562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ironworkers District Council of the Pacific North-
west and Local Union No. 29 of International
Association of Bridge, Structural and Ornamne-
tal Iron Workers and Hoffman Construction
Company of Oregon
Ironworkers District Council of the Pacific and Refa
Erection , Inc. Cases 36-CC-841, 36-CC-842,
and 36-CC-843
January 19, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On September 30, 1987, Administrative Law
Judge Michael D. Stevenson issued the attached
decision . The Respondents filed exceptions and a
supporting brief, and the General Counsel and
Charging Party Hoffman Construction Company of
Oregon (Hoffman) filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the exceptions in light
of the record and briefs and has decided to affirm
the judge's rulings , findings,' and conclusions and
to adopt the recommended Order as modified.
The judge found, among other things, that the
Respondents violated Section 8(b)(4)(A) of the Act
by picketing and otherwise attempting to force
Hoffman to enter into a collective-bargaining
agreement containing an unlawful subcontracting
clause . The judge also found that the Respondents
violated Section 8(b)(4)(B) by picketing2 three con-
struction sites3 at which Hoffman was a general
1 The Respondents have excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings.
In affirming the judge's finding that the Respondents unlawfully at-
tempted to secure a collective-bargaining agreement containing a provi.
sion violative of Sec. 8(e), we note that the judge accorded undue prece-
dential value to Laborers Local 185 (West-Cal Construction), 255 NLRB
53 (1981 ), in which the Board pro forma adopted the violations found by
the judge.
2 The judge found that the Respondents also engaged in "signal picket.
ing." He stated that "[g]roups of men gathered around a sign constitute a
`signal ' to the employees of secondary and neutral employers." (Footnote
omitted .) We agree that this activity acts as a signal to neutrals that sym-
pathetic action on their part is desired by the union. Iron Workers Local
433 v. NLRB, 598 F.2d 1154 (9th Cir. 1979).
3 The Respondents have excepted to the judge's granting counsel for
the General Counsel permission to amend the complaint at the hearing to
include new violations . The Respondents argue that the General Counsel
is estopped by the doctrine of res judicata from amending the instant
complaint to include the alleged violations at Good Samaritan Hospital
and Hoffman 's headquarters at Hoffman Columbia Plaza because she
failed to include these allegations in the previous district court litigation
of Sec. 10(1) and tried unsuccessfully to have them included during the
related contempt proceedings that followed. The judge found that the
contractor with signs that failed to identify Hoff-
man as the primary employer with which they had
a dispute and by distributing leaflets at the sites in
order to induce employees of neutral employers to
cease working. Additionally, he found that the Re-
spondents violated Section 8(b)(4)(i)(B) by telling
neutral employees that their unions supported the
picketing and making other statements calculated
to induce the neutral employees to cease work.
Further, the judge found that the Respondents vio-
lated Section 8(b)(4)(i) and (ii)(B) by falsely con-
veying to neutral employees that the picketing was
sanctioned by the Columbia Pacific Building and
Construction Trades Council and by picketing con-
struction site gates reserved for neutral employers,
their personnel, visitors, and suppliers at the con-
struction sites.4 On the basis of the foregoing, the
General Counsel is not estopped from amending the complaint by unre-
lated proceedings that served different functions. We agree with the
judge's analysis of this issue. In addition, we note that while the Act re-
quires the General Counsel to pursue a 10(1) injunction during the pend-
ency of 8(b)(4) proceedings, the merits of the unfair labor practices al-
leged are decided in Board proceedings. The fact that the General Coun-
sel failed to formally amend the district court pleadings is no impediment
to inclusion of the allegations in the unfair labor practice complaint
when, as here, the Respondents had notice of the General Counsel's
desire to put in issue the picketing that occurred at the hospital and at the
Charging Party's headquarters, and the hearing was continued at a later
date to afford them an opportunity to adequately prepare for the addi-
tional allegations. Moreover, the Respondents have not shown that they
were prejudiced by the amendment.
4 In arriving at these findings, the judge also found, and we agree, that
the evidence does not establish that Charging Party Hoffman and Nelson,
a subcontractor that used the neutral gates at the Performing Arts Center
and the Hospital, are a single employer and therefore that the neutral
gate system at those sites was tainted, as the Respondents allege . In deter-
mining whether ostensibly different employers constitute a single employ-
er, the Board examines whether there is common ownership, common
management, an interrelationship of operations, and centralized control of
labor relations. No one factor is controlling. NLRB v. Don Burgess Con-
struction Corp., 596 F.2d 378 (9th Cir. 1979). The record discloses that
Hoffman Construction Company, a holding company, owns Charging
Party Hoffman Construction of Oregon, Hoffman Construction of Wash-
ington, and Hoffman Construction of Alaska, as well as an 80-percent
share of Nelson. Accordingly, common ownership has been shown to
exist . As to common management , while Cecil Drinkward is the chief ex-
ecutive officer of Hoffman, the holding company, and Charging Party
Hoffman, there is no evidence concerning his relationship to the other
companies. Wayne Thomas serves as the labor relations manager for
Charging Party Hoffman and Hoffman of Washington. James Hutchison,
who previously worked for a Hoffman company or companies and then
became a private labor consultant from 1982 to October 1986, is current-
ly employed as the labor relations manager of Nelson, Hoffman the hold-
ing company, and Hoffman of Alaska. The record reflects that Hutchi-
son's consultant services were retained in August 1986 while Thomas was
on vacation to attempt to resolve Charging Party Hoffman's problems
with the Respondents. Though not specifically stated, Hutchison appar-
ently returned to the employ of the named Hoffman companies sometime
in or after October 1986. While these facts may reflect a degree of
common management among some of the Hoffman affiliates, the evidence
does not show common management between Charging Party Hoffman
and Nelson. In any event, we find it significant that during the period of
the dispute in issue Charging Party Hoffman and Nelson had different
labor relations managers. That Hutchison's services were retained while
Thomas vacationed is insufficient to establish that the companies are
commonly managed. There is no evidence of interrelation of operations
or centralized control of labor relations. See Electrical Workers IBEW
Local 3 (Telecom Plus), 286 NLRB 235 (1987), enfd. 861 F.2d 44 (2d.Cir.
1988). .
292 NLRB No. 53
IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION)
judge held that the Respondents exhibited a pro-
clivity to violate the Act and engage in egregious
misconduct Accordingly, he concluded that a
broad remedial order was warranted
For the reasons set forth by the judge, we agree
that the Respondents violated the Act as indicated
above, 5 however, we find that a broad order is in-
appropriate In Service Employees Local 77 (Thrust
IV), 264 NLRB 628, 629 (1982), the Board found
that the union exhibited a "blatant disregard of the
Act and a clear willingness, if not eagerness to vio-
late it" warranting a broad order when the union
unlawfully picketed a jobsite after having been
found to have committed a similar unfair labor
practice against another employer only 3 months
earlier In the instant case, there is no evidence that
Respondent Local 29 previously violated the Act
We note that while the Respondents engaged in
picketing and leafletting at three construction sites
in July and August 1986, this conduct neither dem-
onstrates recividist tendencies nor widespread
unfair labor practices within the meaning of Hick-
mott Foods, 242 NLRB 1357 (1979) Furthermore,
although we note the Respondents' resumption of
picketing in August 1986 following the informal
settlement of the unfair labor practice allegations
underlying injunction proceedings initiated by the
General Counsel,6 we find it significant that the
settlement agreement, though breached, contained
a nonadmission clause and we do not consider it a
basis for concluding that the Respondents have es-
tablished a pattern of misconduct or otherwise
acted in flagrant disregard of the Act
Having found that the Respondents' conduct
does not warrant a broad order,7 we shall modify
6 In adopting the judge s finding that the subcontracting clauses
soughtby the Respondents were secondary in nature and were sought
outside the context of a collective bargaining relationship we note in ad
dition to the reasons set forth by the judge the statement of Local 29
Business Manager Daniel Kealy to Hoffman s employee relations manag
er Wayne Thomas on June 23 1986 Look I don t care if Hoffman
ever hires any ironworkers or not I just want to tie Hoffman to the sub
contract clause
6 On July 17 1986 the U S District Court of Oregon adopted the rec
ommendations of its magistrate and issued an order enjoining the Re
spondents from picketing Thereafter the General Counsel the Charging
Parties and the Respondents settled the unfair labor practice charges un
derlying the injunction proceedings and on August 11 1986 the Region
al Director for Region 36 approved the settlement Following the Re
spondents resumption of picketing from August 18 to 21 the Regional
Director initiated contempt proceedings On February 13 1987 the dis
tnct court issued an Order of Purgation of Civil Contempt of Injunction
Granted under 29 U S C § 160(1)
' In this connection despite our finding that the Respondents did not
flagrantly violate the Act we find that the judge properly denied the Re
spondents posthearing motion for approval of its proposed settlement
We note that the Respondents breached an earlier settlement agreement
and that here as in Teamsters Local 115 (Gross Metal Products) 275
NLRB 1547 (1985) the Respondents proposed the settlement-over the
General Counsel s and the Charging Party s objections-following the
close of the hearing at which they presented no witnesses and limited
their defense to cross examination Additionally as in Gross Metal Prod
ucts the proposed settlement admits no wrongdoing
563
the recommended Order and conform the notice
accordingly
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, Ironworkers District Council of the Pa
cific Northwest and Local Union No 29 of Inter
national Association of Bridge, Structural and Or-
namental Iron Workers, their officers, agents, and
representatives, shall take the action set forth in the
Order as modified
1 Substitute the following for paragraph 1(c)
"(c) Picketing or signal picketing, distributing
pamphlets, making oral statements to employees of
neutral employers, or falsely telling neutral em-
ployees that a strike was sanctioned, at construc
tion site gates reserved for use of neutral employ
ers, their personnel, visitors, and suppliers at the
Performing Arts Center, One Financial Center, and
Good Samaritan Hospital, or threatening, coercing
or restraining Hoffman Construction Company of
Oregon, any of its subcontractors, or any other
person engaged in commerce or in an industry of
fecting commerce, at the above-named construction
sites, where an object thereof is to force or require
those employers, or any other person, to cease
doing business with each other, or any other
person "
2 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT, by picketing or signal picketing
at or near entrances to construction jobsites, at
tempt to coerce Hoffman Construction Company
of Oregon into agreeing to a labor agreement con
taming a clause violating Section 8(e) of the Act
WE WILL NOT picket or signal picket at or near
entrances to construction jobsites with signs failing
to disclose the names of Hoffman Construction
Company of Oregon as a primary with whom we
are engaged in a labor dispute
WE WILL NOT picket or signal picket, distribute
pamphlets, make oral statements to employees of
neutral employers, or falsely tell neutral employees
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that a strike was sanctioned, at construction site
gates reserved for the use of neutral employers,
their personnel, visitors, and suppliers, at the Per-
forming Arts Center, One Financial Center, and
Good Samaritan Hospital, or threaten, coerce, or
restrain Hoffman Construction Company of
Oregon, any of its subcontractors or any other
person engaged in commerce or in an industry af-
fecting commerce, at the aforenamed construction
sites, where an object thereof is to force or require
those employers, or any other person to cease
doing business with each other, or any other
person.
IRONWORKERS DISTRICT COUNCIL OF
THE PACIFIC NORTHWEST
LOCAL UNION NO. 29 OF THE INTER-
NATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL AND ORNAMENTAL
IRON WORKERS
Catherine M. Roth, Esq., for the General Counsel.
Paul Supton, Esq. (Van Bourg, Weinberg, Roger & Rosen-
feld), of San Francisco, California, for the Respondent.
Lewis K Scott, Esq. (Spears, Lubei sky, Campbell, Bledsoe,
Anderson & Young), of Portland, Oregon, for Charging
Party Hoffman Construction.
Richard S. Pope, Esq. (Newcomb, Sabin, Schwartz, &
Landsverk), of Portland, Oregon, for Charging Party
REFA Erection. I
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge
This case was heard before me in Portland, Oregon, on
13-14 November and 19-22 May 1987,2 pursuant to a
second order consolidating cases, reissued and amended
complaint and notice of hearing issued by the Regional
Director for the National Labor Relations Board for
Region 19 on 26 August and which is based on charges
filed by Hoffman Construction Company of Oregon and
by REFA Erection, Inc. (Charging Parties) on 2 July
and amended on 9 July and on 3 July. The complaint al-
leges that Ironworkers District Council of the Pacific
Northwest and Local Union No. 29 of International As-
sociation of Bridge, Structural and Ornamental Iron
Workers (Respondents) have engaged in certain viola-
tions of Section 8(b)(4)(i)(ii)(A) and (B) of the National
Labor Relations Act (the Act).'
' REFA Erection, Inc. did not file a brief, nor participate in the case
after the first 2 days. Because REFA did not see fit to explain first hand
its absence from the case (see R. pp. 429-30), its status is unclear.
2 All dates refer to 1986 unless otherwise indicated.
3 After 2 hearing days in November, this case was continued by agree-
ment of the parties because Respondent 's counsel was scheduled to un-
dergo major surgery. In addition, Respondent's counsel needed additional
time to prepare, after the General Counsel amended the complaint on the
first day of hearing.
Principal Issues
1. Whether a settlement proposal objected to by both
the General Counsel and Charging Party can be and/or
should be approved by the administrative law judge.
2. Whether Respondents during certain days in July
and during certain additional days in August picketed
three construction sites in Portland, Oregon, with the
object of forcing and requiring the general contractor to
enter into a collective -bargaining agreement that contains
provisions prohibited by Section 8(e) of the Act.
3. Whether during the same times and at the same lo-
cations indicated above, Respondents picketed the pri-
mary and neutral gates of three Portland construction
projects with the object of forcing and requiring neutral
employers, working on the construction projects, to
cease doing business with the general contractor, and
whether Respondents succeeded in closing down the
sites, all in violation of the Act.
