed to gate 2 and
gate 2 became gate 1. On that same day Thompson told
Trujillo the gate locations had been changed . According
to Thompson, the gates were switched because, on the
previous evening, someone had dumped 5 to 10 thousand
gallons of water on Garrity Way. The truck with the
first of several scheduled loads of concrete almost
become stuck in the mud and one load of concrete was
lost because it could not be poured within the 90-minute
time limit. Therefore , McDevitt's only alternative was to
use another access road since McDevitt had approxi-
mately seven or eight truckloads of concrete enroute to
the jobsite.
On September 15 McDevitt's name was added to the
signs at gates I and 2 since it was supplying materials for
Mastodon 's use. On September 15 Trujillo informed
Thompson that Mastodon was using gate 2 but gave no
specifics . Thereafter , Thompson told all of the nonunion
contractors to cease using gate 2 and to start using gate
1. Their names were not added to the gate sign but they
did use gate 1 all day.
On September 16 the Board obtained a temporary in-
junction enjoining Respondent from picketing or threat-
ening to picket any location at the Jobsite other than the
gate assigned to Mastodon , and picketing or threatening
to picket at any location at the jobsite at a time when
Mastodon is not present at the jobsite.
On September 19, McDevitt posted, on the gate signs,
copies of the injunction and, according to Thompson, he
observed picketers, going over and looking through the
documents . During the course of the picketing employ-
ees of Smith L. Emery, R.R. Mechanical , and Losaw
were working on the jobsite.
B. Conclusions
Section 8(b)(4)(i) and (ii), subparagraph (B) of the Act,
as amended , provides, in relevant part:
(b) . . . It shall be an unfair labor practice for a
labor organization or its agents-
(4)(i) to engage in, or to induce or encourage any
individual employed by any person engaged in com-
merce 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 serv-
ices; or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry af-
fecting commerce , where in either case an object
thereof is:
(B) forcing, or requiring any person . . . to cease
doing business with any other person. . . .
However , a proviso to Section 8(b)(4)(B ) exempts from
its ambit primary picketing and a further proviso makes
an exemption for "publicity , other than picketing," if the
publicity is for the purpose of truthfully advising the
public, including consumers and members of a labor or-
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ganization, that the picketed person distributes products
obtained from an employer with whom the labor organi-
zation has -a primary labor dispute.
There are essentially two elements to an 8(b)(4)(i) and
(ii)(B) violation. One, there must be conduct which en-
gages in, induces, or encourages individuals to engage in
a strike or refusal to perform their employment duties or
which threatens, coerces, or restrains any person. Two,
the object of that conduct must be to force or require
any person to cease dealing with or doing business with
any other person. However, it is clear that a violation of
Section 8(b)(4) cannot be based upon the desire or hope
of a labor organization that its picketing will influence
individuals to withhold their services nor upon the effect
that picketing has had in that regard. Electrical Workers
IUE Local 761 v. NLRB, 366 U.S. 667, 673-674 (1961).
A determination as to a secondary object is particular-
ly difficult where a primary employer shares a common
situs with neutral employers. In such situations, "picket-
ing must be conducted so as to minimize its impact on
neutral employers insofar as this can be done without
substantial impairment of the effectiveness of the picket-
ing in reaching the employees of the primary employer."
Nashville Building Trades Council (Collins Contracting),
172 NLRB 1138, 1140 (1968), enfd. 425 F.2d 385 (6th
Cir. 1970). It is well settled that the legality of picketing
at a common situs as in the construction industry must
be determined under the Moore Dry Dock standards. Sail-
ors Union (Moore Dry Dock), 92 NLRB 547 (1950); Car-
penters Sacramento District Council (Malek Construction),
244 NLRB 890 (1979); Nashville Building Trades Council
(Markwell & Hartz), 164 NLRB 280 (1967), enfd. 387
F.2d 79 (5th Cir. 1967).
In Moore Dry Dock, the Board held that, in disputes in-
volving a common situs, neither the right of the union to
picket nor the right of the neutral employer to be free
from picketing is absolute. In such situations, the picket-
ing is primary and, therefore, legal, if the following crite-
ria are met:
(1) the picketing is strictly limited to times when
the situs of the dispute is located on the secondary
employer's premises;
(2) at the time of the picketing the primary em-
ployer is engaged in its normal business at the situs;
(3) the picketing is limited to places reasonably
close to the location of the situs; and
(4) the picketing discloses clearly that the dispute
is with the primary employer.
However, the Moore Dry Dock standards are only
guidelines not to be mechanically applied. Rather, the
Board has indicated they are to be applied with common
sense and with a view to "the dual congressional objec-
tives of preserving the right of labor organizations to
bring pressure to bear on primary employers and of
shielding secondary employers and others from pressures
in controversies not their own." NLRB v. Denver Build-
ing Trades Council (Gould & Precision), 341 U.S. 675, 692
(1951); Operating Engineers Local 450 (Linbeck Construc-
tion), 219 NLRB 997, 998 (1975) affd. 550 F.2d 311 (5th
Cir. 1977). Therefore, while compliance might give rise
to a rebuttable inference of primary picketing, the totali-
ty of the evidence may reveal an underlying secondary
objective and overcome the presumption.
