JC Two, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 4, 2007

04-CC-002484 (N.L.R.B. Sep. 4, 2007)

JD–60–07
Cherry Hill, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DISTRICT COUNCIL 711, INTERNATIONAL
UNION OF PAINTERS AND ALLIED
TRADES, AFL–CIO (JC TWO, INC.)
and Case 4–CC–2484
COSTANZA BUILDERS OF NEW JERSEY, INC.
Bruce G. Conley, Esq., for the General Counsel.
Robert F. O’Brien, Esq. (O’Brien, Belland & Bushinsky, LLC), of Northfield,
New Jersey, for the Respondent.
Marc Furman, Esq. (Cohen, Seglias, Pallas, Greenhall & Furman, PC), of
Philadelphia, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was tried in Philadelphia,
Pennsylvania, on April 10, 2007. On January 26, 2007, the Regional Director for
Region 4 of the National Labor Relations Board (Board) issued a complaint1 and notice
of hearing based on an unfair labor practice charge filed on December 22, 2006.2 The
complaint alleges that District Council 711, International Union of Painters and Allied
Trades, AFL–CIO (Respondent or Union) violated Section 8(b)(4)(i)(ii)(B) of the National
Labor Relations Act (the Act) by engaging in conduct having the object of forcing or
requiring Costanza Builders of New Jersey (Costanza or Charging Party) to cease doing
business with JC Two, Inc., a nonunion company with which the Union has a labor
dispute. At the hearing the Respondent amended its answer to admit the complaint
allegations in paragraphs 2(d), (f), and 4(b), and it agreed to delete its request for fees
and costs.
On the entire record, including my observation of the demeanor of the witnesses,
as well as my credibility determinations based on the weight of the respective evidence,
established or admitted facts, inherent probabilities, and reasonable inferences drawn

1 The complaint refers to certain dates in calendar year 2007. The General Counsel
requests the year be corrected as 2006 in each instance. The unopposed request is
granted.
2 All dates are in 2006, unless otherwise indicated.
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from the record as a whole and, after considering the briefs filed by the counsel for the
General Counsel,3 the Respondent, and the Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
Costanza, a New Jersey corporation with offices in Cherry Hill, New Jersey, has
at all material times been engaged as a construction manager in the construction
industry. During the year preceding the date of the complaint, Costanza in conducting
its business operations performed services valued in excess of $50,000 outside the
State of New Jersey. JC Two, Inc., a New Jersey corporation with an office in
Voorhees, New Jersey, has at all material times been engaged as a commercial
painting contractor. During the year preceding the date of the complaint, JC Two in
conducting its business operations received in excess of $50,000 from Costanza for
painting services. The Respondent admits and I find that Costanza and JC Two are
each employers engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Costanza is the construction manager for the construction of condominium and
retail units on the Lumberyards project in Collingswood, New Jersey.4 JC Two has
been contracted by Costanza to perform painting services at the jobsite. The jobsite is
approximately two city blocks by one city block in size. Haddon Avenue borders its
north side, Collins Avenue the east, Night Avenue the west, and a high-speed line the
south side. During the relevant period, Michael Lee was the Charging Party’s vice
president of Construction and Christopher Eattock was the project manager. Gregory
Fray was the construction manager on the site, and he was responsible for the daily
operations at the site. The Charging Party employed union and nonunion contractors
on the site.
B. Events of December 19 and Establishment of the Reserve Gate System
During the morning of December 19, Edward McDonald, an organizer for the
Respondent, and Michael Kisielewski, the Respondent’s business agent, arrived at
Eattock’s construction trailer on the site and introduced themselves to Eattock as
representatives of the Union. McDonald did not testify about this conversation with

3 The General Counsel notes that “Local 274” is mistakenly appended to “Costanza”
in the transcript caption. His request that “Local 274” be deleted from the caption of the
official record is granted.
4 All locations are in New Jersey.
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Eattock, and Kisielewski did not testify, hence the following is based on Eattock’s
credited and undisputed testimony. The men said that they were interested in the
painting and drywall work and mentioned JC Two and Pentel Enterprises (Pentel was a
nonunion contractor that was hired to do the drywall). The men expressed their belief
that the project was closed to union contractors. Eattock disabused them of that belief,
and directed them to contact the corporate office. The men went to the Collingswood
mayor’s office “to discuss the project.” When they returned they told Eattock that they
were going to picket the jobsite the next day and left.
About this same time Fray saw them on the site. He knew them to be union
representatives and asked what they wanted. They mentioned that JC Two was
nonunion and that they wanted a union painter on the job or they were going to picket.
Fray said he would check with his subcontractors. Fray recalled nothing else about this
conversation.
McDonald admitted threatening to picket. McDonald stated as Fray was saying
that he would speak with his subcontractors, a woman walked by and interjected “that
there won’t be no union painters brought onto this job or whatever.” McDonald
identified her as the owner of JC Two. McDonald also stated that he, Kisielewski, and
Fray talked about JC Two not paying scale, “they’re a lower scale than we are.”
McDonald claims to have told Fray that JC Two was a mom and pop company.
In response to the Union’s threat to picket Lee told Eattock to establish a reserve
gate system and to prepare letters to fax to the Respondent, as well as all the
contractors and the unions working on the site. The establishment of a reserve gate
system was not unknown to the Charging Party, one had previously been established
on the site, but after a period of time it was no longer maintained.
Eattock prepared two signs: one listing the union contractors (to be placed at the
Haddon Avenue gate, gate A) and another listing the nonunion contractors (to be placed
at the Collins Avenue gate, gate B. Eattock created a sign listing the union contractors
in 2-inch lettering. He attached this sign listing all union contractors to a larger yellow
sign.
The larger yellow sign, approximately four square feet, gave instructions for
entering gate A with the names of the union contractors attached at the bottom:
GATE “A”
THIS ENTRANCE IS
RESERVED FOR ANY
PERSON(S) HAVING
BUSINESS WITH / OR
DELIVERIES FOR
THE FOLLOWING
CONTRACTORS
• C.J. Mech • Schindler Elev.