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. Briefs,
which have been carefully considered, were filed on
behalf of Respondents, and Charging Party Hoffman
Construction Company of Oregon.4
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. THE EMPLOYERS' BUSINESS
Respondents admit that both Hoffman Construction
Company of Oregon and REFA Erection, Inc. are
Oregon corporations operating as a general contractor
and as a structural steel contractor respectively in Port-
land, Oregon, and further admit that during the past 12
months, which period is representative of all times mate-
rial during the course and conduct of their business oper-
ations, these Employers' gross sales of goods and serv-
ices exceeded $500,000. Respondents also admit that
during the same period these Employers purchased and
caused to be transferred and delivered to their facilities
within the State of Oregon goods and materials valued in
excess of $50,000 which originated from sources outside
the State of Oregon or from suppliers within the State
which in turn obtained these goods and materials directly
from sources outside the State of Oregon. Accordingly,
Respondents admit, and I find, that during all times ma-
terial both Hoffman Construction Company of Oregon
and REFA Erection, Inc. are employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
" After a 2 week extension of the original due date , briefs in this case
were due on 21 August. The General Counsel's motion to accept late-
filed briefs, filed on 25 August and requesting permission for the General
Counsel to file her brief not later than 27 August, was denied. On 27
August Respondents filed a motion to dismiss complaint on the grounds
that Respondents' right to due process and other rights were violated, be-
cause the General Counsel did not file a brief. Respondents' motion is
denied.
IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) 565
II THE LABOR ORGANIZATIONS INVOLVED
Respondent Union Local No 29, International Asso
ciation of Bridge, Structural and Ornamental Iron Work
ers admits, and I find, that it is a labor organization
within the meaning of Section 2(5) of the Act
Respondent Ironworkers District Council of the Pacif
is Northwest first denied, but later admitted during hear
mg (R p 434) that it is a labor organization within the
meaning of Section 2(5) of the Act, accordingly I find
that Respondent District Council is a labor organization
within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Should a Settlement Agreement be Approved in this
Case over Objections of the General Counsel and the
Charging Party5
Before turning to the substantive facts of this case, I
note a threshold issue regarding Respondents motion
asking me to approve a settlement agreement even
though the General Counsel and the Charging Party
object By separate order dated 1 July 1987 (ALJ Exh
7),6 I have denied Respondents motion Immediately
below , I provide relevant background and rationale for
this discussion
When the hearing adjourned on 22 May, the General
Counsel had certain additional documents that she
wished to offer, preferably by stipulation Although Re
spondents counsel had not reviewed the documents yet
I directed that he inform the General Counsel and the
Charging Party prior to the resumption date of 11 June
as to whether Respondents would stipulate to the docu
ments or would require the General Counsel to call a
witness to establish the foundation for admission of the
documents into evidence In addition , there was some
question as to the length of time Respondents would re
quire to present their evidence (R pp 1091-1095)
Subsequently the parties and I were advised by tele
phone that Respondents agreed to stipulate to the docu
ments in question In addition Respondents decided to
rest without offering any evidence in their case in chief
Finally , I was advised of a dispute between the parties
relating to a proposed settlement agreement Respond
ents agreed in principle to a settlement offer drafted by
the General Counsel and approved by the Charging
Party except Respondents desired a nonadmission clause
as part of this agreement and the other two parties ob
jected
To resolve this issue, I directed that Respondents
submit to me a motion for approval of settlement agree
ment On 8 June 1987 , Respondents complied (ALJ Exh
1) Appended to the Motion were copies of the proposed
settlement agreements (Exhs A and B) Contained
within the body of the Motion was Respondents non ad
mission clause which they contended I should incorpo
rate into the attached Settlement Agreements and then
approve over the objections of the General Counsel and
the Charging Party
On 11 June 1987 I issued a Rule to show cause why
Respondents motion should not be granted (ALJ Exh
2) In addition, I admitted into evidence the documents
which the General Counsel had deferred offering on 22
May and which by then Respondents had agreed not to
oppose Finally, I found that Respondents had rested and
canceled the resumption of the hearing scheduled for 11
June 1987
On 17 June 1987 the General Counsel submitted a re
sponse to the rule to show cause (ALJ Exh 3) On 24
June 1987 Respondents replied to the General Counsel
and included an Alternative Motion to Reopen the
Record (ALJ Exh 4)
On 23 June 1987, Charging Party submitted its re
sponse to the rule to show cause (ALJ Exh 5) and on 26
June 1987, Respondents replied to the Charging Party
(ALJ Exh 6)
As noted above, on 1 July I denied both Respondents
motion for approval of settlement agreement and Re
spondents alternative motion to reopen the record (ALJ
Exh 7)
Contrary to the General Counsels apparent concession
(ALJ Exh 3 p 1), I find that when both the General
Counsel and Charging Party object to a settlement
agreement, an administrative law judge has no authority
to approve same In making her argument the General
Counsel characterizes the settlement agreement here as
a unilateral settlement (ALJ Exh 3, p 1) However,
where both the General Counsel and Charging Party
object to a proposed settlement, it is not a unilateral set
tlement
A unilateral settlement is one accepted over the objec
tion of the Charging Party for good and sufficient
reason 7 The Charging Party contends that I have no au
thority to approve the settlement agreement over its and
the General Counsels objections I agree with and adopt
the argument of Charging Party (ALJ Exh 5 p 5) that
I lack the authority at issue in this case
Alternatively even if I had the disputed authority to
approve the settlement agreement over the objections of
both the General Counsel and the Charging Party I am
convinced that I should not exercise my discretion to do
so in this case As a general rule, the Board instructs that
inclusion in the settlement of a non admission clause is
not a valid basis for objection where the settlement effec
tuates the policies of the Act Mine Workers (James
Bros Coal) 191 NLRB 209, 210 (1971) (only charging
party objected to settlement agreement), Cf Independent
Shoe Workers of Cincinnati Ohio (United States Shoe
Corp) 203 NLRB 783 (1973) (only the General Counsel
objected to settlement agreement) Cf Community Medi
cal Services 236 NLRB 853 (1978) (only the General
Counsel objected to settlement agreement)
5 Unless otherwise indicated the term Charging Party will refer to
Hoffman Construction Company of Oregon
5I have listed all documents relevant to this discussion (ALJ Exhs I-
7) in appendix I [omitted from publication]
I While the Board makes every effort to negotiate bilateral settlement
agreements unilateral agreements (i e without the charging party) are
acceptable where the respondent agrees to take all actions necessary to
remedy the alleged unfair labor practices McGuiness and Norris How to
Take A Case Before the NLRB p 330 (5th Ed 1986)
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In Teamsters Local 115 (Gross Metal), 275 NLRB 1547
(1985), the respondent and the General Counsel agreed
to a settlement agreement, but the charging party object-
ed. The settlement agreement contained a nonadmission
clause and was submitted after the hearing was closed
(respondent presented no witnesses and limited its de-
fense to cross-examination of two witnesses and a chal-
lenge to witnesses' use of notes). In affirming the judge's
rejection of the 11th hour settlement agreement, the
Board agreed with the judge's statement that approval of
a posthearing settlement containing a nonadmission
clause in the face of virtually uncontested findings of se-
rious, widespread, and "violent . . . misconduct would
make a mockery of law enforcement." The Board's de-
scription of the case in Teamsters Local 115 is directly
applicable to the instant case as is the Board's final con-
clusion.
However, Respondents correctly cite fn. 6 of the deci-
sion in which the Board recognized the principle that a
settlement agreement should not be rejected simply be-
cause it contains a nonadmission clause and is submitted
after the hearing is closed. In the instant case as in Team-
sters Local 115, supra, these are but two of several fac-
tors which must be considered. For example, the failure
of the General Counsel and the Charging Party to agree
means that. an essential element is lacking.8 In addition, if
future violations occur, the General Counsel may be
prejudiced because the instant conduct may not be con-
sidered by the Board regarding whether a broad order
should then ensue.9 Finally, the facts of this case to
which I now turn suggest a pattern of serious, wide-
spread, and repeated labor law violations, for which a
nonadmission clause would not effectuate the policies of
the Act. 10
B. Summary of Court Proceedings Coinciding with
Instant Administrative Proceeding
1. The Regional Director submits petition for tempo-
rary injunction pursuant to Section 10 of the Act (to
enjoin certain allegedly unlawful picketing by Respond-
ents at construction sites in of Portland, Oregon).
2. On 17 July a hearing before the U.S. magistrate for
the District of Oregon was held in the absence of Re-
spondents' counsel who elected not to be present.
Among other conclusions reached, the magistrate found
that he had reasonable grounds to believe that Respond-
ents were then engaging in unfair labor practices and
recommended that Respondents should be enjoined and
restrained from continuing their unlawful activities (G.C.
Exh. 32).
3. On the same date, 17 July, the magistrate's findings,
conclusions, and recommendations were approved by the
8 At fn. 5 of Teamsters Local 115, supra, the Board stated that "a settle-
ment offer is not insulated from rejection simply because the General
Counsel's representative finds it to be adequate." Conversely, when the
General Counsel finds a settlement offer to be inadequate, I find this to
be strong evidence, if not dispositive, that the agreement should not be
approved.
8 See NLRB v. Chemical Workers, 476 F.2d 1031, 1037 (1st Cir. 1973).
10 Sec. 10130.6 of the NLRB Casehandling Manual, Unfair Labor
Practice Proceedings, provides: "Non-admission of liability by the re-
spondent should not be routinely incorporated in settlement agreements."
Honorable Owen M. Panner, U.S. District Judge (G.C.
Exh. 33).
4. Respondents and both Charging Parties in this case
entered into an informal settlement agreement, settling
unfair labor practice charges which were the subject of
10 injunction referred to above; the agreement contains a
nonadmission clause and is approved by the Regional Di-
rector on 11 August.
5. About 18 August Respondents resumed alleged
unfair labor practices.
6. Regional Director petitions Judge Panner for find-
ing of contempt and on 6 January 1987, Judge Panner
finds that [Respondents] violated the court order of 17
July 1986: "I find Respondents in contempt. A, hearing
will be held to determine appropriate sanctions" (G.C.
Exh. 37).
7. On 13 February 1987, Judge Panner issues "`order of
Purgation of Civil Contempt of Injunction Granted
Under 29 U.S.C Section 160(1)." In this order, Judge
Panner awarded to the Board "reasonable attorneys' fees
and costs" and further ordered that for each and every
future violation by either Respondent of the court's
order of 17 July 1986 or of this purgation order, the Re-
spondent shall be assessed a civil compliance fine of
$5000 and an additional fine of $1000 for each day on
which this contumacious conduct occurs (G.C. Exh.
38).11
C. The Facts
1. General background
Between 1 July 1983 and 30 June, the Oregon-Colum-
bia Chapter, Associated General Contractors of America,
Inc., an employer's group of general contractors, and
Respondent Local 29, affiliated with Respondent Iron-
workers Northwest District Council (District Council)
were parties to a collective-bargaining agreement (G.C.
Exh. 3). On 1 May 1985 the Charging Party and Local
29 entered into a compliance agreement by which the
Charging Party agreed to be bound by most terms and
conditions of the collective-bargaining agreement re-
ferred to above (G.C. Exh. 2). The parties did not agree
to be bound by provisions relating to settlement of dis-
putes nor to those relating to strikes and lockouts.
The Charging Party is one of three entities owned by
Hoffman Construction, a holding company. The chief ex-
ecutive officer of Hoffman Construction is Cecil Drink-
ward, a witness at hearing. Drinkward is also president
and chief executive officer of Charging Party Hoffman
Construction Company of Oregon. It is unclear whether
Drinkward has any relationship to related business enti-
ties, Hoffman Construction Company of Washington and
Hoffman Construction Company of Alaska. These two
companies are not directly involved in the present case.
In mid-1985, Drinkward decided that Charging Party
would no longer employ ironworkers and other skilled
tradesmen directly; rather Drinkward decided that
Charging Party, while continuing as a general contrac-
11 Respondents have appealed both the 10 injunction and the contempt
to the U.S. Court of Appeals for the Ninth Circuit. As of this writing, I
am unaware of any decision from the court.
IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION)
tor would become a construction manager and subcon
tract to other entities various jobs including iron work
which for the most part in the past Charging Party s
own employees had performed In actual practice, this
seemingly simple change in policy became somewhat
confusing For example one of the subcontractors work
ing on the three projects in this case was Nelson Con
struction Co A substantial majority owner of Nelson
Construction was Hoffman Construction Company This
fact will be further considered below
Wayne Thomas was a major witness at hearing Man
ager of employee relations for the Charging Party for 3-
1/2 years, and with additional experience in employee
relations for general contractors since 1964, Thomas was
thoroughly conversant with the issues in the case from
an employers point of view He represented the Charg
ing Party during the negotiations leading to the comph
ance agreement referred to above If the decision of
Drinkward described above is the logical starting point
of this case , the next major event is an exchange of let
tern between Thomas and LeRoy Worley, president of
Respondent District Council The first letter, from
Thomas to Local 29 reads as follows
February 24 1986
Iron Workers Local No 29
6701 SE Foster Road
Portland Oregon 97206
Gentlemen
Notice is hereby given of our desire to terminate
our labor agreement
Any agreement we may have with you will
therefore terminate no later than June 30 1986
Notice is also hereby given that we hereby with
draw from any multi employer unit to which we
may have belonged in connection with any negotia
tions we may have had with you We intend to sep
arately negotiate with you concerning any future
labor agreements
This letter shall also constitute our written notice
of the termination of our obligation to make any
further contributions to the Health and Welfare, Re
tirement Apprenticeship and Vacation Funds and
any obligation we have to make any such contribu
tions will extend no longer than through June 30,
1986
Sincerely
/s/ W E Thomas
W E Thomas
Employee Relations Manager [G C Exh 4]
Worley apparently replying on behalf of Local 29 as
well as the Distract Council, wrote back as follows
Mr Wayne Thomas
Hoffman Construction Co
1300 S W Sixth Avenue
Portland Oregon 97207
February 25 1986
Dear Sir
567
As required by Article 3 Duration and Termina
Lion you are hereby notified of the termination of
your collective bargaining agreement with Local
Unions 14 29, 86 114 and 505
The short form agreement which is in effect at
this time will be null and void effective midnight,
June 30, 1986
I will be contacting you in the near future to
schedule meetings for a proposed future agreement
With kind regards '
Sincerely,
/s/ LeRoy E Worley
LeRoy E Worley,
President
[G C Exh 5]
To make Charging Party s intention perfectly clear on
2 April Thomas sent another letter to Local 29 It reads
as follows
Iron Workers Local 29
6701 S E Foster Road
Portland, OR 97206
April 2 1986
Gentlemen
As you know any labor agreement we may have
with you terminates by July 1, 1986
It is our present intention and our proposal that
after July 1 1986 we no longer employ any em
ployees performing work of the kind covered by
our labor contract with you
We also propose that effective July 1 1986, we
no longer have any restraints concerning those to
whom we subcontract work It is our strong belief
that we must be able to subcontract on a compett
tive basis without regard to whether a subcontrac
tor has an agreement with you
If you have any questions concerning these mat
ters or wish to discuss them in any manner I
would be pleased to meet with you Under our pro
posal it would appear to be inappropriate to have
any agreement with you after July 1 1986 since we
do not intend to be employing your members after
that date, in other words it is proposed that by July
1 1986 we will have no employees and there will
be no employees in the future However we are in
terested in any ideas or proposals you may have
with respect to these matters and would welcome
your full input before any final decisions are made
Very truly yours
/s/ W E Thomas
W E Thomas
Employee Relations Manager [G C Exh 6]
In early June Worley called Thomas to arrange a
meeting to discuss a new agreement with the Charging
Party Thomas agreed to a meeting on 9 June and
Worley promised to bring Danny along This was a
reference to Daniel W Kealey, business manager of
Local 29 Before the parties gathered for the meeting
Worley sent by mail to Thomas certain documents re
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ceived about 6 June. The first document consisted of a
background statement and application for membership in
the Northwest Iron Workers Employers Association,
Inc. The documents read as follows:
Approved by Association:
(Date)
BACKGROUND
The Association was formed in August, 1985 to
handle members' labor relations with the Iron
Workers Union. We currently have 10 members in
Portland, Seattle, and Bellingham and expect to
have more soon. The dues for 1986 are $400.00.
The Association has recently negotiated a new
labor agreement with the Iron Workers, covering
Oregon, Washington, Idaho, and Montana. In each
of the next three years we will be negotiating with
the Iron Workers District Council regarding the
contract's economic package. We would like your
support and involvement. The Association may in
the future also become involved in other areas of
common concern to our members, such as OSHA,
etc. If you have any questions, please call Jim
Watts, (503) 228-3387, or any of our officers or di-
rectors.
President: Rex Smith, REFA Erection, Inc., (503)
684-1158
Vice President: Adam Jones, The Erection Compa-
ny, (206) 821-2777
Directors:
Don Cooney, DBM Contractors, Inc., (206) 623-
5016
W.J. Guillory, Atlas Erection Company, (503)
255-9634
Dale Joebgen, Wright Schuchart Harbor, (206)
447-7611
Joe Lamberton, Action Steel Erectors, (503) 775-
6669
Paul Reising, Pacific: Erectors, Inc., (206) 838-
1444
NORTHWEST IRON WORKERS
EMPLOYERS ASSOCIATION, INC.
3434 S.W. Water Avenue, Portland, Oregon 97201
PHONE (503) 228-3387
APPLICATION FOR MEMBERSHIP
Date:
(Firm Name)
(Firm Address) (Phone No.)
hereby applies for membership in the NORTH-
WEST IRON WORKERS EMPLOYERS ASSO-
CIATION, INC., and encloses a check for $400.00
in payment of its 1986 clues.
Signed:-
(Title)
Recommended by:
[G.C. Exh. 7(a)]
Affixed to the first page of the document was a hand-
written note on yellow paper which reads:
Wayne,
This is for your information. See you next week.
LeRoy Worley
The above handwritten note apparently referred to a
second document received by Thomas from Worley, as
well as the ones described above. This document was a
copy of the current labor agreement between the North-
west Iron Workers Employers Association, Inc. and the
District Council (G.C. Exh. 7(b)). Included in this labor
agreement, page 21, was a segment entitled, "Section 12,
Subcontractors." It reads as follows:
SECTION 12
Subcontractors
If an Employer, bound by this Agreement, con-
tracts or subcontracts, any work covered by this
Agreement to be done at the jobsite of the con-
struction, alteration or repair of a building, struc-
ture, or other work to any person or proprietor
who is not signatory to this Agreement, the Em-
ployer shall require such subcontractor to be bound
to all the provisions of this Agreement for the dura-
tion of the project, or such Employer shall maintain
daily records of the subcontractors employees job-
site hours, and be liable for payment for only these
subcontractor employees for wages and travel; and
for health-welfare and dental, pension, annuity, va-
cation and Apprenticeship contributions to the
trusts in accordance with this Agreement. The
Union agrees to notify the Employer, person or
proprietor within thirty (30) calendar days of any
delinquent payment for wages, travel, health-wel-
fare and dental, pension, annuity, vacation and Ap-
prenticeship contributions owed by the subcontrac-
tor, and to further issue a certificate to the Employ-
er when these payments have been made. No work
will be let by piecework, contract or lump sum
direct with a journeyman or apprentice for labor
services. [G.C. Exh. 7(b)]
As would be made clear in a letter from Kealey to be
recited below, the Northwest Iron Workers Association
apparently replaced the Associated General Contractors
for purposes of agreeing to a master labor agreement
with the District Council and its member locals. In any
event, on 9 June, Thomas and Worley, without Kealey,
met at a local restaurant. Worley stated that "we want
you to get on board." But Thomas explained that Charg-
ing Party had not employed ironworkers for many
months and didn't intend to employ any in the future. To
this, Worley replied that "we can't have large general
IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION)
contractors like Hoffman sub non union Worley added
that he was prepared to take this all the way The
meeting concluded by Thomas asking for time to review
Worley s proposals with management Worley agreed
but noted that time was drawing close to 1 July
On 19 June Kealey wrote a letter to Thomas, which
reads as follows
Hoffman Construction Co
PO Box 1300
Portland OR 97207
June 19, 1986
Dear Sir
The current Agreement to which you are signa
tory expires on June 30 1986 As you may have
heard, an Agreement negotiated with the North
west Iron Workers Employers Association will act
as the Iron Workers Master Labor Agreement
For your information I have enclosed a copy of
this Agreement along with a copy of the Iron
Workers Independent Agreement, which is the
new short form Agreement with the Iron Workers
District Council and Affiliated Local Unions
After having the opportunity to review this
Agreement, please sign and return to our office the
executed Independent Agreement prior to June
30, 1986
As encompassed within the word language of this
Agreement the Ironworkers look forward to a
working relationship with your firm in the future
In an attempt to provide continuity of employ
ment after June 30th we would appreciate your
prompt attention to this matter Should you have
any questions or wish to discuss anything, feel free
to contact me at our office
Sincerely
/s/ Daniel W Kealey
Daniel W Kealey
FST/Business Manager [G C Exh 8(a)]
Thomas received the letter and the two enclosed docu
ments (G C Exhs 8(b) and 8(c)) referred to in the body
of the letter on or about June 20 The independent agree
ment contains a clause which reads as follows
If the undersigned individual employer contracts or
subcontracts any work covered by the Iron Work
ers Master Agreement to any person or proprietor
who is not signatory to said Master Agreement the
undersigned individual employer shall require such
subcontractor to be bound to all provisions of the
Iron Workers Master Agreement and this Independ
ent Agreement
[G C Exh 8(b)]
On 23 June Kealey met with Thomas in the latter s
office Again Kealey invited Hoffman to get aboard
Again Thomas explained the present and future plans of
the Company regarding direct employment of ironwork
ers To this Kealey responded, Look I don t care if
569
Hoffman ever hires any ironworkers or not I just want
to tie Hoffman to the sub contract clause Kealey contin
ued that he saw the industry changing and that he, as a
union official was just a person selling workers to indus
try After the proposed 4 year agreement expired both
sides could review matters again Thomas promised to
consult with company officials and respond to Kealey's
requests The following day Thomas made his reply in a
letter which reads as follows
June 24, 1986
Mr LeRoy Worley, Vice President
International Association of Bridge
Structural and Ornamental Iron Workers
2417 NE 51st
Portland Oregon 97213
Dear LeRoy
This will confirm our discussion on June 9, 1986
We have not employed any Iron Workers in
Oregon since September 1985 and none in Wash
ington since March of 1984 and in Alaska since
June of 1985 We no longer intend to employ any
employees performing work of the kind covered by
our expiring labor contract with you
As we had mentioned in our letter of April 2
and reiterated on June 9, we must be able to sub
contract work on a competitive basis I recall your
response was in effect that you couldn t have a
large general contractor like Hoffman go out and
subcontract non union
Further Mr Daniel Kealey Iron Workers Local
#29 Business Manager met with me yesterday
morning and I reviewed our discussion with him
Mr Kealey stated that he wanted Hoffman Con
struction Company of Oregon to get aboard by
signing the agreement When I mentioned that we
hadn t employed Iron Workers in Oregon since
September of 1985 Mr Kealey stated that he didn t
care whether we employed Iron Workers or not he
wanted to tie us to the subcontracting clause of the
new Iron Worker Agreement He further stated that
the Iron Workers were not prepared to give up the
subcontract clause
You must know that any concerted activity by
your union to force Hoffman Construction Compa
ny of Oregon, Washington and Alaska to be bound
to a subcontracting clause which would require that
Hoffman subcontract only to contractors that had a
union agreement with your union is illegal If such
activity occurs you can expect an appropriate legal
response by Hoffman
I trust neither action will be necessary and would
be pleased to meet with you again to further discuss
this issue
Cordially
WE Thomas
Employee Relations Manager [G C Exh 9]
On 27 June Kealey wrote still another letter to
Thomas with an enclosure It reads as follows
570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
June 27, 1986
Mr. Wayne Thomas
Hoffman Construction Co.
P.O. Box 1300
Portland, OR 97207
Dear Wayne:
As per the discussions of our meeting of June 23,
1986, I am enclosing an additional copy of the
Agreement.
The copy of the signed Agreement still hasn't ar-
rived in the mail. If I haven't received it by
Monday, June 30, 1986, I'll drop another Agree-
ment by your office.
Thanks again for the opportunity to work with
you, I'm sure time will bear out that our continued
working relationship will prove as rewarding as we
anticipate. We are looking forward to working with
you the next four years.
Very truly yours,
/s/ Daniel W. Kealey
Daniel W. Kealey
FST/Business Representative [G.C. Exh. 27(a)]
While the various meetings and exchanges of corre-
spondence were occurring, the Charging Party contin-
ued work as general contractor on three major construc-
tion projects within the Portland, Oregon. Two of these
///A/J/fOi3
T sic c,tS
were located in the downtown area of the city-.(1) Port-
land Theater for the Performing Arts (Performing Arts
Center), and (2) One Financial Center. The third project
was the Good Samaritan Hospital (Hospital) located in
northwest Portland. Certain events in this case occurred
at still a fourth location which could not be character-
ized as a construction project. Known as Hoffman Co-
lumbia Project, this location was a downtown office
building, complete and functioning as such, and contain-
ing among other offices, the headquarters and other ad-
ministrative offices of the Charging Party.12
Before turning to describe what happened at each of
the four locations, I note certain common features in the
evidence. First, Thomas visited each of the sites in issue,
and at hearing, described what he saw and identified rel-
evant photographs where necessary. Second, each of the
construction sites had a project superintendent, who was
called as a witnesss by the General Counsel. ]Finally, I
note that the General Counsel's evidence remained unre-
butted as Respondents called no witnesses and offered no
evidence. 13
2. Performing Arts Center
The Performing Arts Center occupied approximately
three-quarters of one square block bounded by Park
Avenue and Broadway, by Madison and Main Streets. A
rough diagram of the site was admitted into evidence:
12 Allegations regarding Good Samaritan Hospital and Hoffman Co- 's This is not to ignore Respondents' extensive and often effective
lumbia Project were added to this case on 14 November by the General cross-examination of the witnesses which has been carefully considered.
Counsel's successful motion to amend, granted over Respondents' objec- In the final analysis, however, such cross-examination has made little or
tion. no difference in the outcome of this case due to the overwhelming nature
of the General Counsel's evidence.
IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION)
Valued at around $17 million the building is owned by
the city of Portland As of 30 June the structure of the
building had been fully erected, but it had not been
roofed and the doorways were not closed
The Charging Party had four employees onsite
Robert Grant project superintendent, and three other
employees an office manager, a project engineer, and a
field engineer Only Grant was called as a witness
As of 30 June, several subcontractors worked on the
project including Nelson Construction Co, Ace Electric
Cascade Acoustical Otis Elevator and others The iron
worker subcontractor was REFA Erection Inc In this
project and the two others described below all subcon
tractors were signatories to labor agreements with vari
ous unions for the crafts in which the subcontractors
worked
Because Charging Party officials heard rumors of a
possible labor dispute coinciding with the expiration of
the labor agreement with the ironworkers referred to
above, it was decided to sign two gates at the Perform
ing Arts Center, after the day shift finished work on 30
June Accordingly, as indicated in the site sketch above,
about midway on Madison Street roughly between
Broadway and Park Avenue, a sign was established at a
gate there It read, THIS GATE IS RESERVED FOR
EXCLUSIVE USE OF HOFFMAN CONSTRUC
TION CO OF OREGON, THEIR EMPLOYEES &
SUPPLIERS (G C Exh 11(a)) The second sign posted
at a gate on the corner of Park Street and Main Street
read, THIS GATE RESERVED FOR EXCLUSIVE
USE OF REFA ERECTORS & ALL OTHER SUB
CONTRACTORS, THEIR EMPLOYEES AND SUP
PLIERS HOFFMAN EMPLOYEES USE GATE LO
CATED SW MADISON (G C Exh 11(b)) (The
two gates thus described will be referred to as the Hoff
man (or primary) gate and the neutral gate respectively )
Later on or about 7 July a second so called neutral
gate was established at the corner of Broadway and
Main Street by the posting of a sign identical to that in
General Counsel s Exhibit 1 I(b)
One of Grant s duties and responsibilities was to ap
prove the project job diaries Actually prepared by a
subordinate on the job the daily job diary is submitted
to Grant the following morning If Grant finds the job
diary to be accurate and complete for the preceding day
he signifies approval by signing his name The original of
the job diary is then sent to the main office and a copy
remains on the job Between 1 July and 21 July the job
diaries reflected with occasional minor variance in
prose No work due to ironworkers strike On 21 July
the job minutes reflect that the pickets left the Hoffman
gate at 9 30 a in Most crafts then worked all or most of
their entire shift (G C Exh 10)
In more detail than reflected in the job diaries, Grant
testified to what happened Work schedules, prepared
long in advance of a given date, indicated that as of 1
July, about 60 employees of various subcontractors were
expected to perform work About 6 30 am, Grant ob
served pickets at the Hoffman gate and 10-15 ironwork
ers standing directly across from the neutral gate Appar
ently the sidewalk location was the closest the pickets
571
could get to the neutral gates without blocking traffic or
being in danger from traffic
The picket signs carried in front of the Hoffman gate
read Unfair Labor Practice On Strike Ironworkers
(G C Exh 15) These signs continued in varying num
bers until picketing ceased on 21 July Meanwhile, on or
about 11 July, Grant observed a group of ironworkers
congregating around a picket sign leaning against a vehi
cle across from the Park and Main Streets neutral gate
This sign read, Sanctioned by Columbia Pacific Build
ing & Construction Trades Council (G C Exh 43)
Grant identified a foreman from Otis Elevator and sev
era] REFA ironworkers but only one or two employed
on the project Another photo taken about 7 30 a in on
11 July shows a picket carrying a sign with the same in
scription as on G C Exh 43 (G C Exh 44) Several
REFA ironworkers from the project are in the immedi
ate vicinity of the picket who was not identified with
certainty Again, this was immediately across from the
first neutral gate
Still a third view of the same area was taken at the
same time as General Counsel Exhibits 43 and 44 (G C
Exh 45) This large photograph shows the picket leaning
against the car and the inscription clearly visible ( Sanc
tioned Columbia etc) Grant identified by name several
REFA ironworkers from project gathered around the
sign during the time they had been scheduled to work
On 11 July Grant observed ironworkers and other un
identified men passing out leaflets to employees of the
sub contractors near the neutral gate One of the leaflets
reads as follows
A good union member is extremely careful when
confronted with a picket line situation WHEN A
PICKET LINE IS ESTABLISHED on a job
where he is working
1 He LEAVES He DOES NOT TALK-JUST
LEAVES
2 He READS the PICKET SIGN as he leaves
3 He DOES NOT hang around near the job
4 He knows that ONCE A PICKET LINE IS
ESTABLISHED his Business Agents and other
union officials are legally gagged and handcuffed
from giving advice pertaining to THAT JOB They
can only tell him if the Picket Line is AUTHOR
IZED by the Building Trades
5 He does NOT ALLOW HIMSELF to be
drawn into conversations with ANYONE on the
job site
A GOOD UNION MEMBER KNOWS HIS
RIGHTS
A He has the right NOT to work behind ANY
Picket Line
B He has the right to decide for himself whether
to walk off a job being picketed
C He understands that his trade may be under
attack next
D He knows that a two gate system means a
PICKET LINE and he has the RIGHT NOT TO
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WORK, no matter how many gates the employer
sets up.
[G.C. Exh. 46]
On 14 July a photo was taken from an upper floor of
the Performing Arts Center. It showed a picket carrying
the sign described above across from the Park and Main
neutral gate and several men congregating within a few
feet of the picket (G.C. Exh. 47). At the same time,
about five pickets, two with signs and three others, were
at the Hoffman gate.
Grant testified that on or about 8 July, some of the
crafts employees other than ironworkers, desired to
return to work. He permitted some to use telephones
inside the project to call their business agents. However,
no employees returned to work until 21 July.' 4
On 11 August the parties to this case entered into an
informal settlement agreement (G.C. Exh. 48). In it, Re-
spondents promised not to violate the labor law in the
manner in which they are now charged by the amended
complaint. Grant caused a copy of the settlement agree-
ment to be posted at the Hoffman and neutral gates at
the Performing Arts Center. Notwithstanding the posted
settlement agreement and the district court order of 17
July, picketing resumed on 18 August.
On 18 August Grant observed two to five pickets with
signs at the Hoffman gate. The signs, read "Hoffman
Unfair Labor Practice on Strike We Seek No Contract
In Violation of Law Ironworkers Local 29." He recog-
nized one or two as REFA ironworkers, identifying one
by name. On that day 6 or 7 subcontractors with about
20-25 employees had been scheduled to work, but did
not. Job diaries for 18-21 August indicate that an iron-
worker strike was in progress, but some small amount of
other crafts work was completed (G.C. Exh. 51). On the
same day, Grant also observed 10-15 REFA ironworkers
standing around near the neutral gate at Park and Main
Streets. Craft employees generally parked directly east of
this neutral gate and had to walk through the area where
the ironworkers were standing to enter the project.
About 6:30 a.m. on 18 August, Grant talked to some
of the pickets at the Hoffman gate and indicated surprise
to see them picketing in light of the injunction. The pick-
ets indicated uncertainty about why they were there. In
midmorning of the same day, Grant talked by telephone
to Dan Kealey. Earlier on 18 August, Grant had seen
Kealey drop off picket signs to ironworkers at the Hoff-
man gate. Grant asked him why the Union was picket-
ing. Kealey said nothing in particular had ocurred to
cause the resumption; rather it had to do with Hoffman
generally. That is, Kealey desired a collective-bargaining
agreement with Hoffman. Then Grant asked him about
the settlement agreement. Kealey answered that it didnot
mean anything, that we are back to stop one. At 9 a.m.
Monday, 25 August, the pickets were pulled away and
some of the crafts employees scheduled to work, did
work.
3. One Financial Center
This project was a high rise office complex located be-
tween First and Second Avenues and Alder and Morri-
son Streets. A rough diagram of the site was received
into evidence:
S.N. Mo,,lson 6t'eet
OIIR TINANCIIU . CDIfER
CATS LOCATIONS I SIGr1AOC
PRIOR TO DCCDIRLR S. IRIS
14 I note that none of this is reflected in Grant's job diary for 8 July
(G.C. Exh. 10). However, I credit his testimony here because it was not
effectively rebutted.
IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION)
Owned by Prendergast Associates, it is valued at ap
proximately $6 million As of 30 June, 5-6 floors of
poured concrete rather than structural steel had been
built, out of a projected 15 story structure There were
no door, window, or other enclosures, that is it was a
wide open project
The Charging Party s employees on this job consisted
of a project superintendent two engineers, and a part
time secretary The superintendent was Melvin Childers,
a witness at hearing Among his duties and responsibil
ities was the approval of the daily job dairies for the
project These diaries for the period of 30 June through
18 July were admitted into evidence (G C Exh 12) Be
ginning on 1 July through 10 July, the entries reflect that
the entire job was shut down due to ironworkers
strike' Beginning on 11 July, the entry reflects that the
pickets were present at the Hoffman and neutral gates,
but that by 10 a in, all crafts except for ironworkers, had
crossed the picket line and done some work Thereafter
between 14-18 July there is no further reference to
work lost or delayed due to strike or picketing
As of 30 June three subcontractors were performing
ironwork on the project, H & L Corp, Ormega Steel,
and REFA Steel Prior to the labor dispute, these sub
contractors and those for other crafts were working
double shifts l am -3 30 p m and 6 p m -1 30 a m
At the close of the day shift on 30 June, the Charging
Party established two separate gates at the project, one
for Hoffman and Ormega Steel and one for all other sub
contractors Ormega s name was included on the sign for
the primary gate based on information from an official of
that company that it was not prepared to sign a new
labor agreement with the ironworkers 15 The Hoffman
Ormega gate was located off First Avenue while the
neutral gate was located near the corner of First and
Morrison (G C Exhs 13(a) and (b)) Approximately
2000 feet seperated the two gates
On arriving for work on 1 July Childers learned not
only of the picketing then in progress, but that the
second shift of the night before had not finished its work
A Hoffman engineer told Childers that at midnight on 30
June someone put a picket sign out and a foreman came
into the office trailer to announce That s it we re
going home Then all subcontractor employees left the
project about 90 minutes early
Two picket signs outside of the Hoffman Ormega gate
read Unfair Labor Practice On Strike Ironworkers
(G C Exhs 14 (a) (b) and (c)) Two similar signs were
carried outside the neutral gate (G C Exhs 21(a) and
(b)) One of the men holding a sign dressed in a white
shirt was ironworker Tom Worley brother of LeRoy
Worley (G C Exhs 14(b) and (c)) The latter two photo
15 A few days later Ormega Steel signed a new labor agreement with
Respondent Local 29 and its name was removed from the Hoffman gate
Also a few days later as reflected on C P Exh 6 a second neutral gate
was signed near Alder and Second Avenues (G C Exhs 17(a) (b) (c)
and 18)
573
graphs reflect the Hoffman office trailer and the unusual
entry constituting the Hoffman gate Due to the topogra
phy, it was necessary to climb several stairs to enter the
project at this point Obviously no vehicles could enter
the project through this gate Childers told his staff of
three to use only the Hoffman gate
Childers identified certain photographs received into
evidence One shows a group of craft employees includ
ing ironworkers, near the neutral gate at First and Morri
son (G C Exh 20(a)) Another shows a picture of
Childers walking near the same location and a man hold
ing a picket as a man named Jensen and ironworker for
Ormega Steel A closeup picture of Jensen, holding his
picket sign, with a security guard next to him was also
received The sign reads, in part, Sanctioned by Colum
bia Pacific Building & Construction Trades Council
(G C Exh 59) Uncertain of the exact date taken
Childers believes the photographs were taken in early
July
During the work stoppage, Childers found in July or
August on his desk and all over his office, copies of a
message which reads as follows
Brother & Sister
Thank you for your support on our most recent
endeavor We all know it has been to [sic] long
since the Crafts have held together The 2 days of
solidarity prompted more positive action from the
contractor than the weeks only partial support
We hope this successful action was the first step
back to a unification of the Trades We believe in a
United Building Trades Surely this unity will di
rectly benefit each and everyone of us Again
thank your [G C Exh 60]
Except for one occasion when he received a copy from
an Ormega iron worker foreman, Childers did not know
who distributed these documents
During the work stoppage still another leaflet was dis
tributed subcontractor employees near the first neutral
gate It reads as follows
HI
WE RE IRONWORKERS AND USUALLY FOUND 10
TO 20 STORIES ABOVE THE SIDEWALKS ERECTING
THE STEEL FRAMES FOR OUR SKYLINES BEAUTIFUL
BUILDINGS
WE BELIEVE THAT ANY EFFORT TO DESTROY THE
WORKING STANDARDS OF ANY WORKER CAN
SPREAD OVER THE COMMUNITY AND CONSUME THE
SECURITY OF ALL WORKERS
WE ARE ATTEMPTING TO REACH AN AGREEMENT
WITH HOFFMAN CONSTRUCTION COMPANY
HOPE OUR INFORMATIONAL PICKETING DOES NOT
INCONVENIENCE YOU YOUR COMMENTS WOULD BE
APPRECIATED STOP AND TALK TO US
THE IRONWORKERS
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Childers observed a man narned Cusma, then president
of Respondent Local 29 and another man distributing
these documents. Cusma appeared outside the Hoffman
and neutral gates almost daily and usually stayed for
about an hour, talking to employees of the subcontrac-
tors.
Publication of the labor dispute was not limited to
leaflets and picket signs. In a publication entitled Labor
Press, dated 18 July, a photograph appears of two men
carrying picket signs reading "Unfair Labor Practice On
Strike Ironworkers." The photograph and caption under
the photograph are as follows (G.C. Exh. 22):
Iron Workers picket job sites
Jim Mickel ( left) and Gene Yukich, mem-
bers of Iron Workers Local 29, picket the
construction site of the One Financial
Center Building on the Portland block
bounded by :Southwest First and Second
Avenues and Alder and Morrison
Streets . Two other current work projects
of a Portland firm, Hoffman Construction,
which have Iron Workers on the job, also
were picketed the first part of the month.
They were the City of Portland's Per-
forming Arts Center on Broadway be-
tween Southwest Main and Madison
Streets and the Good Samaritan Hospital
cancer -care facility at Northwest Mar-
shall Street and Twenty-Second Avenue.
Union officials said the picketing
stemmed from a desire by Local 29 to
continue a long history of vyork agree-
ments with the general contractor.
IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) 575
Childers identified both men in the photograph as
Ormega Steel ironworkers who had worked on the
project In fact, Yukich had operated a video recorder
during the picketing to record all persons who entered
or left the neutral gate at First and Morrison Streets
On 18 August picketing resumed and lasted for about
a week The relevant job diaries were received into evi
dence and reflect that the picketing of the Hoffman gate
had varying success ranging from only ironworkers off
the job to a complete shutdown with ali union labor off
the job (G C Exh 62)
When Childers arrived at work the morning of 18
August, he observed ironworker pickets toward the top
of the stairs leading to the Hoffman gate Kealey, Busi
ness Agent for Respondent Local 29, was present with
this group pickets A photograph taken on 21 August,
during the August picketing, shows Kealey at the top of
the stairs (on the right holding a newspaper) leading to
the Hoffman gate A picket sign wedged into the wall
clearly visible to anyone seeking to climb the stairs
reads, Hoffman Unfair Labor Practice On Strike We
Seek No Contract In Violation of Law Ironworkers
Local 29' (G C Exh 63) The other men in the photo
graph are ironworkers from the project employed by
REFA A view of the stairs leading to the Hoffman gate
from a higher angle across the street is presented by
NEW SIDEWALK
PQOPEg ( U N E
L
-N2M
G C Exh 64 As Kealy was getting ready to enter his
car on 18 August, Childers heard one of the subcontrac
tor employees from the project ask him if this were a
sanctioned strike Kealey answered it was
The scene on 18 August at the first neutral gate was
somewhat different A crowd of men was milling about
in the general location of First and Morrison Directly in
front of the gate were two men wearing Local 29 insig
ma hats and union buttons Childers observed this scene
for a few minutes and saw those men talking to craft em
ployees approaching the gate Thereafter the craft em
ployees turned around and left the area of the gate
On 18 August Childers posted the settlement agree
ment at the Hoffman gate and asked the ironworker
pickets nearby if they were aware of it One picket
named Willard said they were but that it did not mean a
thing
4 Good Samaritan Hospital
This project located in the northwest area of the city
consisted of three buildings all connected A four story
garage, a four story office complex, and a six story medi
cal facility Located between 21st and 22d Streets and
Northrop and Marshall Streets, the project occupies an
entire block A rough diagram of the site was received
into evidence
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I- I T-86 CONSTRUGTI0IN SITE
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The buildings are owned by the hospital
As was true in the other projects Hoffman employed
no hourly employees It did employ four salaried em
ployees a project superintendent named Leon Stinnette
who testified at the hearing a project engineer a field
engineer , and an office manager The ironworker subcon
tractors included Atlas , Ormega and H & L
Late in the day on 30 June, two seperate gates were
established for Hoffman employees and for neutrals The
signs designating these gates read as indicated for the
other projects (G C Exhs 28(a) and (b)) As indicated
on the diagram above, the Hoffman gate was at the
corner of 22d Street and Marshall the neutral gate was
in the middle of Northrop between 21st and 22d Streets
On 8 July a second neutral gate was established on the
corner of Northrop and 22d Street adjacent to a manlift
(G C Exhs 29(a) and (b))
On 8 July Thomas observed pickets across from the
first neutral gate and an ironworker named Bill passing
out leaflets to subcontractor employees (G C Exh 30)
All or most of them refused to cross the picket line and
work
A photo taken at the Hoffman gate shows a picket
holding his sign , in a position to have it photographed It
reads Unfair Labor Practice on Strike , Ironworker
(G C Exh 54) On the fourth day of picketing an addi
tional sign appeared at the first neutral gate Sanctioned
by Columbia Building and Construction Trades Council
(G C Exh 55) Stinnette recognized some of the pickets
as ironworkers who previously worked on the project
On 19 August picketing resumed and continued for 4
additional days Gates were still marked as indicated in
the diagram (G C Exh 41 ) Stinnette observed two iron
workers picketing at the Hoffman gate During the
course of the day, the number of pickets varied between
two to seven At least one picket sign was always
present with the amended wording noted for other
projects Hoffman Unfair Labor Practice On Strike We
Seek No Contract In Violation of Law Ironworkers
Local 29 (G C Exh 57) Job diaries approved by Stin
nette for the period of 19-22 August reflect that various
subcontractors failed to work due to picketing by the
ironworkers However on 21 August the pickets permit
ted the roofers to work covering roofing materials sub
ject to rain/weather damage On 22 August no crafts
worked due to the picketing (G C Exh 56) This total
shutdown was due to information being circulated that
the strike had been sanctioned by the Columbia Building
and Construction Trades Council On other days some
craft employees worked and some did not due to the
ironworker pickets
Stinnette testified to a conversation which he over
heard on 19 or 20 August He heard a person who had
been picketing the Hoffman gate but then moved to the
first neutral gate tell a group of craft employees If any
of you guys would like to talk to our business agent, he s
at the corner now In the area referred to by the speak
er Stinnette saw Kealy
The evidence presented by Thomas and Stinnette re
garding the Hospital project was supplemented by wit
ness Eddy Jeannis an apprentice electrician employed by
Ace Electric Co on the Hospital site between January
and August On the first day of picketing he was report
ing to work and observed pickets near the first neutral
gate The witness recognized two or three of them as
having been ironworkers on the project The pickets told
the witness that they were on strike and that their union
supported his union They handed him a document enti
tied Picket Line Notice (G C Exh 19) which was
similar to that described by Grant and recited above
(G C Exh 46)
Notwithstanding the pickets , Jeannis crossed the line
and worked about 4 hours While on the jobsite, Jeannis
heard some pickets outside the project but near the
Hoffman trailer yell through the fence to him and other
apprentices, asking why were they working when they
knew that a strike was going on Later Jeannis was in
the Ace Electric trailer completing a telephone call
when two ironworkers who had been picketing entered
the trailer They asked Jeannis if he knew that the elec
tricians union agreed with their union in support of the
strike The witness referred the men to his supervisor
Another witness named Rick Wilson was called by the
General Counsel Also employed on the Hospital
project as a general foreman for the steamfitters Wilson
knew Jeannis and was present in the trailer in July on
the 1st day of picketing when Jeannis was approached
by two men Wilson also identified the men as ironwork
ers who had worked on the project installing window
brackets Wilson corroborated Jeannis in describing what
occured in the trailer Later in the day, one of Wilson s
subordinates named Hawks told him that he had learned
from the pickets that the strike had been sanctioned Ac
cordingly Hawks said he was going home and he left
the project
Wilson observed pickets at the neutral gate on 2 or 3
July They had signs reading unfair Labor Practice
Ironworkers Local 29
5 Hoffman Columbia Plaza
In this downtown highrise building Charging Party
maintained its headquarters and related administrative of
fices The building occupies one square block bounded
by 5th and 6th Streets and Columbia and Jefferson in
Portland The building is owned by Columbia Financial
Services and two individuals named Eric Hoffman and
Cecil Drinkward who testified in this case On the
ground floor of this building were several stores and
businesses unrelated to Charging Party The ground
floor businesses include a parking garage a bank a stock
brokerage , a travel agency and a restaurant
On 1 July Thomas observed 9 to 12 persons picketing
around the block bordering the building and sitting on a
ledge at the front entrance to the building These scenes
have been preserved by photographs taken by Thomas in
late morning or early afternoon of 1 July (G C Exhs
16(a) and (b)) A closeup view of the picket signs
showed the usual legend Unfair Labor Practice On
Strike Ironworkers (G C Exhs 16(c) and (d)) In ob
serving the men doing the picketing Thomas noted that
several had been at the Performing Arts Center earlier
on 1 July
IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION)
Picketing continued in and around this building for 7
to 9 days Notwithstanding the wording on the picket
signs, no unfair labor practice charges were ever filed
with the Board by Respondents against Charging Party
at any time relevant to this case
6 Concluding facts
On 2 July 1 day after the picketing began, Thomas at
tempted to convey in writing, Charging Party s view of
the picketing He wrote separate letters to both Respond
ents which read as follows
July 2 1986
Iron Workers District Council
2317 N E 51st
Portland, Oregon 97213
Gentlemen
Your organization is illegally picketing our con
struction projects at S W Broadway and Madison
(Performing Arts project), and S W First and Mor
rison (One Financial Center project), and our main
office at 1300 S W Sixth
Your picketing is illegal for a number of reasons
It does not identify the employer you are picketing
It is not confined to the gate reserved for the only
employer with which you have had a primary dis
pute (Ormega Industries, Inc on the One Financial
Center project) Your picketing of Hoffman Con
struction Company of Oregon is illegal for the addi
tional reason that you seek to restrict our right to
do business with subcontractors doing ironworkers
work when we do not employ any ironworkers and
will not employ them in the future
Unless you immediately cease you illegal picket
ing we will have no alternative but to commence
legal action against you
Very truly yours,
/s/ W E Thomas
Wayne E Thomas
Employee Rela
tions Manager
[G C Exhs 24(a) and (b) ]
These letters were returned as undeliverable After other
methods of delivering the letters also failed Thomas fi
nally was advised that delivery of a mailgram was con
firmed
Between 18 August and 2 September, Thomas was on
vacation somewhere outside the Portland area In part
for this reason James Hutchison was retained by Charg
ing Party in August to represent it in labor relations mat
ters Up to August of 1983 Hutchison had performed
these duties as an employee of Charging Party for about
14 years Then after 3 1/2 years in private practice he
returned to Charging Party as a consultant and as of Oc
tober he is back with them as an employee, as manager
of labor relations
On 20 August Hutchison talked by telephone to
Worley and explained that he had been retained by Hoff
man to attempt to resolve the problem of illegal pickets
on three projects Worley replied that the only way to
577
resolve the matter was for Hoffman to sign the labor
agreement referred to above (G C Exh 7(b)) Worley
added that he also desired Hoffman to join the North
west Iron Workers Employers Association (G C Exh
7(d)) Hutchison answered that Hoffman would never do
that Worley said first things first We have to get the
labor agreement signed Hutchison requested a copy of
the labor agreement which Worley agreed to send,
adding that no changes would be permitted as other gen
eral contractors had already signed as is With respect to
the subcontracting clause published above Worley said
no contractor could be permitted to subcontract non
union
Shortly after this call ended Kealey called Hutchison
and said LeRoy told him to send a copy of the labor
agreement to him and no changes would be permitted
On 21 August, about 10 20 am Kealey delivered the
labor agreement to Hutchison (G C Exhs 39, 40)
During the afternoon of the same day, Worley called
Hutchison and said he was then on vacation Worley
added Attorney Van Bourg would be calling to arrange
for negotiations to begin The witness said that Van
Bourg had called a few minutes before but he had re
ferred Van Bourg to the attorney for Hoffman Then
Hutchison stated that since no changes were to be per
mitted in the labor agreement he did not see any point
in meeting to negotiate To this, Worley responded that
if Hoffman wanted their jobs to remain shutdown for 10
days while he was on vacation, thats up to them On the
following day picketing ended
As to the Columbia Building and Construction Trades
Council referred to herein as having sanctioned various
strikes and picket lines, Hutchison was acquainted with
the group having worked with them often over the
years It is a local chaper of the National AFL CIO
Building Trades Each building trade union belongs to
the Columbia Pacific Building and Construction Trades
Council One of its main functions is to act as a clearing
house for sanctioning a picket In other words, if the
picket is sanctioned then the other crafts are required to
honor the picket line In the course of Hutchison s 24
years in the business he has had 10 to 15 experiences of
determining the authenticity of a given picket line by
contacting an individual at Columbia Pacific Building
and Construction Trades Council No evidence supports
the pickets claim that the strike was sanctioned by Co
lumbia Pacific Building and Construction Trades Coun
cil
D Analysis and Conclusions
1 Is deferral appropriate to resolve the issues
contained in this case's
At pages 4-5 of their brief, Respondents argue that
this case should be deferred to arbitration pursuant to
Collyer Insulated Wire, 192 NLRB 837 (1971) For sever
al reasons , I find this case is not appropriate for deferral
I note that Respondents cite no cases where charges of
8(b) (4) (A) and (B) violations of the Act have been de
ferred I am not aware of any such cases Deferral under
Collyer is appropriate when (1) of the disputed issues are,
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in fact, issues susceptible of resolution under the oper
ations of the grievance machinery agreed to by the par
ties, and (2) there is no reason to believe that use of that
machinery by the parties could not or would not resolve
such issues in a manner compatible with the purposes of
the Act Eastman Broadcasting Co, 199 NLRB 434, 437
(1972)
Here, the disputed issues are not susceptible to inter
pretation under operation of the grievance machinery
An arbitrator is not authorized to determine whether Re
spondents attempted to coerce Charging Party into
agreeing to a contract in violation of Section 8(e) of the
Act nor to determine whether Respondents engaged in a
secondary boycott In Boilermakers (Bigge Drayage Co),
197 NLRB 281, 286 (1972), the Board affirmed the trial
examiners decison not to defer in an 8(e) case
Furthermore, even if the arbitrator were authorized to
decide these issues, he would have no power to remedy
any violations found in a manner compatible with the
purposes of the Act
At page 4 of their brief, Respondents quote articles
8 9 8 91, and 10, pages 10, 14 of the Ironworkers master
agreement (G C Exh 3), as purporting to bind REFA
Erection Co to a collective bargaining relationship for
all times material to this case Assuming for the sake of
argument that REFA is a party to the contract nothing
in the sections mentioned above expressly deals with un
lawful picketing of neutrals Therefore deferral is not
appropriate United States Steel Corp, 223 NLRB 1246,
1247 (1976)
As to Hoffman Construction, its agreement with Re
spondents, inadequate for deferral to begin with had ex
pired during all times material to this case Even if the
grievance arbitration clause were adequate expiration of
the labor contract can be another factor precluding de
ferral Meilman Food Industries 234 NLRB 698 (1978),
Sahara Tahoe Corp, 229 NLRB 1094 (1977), enfd 581
F 2d 767 (9th Cir 1978) Cf American Gypsum Co 285
NLRB (1987)
When some though not all of the unfair labor prac
tice allegations can be dealt with in arbitration, deferral
may not be appropriate Sheet Metal Workers Local 17
(George Koch) 199 NLRB 166 168 (1972) enfd 416 US
904 (1973) Thus it would be necesary for the arbitrator
to resolve not only the two major issues in this case but
also to resolve the role of the district council as well
This the arbitrator would not be authorized to do even
under Respondents theory
2 Is General Counsel estopped from amending the
complaint to include matters not litigated in court?
