Iron Workers Local 378 (N. E. Carlson Construction)

National Labor Relations Board - Board Decisions

Mar 27, 1991

302 N.L.R.B. 200 (N.L.R.B. 1991)

200
302 NLRB No. 31
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On September 26, 1990, Administrative Law Judge Michael D. Stevenson
issued the attached decision. The General Counsel, the Charging Party, and the
Respondent filed exceptions, the General Counsel and the Respondent filed
supporting briefs, and the General Counsel and the Charging Party filed an-
swering briefs.
The National Labor Relations Board has delegated its authority in this pro-
ceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
3 We agree with the judge that the Respondent’s business agent Trujillo vio-
lated Sec. 8(b)(4)(B) by August 29, 1989 threats to picket all three construc-
tion jobsite gates in order to enmesh neutral employers and their employees
and by his September 1, 1989 statements seeking to induce an employee of
a neutral employer not to cross a picket line. Contrary to the judge, we find
that the Respondent did timely raise Sec. 10(b) as an affirmative defense when
the General Counsel moved at the hearing to amend the complaint to add alle-
gations pertaining to Trujillo. We find no merit in such a defense, however.
The amended complaint allegations are closely related to allegations in the
original timely filed charge because they involve the same class of violation,
arise from the same factual circumstances or sequence of events, and entail
the same or similar defenses. See Redd-I, Inc., 290 NLRB 1115 (1988).
We further agree with the judge that picketer Scott violated Sec. 8(b)(4)(B)
by threatening, in Trujillo’s presence, to assault the job superintendent of a
neutral employer if he attempted to cross a picket line on August 30. In find-
ing that Scott acted as the Respondent’s agent, we do not rely on Trujillo’s
failure to remove Scott from the picket line immediately.
Finally, we find it unnecessary to pass on allegations that the Respondent
also violated Sec. 8(b)(4)(B) through individual picketer’s acts of blocking
neutral employee Tucker from driving through a jobsite gate, striking and
slightly damaging Tucker’s truck, and threatening to assault neutral employee
Wisecarver. Any violations found would be cumulative and would not affect
our remedy.
4 The judge in McDevitt & Street did not evaluate this statement as an inde-
pendent unlawful threat.
International Association of Bridge, Structural and
Ornamental Iron Workers, AFL–CIO and
N. E. Carlson Construction, Inc. Case 32–CC–
1271
March 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case1
present the question, inter alia, whether the Respondent
has engaged in unfair labor practices warranting the
issuance of broad cease-and-desist remedial order.
The Board has considered the exceptions in light of
the record and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions as modi-
fied,3 and to substitute an Order including broad cease-
and-desist language.
AMENDED REMEDY
Both the General Counsel and the Charging Party
have excepted to the judge’s failure to include in his
recommended Order cease-and-desist language broadly
enjoining the Respondent from engaging in future sec-
ondary activity proscribed by Section 8(b)(4)(B) of the
Act. In Hickmott Foods, 242 NLRB 1357 (1979), the
Board held that a broad remedial ‘‘order is warranted
only when a respondent is shown to have a proclivity
to violate the Act or has engaged in such egregious or
widespread misconduct as to demonstrate a general
disregard for . . . fundamental statutory rights.’’ The
Board has applied the Hickmott standard in tailoring
remedial order language to protect the rights of neutral
employees and employers to be free from secondary
activity proscribed by Section 8(b)(4)(B). E.g., Iron
Workers Pacific Northwest Council (Hoffman Con-
struction), 292 NLRB 562 (1989). A determination of
the need for a broad order in each case turns on the
nature and extent of violations committed by the re-
spondent.
The Respondent’s unlawful conduct in this case rep-
resents the second time in the period of slightly more
than a year that it has picketed a construction jobsite
in violation of Section 8(b)(4)(i) and (ii)(B). In Iron
Workers Local 378 (McDevitt & Street), 298 NLRB
955 (1990), the Board affirmed the judge’s finding that
the Respondent unlawfully sought to enmesh neutral
employees and employers in a primary dispute by
picketing, during a period from August 24 to Septem-
ber 23, 1988, at gates reserved for use by neutrals or
at times when the primary employer was not present
at the jobsite. The business agent who directed the Re-
spondent’s picketing in McDevitt & Street was Ray
Trujillo. Trujillo’s activity included the statement, in
response to a question whether he had received notice
that the primary employer would not be at the jobsite
on a certain date, that he would picket whether or not
the primary was there.4
The present case involves further unlawful conduct
at yet another construction site. The result is that even
more employers have been subjected to the Respond-
ent’s misconduct. In the instant case, Respondent has
violated Section 8(b)(4)(i) and (ii)(B) by picketing a
neutral gate on September 23–24 and on October 4–
5, 1989. Furthermore, Business Agent Trujillo was
again the central figure in directing the Respondent’s
picketing. In this instance, his involvement included
independent violations of Section 8(b)(4)(B). On Au-
gust 29, he threatened to picket all construction site
gates pursuant to an express desire to have the greatest
impact on the manufacturing operations of neutral em-
ployer Bishop-Wisecarver Corporation, which owned
the jobsite property and had contracted for the con-
struction of a warehouse there. On September 1, he
sought to induce Jonathan Erickson, a Bishop-
Wisecarver employer and steward for the Steelworkers
local which represents that company’s shop employees,
to breach a contractual no-strike obligation by refusing
to cross the Respondent’s picket line to work for his
neutral employer.
In sum, about 1 year after engaging in unlawful con-
duct, Respondent has repeated its unlawful conduct at
201IRON WORKERS LOCAL 378 (N. E. CARLSON CONSTRUCTION)
5 See Service Employees Local 77 (Thrust IV), 264 NLRB 628 (1982).
6 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
yet another site and involving still more employer tar-
gets. In these circumstances we find that a narrow
order, confined to the instant employers, would not
sufficiently deter further misconduct. We further find
that the Respondent’s violations in this case, consid-
ered against the background of similar events in
McDevitt & Street and giving particular emphasis to
the behavior of the Respondent’s business agent Tru-
jillo, are so egregious as to manifest a general dis-
regard for the rights of neutral employees and employ-
ers. This unlawful conduct convinces us that, without
proper restraint, the Respondent is likely to engage in
similar conduct in the future against employers other
than those involved here.5 Accordingly, a broad reme-
dial order is appropriate.
ORDER
The Respondent, Iron Workers Union Local No.
