Iron Workers Local 433, International Association Of Bridge, Structural And Ornamental Iron Workers, Afl-Cio

National Labor Relations Board - Board Decisions

May 24, 1989

294 N.L.R.B. 182 (N.L.R.B. 1989)

182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Iron Workers Local 433, International Association
of Bridge , Structural and Ornamental Iron
Workers, AFL-CIO and Chris Crane Company.
Case 31-CC-1930
May 24, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 26, 1988, Administrative Law
Judge James M. Kennedy issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering 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, i and
conclusions,2 as modified, and to adopt the recom-
mended Order.
We agree with the judge that the Respondent
violated Section 8(b)(4)(i) and (u)(B) by picketing
Chris Crane on September 18, 19, and 21, 1987, at
the gate reserved for neutral employers. In finding
this violation, we reject the Respondent's argument
that the neutral gate was tainted by companies
hired by the general contractor to provide jobsite
services to all of its subcontractors, including Chris
Crane, the primary.
Joe E. Woods, Inc., general contractor on the
Paradise Market Place project, provided electrical,
sanitation, telephone, food, and trash removal serv-
ices to all of its jobsite subcontractors.3 Woods ar-
ranged for its electrical subcontractor, who regu-
larly utilized the neutral gate, to provide electrical
hookups for jobsite employers. Woods contracted
with a sanitation company to supply and clean
portable toilets on the jobsite. The sanitation com-
1 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 Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The judge incorrectly cited Operating Engineers Local 12 (McDevitt &
Street), 286 NLRB 1203 (1987), for the proposition that a chemical toilet
service company's use of a neutral gate would not compromise a reserve
gate system The Board expressly left this issue open in McDevitt because
there was no need to decide whether the sanitation truck was a "suppli-
er" of the primary employer The Board in that case, however, did find
that the proprietor of the lunch truck that came onto the common situs
through the neutral gate was not a supplier of the primary
s As the Respondent's counsel admitted at the hearing, most construc-
tion industry general contractors are obligated to provide these types of
services to their jobsite subcontractors Carpenters Local 1622 (Specialty
Building Co), 262 NLRB 1244, 1246 (1982)
pany visited the,jobsite twice weekly through the
neutral gate. Woods made a telephone in its offices
available to all project employees. Woods also per-
mitted one mobile caterer to enter the jobsite regu-
larly to sell food. This caterer used the neutral
gate. Finally, Woods contracted with a trash com-
pany to haul refuse from the project. Although this
trash company used the neutral gate, the judge
found that no pickups occurred on September 18,
19, or 21.
The Respondent apparently argues that because
Woods provided these electrical, sanitation, tele-
phone, food, and trash collection services to Chris
Crane, the "related-work" doctrine applies. In Car-
rier and General Electric,4 both of which involved
union picketing at the plants of primary employers,
the Supreme Court established the related-work
doctrine under which unions lawfully can interdict
contractors using a neutral gate to provide services
related to the primary employer's normal oper-
ation. However, we uniformly have refused to
apply this doctrine to common situs, construction
industry cases. See, e.g., Iron Workers Local 433
(Oltmans Construction), 272 NLRB 1182, 1186
(1984), and cases cited. Thus, while we have
"given wide latitude to picketing . . . confined to
the sole premises of the primary employer . . . [we
have] taken a more restrictive view of common
situs picketing." Building & Construction Trades
Council of New Orleans (Markwell & Hartz), 155
NLRB 319, 324 (1965). As the Supreme Court
made clear in NLRB v. Denver Building Trades
Council, 341 U.S. 675 (1951), its seminal common
situs, construction industry picketing case, the rela-
tionship between a general contractor and its sub-
contractor does not destroy the independent con-
tractor status of each.
[T]he fact that the contractor and subcontrac-
tor were engaged on the same construction
project, and that the contractor had some su-
pervision over the subcontractor's work, did
not eliminate the status of each as an independ-
ent contractor or make the employees of one
the employees of the other The business rela-
tionship between independent contractors is
too well established in the law to be overrid-
den without clear language doing so (Id at
689-690).