• Nelson Cooney
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• Majek Fire Prot.
• A.M.I. Constr.
ALL OTHERS USE GATE “B”
(GC Exh. 5.)
Eattock prepared another sign listing the nonunion contractors, again in 2-inch lettering:
• Pentel • Coffey Bro. • AFA
• JC Two • Frontier • A+
• RNR • East Coast
• Crea • Mid-Atlantic
• Becksted • TJ’S
• Bryant • TC’S
(GC Exh. 6.)
He similarly attached this sign listing all nonunion contractors to another yellow 4-foot-
by-4-foot sign. This larger sign contained language identical to the yellow sign used at
gate A, only replacing “gate A” with “gate B.”
Eattock told Fray to post the sign listing the union contractors at gate A (Haddon
Avenue) and the sign listing the nonunion contractors at gate B (Collins Avenue). Fray
testified that he installed the signs at gates A (union contractors) and B (nonunion
contractors) on December 19 or 20. Although Lee and Fray believe that Fray posted
the signs at the proper gates on December 20, they and Eattock aver that the signs
were in place before they arrived at the site during the morning hours of December 21.
General Counsel Exhibit 7 is a photograph of the gate A sign at the Haddon Avenue
entrance. A security guard was also stationed at each gate. The guard at gate A was
ordered to only allow union contractors to enter. The guard may be seen at the far right
of General Counsel Exhibit 7(b), (Tr. 92).
On December 20 at 7:29 p.m. the Charging Party faxed a letter to
Kisielewski at the Respondent’s office in Glassboro. (GC Exh. 2.) The letter
announced the establishment of the reserve gate system and specifically identifies the
actions taken by the Charging Party. McDonald denies receiving the fax. The Charging
Party faxed a similar letter to Cooney Electric, a union contractor on December 20 at
7:32 p.m. (GC Exh. 4.)
C. The Picketing on December 21
Fray testified that he arrived at gate A between 6:30 and 6:45 a.m. on December
21. Fray testified that the signs at both gates were up because he had attached both
signs the previous day. He noticed two people at the gate who were unknown to him
and who he assumed they were pickets because of where they were standing. The
security guard was at his post and the gate was closed. At approximately 7 a.m. Fray
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observed that the two men had picket signs and that McDonald had arrived. Fray told
McDonald that the pickets were at gate A and that they would have to move to gate B,
the gate for the nonunion contractors, located on Collins Avenue. Fray testified that
McDonald replied that “they were going to stay there and we would have to do what,
you know, whatever we had to do to get them off there.”
Fray testified that he had given the guard at gate A a list of the contractors who
were permitted to use the gate A. He also testified that during his periodic inspections
of gate A he observed the guard properly performing his duties. Fray further testified
that he never saw any improper use of the gate by anyone, including JC Two
employees. He testified that no one, including McDonald, either picket, or the guard,
informed him of any improper use of gate A by any contractor, including JC Two.
Lee arrived on site at approximately 6:45 a.m., as he drove past gate B he
observed two pickets. When he arrived at gate A he observed one picket who was an
older man with gray hair. His description matches that of Frederick Macombe, who is
the picket standing furthest to the right in General Counsel Exhibit 7(a). As he drove
past the picket he told him that he was at the wrong gate. The picket told Lee that he
would have to speak to his supervisor who would be arriving soon. Shortly before 7
a.m. Lee saw McDonald standing next to the two pickets. The pickets had sandwich
board signs hung from their necks with “JC Two Painting unfair, does not meet area
standards established by Painters DC #711,” with the union logo beneath the writing.
Lee testified that he informed McDonald that a reserve gate system had been
established and that the Respondent was picketing the wrong gate. Lee testified that
McDonald indicated that he was aware that the pickets were at the wrong gate but he
told Lee “You’ll have to do what you have to do.” Lee took pictures of McDonald and
the pickets standing next to the sign at gate A. (GC Exh. 7.)
Lee spent 3 or 4 hours on the site during which time he was told by the operator
for Schindler Elevator, the union elevator contractor, that he would have to leave and
remain off the site as long as the picket line was up. He also spoke with other
contractors, including JC Two, to ensure that they understood the reserve gate system.
While on the site Lee did not witness any infractions of the reserve gate system, nor
were any reported to him.
Eattock testified that he was on the site from about 8 a.m. until 1 p.m. on
December 21. When he arrived he saw two pickets standing and walking in front of
gate A, wearing sandwich board signs. Eattock’s office is adjacent to gate A and he did
not observe any irregularities at gate A, nor were any reported. He testified that only 4
of the 35–40 unionized employees scheduled to work on December 21, actually worked.
McDonald testified that when he arrived at gate A on December 21, he met
Macombe, the picket line captain. The time was between 6 and 6:15 a.m. He claims
that there was no sign posted at gate A. McDonald met with the four union members
and assigned two of them to picket each gate. McDonald estimates that the gate A sign
was posted between 6:45 and 7 a.m. He admits that he read the sign and confirms that
JC Two was not written on the sign. (Tr. 138–140.) He also states that the picture of
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him and the two pickets standing next to the gate A sign was taken between 6:30 and
6:45 a.m. (Tr. 153). On cross-examination McDonald states that Lee took the pictures,
and that they were taken before he and Lee spoke (Tr. 157). McDonald’s statement on
cross-examination contradicts what he said on direct examination. He stated on direct
that Lee drove up to gate A between 7 and 7:30 a.m. and that he was barely out of his
car when he was screaming at McDonald that “he’s not going to put up with this shit,”
and that “I’ll fix this.” (Tr. 148.) His testimony is further muddled by his
acknowledgment that Lee was approaching as he spoke to McDonald (Tr. 158) but that
he does not recall if the sign, which he admits he was standing next to in the pictures
(GC Exh. 7), was posted. He claims that his recollection is impaired because Lee was
screaming at him. (Tr. 158, 162.) I note that no one was screaming at him when he
testified that it was Lee who took the pictures and that he did so before they spoke.