378, International Association of Bridge, Structural,
and Ornamental Iron Workers, AFL–CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) In any manner inducing or encouraging employ-
ees of Bishop-Wisecarver Corporation, N. E. Carlson
Construction, Inc., or any other person engaged in
commerce or in an industry affecting commerce, to
refuse in the course of their employment to perform
any services where an object thereof is to force or re-
quire Bishop-Wisecarver Corporation, N. E. Carlson
Construction, Inc., or any other person to cease doing
business with R & S Erection of Mountain View, Cali-
fornia, with each other, or with any other person.
(b) In any manner threatening, coercing, or restrain-
ing Bishop-Wisecarver Corporation, N. E. Carlson
Construction, Inc., or any other person engaged in
commerce or in an industry affecting commerce, where
an object thereof is to force or require Bishop-
Wisecarver Corporation, N. E. Carlson Construction,
Inc., or any other person to cease doing business with
R & S Erection of Mountain View, California, with
each other, or with any other person.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its business offices and all meeting halls
located in the State of California copies of the attached
notice marked ‘‘Appendix.’’6 Copies of the notice, on
forms provided by the Regional Director for Region
32, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced, or cov-
ered by any other material.
(b) Furnish the Regional Director with a sufficient
number of signed copies of the notice for posting by
Bishop-Wisecarver Corporation and N. E. Carlson
Construction, Inc., provided those employers are will-
ing, at all places where notices to 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.
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 or-
dered us to post and abide by this notice.
WE WILL NOT in any manner induce or encourage
employees of Bishop-Wisecarver Corporation, N. E.
Carlson Construction, Inc., or any other person en-
gaged in commerce or in an industry affecting com-
merce, to refuse in the course of their employment to
perform any services where an object thereof is to
force or require Bishop-Wisecarver Corporation, N. E.
Carlson Construction, Inc., or any other person to
cease doing business with R & S Erection of Mountain
View, California, with each other, or with any other
person.
WE WILL NOT in any manner threaten, coerce, or re-
strain Bishop-Wisecarver Corporation, N. E. Carlson
Construction, Inc., or any other person engaged in
commerce or in an industry affecting commerce, where
an object thereof is to force or require Bishop-
Wisecarver Corporation, N. E. Carlson Construction,
Inc., or any other person to cease doing business with
R & S Erection of Mountain View, California, with
each other, or with any other person.
IRON WORKERS UNION LOCAL NO. 378,
INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL, AND ORNAMEN-
TAL IRON WORKERS, AFL–CIO
Sharon Chabon and Charles Pernal, for the General Coun-
sel.
Sandra Rae Benson and Paul Supton (Van Bourg, Weinberg,
Roger & Rosenfeld), of San Francisco, California, for the
Respondent.
David Sirias and Mark Thierman (Thierman, Cook, Brown &
Prager), of San Francisco, California, for the Charging
Party.
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates herein refer to 1989 unless otherwise indicated.
2 During the hearing, the General Counsel amended the complaint adding
certain allegations as pars. 9(c)(4) and (5) of the complaint; the General Coun-
sel also deleted par. 9(a) of the complaint (G.C. Exh. 2; Tr. 425).
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Oakland, California, on April 2,
3, and 10, 1990,1 pursuant to an amended complaint issued
by the Regional Director for the National Labor Relations
Board for Region 32 on January 12, 1990, and which is
based on a charge filed by N. E. Carlson Construction, Inc.
(Carlson or the Charging Party) on August 31. The complaint
alleges that Iron Workers Union Local No. 378, International
Association of Bridge, Structural and Ornamental Iron Work-
ers, AFL–CIO (Respondent) has engaged in certain violations
of Section 8(b)(4)(i) and/or (ii)(B) of the National Labor Re-
lations Act (the Act).
Issues2
Whether on one or more days, Respondent, while engaged
in a labor dispute with R & S Erection, a subcontractor
working on a jobsite in Pittsburg, California, picketed a
properly marked gate at the jobsite, specifically designated
for neutrals to the labor dispute, and whether Respondent di-
rected threats and inducements to employees of the neutral
employers for the purpose of enmeshing the neutrals in its
dispute with R & S Erection, the primary employer.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of the Gen-
eral Counsel, the Charging Party, and Respondent.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS
I find that R & S Erection of Mountain View, California,
is a California corporation which operates a business as a
supplier and erector of metal buildings and has an office and
place of business located in Mountain View, California. Re-
spondent admits that during the past year, in the course and
conduct of R & S Erection’s business operations, R & S
Erection performed services valued in excess of $50,000 for
customers or business enterprises located within the State of
California, which customers or business enterprises them-
selves meet one of the Board’s jurisdictional standards, other
than indirect inflow or outflow standards (Tr. 28). Accord-
ingly, I find that R & S Erection is engaged in commerce
and in a business affecting 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 it is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background (prepicketing)
At all times material to this case, Bishop-Wisecarver Corp.
(B-W) owned and/or operated a facility located in Pittsburg,
California. In April, B-W entered into an agreement with
N. E. Carlson Construction, Inc., for Carlson to act as gen-
eral contractor in the construction of a warehouse on a parcel
of land adjoining the existing facility. A diagram of the en-
tire site is contained in the record and is reproduced as fol-
lows:
203IRON WORKERS LOCAL 378 (N. E. CARLSON CONSTRUCTION)
SPACING FOR A ONE-PAGE DIAGRAM
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The General Counsel’s unopposed motion to correct the spelling of
Mittan’s name is granted.
A fence surrounds the entire site. Built approximately 12
years before the new facility was begun, the fence contains
three gates, the usage of which will be explained below. Be-
fore the construction project was completed in December, a
controversy developed over picketing of these gates by rep-
resentatives of Respondent.
One of the subcontractors retained to perform work on the
site was R & S Erection of Mountain View, Inc. (R & S).
On or about August 22, R & S began its work installing the
building’s steel frame and siding. About five or six R & S
employees were supervised by Foreman Paul Simpson, a wit-
ness for the General Counsel.
The first person to arrive at the site both before and after
the picketing began was usually William Mittan,3 field super-
intendent for Carlson and witness for the General Counsel.
Arriving generally about 6 a.m., Mittan unlocked the gate
now marked as gate 3 on the diagram. Before picketing
began, gate 3 was marked only with a sign reading ‘‘EXIT.’’
It measured 16 feet in width.
The gate now marked as gate 2 was located approximately
230 feet north of gate 3 and before picketing began, it was
marked with a sign reading ‘‘ENTRANCE.’’ It measured 24
feet wide. This gate was opened with an electronic device
similar to a garage door opener, which Mittan did not pos-
sess. Accordingly, construction employees who arrived be-
fore 6:45 to 7 a.m. when gate 2 was usually opened, used
gate 3. The B-W shop employees also used gate 3, while the
B-W clerical employees used gate 2.