4 Steelworkers (Carrier Corp) v NLRB, 376 U S 492 (1964), Electrical
Workers Local 761 (General Electric) v NLRB, 366 U S 667 (1961)
294 NLRB No. 17
IRON WORKERS LOCAL 433 (CHRIS CRANE)
Accordingly , we find that the Respondent 's picket-
ing was not privileged under the related -work doc-
trine.5
We similarly reject the Respondent 's argument
that the companies providing food , telephone, elec-
trical , sanitation , and trash removal services to the
Paradise Market Place jobsite were "suppliers" of
Chris Crane within the meaning of Electrical Work-
ers Local 323 Q. F. Hoff Electric), 241 NLRB 694
(1979), enfd . sub nom . J. F. Hoff Electric v. NLRB,
642 F :2d 1266 (D.C. Cir . 1980), cert . denied 451
U S 918 ( 1981), and Operating Engineers Local 450
(Linbeck Construction), 219 NLRB 997 (1975 ), enfd.
sub nom . Linbeck Construction v. NLRB, 550 F.2d
311 (5th Cir . 1977).6 In essence , the Respondent
argues that it lawfully should be able to interdict
any person supplying anything to a construction in-
dustry employer with which it has a primary,dis-
pute. We disagree.
In Linbeck , Hoff Electric, and their progeny, we
made clear that only suppliers providing materials
essential to the primary employer 's normal oper-
ations or solely for the use of the primary's em-
ployees may lawfully be picketed . See, e.g, Electri-
cal Workers Local 211 (Atlantic County Authority),
277 NLRB 1041, 1044 (1985) (delivery of generator
essential to primary employer's normal operation
breached neutrality of gate ), J. F Hoff Electric Co.
v. NLRB, 642 F 2d at 1275 (court finds it signifi-
cant that supplier delivered products used only by
primary). And, as articulated by the Court of Ap-
peals for the District of Columbia in Hoff Electric,
"[t]he commonsense notion of a supplier is a party
which delivers goods for the direct use of the pri-
mary employer in the primary course of its busi-
ness." (Emphasis added ) Id. at 1274.
Unlike Linbeck, where the general contractor
supplied the primary paving subcontractor with
gravel "essential to the primary's normal oper-
ations" of paving parking lots and installing storm
sewers,7 the support services , provided by Woods
do not relate directly to the structural steel work
that Woods hired Chris Crane, the primary here, to
perform nor are they used solely by the primary's
employees . Similarly, this case is unlike Hoff Elec-
tric and Atlantic County Authority where the electri-
cal fixtures that the project owner provided the
primary electrical subcontractor (Hoff), and the
emergency standby generator supplied to the elec-
trical subcontractor (Atlantic), were for the "direct
use" of those subcontractors in their "primary
5Iron Workers Local 433 (Oltmans Construction), supra at 1186 See
also Carpenters Local 316 (Thornhill Construction), 283 NLRB Si, 82
(1987)
6 To the extent there are contrary implications in Operating Engineers
Local 12 (McDevitt & Street), supra , they are disavowed
7 Linbeck Construction Corp v NLRB, supra at 317-318
183
course . . . of business ." Thus, Woods contracted
with Chris Crane to erect structural steel and pro-
vide some crane services on the Paradise Market
Place jobsite . While food , sanitation , trash removal,
telephone , and electrical services are of obvious
benefit to Chris Crane, as they are to all jobsite
employers receiving these services , they do not di-
rectly relate . to Chris Crane's "normal operations,"
or, indeed , to the purpose for which it was hired.
Rather, they are merely common , incidental, sup-
port services unrelated to the "primary course of
[Chris Crane's ] business ." In the absence of evi-
dence that such support services are provided
solely to the primary, we do not view the compa-
nies providing support services to numerous con-
tractors at the common situs or, indeed , suppliers
of similar peripheral support 'services to numerous
contractors at the common situs as "suppliers"
within the meaning of Linbeck and Hoff Electric.
Finally, there are strong policy grounds for re-
jecting the Respondent 's argument that it should be
entitled to picket persons providing any service to
Chris Crane, the primary As we recognized in
Markwell & Hartz, supra , there is a close relation-
ship between construction industry employers that
"is not only characteristic of but almost inevitable
at many stages of a building construction project."