McDonald said that Lee stated that “we don’t have no right to be here, to be on
the picket, to put this line here.” To which McDonald replied, “we do” and “do what you
got to do,” after which Lee went to his office. A few minutes later five police cars arrived
and the police spoke to McDonald. When testifying about his conversation with the
police McDonald confirmed the testimony of the Charging Party’s witnesses’ that a
guard was on duty at gate A (the guard can be seen at the far right of General Counsel
Exhibit 7(b)) and that gate A was locked. When asked by the Respondent’s attorney
the amount of time he spent at the site that morning McDonald said “I had a luncheon
and I was out of there by 11:30” (Tr. 140). His office lunch was scheduled to begin at
11:30 a.m. in Atlantic City. Accordingly, he had to leave earlier than 11:30 a.m. In
response to the question did he leave any instructions for the pickets, he says that he
told Macombe that “if anything changes I’ll call you.” McDonald claims that it was at the
lunch that he learned, for the first time, of the Charging Party’s letter outlining the
reserve gate system.
Macombe is a retired union member who claims to have been on hundreds of
picket lines. He testified that he arrived at gate A some time before 6:30 a.m. on
December 21. Macombe said that he was certain that there was no sign on the gate.
Macombe said that he took notes during the picketing, but that he did not need
his recollection refreshed because “there wasn’t much happening on the first day.
Nevertheless, he was given his notes and he identified them as his recopied notes of
“what went on the first day we were there” (R. Exh. 1). His notes indicate that the picket
line went up at 6:30 a.m. At 6:45 a.m. about 35 union trades men refused to cross the
picket line. At 7:30 a.m. four painters crossed the line. At 8:45 a.m. all union trades left
the site. The line came down at 2:30 p.m.
Regarding the four painters Macombe stated that it was an employee of a union
contractor that alerted him to the men who were wearing “painter whites” and were
accompanied by a female, as they walked by. The individual identified the female as
the owner of the company. Macombe looked over and saw the painters passing
through the gate. Although Macombe stated that McDonald left the site at about 11:30
there is no evidence that he told McDonald that he saw the painters entering through
gate A.
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Macombe initially stated that he was not asked to leave or move while he was
picketing. On cross-examination he stated that he did not remember (Tr. 128). He also
stated that he did not remember Lee either speaking to him or talking to McDonald.
Macombe avers that he did not see the sign at gate A and he reaffirms his denial after
being shown the picture of himself, McDonald, and Cobella, the other gate A picket.
Macombe denies knowing Cobella’s name. Macombe does remember McDonald telling
him to take the line down at 2:30 p.m. and that the line is down until after the holidays.
D. The Picketing on December 22
Fray testified that when he arrived at 6:45 a.m. on December 22 the picket line
was setup. He testified that the picketing began at around 6:45 a.m. with two pickets at
each gate. Fray testified that the only person he recognized was McDonald. Eattock
testified that he arrived around 8 a.m. and saw the same picket at gate A as the day
before. Both Fray and Eattock further testified that no union contractors worked on
December 22, except for A.M.I. Construction. Fray testified that the picketing concluded
at about noon.
McDonald denies being at the site on December 22. He admits that he is
responsible for establishing picket lines and he denies that there was any picket line on
the site on December 22.
III. LEGAL PRINCIPLES
[W]here a union makes an unqualified threat to a neutral general contractor to
picket a jobsite where an offending primary employer would be working, and has
reason to believe that persons other than the primary would be at work on the
site, it has an affirmative obligation to qualify its threat by clearly indicating that
the picketing would conform to Moore Dry Dock standards or otherwise be in
uniformity with Board law.
Teamsters Local 456 (Peckham Materials), 307 NLRB 612, 619 (1992) (citations
omitted).
The Act draws a distinction between picketing directed at a primary employer—
an employer with whom the union has a labor dispute—and picketing directed at neutral
or secondary employers who have no dispute with the union in order to force those
employers to stop doing business with the primary employer. Section 8(b)(4)(ii)(B)
“makes it unlawful for a labor organization or its agents to threaten, coerce, or restrain
any person engaged in commerce or in an industry affecting commerce, where an
object thereof is forcing or requiring any person to cease doing business with any other
person.” Teamsters Local 122 (August A. Busch & Co.), 334 NLRB 1190, 1191 fn. 6
(2001), enfd. 2003 WL 880990 (D.C. Cir. 2003) (quoting Mine Workers (New Beckley
Mining), 304 NLRB 71, 72 fn. 11 (1991), enfd. 977 F.2d 1470 (D.C. Cir. 1992)). In order
for the picketing to be unlawful, the secondary object need only be “an object”—not the
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sole object—of the picketing. Denver Building Trades Council v. NLRB, 341 U.S. 675,
689 (1951).
The picketing here occurred on a construction jobsite, that was jointly occupied by the
primary employer, JC Two, and by neutral employers, including Constanza. When
analyzing union picketing at a “common situs,” the Board must give effect to the “dual
congressional objectives of preserving the right of labor organizations to bring pressure
to bear on offending employers in primary labor disputes and of shielding unoffending
employers and others from pressures in controversies not their own.” Denver Building,
supra at 692. To accommodate these often conflicting objectives, the Board
established the following guidelines to help determine whether picketing at the common
situs is lawful primary picketing or picketing with a proscribed secondary object:
[P]icketing . . . is primary if it meets the following conditions: (a) The picketing is strictly
limited to times when the situs of dispute is located on the secondary employer’s
premises; (b) at the time of the picketing the primary employer is engaged in its normal
business at the situs; (c) the picketing is limited to places reasonably close to the
location of the situs; and (d) the picketing discloses clearly that the dispute is with the
primary employer.