The gate now marked gate 1 was at the northern most cor-
ner of the site and was not used on a regular basis. It meas-
ured 16 feet wide, and was about 120 feet from gate 2.
About a week before picketing began on August 29, the
jobsite was visited by Respondent’s business agent, Ray Tru-
jillo. It is part of Trujillo’s job responsibilities to visit var-
ious jobsites in the bay area, to identify any subcontractors
performing ironworkers’ work, and finally, to ascertain the
subcontractor’s status as either union or nonunion. Trujillo
followed this procedure in the instant case, and on discover-
ing that R & S, a nonunion subcontractor, was performing
ironwork on the jobsite, Trujillo arranged for a sanctioned
picket line to be established at the jobsite. By ‘‘sanctioned’’
is meant, Trujillo merely notifies the Contra Costa County
Building Trade Council of the picket line’s location and
other relevant information. The picketers are members of Re-
spondent recruited from its hiring hall. Three persons were
initially assigned to picket; later in October, a different group
picketed. One picket from the second group testified at hear-
ing as Respondent’s witness. Trujillo testified he instructed
his picketers to behave themselves, to avoid verbal and phys-
ical confrontations, to distribute Trujillo’s business card to
anyone asking for an explanation of the picket line, to tell
such persons only that the picket line was ‘‘sanctioned,’’ to
refrain from blocking vehicles, to be careful of their own
safety, and to picket any gate used by R & S employees.
2. Background (picketing)
On August 29, about 6:30 a.m., Mittan was unlocking gate
3 when he was approached by Trujillo who asked what gate
the construction workers normally use. Mittan stated that
those who came to work early, i.e., before 7 a.m. used gate
3. A short time later Mittan observed pickets at gate 3 with
signs reading, ‘‘R & S Erection wages and conditions are
below standards established by the iron workers.’’ Shortly
after observing the pickets, Mittan phoned Howard Patterson,
a senior estimator and project manager for Carlson and wit-
ness for the General Counsel, and informed Patterson of the
pickets. Patterson told Mittan that he would notify other
Carlson officials of these developments, obtain signs which
had previously been prepared, and arrive shortly at the job-
site to establish a ‘‘dual gate’’ system.
About 10 a.m., Patterson arrived at the jobsite with the
signs which he immediately posted. On gate 1, was posted
a sign reading:
STOP READ GATE 1. THIS GATE IS RESERVED
FOR PERSONNEL, VISITORS, AND SUPPLIERS OF
THE CONTRACTORS LISTED BELOW:
R & S ERECTION
ABC ASSOCIATED BUILDERS & CONTRACTORS, INC.
ALL OTHERS MUST USE GATE 2.
The sign measured 4 feet wide by 3 feet high. On a white
background, the top letters are in red, that is, all except R
& S Erection, which was printed by hand (Tr. 67–68). The
same legend appears on the front and back of the sign.
The second sign of the same general description as above
(except with printing only on the side facing the street)
reads:
STOP READ GATE 2. THIS GATE MAY NOT BE
USED BY PERSONNEL, VISITORS OR SUPPLIERS
OF THE CONTRACTORS LISTED BELOW:
R & S ERECTION
ABC [Logo]
ALL OTHERS must USE THIS GATE
Gate 3 was not posted with any sign but continued to have
the preexisting ‘‘EXIT’’ sign visible.
Once the signs were posted, Patterson then addressed the
pickets in front of gate 2 and asked them to picket the proper
gate. They made no reply nor did they move.
Also on August 29, Jonathan Erickson reported for work
at the B-W original facility, where he was employed as a
machine shop specialist. Testifying for the General Counsel,
Erickson stated that he was concerned by the pickets at gates
2 and 3 because he knew the B-W production employees
were represented by the United Steel Workers, Local 1440.
In fact, he was that union’s shop steward at the factory. At
Patterson’s request, Erickson first contacted Trujillo to ex-
plain the potential problem for B-W union employees who
would be faced with a difficult choice of deciding whether
to cross Respondent’s picket line. Trujillo was noncommittal
regarding any solution, but did agree to come to the site in
the early afternoon. Then Erickson called Glenn Nielsen, an
International staff representative for the Steel Workers. After
Erickson explained the situation, Nielsen also agreed to come
to the jobsite in early afternoon to meet with and to speak
to Trujillo.
Arriving about 1:30 or 2 p.m., Nielsen observed two pick-
ets at gate 2. Although Nielsen testified he observed no sign
205IRON WORKERS LOCAL 378 (N. E. CARLSON CONSTRUCTION)
4 Mittan described the picket who made the statement as a tall white man
with blonde hair. This description was erroneous. Scott is a 185–200 pound,
5-foot 10-inch black man with a beard, who was removed from the picket line
by Trujillo after this incident and a second incident with a B-W employee
named Tucker to be described below.
on gate 2, and Trujillo gave similar testimony, I find that the
gate was in fact posted as described above. Nielsen asked the
pickets to move to gate 1, but they refused. A short time
later, Trujillo arrived and the two union officials had a pri-
vate conversation. During the conversation, Trujillo also re-
fused to move the pickets saying he wanted the pickets
where they had the most impact. Trujillo added that the im-
pact he desired was to be disruptive to operations of the
manufacturing facility. According to Erickson, Trujillo added
that he intended to picket all three gates. This was not cor-
roborated by Nielsen, but I credit Erickson on this point.
Other witnesses testified that Trujillo made a similar state-
ment to them on other occasions. Moreover, I find Erickson
to be a credible witness because as a union member and shop
steward, he was testifying against union solidarity and his
own self-interest, in testifying against Trujillo. About 3:42
p.m., Patterson sent a telegram to Respondent which reads as
follows:
STEELWORKERS #378
ATTN RAY TRAJIO [SIC]
1734 CAMPBELL
OAKLAND CA 94607
REFERENCE N E CARLSON CONSTRUCTION INCOR-
PORATED
BISHOP - WISECARVER, PITTSBURG CALIFORNIA
DEAR SIR:
N E CARLSON CONSTRUCTION INCORPORATED HAS
ESTABLISHED A TWO GATE SYSTEM AT OUR PROJECT
REFERENCED ABOVE, WHICH IS LOCATED AT 2104 MAR-
TIN WAY PITTSBURG CALIFORNIA IN COMPLIANCE WITH
THE REQUIREMENTS OF THE NLRB. THIS TWO GATE SYS-
TEM IS EFFECTIVE 7AM WEDNESDAY AUGUST 30, 1989.