Early in the hearing the General Counsel was permit
ted to amend the complaint to add certain allegations re
garding Good Samaritan Hospital and Hoffman Colum
bia Plaza These had not been litigated before the district
judge in the petition for 10 injunction Without any cita
tion of authority Respondents argue pages 6-7 of their
brief that the General Counsel is now estopped from
amending the complaint and litigating the two matters
added
I find that Respondents argument is totally without
merit The Board is not bound by judicial opinions in
collateral proceedings Cf Advertisers Mfg Co 280
NLRB 1185 (1986) Similarly the General Counsel is not
estopped by the court proceedings, because the two pro
ceedings are not related and serve different functions I
find no estoppel here
3 Did Respondents seek a labor agreement in
violation of Section 8(e), and violate Section 8(b)
(4) (A) of the Act by picketing to achieve that
objective?
In seeking the answers to the questions presented
above, I begin with some preliminary matters First, as
noted above neither Worley nor Kealey testified in this
case The failure of Respondents to call their own offi
cials as witnesses or to explain the failure to do so raises
an adverse inference in this case against Respondents
Martin Luther King Sr Nursing Center, 231 NLRB 15 fn
1 (1977)
Next the Board has held that in considering a union s
motivations for striking or picketing, [the Board and]
courts have found it useful to ask what concessions the
company would have to make to abate the union activi
ty NLRB v Union de Empleados (National Packing
Co), 455 F2d 1248 (1st Cir 1972) In this case, evidence
is overwhelming to show that Respondents desired
Charging Party to sign a certain labor agreement
Worley told Hutchison that signing the labor agreement
was the only way the pickets would be removed I will
find below that the labor agreement and another pro
posed agreement contains subcontracting clauses viola
tive of Section 8(e) of the Act This is compelling evi
dence of Respondents unlawful motivation as further
discussed below Respondents also desired the Charging
Party to join an employer s association
At pages 7-10 of their brief, Respondents contend that
no evidence exists of any unlawful conduct on the part
of District Council I reject this notion and find it to be
without merit Evidence in this case reflects that both
Respondents engaged in a joint venture to violate the
Act as more specifically found below Through its agent
Worley Respondent District Council aided and abetted
LocaL 29 in attempting to achieve an unlawful objec
tive Moreover the evidence shows that each Respond
ent acted as the agent of the other with either real or ap
parent authority Building & Construction Trades Council
of Reading (General Plumbing) 155 NLRB 1184, 1186-87
(1965) See also Teamsters Local 526 (Penn Yan Express),
274 NLRB 449 (1985) Machinists (Pratt & Whitney), 278
39 (1986)
With respect to the question of joint venture and
agency, note the evidence showing the combined activi
ties of Respondents District Council and Local 29 On 24
February Thomas notified Local 29 of its desire to termi
nate the labor agreement as of 30 June That letter is an
swered by Worley on behalf of the District Council and
apparently on behalf of Local 29 as well In early June
Worley arranged a meeting with Thomas and although
he promised to bring Kealey to the meeting, he met with
Thomas without Kealey, again with apparent authority
to speak for Local 29 To make his intent clear before
the meeting, he sent Thomas an application for an em
IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION)
ployer s association and the new master labor agreement
At the meeting, Worley told Thomas that We want you
to get on board Worley made certain other statements
at this meeting showing an agency joint venture relation
ship with Local 29 To all of this evidence, I add the
conversation between Worley and Hutchison on 20
August as reflected in section C 6 above
At page 8 of their brief, Respondents contend that the
General Counsel and Charging Party base their theory of
liability regarding Respondent District Council solely on
the encounter between Hutchison and Worley This
claim is not true Worley and Respondent District Coun
cil are inextricably intertwined into the fabric of this case
by more evidence than merely the encounter between
Worley and Hutchison Accordingly, Respondent Dis
trict Councils culpability in this case is equivalent to Re
spondent Local 29's and both Respondents will be
judged accordingly
Turning now to discuss the alleged violation, I begin
with relevant statutes
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
individual employed by any person engaged in com
merce or in an industry affecting commerce to
engage in a strike or a refusal in the course of his
employment to use, manufacture process transport,
or otherwise handle or work on any goods articles,
materials or commodities or to perform any serv
ices, or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry of
fecting commerce, where in either case an object
thereof is-
(A) forcing or requiring any employer to
enter into any agreement which is prohibited by
section 8(e) ,
(B) forcing or requiring any person to cease
using selling , handling transporting or otherwise
dealing in the products of any other producer, proc
essor or manufacturer or to cease doing business
with any other person or forcing or requiring any
other employer to recognize or bargain with a labor
organization as the representative of his employees
unless such labor organization has been certified as
the representative of such employees under the pro
visions of section 9 Provided that nothing contained
in this clause (B) shall be construed to make unlaw
ful, where not otherwise unlawful, any primary
strike or primary picketing
In Operating Engineers Local 701 (Lease Co), 276
NLRB 597 600 (1985) the Board stated the following
principles of law
Section 8(e) of the Act makes it unlawful for any
labor organization or employer to enter into a con
tract in which the employer agrees to refrain from
dealing in the product of another employer or to
cease doing business with any other person 8 How
ever it is well established that contract clauses
which may technically fall within the literal pro
579
scription of Section 8(e) are not unlawful if the
clause is found to be primary in nature i e, one in
tended to preserve or protect the work of unit em
ployees 9 Furthermore even clauses which are sec
ondary in nature i e, intended to affect the employ
ment practices of other persons or employers not
party to the contract and which are within the gen
eral proscription of Section 8(e), may be lawful and
protected if they satisfy the requirements for exemp
tion under the construction industry proviso to Sec
tion 8(e)
As stated in J K Barker Trucking Co, i 2 the Board
has developed rules of construction regarding
agreements alleged to violate Section 8(e), as fol
lows
[I]f the meaning of the clause is clear, the Board
will determine forthwith its validity under 8(e),
and where the clause is not clearly unlawful on
its face, the Board will interpret it to require no
more than what is allowed by law On the other
hand, if the clause is ambiguous, the Board will
not presume unlawfulness but will consider ex
trinsic evidence to determine whether the clause
was intended to be administered in a lawful or
unlawful manner In the absence of such evi
dence the Board will refuse to pass on the validi
ty of the clause [Id at 517 ]
Sec 8(e) of the Act provides in relevant part
It shall be an unfair labor practice for any labor organization
and any employer to enter into any contract or agreement ex
press or implied whereby such employer ceases or refrains or
agrees to cease or refrain from handling using selling trans
porting or otherwise dealing in any of the products of any
other employer or to cease doing business with any other
person and any contract or agreement entered into heretofore
or hereafter containing such an agreement shall be to such
extent unenforceable and void Provided That nothing in this
subsection (e) shall apply to an agreement between a labor or
ganization and an employer in the construction industry relating
to the contracting or subcontracting of work to be done at the
site of the construction alteration painting or repair of a build
mg structure or other work
9 National Woodwork Mfrs. Assn v NLRB 386 U S 612 (1967)
12 Teamsters Local 982 (IK Barker Trucking Co) 181 NLRB
515 (1970)
See also Retail Clerks Local 1288 (Nickels Stores), 163
NLRB 817 818-819 (1967) enfd in pert part 390 F 2d
858, 861-862 (D C Cir 1960)
I have recited above in section C 1 a subcontractor
clause taken from proposed master labor agreement to
which Hoffman Construction was asked to become a
party by joining the Northwest Ironworkers Employers
Association (G C Exh 7(b))
I have also rectied a second subcontractor clause taken
from a proposed Independent Agreement," again to
which Hoffman was asked to become a party (G C Exh
8(b)) Neither of these need be repeated
In construing these two clauses, I note that Charging
Party has no contractual unit Since September 1985, it
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
has no employed ironworkers and does not intend to
employ them in the future (see C P Exh 2 C and enclo
sures) Nothing in the so called Wacher Project or the
so called Kyocera Project (C P Exhs 2 and 4) changes
or alters these conclusions The Wacker and Kyocera
single project agreements between Hoffman Construction
or a subsidary and Columbia Pacific Building and Con
struction Trades Council and several other labor organs
zations do not utilize ironworkers employed by Charging
Party As noted in the facts above, Hoffman Construc
Lion s disclaimer of interest in the employment of iron
workers was conveyed to Respondents and understood
by them
I find therefore that the clauses in issue are intended to
affect the employment practices of employers who are
not parties to the contracts That is, these clauses are sec
ondary in nature because their object is to aid and assist
union members generally rather than to aid employees in
a contractual unit a primary object Colorado Building
Trades Council, 239 NLRB 253 255 (1978), Operating
Engineers Local 701 239 NLRB 274, 276 (1978)
This finding does not end the inquiry As the Board
instructed above before any finding is made that a sub
contracting clause which is secondary in nature violates
Section 8(e) of the Act it must be determined whether
the clause satisfies the requirement for exemption under
the construction industry proviso to Section 8(e) If so
the clause is lawful and protected
To answer that question for the two clauses in issue I
again turn to the case of Colorado Trades Council, supra
239 NLRB at 256, where the Board stated
In Woelke & Romero Framing Inc," a companion
case for oral argument , we concluded that the Con
nell decison construed the construction industry
proviso to Section 8(e) to permit subcontracting
clauses such as that in the instant case in the context
of a collective bargaining relationship We further
noted that the Connell court suggested that such
clauses might be protected by the proviso even
without a collective bargaining relationship if they
were directed toward the problems raised by the
close relationship between contractors and subcon
tractors at the construction site and /or to the reduc
tion of friction that may be caused when union and
nonunion employees are required to work together
at the same jobsite
Here, Respondent seeks the subcontracting clause
outside the context of a collective bargaining rela
tionship and thereby loses the protection of the pro
viso unless, possibly the clause is addressed to
problems posed by the common situs relationships
on a particular jobsite or to the reduction of friction
between union and nonunion employees at a jobsite
Respondents clause , however despite its different
phrasing , is no more related to these concerns than
was the Connell clause The instant clause does not
restrict the subcontracting of other types of work at
the jobsite, nor does it apply only to jobsites where
the Union s members are working Thus the clause
allows for the possibility of union and nonunion em
ployees working side by side at a jobsite
Furthermore, as in Connell Respondent does not
seek the clause in order to organize a nonunion
subcontractor on the building project it picket
ed, 10 Respondents clause therefore, is not
aimed at avoiding problems raised by common situs
relationships 11 As in Connell, the effect of the in
stant clause is to place too great an organizational
weapon in the hands of the Union by allowing it to
compel any general contractor to agree to bring
economic pressure on any nonunion subcontractor
provided the agreement covers work to be per
formed at any construction jobsite In accord with
the Courts holding in Connell, we find that this
clause is not saved by the proviso
Accordingly we find in agreement with the Ad
minstrative Law Judge , that he proposed agreement
violates Section 8(e) and Respondents picketing to
obtain the agreement violated Section 8(b)(4)(ii)(A)
of the Act
9 Carpenters Local No 944 United Brotherhood of Carpenters
and Joiners of America AFL-CIO and Carpenters Local No 235
United Brotherhood of Carpenters and Joiners of America AFL-CIO
(Woelke & Romero Framing Inc) 239 NLRB 241
10 Connell Construction Co Inc Y Plumbers & Steamfitters
Local Union No 100 421 U S at 631
11 In light of this finding we need not and do not pass on the
question of what type of clause would address these concerns and
whether it would be authorized by the proviso if it were sought
outside the context of a collective bargaining relationship
See also Woelke & Romero Framing v NLRB 456 U S
645 666 (1982)
The Board s statement is directly applicable to the
present case Respondents sought the subcontracting
clause outside the context of a collective bargaining rela
tionship as discussed below Furthermore the two
clauses allow for the possibility of union and nonunion
employees working side by side at a jobsite so they are
not meant to reduce friction Finally there is no attempt
to address problems caused by common situs relation
ships on a particular jobsite
At pages 18-22 of their brief, Respondents contend
that because a collective bargaining relationship once ex
isted between Charging Party and Respondents it carries
over to embrace the events of July and August It is true
that unlike the respondent in Laborers Local 185 (West
Cal Construction) 255 NLRB 53 (1981) in which the re
spondent union was a stranger to the employer Re
spondents in this case were not strangers to Hoffman
Construction Except for that distinct ion all other facts
of West Cal Construction are very similar to those of the
instant case The issues are also identical and the Board
affirmed the finding of a violation of Section
8(b)(4)(ii)(A) of the Act caused by Respondents picket
ing to obtain an agreement
West Cal Construction supports a finding of the viola
tion in the present case Merely because a collective bar
gaining relationship once existed between Hoffman and
Respondents under the facts and circumstances of this
case does not mean a collective bargaining relationship
existed for 8(e) purposes or for the construction industry
proviso to apply This is so because the unit of employ
IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) 581
ees once represented by Respondents no longer exists
and so far as the evidence shows will not exist in the
future Accordingly the collective bargaining relation
ship, such as it was since September 1985, also no longer
exists
In their brief Respondents rely heavily on two cases
A L Adams Const Co v Georgia Power Co 733 F 2d
853 (11th Cir 1984) cert denied 471 U S 1075 (1985)
and Shaver Inc v NLRB, 635 F 2d 859 (D C Cir 1980),
cert denied 451 U S 976 (1981) Both cases involve
issues concerning prehire agreements arising under Sec
tion 8(f) of the Act The facts of each are lengthy and
complex and need not be recited here It suffices to say
that nothing in either case suggests that a collective bar
gaining relationship still exists between an employer and
union when the prior labor agreement has expired and
where the employer no longer employs unit employees
and has disavowed any intent to hire unit employees in
the future Accordingly neither Adams nor Schriver ap
plies to the instant case
Although the two subcontracting clauses are second
ary in nature and are not rendered lawful by the con
struction proviso to Section 8(e) I further conclude that
the picketing in this case violated Section 8(b)(4)(A) of
the Act, and that Respondents are responsible for these
violations
4 Did Respondents violate Section 8(b)(4)(B) of the
Act by picketing neutral gates, by the use of picket
signs which failed to identify the primary employer,
and by other acts, the object of which was to
enmesh neutral employers in a dispute with a
primary employer?
