Laborer's Local 1072 (McCarthy & Smith, Inc.)

National Labor Relations Board - Board Decisions

Jan 28, 2010

355 N.L.R.B. 28 (N.L.R.B. 2010)

ECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

355 NLRB No. 6
28
Local 1075, Laborers’ International Union of North
America and Michigan Laborers’ District Coun-
cil and McCarthy & Smith, Inc. Cases 7–CC–
1831 and 7–CC–1832
January 28, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On October 29, 2009, Administrative Law Judge Ira
Sandron issued the attached decision. The Respondents
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order as modified and set forth in full below.3
ORDER
The National Labor Relations Board orders that the
Respondents, Local 1075, Laborers’ International Union
of North America, Mount Morris, Michigan, and Michi-
gan Laborers’ District Council, Lansing, Michigan, their
officers, agents, and representatives, shall
1. Cease and desist from

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Teamsters Local 523 v. NLRB,
___F.3d___, 2009 WL 4912300 (10th Cir. Dec. 22, 2009); Narricot
Industries, L.P. v. NLRB, 587 F.3d 654 (4th Cir. 2009); Snell Island
SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed
78 U.S.L.W. 3130 (U.S. Sept. 11, 2009) (No. 09-328); New Process
Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted 130 S.Ct.
488 (2009); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir.
2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009)
(No. 09-213). But see Laurel Baye Healthcare of Lake Lanier, Inc. v.
NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition for cert. filed 78
U.S.L.W. 3185 (U.S. Sept. 29, 2009) (No. 09-377).
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s recommended Order to include Con-
trast Mechanical, Inc., a neutral employer whose employees worked at
the jobsite, in the cease-and-desist provisions and to conform to the
Board’s standard remedial language. We shall also substitute a new
notice.
(a) Inducing or encouraging any individual employed
by Casadei Steel Inc., Delta Temp, Inc., Gillis Electric,
Contrast Mechanical Inc., and Port Huron Roofing Com-
pany, or any other person engaged in commerce or in an
industry affecting commerce, to engage in a strike or a
refusal to perform work in the course of employment,
where an object is to force or require McCarthy & Smith,
Inc., or any other person to cease doing business with
Brazen & Greer, Inc. and Gemelli Concrete, LLC.
(b) Threatening, coercing, or restraining McCarthy &
Smith, Inc., Casadei Steel Inc., Delta Temp, Inc., Gillis
Electric, Contrast Mechanical Inc., and Port Huron Roof-
ing Company, or any other person engaged in commerce
or in an industry affecting commerce, by picketing,
where an object thereof is to force McCarthy & Smith,
Inc., or any other person to cease doing business with
Brazen & Greer, Inc. and Gemelli Concrete, LLC.
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
their Lansing, Michigan office and Mount Morris,
Michigan union hall, in locations where notices are cus-
tomarily posted, copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed by
the Respondents’ authorized representatives, shall be
posted by the Respondents and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondents 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 McCarthy & Smith, Inc., or any
of the other employers named in the complaint, if will-
ing, 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 re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondents have taken to
comply with this Order.

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
LABORERS LOCAL 1075 (MCCARTHY & SMITH, INC.) 29
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT induce or encourage any individual em-
ployed by Casadei Steel Inc., Delta Temp, Inc., Gillis
Electric, Contrast Mechanical Inc., and Port Huron Roof-
ing Company, or any other person engaged in commerce
or in an industry affecting commerce, to engage in a
strike or a refusal to perform work in the course of em-
ployment, where an object is to force McCarthy &
Smith, Inc., or any other person to cease doing business
with Brazen & Greer, Inc. and Gemelli Concrete, LLC.
WE WILL NOT threaten, coerce, or restrain McCarthy &
Smith, Inc., Casadei Steel Inc., Delta Temp, Inc., Gillis
Electric, Contrast Mechanical Inc., and Port Huron Roof-
ing Company, or any other person engaged in commerce
or in an industry affecting commerce, by picketing,
where an object is to force McCarthy & Smith, Inc. or
any other person to cease doing business with Brazen &
Greer, Inc. and Gemelli Concrete, LLC.
LOCAL 1075, LABORERS’ INTERNATIONAL
UNION OF NORTH AMERICA AND MICHIGAN
LABORERS’ DISTRICT COUNCIL
Sarah Pring Karpinen, Esq., for the General Counsel.
Scott Graham, Esq. (Scott Graham, PLLC), of Portage, Michi-
gan, for the Respondents.
Scott Fisher (Associated General Contractors of Michigan), of
Lansing, Michigan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. The consolidated
complaint, issued on June 30, 2009,1 arose from unfair labor
practice (ULP) charges that McCarthy & Smith, Inc. (MS) filed
against Local 1075, Laborers’ International Union of North
America (the Local) and Michigan Laborers’ District Council