Sailors’ Union of the Pacific (Moore Dry Dock), 92 NLRB 547, 549 (1950). Although failure
to comply with one or more of the Moore Dry Dock standards does not constitute a per se
violation of the Act, it creates a strong but rebuttable presumption that the picketing had an
unlawful secondary object. See Electrical Workers Local 332 (W.S.B. Electric), 269 NLRB
417, 421 (1984); accord: Electrical Workers Local 970 (Interox America), 306 NLRB 54, 58
(1992).
The Supreme Court has approved the use of the reserve gate system as a
means to isolate the situs of a dispute on a common worksite. See Electrical Workers
Local 761 v. NLRB, 366 U.S. 667 (1961). Under a reserve gate system, one entrance
or gate is reserved for the exclusive use of the primary employer and its employees,
suppliers, and customers, and the other gates are reserved for the exclusive use of
neutral employers and their employees, suppliers, and customers. The purpose of the
separate gate “is to permit lawful picketing that will be conducted so ‘as to minimize its
impact on neutral employees insofar as this can be done without substantial impairment
of the effectiveness of the picketing in reaching the primary employees.’” NABET, Local
31 (CBS, Inc.), 237 NLRB 1370, 1375 (1978), enfd. 631 F.2d 944 (D.C. Cir. 1980)
(overruled in part on other grounds United Scenic Artists Local 829 (Theatre
Techniques, Inc.), 267 NLRB 858 (1983) (quoting Electrical Workers Local 640 (Timber
Buildings, Inc.), 176 NLRB 150 (1969)). Use of a neutral gate by employees, suppliers,
or other invitees of the primary employer may compromise the integrity of the gate,
“which would result in destroying its immunity from primary picketing.” CBS, supra at
1375. “[O]ne or two such violations are insufficient to destroy the reserved gate
system.” Iron Workers Local 378 (McDevitt & Street), 298 NLRB 955, 959 (1991). “If
the integrity of a reserved gate system has been maintained, and the primary employer
or their employees or suppliers have not used or attempted to use one of the neutral
gates, then picketing of the primary employer must be confined to the area reasonably
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close to the reserved primary gate, and cannot be conducted at the neutral gates.”
Interox America, supra at 58. When a valid reserve gate system is in effect, picketing at
a neutral gate violates Moore Dry Dock and therefore gives rise to a presumption that
the union is pursuing an unlawful secondary objective. See Electrical Workers Local 98
(Telephone Man), 327 NLRB 593, 600 (1999); Operating Engineers Local 150 (Harsco
Corp.), 313 NLRB 659, 668 (1994), enfd. 47 F.3d 218 (7th Cir. 1995); W.S.B. Electric,
supra at 421; accord: Interox America, supra at 59. If the union claims that it is
picketing because the employer fails to meet area standards, wages, and benefits, the
burden is on the union to establish that it has made reasonable inquiry to ascertain if its
contentions are accurate. If the union fails to meet its burden the area standards
picketing may be deemed pretextual, and evidence of improper motive found.
Operating Engineers Local 150 (All American), 296 NLRB 933 (1989). Having once
picketed at a designated neutral gate, the burden is on the union to justify its disregard
of the reserve gate system. Operating Engineers Local 12 (McDevitt & Street), 286
NLRB 1203, 1203–1204 (1987).
IV. DISCUSSION
The complaint alleges that on December 19, 2006, Kisielewski and McDonald
threatened to picket the Lumberyards jobsite in violation of Section 8(b)(4)(i)(ii)(B) of the
Act. Although the Respondent’s answer denies the allegation it made no effort to deny
Eattock’s credible testimony regarding the threat at either the hearing or in its brief.
Kisielewski did not testify and McDonald did not address this allegation in his testimony.
McDonald did address his conversation with Fray, and his testimony essentially
admits that he made an unqualified threat to picket the site to Fray. Moreover, the
Respondent does not contend otherwise in its brief. Based on the credited and
undisputed testimony of Eattock and Fray, I find, that on December 19 shortly after
Kisielewski and McDonald unsuccessfully sought the painting work that was assigned to
JC Two, both men, during two separate conversations, made unqualified threats to
picket the Lumberyards jobsite.
Accordingly, I find that the Respondent’s unqualified threat to picket the
Lumberyards jobsite made by its admitted agents, Kisielewski and McDonald, violated
Section 8(b)(4)(i)(ii)(B) of the Act, as alleged. E.g., Electrical Workers Local 98 (MCF
Services), 342 NLRB 740, 749–750 (2004); Contra: United Association of Journeymen,
Local 32 v. NLRB, 912 F.2d 1108, 1110 (9th Cir. 1990) (denying enf. of a Board order
because the Board could not presume that a union’s threat to picket is unlawful when
the picketing may be conducted in a lawful manner); accord: Sheet Metal Workers’
International Association, Local 15, AFL–CIO v. NLRB, ---F.3d---, 2007 WL 1745321,
182 LRRM 2009, 154 Lab. Cas. P 10,861 (DC Cir. 2007).
The Respondent opines that there is conflicting testimony as to when the gate
signs were “posed” on the gates. In fact the record establishes that there is no issue
regarding the sign attached to gate B on Collins Avenue. Fray’s credible testimony is
that he attached the sign himself on either December 19 or 20, and the Respondent
points to no credible record evidence to the contrary.
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Regarding gate A, the neutral gate, the Respondent merely acknowledges that
McDonald and Macombe contend that there was no sign at gate A when they arrived at
the gate during the early morning hours of December 21. As will be seen the
Respondent’s reticence is understandable. There are significant contradictions
between Macombe’s and McDonald’s testimony, McDonald’s own testimonial
inconsistencies, and the demonstrable inconsistencies between their statements and
the testimony of other witnesses, and the photographic evidence.