155 NLRB at 327. Thus, painters rely on carpen-
ters to construct their work surfaces , on sheetmetal
workers to provide necessary ventilation, and on
elevator contractors to enter their worksite.
Indeed , every common situs construction industry
employer is likely to have some kind of relation-
ship with other employers on the situs. To allow
picketing in all instances where such connections
exist between jobsite contractors, ' however, would
eviscerate the reserve -gate doctrine , to which we
adhere, and would seriously undermine the pur-
poses for which Section 8(b)(4)(B) was enacted
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Iron Work-
ers Local 433, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO, its officers, agents, and representatives, shall
take the action set forth in the Order.
Keltner W Locke, for the General Counsel
David A. Rosenfeld (Van Bourg, Weinberg, Roger & Ro-
senfeld), of San Francisco, California, for the Respond-
ent.
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried before me in Las Vegas, Nevada, on De-
cember 8, 1987.1 pursuant to a complaint issued by the
Regional Director of the National Labor Relations
Board for Region 31 on October 21. It is based on a
charge filed by Chris Crane Company (the Charging
Party or Chris Crane) on September 18. The complaint
alleges that Iron Workers Local 433, International Asso-
ciation of Bridge, Structural and Ornamental Ironwork-
ers, AFL-CIO (the Union or Respondent) has engaged
in certain violations of Section 8(b)(4)(i) and (ii)(B) of
the National Labor Relations Act, as amended (the Act).
Issue
The principal issue is whether Respondent was privi-
leged, during a 3-day period in September, to picket a
neutral gate at a construction site in Las Vegas or
whether that picketing violated Section 8(b)(4)(i) and
(ii)(B) as an effort to enmesh neutral employers in a dis-
pute which was not their own.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally and to file briefs. Both
the General Counsel and Respondent have filed briefs
which have been carefully considered.
Upon the entire record, and from my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. CHRIS CRANE'S BUSINESS
Chris Crane is a general partnership engaged in the
construction business principally as a steel erection and
crane and rigging subcontractor. Its partners are Grant
and Becky Cox, Orlando Langford, Richard Wood, and
Mike Allord. On the Nevada project in question, it pur-
chased structural steel valued in excess of $200,000 di-
rectly from a Utah supplier. As a result of that purchase,
I find that Chris Crane is an employer engaged in inter-
state commerce and in an industry affecting interstate
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find , that at all material
times it has been a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The construction site in question is known as the Para-
dise Market Place located in Las Vegas at the intersec-
tion of Sand Hill and Flamingo Boulevards. The project
involves a one-story, L-shaped building which ultimately
will house a supermarket and two or three retail shops.
The general contractor is Joe E. Woods, Inc. (Woods).
Woods has hired numerous subcontractors to perform
I All dates are 1987 unless otherwise indicated.
various portions of the •work. One of the subcontractors
is Chris Crane, which has agreed to erect the structural
steel and to provide certain crane services. Chris Crane
is a nonunion employer, and the Union has had an ongo-
ing dispute with it since at least September 1986.2
Also at the jobsite are a reinforcing steel subcontrac-
tor, Century Steel, a masonry subcontractor, Marnell
Masonry and J & J Construction, a concrete placement
company. Altogether, there are approximately 30 sub-
contractors on the site, of which 25 were hired directly
by Woods and five hired either by the project's owner
or by the supermarket chain, a lessee.
The project actually began in mid-June. Although the
record is not clear with respect to the dates, a reserve
gate system was already in effect to separate the con-
crete materialman , Bonanza Ready-Mix, from other neu-
trals in a labor dispute unrelated to this one. On Septem-
ber 9 the Operating Engineers Union began picketing
Chris Crane and Woods caused Crane's name to be
handwritten in heavy black ink on both the pre- existing
neutral and primary gates . That was accomplished on
September 11. According to Douglas Hutchison, Joe E.