1 All dates hereinafter occurred in 2009, unless otherwise specified.
(the District Council), alleging violations of Section 8(b)(4)(i)
and (ii)(B) of the National Labor Relations Act (the Act).
Pursuant to notice, I conducted a trial in Detroit, Michigan,
on August 26, 2009, at which the parties had full opportunity to
be heard, to examine and cross-examine witnesses, and to in-
troduce evidence. I have considered the helpful posthearing
briefs that the General Counsel and Respondents filed.
Issue
From June 4–25, did Respondents jointly engage in unlawful
secondary picketing at MS’ Marysville High School, Marys-
ville, Michigan jobsite (the jobsite), in furtherance of its labor
dispute with Gemelli Concrete, LLC (Gemelli) and Brazen &
Greer, Inc. (BG).
Witnesses
The General Counsel called Brian MacAskill, MS’ project
superintendent; Steve Banchero, MS’ senior project manager;
Rebecca Gemelli, part owner of Gemelli; and Don Bovre, di-
rector of labor relations of the American General Contractors of
Michigan (AGC), out of its Lansing, Michigan office.
The General Counsel also called, as an adverse witness un-
der Section 611(c) of the Act, William Bartlett of the Abate-
ment Coordinator Trust Fund, an affiliate of the District Coun-
cil. Respondents’ counsel questioned him thereafter.
Most salient facts are undisputed, and differences in the tes-
timony of the General Counsel’s witnesses in chief and of Bart-
lett were in details rather than substance. To the extent that
MacAskill differed from Bartlett in his descriptions of the pick-
eting, I find the former more reliable. He testified credibly and
in detail and did not appear to make efforts to exaggerate the
facts. Bartlett, on the other hand, gave inconsistent testimony
on the motivation behind the picketing and was somewhat eva-
sive in answering whether the pickets continued to picket at the
neutral gate after implementation of a dual-entrance system
starting on June 9.
Facts
Based on the entire record, including testimony and my ob-
servations of witness demeanor, documents, and stipulations, I
find the following. Jurisdiction as alleged in the complaint has
been admitted, and I so find.
The Parties and their Relationships
The AGC serves as a multiemployer bargaining representa-
tive in negotiating contracts with the District Council and its
local affiliates, including the Local.2 By letter of March 6,
Bovre notified the District Council of the AGC’s intent to ter-
minate the 2006–2009 agreement that expired on May 31.3
Employer-members of the AGC may also sign “independent
agreements” with the District Council and its locals. Gemelli
and BG signed such agreements, which also expired on about
May 31.4
MS is a construction management company and member of
the AGC, southeast branch. It has never been party to any AGC