McDonald avers that he is positive that the sign appeared on gate A sometime
after the picket line went up. He claims that the sign was not up when he arrived at 6:15
a.m. The security guard is the only other person in the photograph (GC Exh. 7 (b)), of
McDonald and the two pickets. There is no evidence that the photograph is not
authentic or that it has been altered, and the Respondent does not argue otherwise.
McDonald testified that picture was taken between 6:30 and 6:45 a.m. and that he read
the sign. It is also evident by the way the men are focused on the photographer that
there are no other distractions in the vicinity. The sign is clearly visible. Yet when
asked if his testimony was that he did not see the sign McDonald answers, obliquely,
that the sign was not there when he arrived in the morning. When asked if he knows
when the sign was appended to gate A he states “No, I don’t,” (Tr. 162). Surely a 4-by-
4 foot sign could not have been surreptitiously attached to the gate. Moreover, even
assuming that the sign was attached during the 15-minute window between when the
picket line went up and the photograph taken, McDonald made no mention of this to
Macombe. Macombe was tasked as the Respondent’s scribe, as well as the picket line
captain. McDonald read the sign and presumably knew its significance. It would seem
that he would want to memorialize when he first observed that the Charging Party was
establishing a reserve gate system.
McDonald contradicts himself when testifying about the point in time that Lee
took the pictures at gate A. He initially testifies that Lee got out his car screaming at
McDonald, went inside his trailer, and shortly thereafter the police arrived (Tr. 148–151).
He is then asked if he had anymore conversations with Lee, he twice answers “No.” But
he then claims that Lee came “back out with a camera taking pictures” (Tr. 152). When
asked once again if he was certain that it was Lee or someone else, he answers that it
was either Lee “or the other guy” (Tr.152). He then states that he is “not too positive”
who took the pictures. When asked about the time when the pictures were taken,
McDonald responds 9 or 9:30. The only other pictures in evidence are pictures of the
individual signs. Those pictures were taken during daylight hours in April and are
clearly marked as such (GC Exhs. 5 and 6). I believe McDonald was attempting to
identify those pictures, until council directed him to the pictures taken on December 21,
and stressed to McDonald that “it’s dark.” McDonald replies “Well, I don’t know about
these pictures, I just know about the time that he’d come out, the other guys come out
with a camera” (Tr. 153). His inability to recall the photographer is difficult to believe
because in both pictures he and the pickets are looking directly at the photographer (GC
Exh. 7). The three men in the picture do not appear to have had anyone recently
screaming at them. Notwithstanding his failure, at that point, to be able to identify the
photographer, McDonald still insists that the sign attached to the gate in the picture, was
attached after the picket line went up, which he claims was between 6:30 and 7 a.m.
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On cross-examination McDonald is asked if he recalls Lee taking the pictures on
the morning of December 21. He answered “Yeah, I remember some flashes going off.”
When asked if the pictures were taken before or after Lee allegedly yelled at him, he
answers “before.” (Tr. 157–158.) Thus, his testimony on cross-examination is
inconsistent with what he said on direct. On direct he claimed that Lee drove to the
gate between 7 and 7:30 a.m. (which is later than when he claims the pictures were
taken), and that Lee was screaming at him while he was getting out of his car.
McDonald never mentioned pictures or a camera during his initial testimony. It was not
until the police departed that McDonald claims that Lee, or other guys, came out of the
trailer and took pictures. Thus, it appears that McDonald is possibly confused about the
identity of the photographer. If he does believe that Lee is the photographer, he
appears confused about whether Lee took the pictures immediately after getting out of
his car, but before he started to scream at him, or if Lee came out later and took the
pictures. In any case McDonald attributes Lee’s screaming as the reason he did not
notice the sign that is clearly visible in the picture of him and the pickets.
Macombe’s testimony regarding the sign on gate A, although more consistent, is
no more credible than that of McDonald’s. Notwithstanding Macombe’s proximity to the
sign he insists that he did not see it until December 28. Notwithstanding, Macombe
staring directly at the camera, behind which Lee is standing, Macombe claims that he
does not remember ever seeing Lee before the hearing. His denial is contradicted by
Lee, who testified that he told Macombe he could not picket at gate A as he drove pass
him. And it also is inconsistent with McDonald’s testimony about his dealings with Lee
at gate A.
Although some confusion might be expected from all witnesses, McDonald’s
testimony is replete with contradictions and inconsistencies. He clearly is of the belief
that there is no reason to give a direct answer, if an indirect answer will suffice. One
example is his response to the question if he recalls Lee taking the pictures, he
responds “Yeah, I remember some flashes going off,” (Tr. 157).
Based on my observations of Lee, I find McDonald’s version of their encounter
implausible and incredible. Lee did not appear to have the demeanor of a person prone
to anger. Moreover, this was the first time Lee had met McDonald, increasing the
implausibility of McDonald’s statement. Unlike McDonald and Macombe, I was
impressed by Lee’s favorable testimonial demeanor. He appeared to be doing his best
to give an accurate and truthful account of what occurred. Accordingly, I fully credit
Lee’s testimony that the sign on gate A was posted when he arrived at the gate on the
morning of December 21. I note that his testimony is consistent with and corroborated
by Fray. I find that Lee told Macombe that he was at the gate reserved for union
contractors. I find that Lee later told McDonald that a reserve gate system was
established and that he was picketing at the wrong gate. I also find that McDonald
corroborated Lee’s testimony insofar that Lee told him that he was at the wrong gate
and that there was another gate.
McDonald’s evasive and defensive response to questioning is best illustrated by
the colloquy between McDonald and the Charging Party’s attorney concerning when
McDonald learned that the site had two gates (Tr. 168–171). The following exchange
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occurs after Macombe’s notes have been admitted—clearly indicating that there are two
gates at the site, and Macombe has testified that he was aware of both gates because
McDonald said “two men on this gate [gate A] and ‘I’m putting two men on the other
gate,’” (Tr. 118). Even after admitting that Macombe acknowledges, both in his written
report and his testimony, the existence of a second gate, McDonald refuses to
acknowledge that he knew that gate B was located on Collins Avenue. At one point he
claims that he only learned the location of gate A from his boss, Peter Cipparulo. He
claims that he assumed that there was a second gate when he dispatched the second
pair of pickets to “go that way.” Later he says that he is not sure when he learned that
the gates were designated “A” and “B,” and that he was not sure if he even went to gate
B on December 21.
