Laborers Local 135 (Phoenixville Hospital)

National Labor Relations Board - Board Decisions

Dec 19, 1990

300 N.L.R.B. 920 (N.L.R.B. 1990)

920
300 NLRB No. 128
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
The Respondent has also excepted to the judge’s finding that on December
27, 1989, Gibbons, the Hospital’s director of environmental services, was ac-
companied by the Hospital’s attorney when he informed Woodall, the Re-
spondent’s business agent, that a reserved gate system had been established.
We find merit in this exception. The record clearly establishes that Gibbons
was accompanied by the Hospital’s attorney when he first notified Woodall
on December 21, 1989, that a reserved gate system would be established and
that Gibbons was alone on December 27 when he advised Woodall for the
second time of the establishment of the reserved gate system. This inadvertent
error does not affect the results of our decision.
2 The General Counsel has excepted to the judge’s failure to include a provi-
sion in his recommended Order requiring the Respondent to cease and desist
from violating Sec. 8(b)(4)(ii)(B) of the Act. We find merit in this exception.
Because the judge found that the Respondent violated this section of the Act,
we conclude that his failure to include this provision in the recommended
Order was inadvertent. We shall modify the recommended Order accordingly.
3 Except for any period during which the primary employer was not present
at the jobsite, Member Cracraft finds it unnecessary to pass on the question
of whether the Respondent’s picketing prior to the posting of the neutral gate
was unlawful, as resolution of that question would not affect the remedy.
Laborers Local No. 135 and Phoenixville Hospital.
Case 4–CC–1881
December 19, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 25, 1990, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Re-
spondent filed exceptions and a brief in support and
the General Counsel filed cross-exceptions and a brief
in support of the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
The Respondent excepts to the judge’s finding that
a reserved gate system was established on December
22, 1989, when the Hospital posted the Milligan Street
entrance with a sign reserving it for the use of the pri-
mary (Blooming Glen), its subsidiaries and suppliers.
The Respondent contends that because the neutral
(Main Street) entrance was not posted until January 12,
1990, Blooming Glen was free to use that entrance and
the Respondent therefore had a right to picket at that
entrance until the neutral gate sign was posted there.
We find no merit in this exception.
We agree with the judge that although the neutral
gate, as such, was not posted until January 12, 1990,
the reserved gate system was established prior to that
date. In so doing we emphasize that, as noted above,
the Hospital informed the Respondent on two occa-
sions prior to January 12 that a reserved gate system
was in place. In addition, we emphasize that Blooming
Glen posted a notice to its employees within a day or
two of the establishment of the reserved gate system
in which Blooming Glen directed its employees to use
the Milligan Street entrance to the jobsite and warned
employees that they would be disciplined for breaking
this rule. Finally, we note that the record reveals that
the reserved gate system was generally effective and
that only three or four incidents of misuse were alleged
or reported. Only one Blooming Glen employee vio-
lated the reserved gate system, and he was disciplined
for this violation.
In any event, we agree with the judge that the re-
served gate system was clearly perfected as of January
12, 1990, and that the picketing of the Main Street and
Nutt Street entrances continued beyond that date.
Hence, even assuming—contrary to our finding—that
the gate system was inadequately established before
then, the Respondent plainly violated the Act by its
picketing on and after January 12.3
ORDER
The National Labor Relations Board orders that the
Respondent, Laborers Local No. 135, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified below.
1. Substitute the following for paragraph 1(a).
‘‘(a) Inducing or encouraging any individual em-
ployed by Phoenixville Hospital, Twin Construction
Company, or any other person engaged in commerce
or in an industry affecting commerce, to engage in a
strike or refusal in the course of employment to use,
manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities
or to perform any services, where an object thereof is
to force or require the above-named Employers, or any
person engaged in commerce or in an industry affect-
ing commerce, to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of, or to
cease doing business with, Blooming Glen Construc-
tion Co.’’
2. Substitute the following for paragraph 1(b) and
reletter paragraph 1(b) as paragraph 1(c).