2 See GC Exh. 18, a list of companies that have signed powers of at-
torney authorizing AGC to negotiate on their behalves.
3 GC Exh. 19.
4 See Jt. Exh. 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30
multiemployer contract with Respondents, and the AGC has
never bargained on its behalf. It has had no employees perform-
ing labor work on the jobsite at any time relevant.
MS contracted with the Marysville, Michigan public school
system to manage and coordinate all facets of construction of
the new Marysville High School. The project started in ap-
proximately mid-July 2008 and is anticipated to continue into
2011. The current phase involves the work of approximately 45
contractors and subcontractors that have contracts directly with
the school district.5 These include Gemelli and BG.
Picketing from June 4–8
Prior to June 9, the jobsite had one active entrance, located
on Delaware Street near the southeastern corner of the site.6
Picketing began at between 6–6:30 a.m. on June 4, with signs
stating “No Contract No Work Laborers Local #1075.” The
pickets stayed until about 2:30 p.m. These were more or less
the hours of picketing throughout its duration.
MacAskill testified without controversion, and I find, that he
went over to the pickets and asked Jeff Perkins, the Local’s
business agent, what the dispute concerned. Perkins replied that
the union had a dispute with the AGC out of Lansing concern-
ing funding of the retirement package: the AGC had given them
a final proposal thereon in negotiations, said, “Take it, or leave
it,” and then left the table.
Between approximately 6:30–7 a.m., employees of the fol-
lowing contractors showed up for work: BG, Casadei Steel Inc.
(Casadei), Port Huron Roofing Company (Port Huron), Con-
trast Mechanical Inc. (Contrast), Delta Temp, Inc. (Delta), and
Gillis Electric (Gillis). BG, contracted to do masonry work, was
the only company that would have used laborers that day. The
employees of all of these companies except Contrast, a nonun-
ion plumbing contractor, left within an hour or so without per-
forming any work. Gemelli was not scheduled to work until
later in the following week.
On June 5, employees of Contrast, Delta, and Casadei
crossed the picket line; employees of BG, Gillis, and Port
Huron again showed up but left without working.
On June 8, Casadei, Contrast, and Delta employees per-
formed work; Gillis employees did not. On or about this date,
Bartlett, as a representative of the District Council, began par-
ticipating in the picketing, having been asked to do so by Dis-
trict Council Business Manager Gary Jorgensen.
Establishment of Separate Gates
On the late afternoon of June 5, MS took steps to set up a
second viable entrance, about 300 feet north of gate 1 on Dela-
ware.7 By letter of June 5, sent by certified mail and received
by the Local on June 8, and also by fax of June 5, Banchero
notified the Local that a dual-entrance system would be in ef-
fect beginning on June 9, with gate A to be for BG and Ge-
melli, and gate B for all other companies.8 Banchero similarly
notified BG and Gemelli and other companies of such.9 Ma-

5 See GC Exh. 2.
6 See gate 1 (aka gate “B”) on GC Exh. 3, a diagram.
7 Gate “A” on GC Exh. 3.
8 GC Exhs. 11 & 14.
9 See GC Exh. 15.
cAskill provided Gemelli a key to gate A. He did not give one
to BG because its employees had not crossed the picket line,
and he could open the gate for them if necessary.
Late in the day on June 8, MS put up signs at the two gates,
identifying gate 1 as “gate B,” and the other as “gate A.” The
latter stated that it was exclusively reserved for personnel, visi-
tors, subcontractors, and suppliers of BG and Gemelli; all oth-
ers must use gate B. The sign at gate B said that it was for the
use of employees, visitors, subcontractors, and suppliers of all
companies except BG and Gemelli.10 The entrances were about
the same width between hinge posts.
Picketing, June 9–25
The pickets arrived at their normal time on the morning of
June 9, carried the same signs, and picketed at gate B. Ma-
cAskill testified without controversion, and I find, the follow-
ing. He asked Perkins to move the picketing to gate A. Perkins
responded that they did not need to move because this was an
informational picket line.
The pickets did not change their location. Gillis employees
showed up that day and worked. BG employees continued to be
scheduled on a daily basis, but they honored the picket line.
Until the last day of picketing, on June 25, the pickets usu-
ally stayed at or in the vicinity of gate B, but on several hot
days, they moved out to a tree about 100–200 feet away.11
They never picketed at gate A.
On about June 24, shortly after BG signed an agreement, the
picket signs added “Gemelli Concrete.”12 Gemelli employees
never crossed the picket line.
Gemelli testified without controversion, and I find the fol-
lowing. After expiration of Gemelli’s independent agreement
with Respondents, she directly negotiated a new contract with
Chris Chwalek, the District Council’s secretary-treasurer. They
had about five conversations during the period from early June
to June 25. In the first, he called, identified himself, and said
that she would be receiving by email a new agreement to re-
view. In about the third conversation, Chwalek stated that an
NLRB agent had told him that he needed to put Gemelli’s name
on the sign, which he was going to do; he urged her to sign a
new agreement. During negotiations, Gemelli sought advice
from the AGC.
On June 25, she signed an agreement, which representatives
of both the Local and the District Council also signed.13 Ge-
melli employees performed at the jobsite the following day.
Bartlett testified, and I find, that the picketing stopped be-
cause Gemelli signed a contract.14 In this regard, MacAskill
testified without controversion, and I further find, that on the
morning of June 26, he heard Bartlett call to him from across
the street, “Thanks, Brian. Gemelli signed, and we’re all set.”15