Woods' project superintendent, Respondent began pick-
eting Chris Crane on September 16. Neither the Septem-
ber 16 nor September 17 picketing is, strictly speaking,
part of this complaint.3
On September 18, Respondent' s neutral gate picket,
Steve Bova, arrived at the site about 5 a.m.4 Bova did
not actually picket between 5 a.m. and 9 a.m. but closely
observed the Operating Engineers' pickets patrol the
neutral gate. At approximately 9 a.m., Hutchison ap-
proached the IUOE picket, who apparently was that
union 's business manager, and informed him that the re-
serve gate system had been reestablished and he was im-
properly picketing a neutral gate . Hutchinson testified
the IUOE picket obliged and promptly removed himself
to the primary gate. However, Bova told Hutchison that
the gate had been tainted, and began to picket it himself
with Respondent's sign . Hutchison testified that he told
Bova he had a "legal two-gate system" and Bova should
move to the primary gate. It is undisputed that Bova re-
plied, "That's nice," and refused to move, asserting that
the gate had been tainted. When Hutchison asked what
evidence Bova was relying upon to reach that conclu-
sion , Bova showed him a document entitled "Neutral
Gate Report" which Respondent's officials had given
him to maintain a record of occurrences at the neutral
gate . On the report Bova had listed the license numbers
of vehicles which had passed through the gate. He also
2 The dispute has previously been before the Board . See Ironworkers
Local 433 (Chris Crane Co.), 31-CC-1887, JD(SF)-66-87 (288 NLRB 717
(1988)], decided by Judge Holmes and now pending before the Board on
the General Counsel 's exceptions
8 On September 17, due to the installation of some curbing on Sand
Hill Boulevard , the gates were rendered useless and the neutral gate was
moved about 30 feet. There is some confusion about what occurred that
day. Indeed , it seems unlikely that any traffic could have gone in and out
of the project at those locations that day.
4 Bova asserts that this incident occurred on September 17 However,
in view of Hutchison's more credible testimony that it occurred on Sep-
tember 18 , and in view of the fact that the IUOE pickets moved from the
neutral to the primary gate at Hutchison 's request on September 18, 1
find that this incident occurred on September 18
IRON WORKERS LOCAL 433 (CHRIS CRANE) 185
told Hutchison that J & J Construction had gone
through that gate . Hutchison replied that Respondent did
not have any dispute with J & J, thereby suggesting that
J & J's use of the gate had not tainted it.
Nonetheless , Hutchison agreed to check out the li-
cense numbers of the vehicles in the parking lot against
the list. After checking with officials of other firms on
the site, he reported to Bova that the trucks in question
belonged to or were connected with Marnell Masonry
and J & J Construction. Hutchison says he also asked
Bova if he knew where the employees were working
who had gone through the gate and Bova replied by
pointing to a scaffold . Hutchison says he told Bova that
the people who were working at that location were em-
ployed by Marnell. At that point, according to Hutchi-
son, another man walked over from the primary gate and
told Bova not to talk to Hutchison any more . Bova then
gave Hutchison a business card showing the name and
telephone number of the Union 's business manager, but
continued to picket.
Bova testified that on the day in question he observed
Hutchison approach the IUOE picket and tell him there
was a two-gate system in effect saying the IUOE was in
violation . He says Hutchison "may have spoken to me,
but I didn 't answer ." Furthermore , Bova asserts that
Hutchison did not say anything to him about a two-gate
system . He says he remembers the IUOE picket claiming
the gate had been tainted that morning because there was
no sign at the neutral gate . He remembers telling Hutchi-
son he could not talk to him but to see his union repre-
sentative . Bova gave him the union representative 's busi-
ness card.