‘‘(b) In any manner threatening, coercing, or re-
straining Phoenixville Hospital, Twin Construction
Company, or any other person engaged in commerce
or in an industry affecting commerce, where an object
thereof is to force or require the above-named Employ-
ers, or any other persons engaged in commerce, to
cease using, selling, handling, transporting, or other-
wise dealing in the products of, or cease doing busi-
ness with, Blooming Glen Construction Co.’’
921LABORERS LOCAL 135 (PHOENIXVILLE HOSPITAL)
1 All of the relevant events took place between mid-November 1989 and the
end of January 1990. The project had actually begun somewhat earlier in
1989, with the demolition of an older building to make room for the instant
project.
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT, nor will our officers, business rep-
resentatives, business agents, or anyone acting for us,
whatever his title may be, engage in or induce or en-
courage any individual employed by Phoenixville Hos-
pital, Twin Construction Company, or any other person
engaged in commerce or in an industry affecting com-
merce to engage in a strike or a refusal in the course
of employment to use, manufacture, process, transport,
or otherwise handle, or work on any goods, articles,
materials, or commodities, or to perform any services,
where an object thereof is to force or require the
above-named Employers, or any other person engaged
in commerce or in an industry affecting commerce, to
cease using, selling, handling, transporting, or other-
wise dealing in the products of, or cease doing busi-
ness with, Blooming Glen Construction Co.
WE WILL NOT threaten, coerce, or restrain
Phoenixville Hospital, Twin Construction Company, or
any other persons engaged in commerce or in an in-
dustry affecting commerce, where an object thereof is
to force or require the above-named Employers, or any
other persons engaged in commerce, to cease using,
selling, handling, transporting, or otherwise dealing in
the products of, or cease doing business with, Bloom-
ing Glen Construction Co.
LABORERS LOCAL NO. 135
Carmen P. Cialino, Esq., for the General Counsel.
Robert C. Cohen, Esq. (Markowitz & Richman), of Philadel-
phia, Pennsylvania, for the Respondent.
William F. Kershner, Esq. (Pepper, Hamilton & Scheetz), of
Berwyn, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was heard in Philadelphia, Pennsylvania, on March 13,
1990, based upon an unfair labor practice charge filed on
January 9, 1990, by Phoenixville Hospital (the Hospital), and
a complaint issued by the Regional Director for Region 4 of
the National Labor Relations Board (the Board), on January
31, 1990. The complaint alleges that Laborers Local No. 135
(Respondent or the Union), picketed at the Hospital from De-
cember 26, 1989, through January 30, 1990, in violation of
Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations
Act (the Act). Respondent’s timely filed answer denies the
commission of any unfair labor practices.
At the hearing, all parties were afforded full opportunity
to examine and cross-examine witnesses, argue orally, and
submit briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNION’S LABOR
ORGANIZATION STATUS
Preliminary Conclusions of Law
Blooming Glen Construction Company (Blooming Glen),
the primary employer in this dispute, is a Pennsylvania cor-
poration with its office located in Blooming Glen, Pennsyl-
vania. It is engaged in the construction industry as a site de-
velopment contractor. In the course and conduct of its busi-
ness operations, Blooming Glen annually purchases equip-
ment valued in excess of $50,000 directly from points lo-
cated outside the State of Pennsylvania. I find and conclude
that Blooming Glen is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find and
conclude that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Construction Site, Reserved Gates,
and Picketing
In November 1989,1 the Hospital, in partnership with local
doctors, began construction of a medical office building (the
MOB project), on Hospital property.
The Hospital is located in Phoenixville, Pennsylvania. Its
property is bounded on the north by Nutt Road, by Main
Street on the east, Griffin Street on the south, and Gray
Street on the west. Nutt and Main are heavily traveled,
multilane roads, with speed limits of 35 to 45 mph. The
MOB project is located in the middle of these grounds. The
area of the construction is bounded by Main Street on the
east and by Milligan Street on the north. Milligan is a short,
two-lane east-west street off of Main which leads to one of
the Hospital’s parking lots; it runs behind five small build-
ings, professional offices, and stores, which front on Nutt but
which may be entered from Milligan. Patrons and employees
of those stores and offices, and of the Hospital bookshop
which is also located on Milligan, park on Milligan and in
the Hospital’s lot. There is no parking on Nutt. There is also
a service station on the corner of Main and Milligan.