10 See GC Exhs. 4–7, photographs.
11 See GC Exhs. 8–10 & 20, photographs.
12 Tr. 147, testimony of Bartlett.
13 GC Exh. 16.
14 Tr. 149.
15 Tr. 87. I therefore do not credit Bartlett to the extent he testified
that the picketing related to Respondents’ impasse in negotiations with
the AGC.

LABORERS LOCAL 1075 (MCCARTHY & SMITH, INC.) 31
There is no assertion that the pickets ever blocked the gates
or otherwise engaged in interference or disruption. Conversa-
tions between MacAskill and Perkins were always amiable. No
evidence was introduced that the integrity of the dual-gate sys-
tem was ever breached.
Analysis and Conclusions
The District Cou ncil and Local as Joint Respondents
The picket signs identified only the Local, and Respondents’
joint answer denied that the District Council and the Local
acted in concert and in a joint venture in the picketing conduct.
However, the District Counsel had direct and integral involve-
ment therein, as reflected by the fact that its business manager
asked Bartlett to participate in picketing, and he did so. Further,
during the period of picketing, Gemelli was engaged in contract
negotiations directly with the District Council’s secretary-
treasurer and with no one from the Local, and its June 25
agreement was with both the District Council and the Local.
In these circumstances, I conclude that the District Council
was jointly liable with the Local for any violations.
The Picketing
Briefly stated, Section 8(b)(4)(B) of the Act prohibits a labor
organization that has an object of forcing or requiring any per-
son to cease doing business with any other person to (i) induce
or encourage any individual to strike or refuse to perform work
or provide services during the course of his or her employment;
or (ii) threaten, coerce, or restrain a person engaged in com-
merce or in an industry affecting commerce. “Informational
picketing” intended solely to inform the public of a labor dis-
pute is exempt from this prohibition.
Put another way, a labor organization cannot picket with an
object of interfering with the operations of employers with
which it has no labor dispute (secondary employers) in order to
exert pressure on employers with which it has a disagreement
(primary employers).
Picketing that has as one of its objects such a secondary ob-
jective is illegal, even if the union has other goals as well.
Denver Building Trades Council v. NLRB, 341 U.S. 675, 689
(1951). Respondent’s intent, not the effect of the picketing,
determines a violation. NLRB v. International Rice Milling Co.,
341 U.S. 665, 672 (1951); Carpenters (DWA Trade Show &
Exposition Services), 339 NLRB 1027 (2003).
Picketing may occur at a “common situs,” i.e., a jobsite
where work is being performed by an employer with which a
union has a labor dispute (a primary employer) and by other
employers (neutral employers). In such situations, the union’s
right to exert pressure on the former must be balanced with the
need to protect neutral employers from enmeshment in a dis-
pute not their own. Denver Building Trades Council, above at
691.
In the lead case of Sailors Union (Moore Dry Dock), 92
NLRB 547, 549 (1950), the Board set out certain standards to
determine whether picketing at a common situs is primary in
nature, as opposed to secondary:

1. The picketing is strictly limited to times when the si-
tus of the dispute is located on the secondary employer’s
premises.
2. At the time of the picketing, the primary employer is
engaged in normal business at the situs.
3. The picketing is limited to places reasonably close
to the location of the situs.
4. The picketing clearly discloses that the dispute is
with the primary employer.