GATE NUMBER ONE WHICH IS LOCATED AT THE
NORTH END OF THE CONSTRUCTION PROJECT IS FOR THE
EXCLUSIVE USE OF R. AND S. ERECTION INCORPORATED,
ITS EMPLOYEES, AND SUPPLIERS AND VISITORS. GATE
NUMBER TWO IS FOR THE EXCLUSIVE USE OF THE EM-
PLOYEES, SUPPLIERS AND VISITORS OF ALL OTHER CON-
TRACTORS.
WHENEVER YOU, YOUR MEMBERS, EMPLOYEES OF
ANY SUBCONTRACTORS OR SUPPLIERS OF CONTRACTORS
OTHER THAN R. AND S. ERECTION INCORPORATED VISIT
THE SITE FOR ANY REASON, GATE NUMBER TWO WHICH
IS LOCATED AT THE VERY CENTER OF THE PROJECT
MUST BE USED. USE OF OTHER GATE IS EXPRESSLY FOR-
BIDDEN.
PLEASE CIRCULATE THIS DEMAND TO ANY OF YOUR
MEMBERS WHO MIGHT BE INVOLVED.
VERY TRULY YOURS,
N E CARLSON CONSTRUCTION INCORPORATED
HOWARD PATTERSON PROJECT MANAGER
550 SALLY RIDE DR
CONCORD CA 94520
[G.C. Exh. 4.]
On August 30, Mittan made his usual early morning arriv-
al only to find the dual gate system signs missing. Mittan left
the jobsite to notify Carlson and the police of the apparent
theft. On returning to the jobsite about 6:45 a.m., he found
three pickets and Trujillo at gate 3. Trujillo asked Mittan if
he intended to cross the picket line. Mittan replied that gate
3 was a clean gate and the pickets should be at gate 1. Tru-
jillo recommended 24-hour security for the jobsite because it
was a high risk area. As Mittan persisted in his intent to
cross the line, a picket apparently named Scott4 told Mittan
they could drag him out of his pickup truck and ‘‘beat the
hell’’ out of him, if they wanted to. After a long pause, Tru-
jillo ordered the pickets to let Mittan through and the pickets
did without further incident.
About 7:40 a.m. on August 30, a B-W employee named
Lloyd Tucker, who testified for the General Counsel, at-
tempted to drive to his job through gate 3. Because two pick-
ets stood in front of that gate, Tucker drove in his 1964 El
Camino to gate 2 where Scott and another picket were
present. Apparently believing that Tucker approached the
gate recklessly, Scott shouted, ‘‘You trying to run over me,
mother-fucker!’’ Scott then took his picket sign and slammed
it down on the hood of Tucker’s vehicle causing minor dam-
age. At this point, Tucker, who was alone, stopped his vehi-
cle, grabbed a 2 foot long 2 by 4 from the open back end
of his vehicle, and threatened to work Scott over, if Scott hit
Tucker’s vehicle a second time. Before any blows were
struck, Shop Steward Erickson and another B-W employee
arrived on the scene and broke up the confrontation.
Later that morning, Patterson arranged for duplicate signs
to be posted of a size and type as previously described.
On August 30, Patterson caused a second telegram to be
sent to Respondent. It reads as follows:
IRON WORKERS UNION 378 ATTN RAY TRAJIO [SIC]
1734 CAMPBELL
OAKLAND CA 94607
RE: N.E. CARLSON CONSTRUCTION INC
BISHOP-WISE CARVER, PITTSBURGH [SIC], CA
DEAR SIR:
YOU WERE PREVIOUSLY ADVISED THAT, EFFECTIVE 8–
29–89 DUAL GATE SYSTEM WAS ESTABLISHED, N.E.
CARLSON CONSTRUCTION HAS ESTABLISHED A TWO
GATE SYSTEM AT ITS CONSTRUCTION PROJECT REF-
ERENCED ABOVE, WHICH IS LOCATED AT 2104 MARTIN
WAY, PITTSBURGH [SIC], CALIFORNIA. GATE NO. 1
WHICH IS LOCATED AT THE NORTHEAST CORNER OF THE
PROJECT IS RESERVED FOR THE EXCLUSIVE USE OF THE
EMPLOYEES SUPPLIERS AND VISITORS OF R.S. [SIC]
ERECTION INCORPORATED GATE NO. 2 WHICH IS LO-
CATED AT THE CENTER OF THE PROJECT IS RESERVED
FOR THE EMPLOYEES, SUPPLIERS AND VISITORS OF ALL
OTHER CONTRACTORS. YOUR UNION IS CURRENTLY
PICKETING GATE NO. 2 IN VIOLATION OF THE LAW. THIS
PICKETING IS ILLEGAL. ALL PICKETING ACTIVITY
AGAINST R.S. [SIC] ERECTION INCORPORATED MUST BE
LIMITED AND CONFINED TO GATE NO. 1. WE DEMAND
THAT THE PICKETS IN FRONT OF GATE NO. 2 BE RE-
MOVED IMMEDIATELY. SHOULD THIS PICKETING NOT BE
LIMITED TO THE PRIMARY GATE, NO. 1, N.E. CARLSON
INCORPORATED WILL PURSUE ITS LEGAL RIGHTS TO THE
FULLEST EXTENT PERMITTED BY LAW THROUGH THE
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 There is evidence in the record that on September 6, still a third copy of
the TRO was served on pickets at the jobsite by a Pittsburg police officer (Tr.
653).
6 Trujillo at first identified the police officer to whom he spoke as Lt.
Freguson or Fitzgerald (Tr. 486). Later Trujillo agreed that he spoke by phone
only with Lt. Hendricks (Tr. 503).
NATIONAL LABOR RELATIONS BOARD AND OR THE
COURTS. IF YOU CLAIM ANY LEGAL JUSTIFICATION FOR
YOUR ACTIONS PLEASE ADVISE BY RETURN WIRE IMME-
DIATELY. VERY TRULY YOURS,
N.E. CARLSON CONSTRUCTION INC.
HOWARD PATTERSON, PROJECT MANAGER
550 SALLY RIDE DR
CONCORD CA 94520
[G.C. Exh. 6.]
On August 31, the Charging Party obtained a Temporary
Restraining Order (TRO) from a Superior Court judge of
Contra Costa County (R. Exh. 8). Among other stipulations,
this court order limited Respondent to two pickets at each
point of ingress and egress to the jobsite. Contrary to Tru-
jillo’s testimony, I find that the TRO was served on Trujillo
on September 6. According to Dyson DeMara, a process
server who testified, as a General Counsel rebuttal witness,
he served Trujillo at his home. A second copy had been left
at union headquarters on or about September 1.5 Because
DeMara is a neutral witness, I credit his testimony.