I begin with a review of relevant Board law taken
from the case of Broadcoast Employees NABET Local 31
(CBS Inc), 237 NLRB 1370, 1374-1375 (1978) enfd 631
F 2d 944 (D C Cir (1980) There the Board affirmed
the rulings, findings, and conclusions contained in the de
cision of Administrative Law Judge Paul Bisgyer, who
held
At the outset it may be appropriate to review
some basic principles respecting secondary boy
cotts It has long been established that dispite the
literal language of Section 8(b)(4)(B),21 its prohibi
tions are designed to reach only secondary boycott
activities by a labor organization, leaving primary
action outside the scope of this provision Indeed,
when the 1959 amendments to the Act were en
acted Congress took special care to assure that pri
mary action was not intended to fall within the ban
of Section 8(b)(4)(B) by providing that nothing
contained in this clause (B) shall be construed to
make unlawful where not otherwise unlawful, any
primary strike or primary picketing
To be sure, the line between secondary and pri
mary activity is not always clear, especially in
common situs situations where more than one em
ployer are engaged in their normal business oper
ations at the same location Mindful of dual con
gressional objectives of preserving the right of labor
organizations to bring pressure to bear on offending
employers in primary labor disputes and of shield
ing unoffending employers and others from pres
sures in controversies not their own, 22 the Board
devised the familiar Moore Dry Dock guidelines 23
approved by the courts, to aid in determining
whether the unions object was primary and there
fore lawful or whether it was really secondary as
being calculated to enmesh neutral employers and
employees in the union s dispute with the primary
employer which the Act was designed to prevent
However the Board and the courts have cautioned
tht the Moore Dry Dock standards are only guide
lines not to be mechanically applied and that, while
compliance might give raise to a rebuttable infer
ence that the picketing was primary, the totality of
the evidence might reveal an underlying proscribed
secondary objective and overcome the presump
tion 24
In addition to the Moore Dry Dock standards
adopted to minimize the potential for unnecessarily
involving neutrals in a primary dispute of no con
cern to them the Board and courts have recognized
the rights of employers to designate at a common
site a gate specially reserved for the exclusive use of
primary employer his employees suppliers, and
materialmen for entry and departure and to estab
lish other gates for use by neutral employers em
ployees, and others having business relationships
with the neutral employers 25 Where separate gates
are thus designated and legitimately maintained, the
union must confine its picketing activities to the pri
mary gate and avoid implicating neutrals by picket
ing the gates set aside for the neutral s sole use or
else risk violating Section 8(b)(4)(B) of the Act 26
Of course the integrity of the neutral gate must not
be compromised by its use by primary personnel or
suppliers which would not result in destroying its
immunity form primary picketing 27 Moreover the
establishment of the reserved primary gate must not
be at a location on the site which would impair the
effectiveness of picketing to reach the primary em
ployer and employees For, as the Board noted in
one case, The purpose of the separate gate is to
permit lawful picketing that will be conducted so
as to minimize its impact on neutral employees in
sofar as this can be done without substantial impair
ment of the effectiveness of the picketing in reach
ing the primary employees 28
21 Formerly numbered Sec 8(b)(4)(A)
22 NLRB v Denver Building and Construction Trades Council
(Gould & Preisner) 341 U S 675 692 (1951)
23 Sailors Union of the Pacific (Moore Dry Dock) supra Under
this doctrine to support an inference of primary action (a) the
picketing must be strictly limited to times when the situs of the dis
pute is located on secondary employers premises (b) at the time
of the picketing the primary employer is engaged in his normal
business at the situs (c) the picketing is limited to places reason
ably close to the location of the situs and (d) the picketing dis
closes clearly that the dispute is with the primary employer Since
Moore Dry Dock the Board has extended these standards to pick
eting at the situs of a primary employer where a secondary or neu
tral employer is engaged General Teamster Warehouse and
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dairy Employees Union Local No 126 et al (Ready Mixed Concrete
Inc) 200 NLRB 253 in 5 (1972) to the same effect Retail Fruit
& Vegetable Clerks Union Local 1017 et al (Crystal Palace
Market) 116 NLRB 856 859 (1956)
24 International Brotherhood Electrical Workers Local Union 861
(Plauch Electric Inc) 135 NLRB 250 255 (1962) Northeastern
Washington Northern Idaho Building and Construction Trades Coun
cil et al (Northwestern Construction of Washington Inc) 152 NLRB
975 980 ( 1965) International Union of Operating Engineers Local
Union No 450 AFL-CIO (Linebeck Construction Corporation) 219
NLRB 997 998 (1975) affd 550 F 2d 311 (C A 5 1977)
25 Local 761 International Union of Electrical Radio & Machine
Workers AFL-CIO (General Electric Company) v NLRB 366 U S
667 (1961)
2e Ibid
27 International Union of Operating Engineers Local Union No
450 (Linebeck Construction) supra
28 International Brotherhood of Electrical Workers Local 640
AFL-CIO (Timber Buildings Inc) 176 NLRB 150 151 (1969)
quoting from Retail Fruit & Vegateble Clerks Union Local 1017
(Crystal Palace Market) supra 859 Nashville Building & Construc
tion Trades Council et al (H E Collins Contracting Company Inc)
172 NLRB 1138 1140 (1968) see also Wire Service Guild Local
222 The Newspaper Guild AFL-CIO-CLC (The Miami Herald
Publishing Company) 218 NLRB 1234 1236 (1975)
In more recent cases the Board has uniformly followed
those general principles of law See, e g, Carpenters of
Western Pennsylvania (Bridges & Co), 282 NLRB 422
(1986), Electrical Workers IBEW Local 332 (Lockheed
Missiles), 241 NLRB 674 (1979) In Iron Workers Local
433 (McKee Inc), 233 NLRB 283 (1977), enfd in part
598 F 2d 1154 (9th Cir 1979), the Board and the Ninth
Circuit Court of Appeals found that Iron Workers Local
433 violated Section 8(b)(4)(i)(u)(B) of the Act by its un
lawful picketing at a reserved gate on a construction
project in Iron Workers Local 433 (Oltmans Construc
tion), 272 NLRB 1182 (1984), the Board found that Iron
Workers Local 433 unlawfully involved neutrals in its
dispute with a primary employer through the picketing
of gates reserved for neutrals Finally in Iron Workers
Local 433 (United Steel), 280 NLRB 1325 (1986) the
Board once again found that Iron Workers Local 433
had violated Section 8(b)(4)(i) and (n)(B) of the Act by
picketing at reserved gates That case involved four dif
ferent jobsites in two different States
With these principles of law in mind I turn to the
facts of this case Contrary to Respondents argument at
pages 24-26 of their brief, I find that their activities at
the three construction sites discussed in the facts were
calculated to enmesh neutrals in a labor dispute with the
primary employer See Electrical Worker IBEW Local
302 (ICR Electric), 272 NLRB 920 (1984) 16
Furthermore, I reiterate that both Respondents are re
sponsible for the acts of the pickets in this case Omaha
Building Trades Council (Crossroads Joint Venture) 284
(1987) Avis Rent A Car System, 280 NLRB 580 (1986)
Compare Cedar Rapids Building Trades Council, 283
NLRB 1155 (1987) The Board has stated that where a
union authorizes a picket line, it is required to retain con
trol over the picketing If a union is unwilling or unable
to take the necessary steps to control its pickets it must
18 I assume for the sake of argument that Respondents may have had
one or more lawful objectives as well If one of the objects of picketing
is unlawful it is immaterial that Respondents also intended to secure a
collective bargaining agreement Electrical Workers IBEW Local 3 (Bi
santz Electric) 192 NLRB 283 287 (1971)
bear the responsibility for their misconduct' Iron Work
ers Local 455 (Stokvis Corp), 243 NLRB 340 (1979) Here
the evidence shows not merely a failure to keep control
but an affirmative direction of the picket s unlawful ac
tivities Note some examples (1) Worley's statements to
Thomas on 9 June that Respondents would not permit
large general contractors like Hoffman to sub nonunion,
(2) Kealey s statement to Thomas on 23 June that Kealey
did not care if Hoffman hires ironworkers, he just
wanted to tie Hoffman to the subcontracting clause, (3)
Kealey's delivery of picket signs on 18 August at the
Performing Arts Center, (4) Kealey's explicit disavowal
of the settlement agreement on 18 August by characteriz
mg it as not meaning anything and his implicit disavowal
of the court s injunction by aiding and abetting the pick
ets to resume picketing, (5) Kealey s involvement in
signal picketing on 18 August at One Financial Center,
(6) Kealey falsely representing on the same day and at
the same place that the strike was sanctioned, (7) Wor
ley s statements to Hutchison on 20 August that the only
way for Hoffman to resolve the matter of illegal pickets
was to sign the labor agreement (G C Exh 7(b)) [con
taining an unlawful subcontracting clause] and to join the
Northwest Iron Workers Employers Association, and
(8) Worley's additional statement to Hutchison on the
same day, after being told that Hoffman would not agree
to the labor agreement If Hoffman wanted their jobs to
remain shut down for 10 days while he was on vacation
that s up to them
(a) Failure of picket signs to disclose that the dispute
was with Hoffman Construction the primary employer
As the facts reflect, and the various photographic ex
hibits clearly show during the July phase of the picket
ing the various signs did not indicate that the labor dis
pute was with Hoffman Construction This violation of a
Moore Dry Dock standard raises a presumption of illegal
intent which Respondents offered no evidence to rebut
Plumbers Local 274 267 NLRB 1111 1114 (1983) For
the above reason I find that Respondents violated Sec
tion 8(b)(4)(B)
(b) Failure to confine picketing to primary gate
In the facts section of this decision I have recited for
the three construction projects the establishment on or
about 30 June of a reserved gate system Accompanying
diagrams of the sites reflect exactly where the gates are
located Later second neutral gates were also estab
lished
There is uncontradicted evidence that picketing oc
cured at neutral gates on all three projects and I find
that Respondents were responsible Before elaborating
briefly I should stress two facts First, because Charging
Party had no ironworkers or other unionized employees
on any of the three projects and because there was little
or no construction material delivered to the Charging
Party, lawful picketing would have been an exercise in
futility Work would have continued as before It was
only by unlawfully extending the picketing to the neu
trals could Respondents have made an impact, by induc
ing the employees of the subcontractors to cease work
IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION)
ing 17 This strategy is best illustrated by reference to the
30 August telephone conversation between Worley and
Hutchison in which the former said, If Hoffman wanted
their jobs to remain shut down for 10 days while he was
on vacation, that's up to them " Hoffman s offense? It re
fused to accede to Worley s demand that it agree to a
collective bargaining agreement containing a clause that
I have found above violated Section 8(e) of the Act
The second fact to be emphasized is that while Hoff
man had no union employees, all of the subcontractor
employees on all three projects were unionized and sig
natory to collective bargaining agreements As such,
they were required to observe all sanctioned strikes and
picket lines
On the basis of uncontradicted testimony, job diaries,
and photographs, I have found in the facts that iron
workers picketed 18 the neutral gate at the Performing
Arts Center (G C Exhs 10, 43, 44, 45, and 47), at One
Financial Center (G C Exhs 12, 20(a) and (b), and 21(a)
and (b)), and at Good Samaritan Hospital (G C Exhs 53
and 55)
To all of the direct evidence marshaled above, I add
an inference on which I also rely
Respondents picketing of the neutral gate at a time
when a common situs had been established and sub
contractors were scheduled to work supports an in
ference that the later failure of the two subcontrac
tors to appear and continue their work was due to
Respondents picketing at the neutral gate
Carpenters Local 1622, 262 NLRB 1211 (1982)
In attempting to fend off the inevitable, Respondents
raise certain arguments that are devoid of merit First,
Respondents argue that the reserve gate system on the
three projects was invalid because it prevented Respond
ents from conveying their message to the general public
and to the personnel and suppliers to the jobsite Citing
Southern Sun Electric 237 NLRB 829 (1978) Respond
ents attack particularly the Hoffman gate at One Finan
cial Center I find nothing in the location of the primary
gate there or at either of the other two projects to assist
Respondents In Carpenters Local 354 (Sharp & Tatro),
268 NLRB 382 (1983) the Board affirmed the decision
of the administrative law judge in which he observed
nothing in the Board s Southern Sun Decison requires
reserved primary gate placements calculated to maxi
mize a pickets chance to reach members of the public
with his organizations message That decision merely
proscribes gate placements which would substantially
and unjustly impair the effectiveness of picketing-
conducted in conformity with Moore Dry Dock's stand
ards-in reaching a primary emplooyer s personnel, sup
pliers, visitors and the general public
Similarly, the Electrical Workers IBEW (Pond Electric),
269 NLRB 274 (1984) the Board stated, Southern Sun
17 See Operating Engineers Local 12 (Hensel Phelps) 284 NLRB 246
(1987)
18 Traditional forms of picketing are not required for a finding that
picketing in fact occured Groups of men gathered around a sign consti
Lute a signal to the employees of secondary and neutral employers
Plumbers Local 274 supra 267 NLRB at 1114
583
Electric does not hold that a primary reserved gate on a
public road is established improperly simply becuase
there is little traffic by the general public at the primary
reserved gate In distinguishing the two cases, the
Board observed
[I]n Southern Sun, the gate sign for neutrals was
placed about a halfway between two entrances to
the construction site, the reserved gate sign for the
primary was located near a third entrance on a pri
vate alley which, although owned by the general
contractor, could not be distinguished visually from
the private parking lot of the adjacent store build
ing Furthermore, the reserved gate sign was barely
visible from a public right of way
In the instant case the primary reserved gate was clearly
marked and maintained, and thus the respondent union
was able to convey its message directly to the primary
employer and its employees, visitors, suppliers, and the
general public
The Board also considered and rejected similar argu
ments in Electrical Workers IBEW Local 323 (Renel Con
struction), 264 NLRB 623 (1982), and Electrical Workers
IBEW Local 903 (Hinton Contractors), 230 NLRB 1017
(1977) In Renel Construction the Board noted that al
though the primary gate was not located on a main road
the record did not indicated that the public's use of the
road was restricted in any way or that respondent could
not communicate to the public at that location In
Hinton, although the public had access to the reserved
gate it was not generally used by the public Neverthe
less the Board affirmed a finding of a violation notwith
standing that the reserved gate location was less accessi
ble to the public than the location of the picketing on the
public road
In the present case there was no confusion as to the
location of any primary reserved gate They were clearly
marked and Respondents were able to convey their mes
sage directly to the primary employers visitors, and sup
pliers I find that the location of the gates did not unrea
sonably deny Respondents the opportunity to convey its
message to the public Next Respondents contend that
no proper reserved gate system was established and
maintained at the three jobsites More specifically, Re
spondents assert that Nelson Construction Co is an inte
gral part of the Charging Party Therefore its use of the
neutral gate tainted the entire system
To resolve this question I first turn to the record on
cross examination Cecil Drinkward, president of Hoff
man Construction of Oregon, testified as follows
Q Do you own an interest in Nelson Construc
tion as well?