Failure to comply with one of more of these standards cre-
ates a strong but rebuttable presumption that the picketing had
an unlawful secondary object. Electrical Workers Local 970
(Interox America), 306 NLRB 54, 58 (1992); Electrical Work-
ers Local 332 (W.S.B. Electric), 269 NLRB 417, 421 (1984).
As a means of isolating the situs of a union’s labor dispute
with a primary employer, a separate entrance or gate can be
reserved for the separate and exclusive use of the primary em-
ployer and its employees, suppliers, and customers, with other
gates reserved for the exclusive use of neutral employers and
their employees, suppliers, and customers. See Electrical
Workers Local 761 v. NLRB, 366 U.S. 667, 681–682 (1961).
When a valid dual-entrance system is in effect, a union’s pick-
eting at a neutral gate violates Moore Dry Dock, above, and
gives rise to the presumption that the union’s objective is sec-
ondary. Electrical Workers Local 98 (Telephone Man), 327
NLRB 593, 600 (1999); Operating Engineers Local 150 (Har-
sco Corp.), 313 NLRB 659, 668 (1994), enfd. 47 F.3d 218 (7th
Cir. 1995).
The General Counsel contends that Respondents’ picketing
demonstrated a secondary object prior to June 9 because the
picket signs did not identify the employers with whom Respon-
dents had a dispute and because the picketing occurred at times
when both primary contractors were absent from the site. The
General Counsel avers the same for the picketing from June 9
on, as well as that Respondents picketed at the gate reserved for
neutral contactors.
First of all, it is patently clear that the labor dispute in ques-
tion involved BG and Gemelli. Gemelli signed an agreement on
June 25, and Bartlett admitted that picketing stopped the next
day because of that. This was further evidenced by Bartlett’s
calling to MacAskill on the morning of June 26 that “Gemelli
signed, and we’re all set.” Further, immediately after BG
signed an agreement in late June, the Union had “Gemelli Con-
crete” added to its picket signs. I note that MS had no laborers
on the jobsite and was not party to the AGC multiemployer
contract with the Respondents that had expired.
It is undisputed that the picket signs did not identify the pri-
mary employer(s) until shortly before the last day of picketing
on June 25, when “Gemelli Concrete” was finally added. Thus,
I conclude that the picketing failed to meet Moore Dry Dock on
this basis. See DWA Trade Show, above at 1029.
As far as picketing when the primary employers were absent,
Gemelli was not scheduled until later in the second week of
picketing. However, BG, the other primary employer, was
scheduled to perform work as of the first day of picketing, June
5. Indeed, its employees showed up but refused to cross the
picket line. During the entire period of picketing, BG was
scheduled to perform jobsite work on a continuous basis. Ac-
cordingly, I do not conclude that picketing ran afoul of Moore
Dry Dock on this account.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32
Finally, I turn to the dual-gate system that MS established on
June 9. Respondents were on notice of this prior to June 9,
maybe as early as June 5 but certainly by June 8. In any event,
MacAskill asked Perkins to move the picketing to gate A on the
morning of June 9, and Perkins refused. From June 9–25, Re-
spondents frequently picketed at or near gate B, and never at or
near gate A. I therefore conclude that the pickets’ failure to
confine their picketing to the situs of their labor dispute with
BG and Gemelli on or after June 9 was a further reflection of an
unlawful secondary objective under Moore Dry Dock. See Oil
Workers Local 1-591 (Burlington Northern Railway), 325
NLRB 324, 328 (1998).
Accordingly, I conclude that the evidence raises a strong but
rebuttable presumption that the picketing had a secondary ob-
jective. I further conclude that that the Union has failed to rebut
this presumption and, consequently, that the picketing was
unlawful under Section 8(b)(4)(B)(i) and (ii). See Burlington
Northern Railway, ibid.
CONCLUSIONS OF LAW
1. Respondents are labor organizations within the meaning of
Section 2(5) of the Act.
2. The Charging Party and the other contractors and subcon-
tractors performing work at the jobsite are employers engaged
in commerce within the meaning of Section 2(2), (6), and (7)
and 8(b)(4) of the Act.
3. By the following conduct, Respondents engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and violated Section 8(b)(4)(i) and
(ii)(B) of the Act:
(a) Induced or encouraged individuals employed by neutral
employers to engage in a strike or a refusal to perform work in
the course of employment, with an object of forcing or requir-
ing the Charging Party to cease doing business with Brazen &
Greer, Inc. and Gemelli Concrete, LLC, the primary employers.
(b) With such an object, threatened, coerced, or restrained
the Charging Party and other neutral employers.
REMEDY
Because I have found that the Respondents have engaged in
certain unfair labor practices, I find that they must be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
[Recommended Order omitted from publication.]