On September 1, Erickson had a conversation with Tru-
jillo. About 7:40 a.m., outside of gate 3, Trujillo asked
Erickson if he was the grievance man for B-W. When
Erickson answered he was, Trujillo asked him, ‘‘Why are
you guys crossing the picket line?’’ Erickson replied, ‘‘Be-
cause Nielsen had explained that under the labor agreement
between B-W and the Steelworkers, unit employees must
cross the picket line, or breach the contract.’’ Then according
to Erickson, Trujillo stated, ‘‘If they asked you to suck my
dick, would you do it.’’ Trujillo admitted the gist of the con-
versation, but denied making the final remark. Instead, Tru-
jillo testified he asked Erickson if he did everything his boss
told him to do. Trujillo added that in light of Erickson’s size,
he would not speak to him in the manner alleged (Tr. 477).
It is true that Erickson was bigger, heavier, and younger than
Trujillo. However, I find that Trujillo was undaunted by
these factors, perhaps because pickets were nearby, and did
make the comment described by Erickson. I find that
Erickson was more credible on this point.
Also on September 1, a second event material to this case
occurred. Robert Wisecarver, a foreman at B-W and son of
the owner, testified for the General Counsel that he had a
conversation with an unidentified white picket described as
standing about 6 feet tall, weighing about 200 pounds, and
wearing jeans, no shirt, cowboy boots, and sunglasses. The
picket asked Wisecarver where the injunction was.
Wisecarver assured the picket that the injunction was on its
way. To this, the picket replied, ‘‘You must be a lying sack
of shit because we’re still here. You don’t look like you’re
sweating much, you must not have much to do.’’ Wisecarver
answered, ‘‘I have more than you.’’ The conversation heated
up as the picket said, ‘‘Hey little fucker, do you live around
here?’’ After Wisecarver made no answer, the picket added,
‘‘We’ll find out where you live and we’ll come beat your
ass.’’ As Wisecarver began walking away, the picket said,
‘‘You look a little nervous. I’d be nervous to, if I was going
to get my ass beat.’’
The parties stipulated that on September 8, gate 3 was
posted for the first time with a sign that read, ‘‘No construc-
tion workers or materials for this gate’’ (Tr. 122).
In mid-September the Union stopped picketing because ac-
cording to Trujillo, pickets were being harassed by Pittsburg
police and B-W employees. On or about September 21, pick-
eting resumed after Trujillo claimed to have observed R &
S employees leaving the jobsite at lunchtime through gate 3.
More specifically, Trujillo testified that on September 20
around lunchtime he was conducting surveillance of the job-
site from a distance of about 1-1/2 blocks away. While using
binoculars, he allegedly observed a black Pontiac Trans Am
or Firebird exiting the jobsite with R & S employees inside.
Hence when the picketing resumed, Trujillo ordered that gate
3 be picketed, as well as gates 1 and 2. This picketing con-
tinued through September 22.
In rebuttal, the General Counsel called a former R & S
employee named Baltazar Yepez, who had worked on the
Pittsburg jobsite. Yepez owned two vehicles, a white Chevy
truck and a black Pontiac Trans Am. After driving to work
in the black Trans Am during the first week on the job, i.e.,
in August, Yepez testified that he switched to the white truck
as he had insurance on the latter, but not the former. Further-
more, Yepez testified he was told on more than one occasion
by Simpson, his foreman, to use only the gate nearest the
building being constructed (gate 1), and this is what he did.
Yepez is no longer employed by R & S and I found him to
be more credible than Trujillo, who prior to this time had
proven by word and deed his intention to picket gates 2 and
3. Accordingly, I do not credit Trujillo’s testimony regarding
what he supposedly saw on September 20.
Also called as a General Counsel rebuttal witness was Lt.
William Hendricks, operations commander of the Pittsburg
police. Although Hendricks never met Trujillo in person, and
never went to the jobsite, he spoke over the phone to Trujillo
several times regarding picketing at the jobsite. At first there
was confusion regarding contents of the TRO as a copy had
not been immediately furnished to Hendricks. Trujillo testi-
fied that on or about September 1, Hendricks had informed
him by telephone that pickets could only picket gate 2 under
threat of arrest6 (Tr. 486–487, 503). Hendricks categorically
denied ever giving Trujillo any such order. On or about Sep-
tember 11, Hendricks did tell Trujillo that Hendricks under-
stood the TRO to permit picketing at gates 1 and 2 with two
pickets at each gate, but no pickets at gate 3 where the em-
ployees went in and out of the office (Tr. 621). I credit Hen-
dricks, finding him to be completely neutral to the con-
troversy here and professional in his demeanor. I once again
do not believe Trujillo. Moreover, I find that police instruc-
tions played little or no role in Trujillo’s decision where to
assign his pickets. I do not believe that Trujillo moved his
pickets from gate 3 to gate 2 to comply with police orders
as Trujillo testified (Tr. 527). The evidence shows that at all
times material to this case Trujillo picketed both gates 2 and
3. Furthermore by his own admission, when Trujillo resumed
picketing on September 21, Trujillo disregarded the alleged
order of Lt. Hendricks—which I have found was nonexist-
ent—and resumed picketing at all three gates. The alleged
reason for this cavalier disregard of a police order was be-
207IRON WORKERS LOCAL 378 (N. E. CARLSON CONSTRUCTION)
7 The parties stipulated that the TRO expired on September 18 (Tr. 533).
However, that fact was not the reason that Trujillo gave at hearing for the re-
sumption of picketing of all three gates, and he admitted he did not even know
the status of the TRO when he resumed picketing on September 21 (Tr. 530).
8 In fact, Trujillo played a major role in Judge Robbins’ case as he does
in this case.
cause Trujillo allegedly observed employees of R & S using
gate 3 (Tr. 530), a justification I found above to be false.7
In sum much of Trujillo’s testimony appears to be contradic-
tory and a total fabrication.
On October 4 and 5, Respondent pickets again appeared
at gates 1 and 3. This time Respondent Business Agent Ger-
ald Balmer who testified for Respondent arranged for the
pickets. Like Trujillo, Balmer selected three pickets from Re-
spondent’s hiring hall. They were Wesley Bruer, another Re-
spondent witness, and two others. Balmer told them to picket
whatever gates R & S was using.