A Not personally
Q Well in some direct fashion do you?
A Yes
Q And what is that fashion?
A Hoffman Corporation has an interest in
Nelson
Q Majority interest?
A Yes
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. Sole interest?
A. No.
Q. What percent?
A. Eighty.
Q. Eighty percent. And Nelson Construction and
Hoffman of Oregon have the same labor relations
managers, isn't that true?
A. No.
Q. Oh, isn't that Mr. Hutchison?
A. No. Mr. Hutchison. is labor relations for
Nelson. Mr. Thomas is for Oregon.
Q. And is Mr. Hutchison also labor relations for
Hoffman of Washington?
A. No.
Q. Is he labor relations for Hoffman of Alaska?
A. Yes.
Q. I'm sorry. I'm confused. I hope I didn't con-
fuse you. [R. pp. 1079-1080.]
To this, I add the relevant testimony of Hutchison:
Q. You do labor relations for Hoffman of Wash-
ington and Hoffman of Alaska?
A. I do of Hoffman of Alaska. I'm assigned Hoff-
man of Alaska, Hoffman Mechanical Corporation,
and Nelson Concrete.
Q. I won't touch that one yet, except to ask,
Nelson Concrete is owned by Hoffman Construc-
tion Company?
A. Partially, yes.
Q. In connection with the dispute at issue here,
was Nelson a subcontractor on these jobs?
A. I believe they were sub on one of them.
Q. Which one do you believe?
A. I believe they were sub on the-no, two of
them. On Good Samaritan Hospital and on the Per-
forming Arts Center.
Q. And who owns Nelson?
A. Nelson, I believe-they're a separate corpora-
tion completely.
Q. Who owns them?
A. They're self-owned. Dave Nelson is the presi-
dent.
Q. And you do the labor relations for Nelson?
A. Yes.
Q. And who pays you for doing the labor rela-
tions for Nelson?
A. Nelson.
Q. So you have more than one employer?
A. Technically I do, yes.
Q. Do you get more than one pay check?
A. Yes [R. pp. 924-925.]
It is well established that a secondary employer is not
a "neutral" entitled to the protection of the Act if the
primary and secondary are so closely integrated that
they in essence constitute a single employer. Teamsters
Local 639 (Poole's Warehousing), 158 NLRB 1281 (1966);
Newspaper & Mail Deliverers (Gannett Co.), 271 NLRB 60
(1984). In determining whether a joint employer relation-
ship exists, the Board looks to the existence of four fac-
tors: (1) common ownership; (2) common management;
(3) centralized control of labor relations; and (4) interre-
lationship of operations. Gannett Co., supra.
Assuming without finding that the Charging Party and
Nelson Construction Co. have common ownership and
management, there is no credible evidence of centralized
control of labor relations nor interrelationship of oper-
ations. Accordingly, I find no pollution of the reserved
gate system on that basis. Los Angeles Newspaper Guild
Local 69 (Hearst Corp.), 185 NLRB 303, 304-305 (1970),
enfd. 443 F.2d 1173 (9th Cir. 1971), cert. denied 404 U.S.
1018 (1972).
Respondents also claim that on at least one site,
Nelson was an ally of the Charging Party. That is, it per-
formed work of Hoffman which would otherwise have
been done by the ironworkers. NLRB v. Electrical Work-
ers UE (Royal Typewriter), 228 F.2d 553 (2d Cir. 1955),
cert. denied 351 U.S. 962 (1956). There is no showing
that Nelson is allied with Hoffman for that or any other
reason. Miami Pressman's Local v. NLRB (Knight News-
papers), 322 F.2d 405 (D.C. Cir. 1963). See also Sacra-
mento Carpenters (Malek Construction), 244 NLRB 890
(1979).
I find that Respondents are responsible for the picket-
ing at the neutral gates done for the purpose of inducing
neutral employees to cease working and constituted co-
ercion and restraint in violation of Section 8(b)(4)(i) and
(ii)(B) of the Act.
(c) Distribution of pamphlets as unlawful inducement
In addition to picketing, ironworkers also passed out
pamphlets to witness Jeannis and others (G.C. Exhs. 19,
60, and 61). The content of these documents has been re-
cited in the facts. Respondents were responsible for these
incidents. Under the circumstances presented, the distri-
bution of the pamphlets to Jeannis and others violated
Section 8(b)(4)(B) of the Act as their purpose was to
induce neutral employees to cease work. See Electrical
Workers IBEW Local Union 684, 246 NLRB 549, 556
(1979). Broadcast Employees NABET Local 31 (CBS Inc.),
237 NLRB 1370 (1978).
(d) Oral statements to neutral employees as unlawful
inducement
The statements made to Jeannis also violated Section
8(b)(4)(i)(B) of the Act. See Laborers Local 304, 282
NLRB 100 (1986). Thus as he sought to report for work,
the ironworker pickets told him that their union support-
ed his union; then they distributed a pamphlet to him
(G.C. Exh. 19).
Later in the day while he was working, Jeannis heard
pickets yelling at him asking why he was working when
he knew a strike was in progress. Still later, two iron-
workers met Jeannis in a trailer used by Ace Electric
and asked him if he knew that the electricians' union
agreed with their union in support of their strike. These
remarks to Jeannis are reasonably interpreted as a re-
quest to engage in a work stoppage against his employer.
Each of them therefore constituted inducement or en-
couragement within Section 8(b)(4). Laborers Local 304,
supra.
IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION)
(e) Printed and oral representations that strike was
sanctioned as unlawful inducement
Finally I find Respondents violated Section 8(b)(4)(i)
and (ii)(B) by oral and written representations that the
strike was sanctioned
I agree fully with the Charging Party (Br 96-97) that
the printed and oral representations made to neutral em
ployees of subcontractors were additional separate viola
tions of Section 8(b)(4)(B) of the Act To support these
conclusions, I turn to Los Angeles Building Trades Coun
cil (Sierra South), 215 NLRB 288 290 (1974), in which
the Board stated the following
The Supreme Court first interpreted the scope of
the words to induce or encourage in International
Brotherhood of Electrical Workers Local 501 et al
(Samuel Langer) v NLRB, 341 US 694 (1951) In
that case, in the context of finding peaceful picket
ing to be a form of inducement or encouragement
proscribed by Section 8(b)(4) where it had second
ary object the Court stated
The words induce or encourage are broad
enough to include in them every form of influ
ence and persuasion [p 701]
Since then, the Board has repeatedly found un
lawful any statements which agents of a union make
directly to the employees of a secondary employer
if such statements would reasonably be understood
by the employees as a signal or request to engage in
a work stoppage against their own employer
In Great Falls Building and Construction Trades
Council et al (Purvis Fedco Inc) 154 NLRB 1637
at 1644 (1965) the Board found unlawful induce
ment in a union agent s statement to a neutral em
ployee that the local building trades council au
thorized certain picketing The Board there equat
ed the affect of calling picketing authorized to
that of terming the primary unfair as in District
Council of Painters #48 supra
Accordingly as found in the facts above printed signs
either carried by or in the immediate vicinity of pickets
at the three construction projects which read Sanc
tioned by Columbia Pacific Building & Construction
Trades Council violated the Act In addition oral state
ments to the same effect, made by Kealey on 18 August
at One Financial Center and by pickets at Good Samari
tan Hospital during the June picketing similarly violated
the Act
CONCLUSIONS OF LAW
1 Hoffman Construction Company of Oregon is an
employer engaged in commerce within the meaning of
Section 2(2) (6) and (7) of the Act
2 Ironworkers District Council of the Pacific North
west and Local Union No 29 of the International Asso
ciation of Bridge Structural and Ornamental Iron Work
ers are labor organizations within the meaning of Section
2(5) of the Act
585
3 Deferral is not appropriate to resolve the issues in
this case
4 The General Counsel is not estopped from amend
ing the complaint to add two new allegations
5 By picketing and otherwise attempting to coerce
Hoffman Construction Company of Oregon into agreeing
to a labor agreement containing a clause violating Sec
tion 8(e) of the Act, Respondents violated Section
8(b)(4)(A) of the Act
6 By picketing with signs failing to disclose the mane
of the primary employer, Respondents violated Section
8(b)(4)(B) of the Act
7 By picketing at gates reserved for neutrals at the
Performing Acts Center One Financial Center and
Good Samaritan Hospital Respondents violated Section
8(b)(4)(i) and (ii)(B) of the Act
8 By distributing pamphlets at the three projects re
ferred to above for the purpose of inducing neutral em
ployees to cease work Respondents violated Section
8(b)(4)(B) of the Act
9 By telling neutral employees that their union sup
ported the ironworkers union by telling neutral employ
ees they were working when a strike was in progress,
and by making similar statements for the purpose of in
ducing neutral employees to cease work, Respondents
violated Section 8(b)(4)(i)(B) of the Act
10 By falsely telling neutral employees that a strike
and picketing was sanctioned by Columbia Building and
Construction Trades Council and by using picket signs
printed with a similar legend, Respondents violated Sec
tion 8(b)(4)(i) and (ii)(B) of the Act
I I The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act
12 Other than specifically found Respondents com
mitted no other unfair labor practices 19
THE REMEDY
Having found that Ironworkers District Council of the
Pacific Northwest and Local Union No 29 of the Inter
national Association of Bridge Structural and Ornamen
tai Iron Workers have engaged in unfair labor practices
within the meaning of Section 8(b)(4)(A) and 8(b)(4)(i)
and (ii)(B) of the Act I recommend that they be ordered
to cease and desist and take certain affirmative actions
designed to effectuate the policies of the Act
In Administrative Law Judge s Exhibit 3 page 1 para
graph 3 the General Counsel specifically disclaims an in
terest in a broad remedial order This disclaimer is not
binding on me Cf All Massera 97 NLRB 712 714
(1952) In Hickmott Foods 242 NLRB 1357 (1979) the
Board established alternative conditions as a basis for a
broad order When the respondent has shown a proclivi
ty to violate the Act, or has engaged in such egregious
or widespread misconduct as to demonstrate a genera]
disregard for fundamental statutory rights In rec
ommending a broad order to the Board I find sufficient
evidence to support both conditions in this case howev
19 1 will recommend to the Board that all allegations regarding picket
mg of Hoffman Columbia Plaza be dismissed as I find no legal basis to
sustain these charges
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
er there is overwhelming evidence to show egregrious
and widespread misconduct so as to qualify particularly
under the second prong of Hickmott See Service Employ
ees Local 77 (Thrust IV), 264 NLRB 628, 629 (1982)
Compare Iron Workers Local 118, 285 NLRB (1987) and
Operating Engineers Local 12, 284 NLRB 246 (1987)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed20
ORDER
The Respondents, Ironworkers District Council of the
Pacific Northwest and Local Union No 29 of the Inter
national Association of Bridge Structural and Ornamen
tal Iron Workers, their officers, agents and representa
tives, shall
1 Cease and desist from
(a) Picketing or signal picketing at or near entrances to
construction jobsites, to coerce Hoffman Construction
Company of Oregon into agreeing to a labor agreement
containing a clause violating Section 8 (e) of the Act
(b) Picketing or signal picketing at or near entrances
to construction jobsites with signs failing to disclose the
name of Hoffman Construction Company of Oregon as a
primary employer with whom Respondents are engaged
in a labor dispute
(c) Picketing or signal picketing distributing pam
phlets, making oral statements to emplpoyees of neutrals
or falsely telling neutral employees that a strike was
sanctioned, at construction site gates reserved for neu
trals or in any other manner threatening coercing or
restraining Hoffman Construction Company of Oregon,
any of its subcontractors, 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 or any other person
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its business office and meeting halls copies
of the attached notice marked Appendix 21 Copies of
the notice, on forms provided by the Regional Director
for Region 19, after being signed by the Respondent s
authorized representative, shall be posted by the Re
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily posted
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov
ered by any other material
(b) Furnish the Regional Director with signed copies
of the notice for posting by Hoffman Construction Com
pany of Oregon and its subcontractors on the Performing
Acts Center, One Financial Center, and the Good Sa
maritan Hospital projects, if those companies are willing
to post them
(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
2 0 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
21 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