It appears that sometime that morning Hutchison had,
in addition to his conversation with Bova , sent a tele-
gram to the Union advising it of the reestablishment of
the reserve gate . Although there is some question with
respect to whether the Union received it on September
18 or on September 19, by mail, I find that Hutchison's
oral message to Bova was directed at a proper person. It
is true that Respondent denies that Bova was an agent
for the purpose of receipt of information , but I find by
his having a neutral gate report in hand and having been
charged with the duty of reporting matters which oc-
curred at the neutral gate, that Bova was an agent for
the purpose of receiving information about the neutrality
of the gate . Furthermore , I found him to be less than
candid about what Hutchison told him . He asserts that
Hutchison did not speak to him directly and that, ac-
cordingly, he was not obligated to report whatever he
heard . Frankly, that is an artifice which demonstrates
deceit on his part . Even so, Bova admits hearing Hutchi-
son advise the IUOE picket that the reserve gate had
been reestablished . Since the IUOE was also picketing
Chris Crane, whatever information Hutchison gave to
the IUOE about Chris Crane applied equally to Re-
spondent . In any event , I am convinced that Hutchison
was speaking both to the IUOE and to Bova even
though Bova had not yet unlimbered his Ironworkers'
picket sign . Since Bova had been picketing on the 2 pre-
vious days, it seems likely that Hutchison easily recog-
nized Bova as Respondent 's picket.
Curiously , Bova does not acknowledge having shown
his record sheet to Hutchison for the purpose of check-
ing license plates . Instead , he asserts that the neutral gate
had been breached that morning by a man driving a
silver-grey El Camino . It appears that at 8:40 a.m. on
September 18, that vehicle exited the neutral gate. Ac-
cording to Bova, on the previous day he had observed
its driver through binoculars connect iron . From that he
concluded that the man was an ironworker employed by
Chris Crane.
Another of Respondent's pickets, Darmond Broyles,
also testified . He was the picket at the primary gate.
Broyles says the man in the El Camino had entered the
jobsite through the primary gate and he thinks it was on
September 18. He says he observed the man upon the
bar joists on the top of the supermarket and concluded
that the man "looked like" an ironworker.
Grant Cox , Chris Crane's partner who was managing
its portion of the job, was shown Respondent 's photo-
graph of the man driving the El Camino as he exited the
neutral gate at 8:40 a .m. that day . He testified the driver
was not a Chris Crane employee.
Woods' Hutchison testified , in conclusion , that he ob-
served Respondent 's pickets at the neutral gate for 8
hours on September 18, and that they were also present
on Saturday , September 19, and Monday , September 21,
patrolling both the neutral and primary gates.
IV. ANALYSIS AND CONCLUSIONS
Section 8(b)(4)(i) and (ii)(B) prohibits a labor organiza-
tion from engaging in picketing where "an object" of the
picketing is to enmesh or embroil persons not involved
in the labor dispute, i .e., so-called neutral employers.5
Because a construction site usually involves the common
effort of a number of different employers , it is considered
to be a "common situs" within the meaning of Denver
Building Trades Council v. NLRB, 341 U.S . 675 (1951). In
order to preserve the right of neutral employers to avoid
becoming enmeshed in labor disputes over which they
have no control , the Supreme Court approved the so-
called reserve or neutral gate tactic which permits neu-
trals to distance themselves from the primary disputants.
One gate is reserved for the primary disputants while all
others may use the neutral gate . See Electrical Workers
IUE Local 761 v. NLRB, 366 U.S. 667 ( 1961). Under
such a system , while any neutral is free to use the pri-
In pertinent part Sec 8 (b)(4)(i) and (ii)(B) reads as follows:
Sec. 8(b) It shall be an unfair labor practice for a labor organiza-
tion or its agents-
(4)(i) To engage in, or to induce or encourage any individual em-
ployed by any person engaged in commerce or in an industry affect-
ing commerce to engage in, a strike or a refusal in the course of his
employment to use , manufacture , process, transport , or otherwise
handle or work on any goods , articles , materials or commodities or
to perform any services; or (u) to threaten , coerce, or restrain any
person engaged in commerce or in an industry affecting commerce,
where in either case an object thereof is-
(B) forcing or requiring any person . . . to cease doing business
with any other person Provided, That nothing contained in
this clause (B) shall be construed to make unlawful , where not
otherwise unlawful , any primary strike or primary picketing . . . .
[Emphasis added.]