A similar dialogue transpires over McDonald’s alleged knowledge of the wages
JC Two was paying its employees. Initially he denies making any inquiries because “we
already knew what the rates were.” When asked specifically if he knew that the
Lumberyards was a prevailing rate project, he once again evades the question and
replies “we already knew what their rates were.” He next responds that he knew what
the rates were suppose to be. As counsel for the Charging Party continues to press for
a response to this basic question McDonald retorts, “I don’t understand what you’re
getting at.” Eventually he comes full circle and states “we just know from past dealings,”
and admits that he made no inquiries as to the JC Two pay rates.
Based on the foregoing I find that the Respondent failed to make any inquiry, let
alone a “reasonable inquiry” concerning the wage rates paid by JC Two to its
employees working on the Lumberyards project. Accordingly, I conclude that the
Respondent’s purported area standards picketing was a pretext from which an inference
of unlawful secondary motive may be found. E.g., Carpenters Local 1622 (Iacono
Structural Engineer), 250 NLRB 416 (1980).
All three of the General Counsel’s witnesses, Lee, Eattock, and Fray exhibited
impressive testimonial demeanor coupled with extremely thoughtful, detailed
recollection of the events. Moreover, the testimony of the three witnesses is very
similar. I have previously credited Lee’s testimony that he told Macombe, and later
McDonald, that they were picketing the wrong gate and that the reserve gate system
was established. I also credit Fray’s testimony that he specifically told McDonald that
he was picketing gate A and that they would have to picket the nonunion gate, which
was B on Collins Avenue. I also find that McDonald told them that the pickets would
remain where they were and that the Charging Party would have to do what it had to in
order to get them to move from gate A.
The Respondent contends that because the letter notifying it that the Charging
Party had established a reserve gate system was faxed after business hours, and not to
the picket organizer, the pickets had not been notified of the reserve gate system until
the afternoon of December 21. The fax notifying the Respondent of the reserve gate
system was transmitted at 7:29 p.m. on December 20. It was faxed to the attention of
Kisielewski, the Respondent’s business agent, at the Respondent’s office in Glassboro.
McDonald works in the same office. It is undisputed that Kisielewski was acting in his
official capacity when, on December 19, he threatened Eattock that the Respondent
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would picket the Lumberyards project. The fax was received at the Glassboro office by
at least 7:14 a.m., when an unidentified individual forwarded it to Peter Cipparulo at his
Springfield office. Cipparulo is Painters District Council 711 director of organizing and
McDonald’s boss. I agree that the letter was not faxed during normal business hours on
December 20. I do find that the fax was received by the Respondent at least by 7:14
a.m. on December 21, when it was forwarded from the Respondent’s Glassboro office
to Cipparulo. Accordingly, I also find that the information contained in the letter was
known to the Respondent by at least 7:14 a.m. on December 21.
The picket line most likely went up before 7:14 a.m. Based on the credited
testimony of Fray, however, he went to McDonald as soon as he saw that the men at
gate A had picket signs. Fray informed McDonald of the establishment of the reserve
gate system and told McDonald that he was at gate A and that he would have to picket
at the nonunion gate, which was B on Collins Avenue. Fray stated that McDonald’s
response was that he was going to stay there and that the Charging Party would have
to do what they would have to do to move the pickets. Fray credibly testified that both
gate signs were hung by him on December 19 or 20 and that both were in place when
McDonald arrived, that gate A was locked, and that the security guard was at his post
and had been informed of his duties. Thus, the Respondent through McDonald, its
admitted agent, had notice of the Charging Party’s reserve gate system before it began
to picket.
I also find that the Respondent’s nonchalant response to receipt of the Charging
Party’s notification that it had established a reserve gate system, is additional evidence
of its unlawful secondary intent. There was no attempt to convey the substance of the
Charging Party’s letter to either McDonald or Kisielewski. Both men had gone to the
Lumberyards jobsite on December 19 and threatened to picket the site. McDonald
states that he was on the road and thus was unaware that the fax had arrived.
Kisielewski did not testify. It appears that no attempt was made to discover who in the
Respondent’s Glassboro office forwarded the fax to Cipparulo, and why. Certainly
McDonald, the person who was in charge of instituting the picket line, should have kept
his office informed of his whereabouts and activities. If nothing else McDonald testified
that he was going to call Macombe from Atlantic City while Macombe was on the picket
line, thereby establishing that Macombe, at least, had a cell phone.
Cipparulo states that he received the fax between 8:45 and 9 a.m., shortly after
his office opened. Cipparulo had authorized area standards picketing at the jobsite,
based on a request by McDonald. Although Cipparulo testified that he was “quite
surprised” that the fax was addressed to Kisielewski, he took absolutely no action to
attempt to contact Kisielewski or McDonald. In fact Cipparulo apparently thought so
little of the substance of the letter that he decided to wait until he met McDonald at lunch
to tell him about it, and even then he did not bring the letter with him to show McDonald.
I find the Respondent’s conduct after receipt of the Charging Party’s notification
that it had established a reserve gate system supports an inference that it never
intended to abide by the reserve gate system. McDonald read the sign at gate A to
ensure that he was setting up the picket line at the correct gate—to enmesh neutral
employers. As Macombe stated “we put the line up early to catch them.”
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Accordingly, based on all the foregoing and the record as a whole, I find that the
Respondent violated Section 8(b)(4)(i)(ii)(B) of the Act by picketing at the gate reserved
for neutrals at the Charging Party’s Lumberyards project in Collingswood, New Jersey
on December 21.