It is clear that Respondent's primary dispute is with
Mastodon. Mastodon was the only employer named on
the picket signs and Trujillo's conversations with
Thompson indicated that Respondent was interested in
representing the employees of the contractor performing
the concrete structural steel work at the jobsite. Masto-
don was the only nonunion employer performing such
work. However, despite the establishment of a reserved
gate system, Respondent picketed at both the gate re-
served for Mastodon and at the gate to be used by
McDevitt and all other subcontractors. Further, on at
least one or two occasions, Respondent picketed the job-
site even though Mastodon was not present on the job-
site. The General Counsel argues that this is precisely
the type of conduct to which Section 8(b)(4)(i) and
(ii)(B) is directed.
Respondent does not dispute that it picketed both the
Mastodon gate and the gate reserved for neutrals. Nor
does it dispute that it picketed on at, least 1 day despite
having received notification that Mastodon was not on
the job. However, Respondent contends that a nonme-
chanistic application of the Moore Dry Dock standards
will indicate that the sole and exclusive 'objective of its
picketing was recognitional. Thus, Respondent contends
that McDevitt engaged in game-playing which thwarted
the Union's effort to reach its lawful objective, and en-
meshed the Union in technical and inadvertent unlawful
conduct. See Constar, Inc. v. Plumbers Local 447, 568
F.Supp. 1440 (D.C. Cal. 1983), affd. 748 F.2d 520 (9th
Cir. 1984). In support thereof, Respondent points to (1)
Thompson's failure to tell Trujillo how to contact Mas-
todon or to permit him to speak to Mastodon employees
on the jobsite; (2) the August 24 placement of the neutral
gate at the location where the Union had picketed on
August 23, and 24; (3) the switching of the gates on Sep-
tember 1; and (4) the failure to notify Respondent that
Mastodon was returning to the jobsite on August 30. Fi-
nally, Respondent argues that its picketing of the "neu-
tral" gate was permissible since Mastodon used that gate
on August 24 and again in mid-September.
I find Respondent's arguments unpersuasive. Thomp-
son told Trujillo that Mastodon was performing the
work in question, and later gave him a telephone number
and the name of Mastodon's president. But, even assum-
ing arguendo that the name and telephone number was
not furnished, McDevitt had no obligation to do so or to
permit trujillo to come onto the Project to speak to Mas-
todon employees. Further, although any initial inability
to contact Mastodon might explain why Respondent
would elect to engage in lawful primary picketing, it did
not privilege Respondent to engage in secondary picket-
ing.
Similarly, the changing of the gates and the failure to
promptly notify Respondent of Mastodon's return to the
jobsite does not excuse Respondent's picketing at the
neutral gate or at a time when it knew Mastodon was
not scheduled to be on the jobsite. In fact, Mastodon was
not on the jobsite on August 29. There is no evidence
IRON WORKERS LOCAL 378 (MCDEVITT & STREET)
that Respondent was aware of Mastodon 's brief presence
on the jobsite on August 30 . Further, Trujillo's statement
that Respondent would picket whether Mastodon was
there or not indicates an intent to enmesh the neutrals in
its controversy with Mastodon and belies its contention
that McDevitt 's conduct had enmeshed it in technical
and inadvertent unlawful activity.
The first gate change was made on the second day of
picketing before Respondent was properly notified of the
reserved gate system . The second change was in direct,
and reasonable, response to the need to facilitate delivery
of concrete . Respondent was notified of both gate
changes and there is no evidence that the changes caused
any confusion or that any of these factors in any way
thwarted Respondent 's ability to lawfully picket Masto-
don. Respondent 's reliance on Constar is misplaced. In
that case , the court found that both the union and man-
agement tried to obey the law and for the most part did
so. Here, Respondent picketed at the neutral gate for
almost a month.
Finally, Respondent contends that the neutral gate was
tainted through use by employees and/or suppliers of
Mastodon on two occasions .. One was on August 25
when a Mastodon employee entered through gate 2.
However, there is no evidence that Respondent was
aware of this contamination prior to Thompson's testi-
mony at the hearing. The second relates to a claim made
by Trujillo to Thompson on September 15 that Masto-
don had violated the reserved gate system . He did not
specify as to how or when this had happened ; nor was
any testimony adduced in this regard at the hearing
other than Thompson 's testimony that someone had told
him an orange van entered through gate 2. Assuming
that this was a Mastodon employee or supplier, one or
two such violations are insufficient to destroy the re-
served gate system. Operating Engineers Local 18 (Dodge-
Ireland), 236 NLRB 199 ( 1978). Further, there is no evi-
dence that Respondent 's picketing of the neutral gate and
its picketing at a,time when Mastodon was not on the
project was in response to any of the circumstances on
which it now relies.