According to Bruer, sometime shortly after gate 3 was
opened about 6:30 or 6:45 a.m. on October 4, while he and
the other pickets were in a vacant lot across from gate 3, he
observed a red truck with an R & S logo on the side, drive
through gate 3, at a time when the other two gates were still
locked. Inside the red truck were two men. The driver parked
the truck just inside gate 3 and walked into the building,
while the passenger stayed in the truck. Bruer did not know
‘‘if the passenger was using the restroom or what, he had no
idea’’ (Tr. 576). About 30 minutes later, the passenger re-
turned and drove the truck out of gate 3 and down to gate
1, where it parked just outside gate 1 for the rest of the day.
When Balmer arrived at the jobsite on October 4, he too
observed the red truck parked just inside gate 3. Based on
what he saw and was told by Bruer, Balmer permitted pick-
ets to remain at gate 3 and posted other pickets at gate 1.
The following day Balmer arrived about 6:30 a.m. and again
positioned pickets both at gates 1 and 3. Balmer testified that
in his opinion, gate 3 had been polluted based on what he
had seen and heard the prior day. This was the first and ap-
parently only instance of pollution of which Balmer was
aware. On both days, pickets carried signs with legends pre-
viously described in these facts.
On October 4, about 2:13 p.m., Carlson sent to Respond-
ent a telegram restating the existence of a dual gate system
and noting that as of September 8, gate 3 had also been post-
ed as previously described in these facts. Carlson demanded
that pickets be removed from gate 3. The telegram concluded
by stating ‘‘Without admitting any pollution of the gates has
occurred, the dual gate system is hereby reestablished. . . .
Gate 3 is not for the use of any construction workers or ma-
terials’’ (G.C. Exh. 7).
B. Analysis and Conclusions
1. General legal principles
I begin with two recent Board decisions affirming the de-
cisions of Administrative Law Judge Earldean V. S. Rob-
bins, who found violations in cases similar to the instant
case. These cases are helpful not only because they are re-
cent, decided in March and June 1990, but also because one
of the cases involves the same Respondent as that here.8 In
San Francisco Building Trades Council (Gould Electric), 297
NLRB 1050 (1990); and Iron Workers Local 378 (McDevitt
& Street), 298 NLRB 955 (1990), Judge Robbins begins her
analysis in both cases by first setting forth the applicable
legal principles. I will do the same.
Section 8(b)(4)(i) and (ii), subparagraph (B) of the Act, as
amended, provides, in relevant part:
Section 8(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 in-
dividual employed by any person engaged in commerce
or in an industry affecting commerce to engage in, a
strike or a refusal in the course of his employment to
use, manufacture, process, transport, or otherwise han-
dle or work on any goods, articles, materials, or com-
modities or to perform any services; or (ii) 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 . . . .
However, a proviso to Section 8(b)(4)(B) exempts from its
ambit primary picketing and a further proviso makes an ex-
emption for ‘‘publicity, other than picketing,’’ if the public-
ity is for the purpose of truthfully advising the public, in-
cluding consumers and members of a labor organization, that
the picketed person distributes products obtained from an
employer with whom the labor organization 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 engages
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 on the desire or hope of a labor organization that
its picketing will influence individuals to withhold their serv-
ices nor on the effect that picketing has had in that regard.
Electrical Workers Local 761 (General Electric) v. NLRB,
366 U.S. 667, 673–674 (1961).
A determination as to a secondary object is particularly
difficult where a primary employer shares a common situs
with neutral employers. In such situations ‘‘picketing must
be conducted so as to minimize its impact on neutral em-
ployers insofar as this can be done without substantial im-
pairment of the effectiveness of the picketing in reaching the
employees of the primary employer.’’ Nashville Building
Trades Council (H. E. Collins Contracting), 172 NLRB
1138, 1140, 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. Sailors Union (Moore Dry
Dock), 92 NLRB 547 (1950); Sacramento Area District
Council of Carpenters (Malek Construction), 244 NLRB 890
(1979); Nashville Building Trades Council (Markwell &
Hartz, Inc.), 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
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
picketing is absolute. In such situations, the picketing is pri-
mary and, therefore, legal, if the following criteria are met:
(1) The picketing is strictly limited to times when the situs
of the dispute is located on the secondary employer’s prem-
ises.
(2) At the time of the picketing the primary employer is
engaged in its normal business at the situs.
(3) The picketing is limited to places reasonably close to
the location of the situs.
(4) The picketing discloses clearly that the dispute is with
the primary employer.
However, the Moore Dry Dock standards are only guide-
lines 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 objectives 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 Building Trades Council (Gould & Precision), 341
U.S. 675, 692 (1951); Operating Engineers Local 450
(Linbeck Construction), 219 NLRB 997, 998 (1975), affd.
550 F.2d 311 (5th Cir. 1977). Therefore, while compliance
might give rise to a rebuttal inference of primary picketing,
the totality of the evidence may reveal an underlying second-
ary objective and overcome the presumption.
2. Did Respondent on September 21 and 22, and on
October 4 and 5, in furtherance of its labor dispute with
R & S unlawfully picket at gate 3 with the picket signs
described in the facts portion of this decision
At page 6 of its brief, Respondent commendably concedes
that on the 4 days in question, it did picket at gate 3; to this,
I add my findings that Respondent’s pickets carried signs
with the legend as described in the facts portion of this deci-
sion.
However, Respondent denies that it violated the Act and
gives various reasons which it contends support its position.
Before considering these, I am constrained to find that the
General Counsel has established a prima facie case. First, be-
cause Respondent picketed gate 3, not just on the days said
picketing is alleged to have violated the Act, but on every
day the Union picketed, there is a failure to conform with
the third criteria of Moore Dry Dock. That is, the pickets
were not reasonably close to the primary gate (gate 1) en-
trance. Accordingly, there is a presumption that the Union’s
object was unlawfully secondary. Iron Workers Local 118
(Allen L. Bender, Inc.), 285 NLRB 162, 166 (1987).