The Respondent contends that its picketing of the neutral gate was justified
because the gate was tainted when the employees of JC Two entered the site through
gate A. The Respondent’s contention is based solely on the statement of Macombe.
Macombe is the individual standing next to the gate A sign who testified that he did not
see that sign on December 21.
Macombe testified that has been a union member for 26 years. Macombe has
been retired for 7 years and during that time he has been a picket, picket line captain,
and observer hundreds of times for the Respondent. Macombe testified that he makes
notes of the things that happen while he is on picket duty. He indicated that he
understood the importance of his notes because he rewrites them to make sure they are
legible and he gives them to the union office for safe keeping and, apparently, to refresh
his recollection during unfair labor practice hearings. He identified his notes as “what
went on the first day we were there” (R. Exh. 4).
His notes for December 21 indicate that he reported at some unspecified time to
the Haddon Avenue entrance. He incorrectly identifies the “scab” as “T”.C. Painting.
He writes that the line went up at 6:30 a.m. and that there were two gates and two
pickets at each gate. Thereafter, he has the following entries: 6:45 and 8:45 a.m.
indicate that the employees of the union contractors refuse to cross the picket line and
leave the site, 2:30 p.m. is when he closed the line down, and 7:30 a.m. is when four
“painters (scabs) crossed our line.” Although Macombe felt it necessary to record the
weather conditions he does not identify the three other pickets by name or at which gate
the pickets were stationed; he does not mention that the picket line was photographed
by a management representative; he does not mention that five police cars arrived at
the site, and that McDonald spoke to the police; he does not mention that McDonald
spoke with the construction manager, Fray (or at least a management representative);
he does not mention that the project manager, Eattock (or at least a management
representative) crossed the picket line just before 8 a.m.; and he does not mention that
McDonald left the site at approximately 11:30 a.m.
Based on the contents of his notes, or more accurately the lack of content, I had
reservations concerning the thoroughness and probity of Macombe’s note taking even
before he testified about the painters entering gate A. His testimony about that alleged
incident further damaged his credibility. Macombe was asked about two significant
events, the alleged tainting of the gate by the painters and if the picket line was up on
December 22. My sense when listening and observing him testify was that his
testimony was scripted, but that he did not have immediate recall of all his lines.
After several questions by the Respondent’s counsel it was clear from
Macombe’s testimony that four men dressed in painter whites walked up to the guard at
gate A who let them in. Counsel, however, was not satisfied and asked if they had any
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equipment with them. Macombe responds with what sounds like a generic description
of painter jeans and the possible equipment they might carry. In the middle of his
statement he abruptly changes course and inexplicably starts the scenario from the
beginning. This time he provides that he was talking with two electricians, who were
waiting to see if they could cross the picket line. One says “Freddy, them 4 guys that
just went by, they’re the painters on the job. A matter of fact, that’s the girl. She’s the
owner of the company.” (Tr. 111.)
Both his demeanor and the inherent implausibility of the scenario leads me to
conclude that it did not occur. Macombe fails to explain why he had to be alerted to four
men in painter whites, and a women, going toward the one area on which his attention
should have been focused. He fails to explain why he did not record that the owner of
the company also crossed the picket line, or even mention that she did in his initial
version. It is significant that McDonald, who was still at gate A at that time, was not
asked to corroborate Macombe’s testimony. Nor was Cobella, Macombe’s fellow picket
at gate A, called to corroborate his account. I also note Macombe’s tendency to
prevaricate set out above, as well as his testimony that he did not see the sign on gate
A on which he was almost standing. Had the incident happened I would still be
disinclined to find that the reserve gate system was tainted. The record establishes that
the Charging Party took every reasonable precaution to ensure the integrity of the
reserve gate system, and I would not find that one instance of misuse would be
sufficient to destroy the reserve gate system. Operating Engineers Local 18 (Dodge-
Ireland), 236 NLRB 199 (1978). Moreover, illegal picketing cannot be justified by after-
the-fact violations of the neutral gate by employees of a primary employer. Nashville
Building Trades Council (H. E. Collins Co.), 172 NLRB 1138, 1139–1140 (1968) enfd.
425 F.2d 385 (6th Cir. 1970). Further, there is no evidence that the Respondent’s
continued picketing at the neutral gate was in response to the alleged incident on which
it now relies. Iron Workers Local 378 (McDevitt & Street), 298 NLRB 955, 959 (1990).
Macombe’s testimony regarding ingress and egress at gate A is also at odds with
the testimony of other, credited, witnesses. Thus, Macombe denies seeing anyone exit
through gate A while he was there. That statement is in conflict with Lee who testified
that he left the site between 10 and 11 a.m. and Eattock who testified that he left the
site at approximately 1 p.m. I also note, above, that Lee and Eattock parked and
entered through gate A. Macombe also denies that any vehicles crossed the picket line.
That statement is disputed by Fray who credibly testified that trucks were being
permitted and denied access through the gate (Tr. 81).
Macombe’s attempt to support the Respondent’s contention that it did not picket
the site at all on December 22, because the Respondent was closed for the holidays not
only fails, but it contradicts McDonald’s testimony concerning the incident. Macombe is
asked how long he left the line up on December 20 and he says 2:30. He is asked why
he left it up until 2:30 and he replies: “Ed McDonald had to go back to the union hall for
a luncheon so he told me ‘Freddy, take the line down at 2:30.’ So I said, ‘all right I’ll go
over and let the other two people know later.’” Counsel asks if McDonald said anything
else and Macombe answers “No, he said as far as the line, the line is down until after
the holidays. Once again Macombe’s statements are disjointed and lack the ring of
truth. Macombe then states that he told the other two pickets that the line is dead until
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after the holidays and he reaffirms this statement after council asks if he repeated, to
the other people, what he was told by McDonald. And yet none of the other pickets
testified.