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mary disputants' gate if they wish to run the gauntlet of
pickets, the primary employer and his suppliers are re-
quired to use it If either the primary employer or his
suppliers use the gate reserved for neutral employers, the
primary will be declared "present" at the neutral loca-
tion and the legal fiction of their having a separate pri-
mary situs will have been destroyed If that occurs, the
union picketing the primary is then free to picket the
neutral gate because it is no longer "neutral " See, for
example, Operating Engineers Local 450 (Linbeck Con-
struction), 219 NLRB 997 (1975) If that does not occur,
the primary union is not privileged to picket the neutral
gate. If it does so, the Board will find that an object of
the picketing was to enmesh those neutrals in a dispute
not their own Electrical Workers, supra, Carpenters Local
470 (Mueller-Anderson, Inc), 224 NLRB 315 (1976), enfd.
564 F 2d 1360 (9th Cir 1977)
It is true that due to physical circumstances, pickets
can become confused over whether the neutral gate is
actually neutral or over whether a taint has occurred
Perhaps such-confusion did occur on either September
16 or 17 when the gates were moved and the signs tem-
porarily taken down during the curbstone installation.
Even so, on the morning of September 18, Hutchison
quite clearly reestablished the, neutrality of the gate
when he informed both the IUOE and Bova that the
neutral gate system had been reestablished I have al-
ready found that Bova was an appropriate representative
of Respondent to whom such information could be
given Bova, however, ignored the advice and did not
even consult or discuss the matter with any union offi-
cial. He decided not do so on the probably false and cer-
tainly flimsy ground that Hutchison had not spoken to
him, but only to the IUOE Furthermore, I credit
Hutchison's testimony that Bova instead argued that the
gaie had been tainted either by the passage of some vehi-
cles, which turned out to be connected to other neutral
employers, or because he and his co-picket, Broyles, had
concluded that the El Camino driver was an ironworker
employed by Chris Crane. Yet, they did not know that
individual's name, did not know by whom he was em-
ployed, and did not know exactly what he was doing on
the site Even assuming that he was an ironworker, and
that Broyles' observation that the individual was ob-
served wearing an ironworker's tool belt (known in the
trade as a "spud" belt), it would not follow that he was
employed by Chris Crane Also on the site was another
ironworker contractor, Century Steel, who was engaged
in certain reinforcing ironwork It may well be that
structural iron and reinforcing iron work are somewhat
different, but given the fact that Grant Cox could not
identify the individual and did not know who he was,
and the fact that other ironworkers were at the site, it
seems quite likely that the individual may have been em-
ployed by Century Steel. Nonetheless, Broyles and Bova
concluded that he was a Chris Crane ironworker. Quite
frankly, they jumped to an unwarranted conclusion most
unreasonable in the circumstances
Indeed, I find that these pickets were only too eager
to look for excuses to picket the neutral gate As the
Board held in Plumbers (Hanson Plumbing), 277 NLRB
1231, 1233 (1985), "Section 8(b)(4) places the burden on
labor organizations to conduct themselves in primary dis-
putes in such ways as will not needlessly entangle neutral
employers " The statute clearly imposes, according to
the Board, a strong burden on a labor organization en-
gaged in a primary dispute to make reasonable efforts to
determine whether individuals are primaries or neutrals
Indeed, in Electrical Workers IBEW Local 302 (ICR Elec-
tric); 272 NLRB 920 (1984), this administrative law
judge, in analyzing the union's object, observed that the
union had taken careful steps to avoid enmeshing neu-
trals, such as covering picket signs to avoid the appear-
ance of picketing when neutrals might observe them,
picketing at the place when the primary was supposed to
be, and picketing during hours where it was unlikely to
catch a neutral's attention I further observed that had
the union there been engaging in reckless picketing, the
result might have been different. Here, it seems to me,
Respondent's picketing was more than merely reckless
Neither Bova nor Broyles knew or made any effort to
find out who the individuals were who had entered the
neutral gate. They dust made bald assertions of taint
without knowing the truth. Certainly that is at least reck-
less, if not an out-and-out lie Given their recklessness
and lack of probity, I have no difficulty in finding that
they made no reasonable effort to ascertain the neutrality
of the people using the neutral gate Respondent has,
therefore, failed to prove that the neutrality of the gate
was breached 6
Respondent makes one final effort to show that the
neutral gate was a location where it could lawfully