In this case, Respondent had a primary labor dispute with
R & S. There is an abundance of evidence to show that Re-
spondent sought to enmesh in this dispute secondary employ-
ers B-W, itself bound by contract to the Steelworkers union
and Carlson, with an objective of causing B-W and Carlson
to cease doing business with R & S. See Laborers Local 389
(Calcon Construction), 287 NLRB 570, 574 (1987). I turn
now to ascertain whether Respondent has demonstrated any
unusual circumstances to constitute a valid defense to the al-
legations. In its brief, page 6, Respondent lists several con-
tentions for me to consider.
a. Gate 3 was never established as a gate for
neutral employees
In making this argument, Respondent misapplies the focus
of the Board’s dual gate system cases. The central question
is always whether a gate is specially reserved for the exclu-
sive use of the primary employer, his employees, and suppli-
ers and whether other gates are established for use by neutral
employers, employees, and others having business relation-
ships with the neutral employers. Where, separate gates are
thus designated and legitimately maintained, as they were
here, the Union must confine its picketing activities to the
primary gate. Iron Workers Pacific Northwest Council (Hoff-
man Construction), 292 NLRB 562 (1989). Respondent cites
no cases allowing a union to picket a gate other than the pri-
mary gate at a common situs construction site. As noted
above, gate 3 was posted on or about September 8 with a
sign that read ‘‘No construction workers or materials for this
gate.’’ However, it is not necessary to decide whether gate
3 was thus functionally equivalent to gate 2. It need only be
decided that gate 3 was not functionally equivalent to gate
1. Therefore, Respondent was not privileged to picket gate
3.
b. Mittan told Trujillo that construction workers
used gate 3
The facts show that on August 29, Mittan did indeed tell
Trujillo that those construction workers who came to work
early, before 7 a.m., used gate 3. Again, it is not necessary
to determine how many R & S employees used gate 3 as of
August 29. Subsequent to the establishment of the dual gate
system later in the morning of August 29, as I will find
below, neither gates 2 or 3 were substantially tainted. Ac-
cordingly, this defense must fail.
c. R & S employees used gate 3 for ingress and egress
to the jobsite
The record shows two alleged instances of pollution of
gate 3. With respect to Trujillo’s alleged observation of the
black Pontiac Trans Am, I credited R & S employee Yepez
who stated as of the time in question, he was not driving his
black Trans Am to the jobsite. With respect to the red R &
S truck using gate 3 on October 4, I found that this did
occur.
For three reasons, I reject Respondent’s argument that gate
3 was polluted. First, the evidence shows that Respondent,
at least through the September picketing, was bound and de-
termined to picket gate 3 because it felt this was the best
way to pressure R & S. There simply was no reliance on al-
leged taint to justify its action, except after the fact.
Next, I find the alleged taint, by the black Trans Am—
even if it did occur—and by the red R & S truck, were mere
isolated occurrences which did not establish a pattern of de-
struction of the reserve gate system sufficient to justify re-
sumption of picketing at gate 3. See Iron Workers Local 378,
supra; Teamsters Local 677 (J. H. Hogan), 299 NLRB 499
(1990).
Finally, I find that as to the red R & S truck, even if gate
3 was tainted—and I find it was not, Carlson effectively re-
established the reserve gate system with proper notice to Re-
spondent (G.C. Exh. 7). Yet, Respondent picketed gate 3 on
October 5, notwithstanding the notice.
209IRON WORKERS LOCAL 378 (N. E. CARLSON CONSTRUCTION)
9 Sec. 10(l) of the Act provides district courts with the power to temporarily
enjoin unfair labor practices that impinge on the public interest in the free
flow of commerce (i.e., strikes and boycotts). Aguayo v. Tomco Carburetor
Co., 853 F.2d 744 fn. 2 (9th Cir. 1988).
10 Respondent identifies the offending picket as someone name Strubbe. So
far as I can ascertain the picket’s identity, his name is Scott.
d. Respondent’s alleged compliance with police orders
to justify picketing
This issue is presented in two parts: the defense itself and
a claim of estoppel based on the General Counsel’s action
in apparently dismissing a petition for a 10(l) petition9 before
a U.S. district judge (R. Exh. 4).
Both segments of the argument like the other defenses
considered above are without merit. It is unnecessary to re-
peat my findings with respect to the testimony of Lt. Hen-
dricks. It suffices to say that Hendricks never told Trujillo
or anyone else from Respondent they were required to picket
at gate 2; only that under the terms of the TRO that they
could picket at gates 1 and 2, but not at gate 3. To the extent
that Hendricks’ instructions may have been at variance with
Board law, I still see no defense to picketing gate 3.
Prior to hearing, Respondent’s counsel sought permission
from the General Counsel to call Board Attorney Raoul
Thorbourne as Respondent’s witness (R. Exhs. 1, 2). Said
permission was denied (R. Exh. 9). Thereafter the affidavit
of a Respondent Attorney Victor Van Bourg was received
into evidence (R. Exh. 3). Another Respondent Attorney San-
dra Rae Benson testified at hearing. She testified that
Thorbourne told her that after investigating the representa-
tions contained within the Van Bourg affidavit, he concluded
the petition for 10(l) relief should be dismissed. Now Re-
spondent argues that just as Thorbourne allegedly relied on
the Van Bourg affidavit to dismiss the 10(l) petition, I should
somehow be bound to do the same. I decline to do so.
The Board has held that judicial opinions in collateral pro-
ceedings under Section 10(j) (or Section 10(l)) of the Act do
not control the Board’s dispositions of unfair labor practice
charges. Advertiser’s Mfg. Co., 280 NLRB 1185, 1186 fn. 3
(1986). Accordingly, it must follow that the General Coun-
sel’s dismissal of the petition for 10(l) has no effect at all
on the present case. This is so even if the contents of the
dismissed petition are coextensive with the amended com-
plaint now pending, a question which the instant record does
not resolve with any degree of certainity.
In sum, I find no judicial or collateral estoppel or any ef-
fect at all on this case as a result of the dismissal of the peti-
tion for 10(l) relief. See Teledyne Industries v. NLRB, 938
F.2d 627 (6th Cir. 1990).
In light of the above discussion, I conclude that Respond-
ent violated Section 8(b)(4)(i) and (ii)(B) of the Act on Sep-
tember 21 and 22 and on October 4 and 5 as alleged in the
complaint.
3. Did Respondent threaten and/or unlawfully induce
employees and a representative of neutrals
In paragraphs 9(c)(1), (2), and (3) of the amended com-
plaint and in paragraphs 9(c)(4) and (5) of the amendment
to the complaint (G.C. Exh. 2), the General Counsel alleges
Respondent engaged in certain conduct in violation of the
Act. I turn to consider the allegations.
a. Paragraph 9(c)(1)
Threat of physical assault by picket Scott against Mittan
if Mittan crossed the picket line to enter the jobsite.
This incident occurred on August 30 and is recited in de-
tail in the facts. At page 9 of its brief, Respondent concedes
the incident occurred,10 but then argues the incident was not
the responsibility of the Union, as Scott acted contrary to the
express instructions of Trujillo as to how to behave on the
picket line. In Avis Rent-A-Car Systems, 280 NLRB 580 fn.