When McDonald is asked if he left any instructions for the pickets before he left
for his luncheon he answers “I told Freddy if anything changes I’ll call you.” “And I got a
hold of him and told him to—after I talked to [Cipparulo] and he said to take it down in
the afternoon.” Several questions later counsel repeats the question about leaving
instructions for Macombe and McDonald repeats his answer about taking the line down
at 2:30. Counsel, perhaps recognizing that subtlety is not working, asks McDonald if he
left Macombe with any instructions when it was going back up. McDonald answers
“And it wasn’t going to go back up until after the holidays.” When asked if he told
Freddy he replies “Yes, sir ‘cause I didn’t know nothing until I got to the luncheon. (Tr.
140–141.) Cipparulo supports McDonald’s statements that it was he who told him to
take the line down for the holidays. Aside from the fact that McDonald keeps saying
that he “left instructions” with Macombe to take the line down when he testified that he
later “called” Macombe there was only one other Freudian slip. McDonald responds
“Take it down for the weekend—I mean for the holiday’s” after being asked if Cipparulo
told him to move the line to the right location or simply to take it down. Cipparulo
admitted that he did not know for a fact that the picket line was not up on December 22.
I find that Macombe and McDonald’s testimony contrived and inconsistent with each
other. Contrary to their exceedingly poor testimonial demeanor, Eattock and Fray both
exhibited the demeanor of honest witnesses who also had excellent recall of the events.
I fully credit their testimony that the Respondent picketed each gate on December 22
and the pickets were wearing the same signs. As a result of the picketing most of
employees of the union contractors refused to cross the picket line.
The Respondent’s final attempt to avoid an adverse ruling is that the
Respondent’s conduct at the neutral gate on December 21 does not fall under the legal
definition of “picketing” because merely holding banners does not amount to “threat,
coercion or restraint.”
The photographs show the pickets at gate A standing, wearing sandwich board
picket signs. Eattock credibly testified, without refutation, that he observed the pickets
walking back and forth in the driveway of gate A (Tr. 59). In any case “[t]he important
feature of picketing appears to be the posting by a labor organization . . . of individuals
at the approach to a place of business to accomplish a purpose which advances the
cause of the union, such as keeping employees away from work or keeping customers
away from the employers business. Lumber & Sawmill Workers Local Union No. 2797
(Stoltze Land & Lumber Co.), 156 NLRB 388, 394 (1965). The only “message” on the
signs was that JC Two fails to meet area standards, a message I have found to be a
pretext in order to disguise the Respondent’s real motive for picketing which was to
enmesh neutrals. Macombe testified that the picket line is put up “early to catch them
[union members] so they [union members] don’t cross the line,” (Tr. 119).
The sandwich boards are tantamount to the traditional picket sign attached to a
stick, and the pickets patrolled across the driveway at gate A. It is clear that this case
does not involve bannering or leafleting and as such removes the Respondent’s
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conduct from the purview of Edward J. DeBartolo Corp. v. Florida Gulf Coast Building
Construction Trades Council, (DeBartolo II), 485 U.S. 568, 571 (1988). Absent the
protection elucidated in (DeBartolo II), the Respondent’s argument fails.
Accordingly, based on the foregoing and the record as a whole I find, as alleged
in the complaint that the Respondent violated Section 8(b)(4)(i)(ii)(B) of the Act by
threatening to picket with the object of forcing Costanza, to cease doing business with
JC Two and by picketing at gate A, a gate reserved for neutral employers.
CONCLUSIONS OF LAW
1. By unqualifiedly threatening to picket with the object of forcing Costanza
Builders of New Jersey, Inc., to cease doing business with JC Two, Inc., at its
Lumberyards jobsite in Collingswood, New Jersey, the Respondent, District Council
711, International Union of Painters and Allied Trades, AFL–CIO, has engaged in unfair
labor practices affecting commerce within the meaning of Section 8(b)(4)(i)(ii)(B) and
Section 2(6) and (7) of the Act.
2. By picketing and patrolling at the gate reserved for neutrals at the
Lumberyards jobsite the Respondent has violated Section 8(b)(4)(i)(ii)(B) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended5
ORDER
The Respondent, District Council 711, International Union of Painters and Allied
Trades, AFL–CIO, Glassboro, New Jersey, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Unqualifiedly threatening to picket with the object of forcing Costanza
Builders of New Jersey, Inc., to cease doing business with JC Two, Inc.

5 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 purposes.
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(b) Threatening, coercing, or restraining Costanza Builders of New Jersey, Inc.,
by picketing, where an object thereof is to force or require Costanza Builders of New
Jersey, Inc., to cease doing business with JC Two, Inc.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Within 14 days after service by the Region, post at its union office in
Glassboro, New Jersey, copies of the attached notice marked “Appendix.”6 Copies of
the notice, on forms provided by the Regional Director for Region 4, after being signed
by the Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to members are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material.
(b) Within 14 days after service by the Region, sign and return to the Regional Director
sufficient copies of the notice for posting by Costanza Builders of New Jersey, Inc., and JC
Two, Inc., if willing, at all places where their notices to employees are customarily posted.
(c) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. September 4, 2007
____________________
John T. Clark
Administrative Law Judge

6 If this Order is enforced by a judgment of a United States court of appeals, the
words in the notice reading “Posted by Order of the National Labor 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.”
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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 Federal labor law and has
ordered us to post and obey this notice.
WE WILL NOT unqualifiedly threaten to picket with the object of forcing Costanza Builders
of New Jersey, Inc. to cease doing business with JC Two, Inc.
WE WILL NOT, by picketing, threaten, coerce, or restrain Costanza Builders of New Jersey,
Inc., with the object of forcing Costanza Builders of New Jersey, Inc., to cease doing
business with JC Two, Inc.
District Council 711, International Union of
Painters and Allied Trades, AFL–CIO
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106-4404
Hours: 8:30 a.m. to 5 p.m.
215-597-7601.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 215-597-7643.