picket It asserts that the general contractor, Woods, pro-
vided services to all of the contractors at the site, includ-
ing Chris Crane It asserts that, under the Carrier doc-
trine,7 delivery of any essential product or service to the
primary through the neutral gate taints it and privileges
the Union's picketing there In this regard, it observes
that Woods had, through various business arrangements,
provided its subcontractors with services such as chemi-
cal toilets, telephones, electric power, refuse pickup, and
a mobile caterer. It further observes that all of the sub-
contractors on the site, including Chris Crane, benefited
from Woods' provision of these services However, the
Board has clearly held that at least some of these serv-
ices are not the sort which would taint the gate Specifi-
cally, it has twice held that the entry of a chemical toilet
service company through the neutral gate is not a cogni-
zable breach of the system Carpenters Local 1622 (Spe-
cialty Building Co.), 262 NLRB 1244 (1982); Operating
Engineers Local 12 (McDevitt & Street Co), supra. McDe-
vitt also held that a mobile caterer is not a supplier of the
6 I do not find the September 17 incident involving a purported Chris
Crane employee being driven by a friend through the neutral gate during
a lunch hour as having been a breach of the neutrality of the gate The
incident occurred prior to the reestablishment of the gate's neutrality on
September 18 Moreover, the delivery of structural steel on September 22
does not show a pattern of breach In any event, it is well established
that subsequent breaches do not justify earlier picketing Nashville Bldg
Trades Council (Collins Co), 172 NLRB 1138, 1139-1140 (1968), Operat-
ing Engineers Local 12 (McDevitt & Street), 286 NLRB 1203 (1987)
7 Steelworkers v NLRB, 376 U S 492 (1964), Linbeck Construction,
supra, Electrical Workers (IBEW) Local 323 (Hoff Electric), 241 NLRB
694 (1979)
IRON WORKERS LOCAL 433 (CHRIS CRANE) 187
primary circumstances identical to those presented here
In this case , it even appears that the mobile caterer had
been coming to the site even before Woods' super i ntend-
ent arrived It certainly did not serve Chris Crane exclu-
sively
In any event , the Board in McDevitt clearly held that
such a situation did not warrant picketing the neutral
gate In that case , the Board also said that a supplier's
delivery to the primary through the neutral gate would
privilege picketing only if it was providing something
"essential " to the primary 's operations To date, the only
examples which the Board has given have been building
materials , such as gravel (Linbeck, supra) or lighting fix-
tures (J. F. Hoff Electric Co. v. NLRB, 642 F 2d 1266
(D C Cir 1980), cert denied , 451 U S 918 ( 1981))
Thus, refuse collection is a service , not a building ma-
terial and it therefore does not qualify as a legitimate
analogy , even as a service it may not be "essential" to
Chris Crane. Chris Crane 's refusal seems to be limited to
some shipping bands and some waste paper, an infinitesi-
mal amount of the refuse that a construction site would
generate However, it is unnecessary to decide the ques-
tion because refuse collection did not occur at the site
during the days in question . Indeed, it does not appear
that refuse collection will occur at this project until
much later on
Finally, although it seems likely that Chris Crane uses
the telephone and electrical power and was probably
using them during the days in question , those are not
building materials I agree that electrical power appears
to be essential to operate the welding machines which
the employer no doubt utilizes, but the electricity is cer-
tainly not supplied for Chris Crane 's exclusive use Any
contractor utilizing power tools would have access to
the same power and, since it was not provided for the
primary's exclusive use, it would seem to fall into the
same category as the lunch truck
Thus, even though electric power may be essential to
the primary 's task , it is equally essential to all other con-
tractors , none of whom could operate without it . If elec-
tric power were declared an essential delivery to the pri-
mary and therefore were to privilege a union to picket a
neutral gate , it would totally thwart the concept of sepa-
ration of neutrals from primaries Clearly that cannot be
permitted because it would undermine the entire policy
of Section 8(b)(4)(B) If that is to be the result , the Union
should look to the Congress for legislative assistance,8
not to the Board or the courts They have already de-
clared the policy and I am not at liberty to disregard it
Accordingly, I conclude that none of the items which
Respondent points to warrant the conclusion that the
neutral gate was a location of the primary disputant,
Chris Crane Therefore, Respondent was not privileged
to picket that location at all during the days in question
I observe here that there are fact patterns, and this ap-
proaches it, where a union pickets a primary disputant in
what appears to be a lawful manner but because its