Accordingly , I find that Respondent has violated Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act by picketing at the
gates reserved for neutrals at the Days Inn -Richmond
construction jobsite and by picketing at that jobsite at a
time when Mastodon , the primary employer, was not
present at the Jobsite.
CONCLUSIONS OF LAW
1. Mastodon , Inc. is a person and employer engaged in
commerce or in an industry affecting commerce within
the meaning of Section 2(1), (2), (6), and (7) and Section
8(b)(4)(i) and (ii)(B) of the Act.
2. McDevitt and Street Company, Romak Iron, Smith
& Emery, R.K. Mechanical ., Ghellotti Brothers, and
Berkeley Ready-Mix are persons engaged in commerce
or in an industry affecting commerce within the meaning
of Section 2(1), (6), and (7) and Section 8(b)(4)(i) and
(ii)(B) of the Act.
3. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
959
4. By picketing at gates reserved for neutrals at the
Days-Inn Richmond construction jobsite, Respondent
has violated Section 8(b)(4)(i) and (ii)(B) of the Act.
5. By picketing the Days Inn -Richmond construction
jobsite at a time when Mastodon , the primary employer,
was not present at the Jobsite, Respondent has violated
Section 8(b)(4)(i) and (ii)(B) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(b)(4)(i) and (ii)(B) of the Act , I shall recommend that it
be ordered to cease and desist therefrom and that it take
such affirmative action as will effectuate the purposes of
the Act.5
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed6
ORDER
The Respondent, Iron Workers Union Local No. 378,
International Association of Bridge , Structural , and Or-
namental Iron Workers, AFL-CIO , its officers , agents,
and representatives, shall
1. Cease and desist from
(a) Inducing or encouraging any individual employed
by McDevitt & Street Company, Romak Iron, Smith &
Emery, R.K. Mechanical , Losaw, O. C. Jones, Ghellotti
Brothers, Berkeley Ready-Mix , or any other persons en-
gaged in commerce or in an industry affecting' com-
merce, 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, ma-
terials, or commodities or to perform any services where
an object thereof is to force or require those persons, or
any other persons, to cease using , selling, handling, trans-
porting, or otherwise dealing with the products of, or to
cease doing business with each other and/or with McDe-
vitt & Street Company in order to force or require
McDevitt & Street Company to cease doing business
with Mastodon.
(b) Threatening , coercing , or restraining McDevitt &
Street Company, Romak Iron, Smith & Emery, R.K.
Mechanical , Losaw, O. C. Jones, Ghellotti Brothers, and
Berkeley Ready-Mix or, any other person engaged in
commerce or in an industry affecting commerce, where
an object thereof is to force those persons to cease using,
selling, handling, transporting , or otherwise dealing with
5 The Charging Party has sought a broad order to remedy Respond-
ent's unlawful conduct . However, I find that the circumstances here do
not warrant such an order In this regard , I note that the record does not
establish that Respondent has engaged in previous violations nor did it
continue its unlawful picketing more than several days after the issuance
of the temporary injunction Respondent has, therefore, not exhibited a
blatant disregard of the Act See Iron Workers Pacific Northwest Council
(Hoffman Construction), 292 NLRB 562 (1989)
6 If 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
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the products of, or to cease doing business with, each
other and/or with McDevitt & Street Company in order
to force or require McDevitt & Street Company to cease
doing business with Mastodon.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."7 Copies of the
notice, on forms provided by the Regional Director fo-
Region 32, after being signed by its authorized represent-
atives, shall be posted by Iron Workers Union Local No.
378, International Association of Bridge, Structural, and
Ornamental Iron Workers, AFL-CIO immediately upon
receipt and be 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 materi-
al.
(b) Deliver to the Regional Director for Region 32
signed copies of the notice in sufficient number for post-
ing by the employers involved here, they being willing,
at all locations where notices to their employees are cus-
tomarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT, nor will our officers, business repre-
sentatives, business agents, or anyone acting for us, what-
ever his title may be, engage in or induce or encourage
any individual employed by McDevitt & Street Compa-
ny, Romak Iron, O. C. Jones, Smith & Emery, R.K. Me-
chanical, Losaw, Ghellotti Brothers, and Berkeley
Ready-Mix, or any other persons engaged in commerce
or in an industry affecting 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 where an object thereof is to
force or require those persons to cease using, selling,
handling, transporting, or otherwise dealing in the prod-
ucts of, or to cease doing business with, each other
and/or with McDevitt & Street Company in order to
force or require McDevitt & Street Company to cease
doing business with Mastodon.
WE WILL NOT threaten, coerce, or restrain McDevitt
& Street Company, Romak Iron, O. C. Jones, Smith &
Emery, R.K. Mechanical, Ghellotti Brothers, and Berke-
ley Ready-Mix, or any other persons engaged in coerce
or in an industry affecting commerce, where an object
thereof is to force or require those persons to cease
using, selling, handling, transporting, or otherwise deal-
ing in the products of, or to cease doing business with
each other and/or with McDevitt & Street Company in
order to force or require McDevitt & Street Company to
cease doing business with Mastodon.
MCDEVITT & STREET COMPANY