3 (1986), the Board stated, ‘‘When a union authorizes a pick-
et line, ‘it is required to retain control over the picketing. If
a union is unwilling or unable to take the necessary steps to
control its pickets, it must bear the responsibility for their
misconduct.’’’ See also Electrical Workers Local 6, 286
NLRB 680, 685 fn. 3 (1987).
I note that Scott apparently was not removed from the
picket line until after a second incident with Tucker on the
following day. Even if Respondent could present a convinc-
ing argument that Scott had acted outside the scope of his
agency as defined by Trujillo, when Trujillo failed to take
immediate action to remove Scott from the picket line after
the threat to Mittan, Respondent effectively condoned Scott’s
behavior. This constitutes still another reason why Respond-
ent is responsible for Scott’s threat.
Having found that Respondent was responsible for Scott’s
threat or inducement to Mittan, to cease working for Carlson,
a neutral employer which in turn would cause Carlson to
cease doing business with R & S, see Carpenters Local 316
(Thornhill Construction), 283 NLRB 81 (1987), I conclude
that Respondent has violated Section 8(b)(4)(i)(B) of the Act
as alleged.
b. Paragraph 9(c)(2)—Blocking of Tucker’s truck at
gate 3 and Scott striking Tucker’s vehicle on August 30
Again Respondent first admits this incident occurred. Then
Respondent argues that because Tucker was at least partially
responsible for the incident and because Scott acted in viola-
tion of his instructions, Respondent is not responsible.
I reject Respondent’s argument for the same rationale
given in section 3(a) above. Furthermore, I find no evidence
that Tucker was partially responsible for the incident—Scott
never testified and Trujillo was not present at the time—and
even if he were partially responsible, no cases are cited to
show that this would constitute a legal defense.
I find that Respondent violated Section 8(b)(4)(i)(B) as al-
leged, both in blocking Tucker’s vehicle and in damaging it.
See Electrical Workers Local Union 211 (U.S. Capital Tele-
communications), 279 NLRB 874, 875 (1986).
c. Paragraph 9(c)(3)—Threat on September 1 to assault
Robert Wisecarver
Respondent does not deny this incident, but makes the cu-
rious statement that the incident was never related to the
Union, and the Union was not present when it occurred. To
the contrary, Respondent was present when its agents com-
mitted the act in question. See Iron Workers Local 377
(M.S.B., Inc.), 299 NLRB 680 (1990). For the same reasons
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
specified above, I find that Respondent violated Section
8(b)(4)(i)(B).
d. Paragraph 9(c)(4)
Statements of Trujillo on August 29 to Erickson, Nielsen,
and Patterson that Trujillo intended to picket wherever he felt
like it, and including all three gates.
If the pickets are agents of Respondent as the cited Board
cases hold, so too is Trujillo, Respondent’s business agent
with plenary responsibilities as admitted during hearing (Tr.
29).
Respondent complains that the two final allegations are
barred by the doctrine of collateral estoppel and by Section
10(b) of the Act. The former argument has been disposed of
elsewhere in this decision and the latter argument, an affirm-
ative defense, does not appear to have been raised before.
Respondent cannot raise an affirmative defense for the first
time in its brief and therefore I decline to consider it. See
Petoskey Geriatric Village, 295 NLRB 800, 802 fn. 8 (1989).
On the merits of the allegation, Respondent states (Br. 11)
that when Trujillo spoke to Mittan the gates had not been
properly posted. However, the incident in question occurred
in the early afternoon of August 29 after the gates had been
posted and I have found in the facts that Trujillo did make
the statements in question.
I agree with the General Counsel that Trujillo’s threats to
picket all three gates violated Section 8(b)(4)(i) and (ii)(B)
of the Act and I so find. Iron Workers Local 118 (Allen L.
Bender, Inc.), supra, 285 NLRB at 166.
e. Paragraph 9(c)(5)—Trujillo’s remark to Erickson on
September 1 asking him why he was crossing the
picket line
In the facts, I have related the exchange between Erickson
and Trujillo ending in a vulgarity which need not be repeated
here. The General Counsel contends (Br. 20) that this remark
to Erickson could reasonably be understood by the employ-
ees as a signal or request to engage in a work stoppage
against their own employer. I agree.
In Los Angeles Building Trades Council (Sierra South De-
velopment), 215 NLRB 288 (1974), the Board discussed the
concept of unlawful inducement or encouragement as found
in Section 8(b)(4)(i)(B). At page 290 of its decision, the
Board cited Electrical Workers Local 501 (Samuel Langer)
v. NLRB, 341 U.S. 694 (1951), for the proposition that
The words ‘‘induce or encourage’’ are broad enough to
include in them every form of influence and persuasion.
The Board went on to state that it has repeatedly found un-
lawful any statements of union agents made directly to em-
ployees of secondary employers if such statements would
reasonably be understood by the employees as a signal or re-
quest to engage in a work stoppage against their own em-
ployer (ib.).
By this standard, I find that Trujillo’s statement to
Erickson either as I found was made, or as Trujillo testified,
violated Section 8(b)(4)(i)(B) in that Erickson was an em-
ployee of a neutral and Trujillo’s statement was indeed a sig-
nal or request to Erickson to engage in a work stoppage
against B-W.
CONCLUSIONS OF LAW
1. R & S Erection of Mountain View, California, is an
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. N. E. Carlson Construction, Inc., is an employer en-
gaged 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. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
4. By picketing at gates reserved for neutrals at the Pitts-
burg, California construction jobsite, Respondent has violated
Section 8(b)(4)(i) and (ii)(B) of the Act.
5. By picketing a gate at the Pittsburg, California jobsite
which was not reasonably close to the primary gate, Re-
spondent has violated Section 8(b)(4)(i) and (ii)(B) of the
Act.
6. Respondent violated Section 8(b)(4)(i) and (ii)(B) of the
Act by engaging in the following conduct:
(a) By threatening an employee of a neutral employer with
physical violence if he crossed the picket line at a neutral
gate.
(b) By blocking the vehicle of an employee of a neutral
employer and striking and damaging said employee’s vehicle
as he attempted to enter the jobsite through a neutral gate.
(c) By threatening to assault an employee of a neutral em-
ployer for the purpose of encouraging him to discontinue
working for the neutral employer.
(d) By threatening and stating to employees of neutral em-
ployers that Respondent would picket all gates to the jobsite
including gates reserved for secondary employers.
(e) By signalling or requesting employees of secondary
employers to engage in a work stoppage against their em-
ployer.
7. 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.
[Recommended Order omitted from publication.]