object is nonetheless unlawful as proven by other evi-
dence, even facially lawful picketing is unlawful See, for
B Proposed legislation repealing the holding of Denver Building Trades,
supra, has been introduced several times in the recent past
example, Electrical Workers IBEW Local 11 (Electric
Contractors), 154 NLRB 766 (1965) Given this Union's
reckless desire to picket anything that moved, it can
hardly be said that its object was anything other than the
enmeshment of neutrals That being the case, Respond-
ent's picketing would appear to have been unlawful no
matter what the location was
On the foregoing findings of fact and the entire
record, I hereby make the following
CONCLUSIONS OF LAW
1 Chris Crane 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 Respondent, Iron Workers Local 433, International
Association of Bridge, Structural and Ornamental Iron-
workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act
3 By picketing the neutral gate at the construction site
known as the Paradise Market Place in Las Vegas,
Nevada, on September 18, 19, and 21, 1987, with an
object of forcing neutral persons, such as Joe E Woods,
Inc and its subcontractors, to cease doing business with
Chris Crane Company, Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(4)(i)
and (ii)(B) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(4)(i)
and (u)(B) of the Act, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act Although I find a broad order appropriate due
to Respondent's recent propensity to violate Section
8(b)(4)(B)9 I, nonetheless, decline to grant a visitatorial t °
clause, for it will not deter future violations It would
appear that a contempt proceeding is the only remedy
left to do that
Based on the foregoing findings of fact and conclu-
isions of law, I issue the following recommended"
ORDER
The Respondent, Iron Workers Local 433, Internation-
al Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, its officers, agents, successors, and
assigns, shall
1 Cease and desist from
(a) Picketing at construction site gates reserved for
neutrals, or in any other manner inducing or encouraging
employees of Joe E Woods, Inc any of its subcontrac-
tors, or any other person engaged in commerce or in an
Iron workers Local 433 (Benchmark Constructors), 285 NLRB 1089
(1987), and cases cited therein
io Cherokee Marine Terminal, 287 NLRB 1180 (1988)
ii 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 Section 102 48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all pur-
poses
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
industry affecting commerce, to refuse in the course of
their employment to perform any service where an
object thereof is to force or require those employers, or
any other person to cease doing business with Chris
Crane, with each other, or with any other person
(b) Picketing at construction site gates reserved for
neutrals, or in any other manner threatening, coercing,
or restraining Joe E. Woods, Inc. any of its subcontrac-
tors, or any other person engaged in commerce or in an
industry affecting commerce, where an object thereof is
to force or require those employers, or any other person
to cease doing business with each other, Chris Crane, or
any other person.
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at business office and meeting halls, copies of
the attached notice marked "Appendix "12 Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent's au-
thorized representative, shall be posted by Respondent
immediately on 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 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 31 for posting by Chris
Crane Company and/or Joe E Woods, Inc. and Woods'
subcontractors on the Paradise Market Place project,
12 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 "
should they wish to do so, at all locations where notices
to employees are customarily posted.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps have been 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
WE WILL NOT picket at construction site gates re-
served for neutrals, or in any- other manner induce or en-
courage employees of Joe E. Woods, Inc. any of its sub-
contractors, or any other person engaged in commerce
or in an industry affecting commerce, to refuse in the
course of their employment to perform any service
where an object thereof is to force or require those em-
ployers, or any other person to cease doing business with
Chris Crane, with each other, or with any other person
WE WILL NOT picket at construction site gates re-
served for neutrals, or in any other manner threaten,
coerce, or restrain Joe E. Woods, Inc. any of its subcon-
tractors, or any other person engaged in commerce or in
an industry affecting commerce, where an object thereof
is to force or require those employers, or any other
person to cease doing business with each other, Chris
Crane, or any other person
IRON WORKERS LOCAL 433, INTERNATION-
AL ASSOCIATION OF BRIDGE, STRUCTURAL
AND ORNAMENTAL IRONWORKERS, AFL-
CIO