In addition to an office building, the project includes the
creation of additional parking spaces in the vicinity of the
Hospital’s main entrance, in the middle of the block on Nutt.
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 I cannot credit Woodall’s recollection that only a used piece of plywood,
bearing the likeness of a clown, without any of the reserved gate language,
was posted between December 21 and January 11. Such an oversight is im-
probable and inconsistent with Gibbon’s conversations with Woodall and the
correspondence, discussed infra.
That work involves tree removal, ground clearing, sewer pipe
and curb installation, and paving. This part of the project was
completed, except for the paving, on January 9. The paving
could not be done until warmer weather.
There are two Hospital entrances on Nutt Road; the one
in the middle of the block serves as the principal Hospital
entrance. The second Nutt Road entrance, which is used by
emergency vehicles, is not involved. There is a driveway on
Main, leading to the parking lots and the construction area,
and two driveway entrances on Milligan. The Main Street
entrance is the main construction driveway. At the outset of
the construction, most of the construction supplies and equip-
ment came on to the site from Main Street. Some was
brought in from Nutt Road. Construction employees entered
wherever they chose.
The general contractor for the MOB project is Twin Coun-
ty Construction (Twin). Twin retained Blooming Glen to do
the site development and construction of the new parking
area. Blooming Glen is the nonunion side of a ‘‘double-
breasted’’ construction organization; the unionized side is
Haines and Kibblehouser. Blooming Glen’s employees were
working on the site from about mid-November. Twin also
had some supervisors and employees on the site and, from
time to time, the employees of other contractors were also
present.
Daniel Woodall, the Union’s business manager, had visited
the site in mid-1989 when union members had worked there
on the demolition of an existing building. He first saw the
new construction in early December and was aware that
Blooming Glen’s employees were nonunion, paid at a lesser
wage rate than his members when they were employed by
Haines and Kibblehouser.
On December 21, the Union returned and set up pickets
at the main Hospital entrance on Nutt Road, the main con-
struction entrance on Main, and at the point where Milligan
joins Main Street. The signs read:
BLOOMING GLEN CONSTRUCTION UNFAIR
LABORERS LOCAL 135
DETERIORATION OF AREA WAGES AND
STANDARDS
NO DISPUTE WITH ANY OTHER EMPLOYER
Since the inception of the construction, a sign has been
posted at the Hospital’s Nutt Road driveway. It reads:
NO CONSTRUCTION
VEHICLES
USE MAIN ST. ENTRANCE
llllllllll
With the onset of picketing, the Hospital decided to estab-
lish a reserved gate for the use of Blooming Glen, the pri-
mary employer. On December 21, James Gibbons, the Hos-
pital’s director of environmental services, told Woodall that
such a gate would be set up at the Milligan Street entrance
to the Hospital campus. On December 22, a 4-by-8 foot sign
was placed at the driveway into the site from Milligan, about
250 feet west on Milligan from Main. That sign read:
THIS ENTRANCE IS RESERVED FOR THE
EXCLUSIVE USE OF BLOOMING GLEN, ITS
EMPLOYEES, SUPPLIERS AND SUB-
CONTRACTORS. ALL OTHERS USE THE MAIN
STREET RT. ‘‘29’’ CONTRACTORS ENTRANCE2
On the same date, a letter was sent to Blooming Glen,
with a copy to Twin, notifying those employers of the re-
served gate and stating:
it is imperative for all Blooming Glen employees, vehi-
cles, equipment and suppliers to use this entrance. Use
of any other gate by the above mentioned group may
void the restriction on the picketers and could ulti-
mately result in the picketing of the entire site.
Please be sure that all appropriate people are informed
to use only the reserved gate.
Blooming Glen posted a notice in its office (a substantial
distance from the site), where its employees would see it,
stating that all of its trucks and employees ‘‘must use Mil-
ligan Street in and out of the job site.’’ A week off, without
pay, was threatened for violations.
The Hospital also notified its employees that they were to
avoid using the Main Street entrance, ‘‘whenever possible.’’
On December 27, Gibbons, together with the Hospital’s at-
torney and its vice president, repeated to Woodall that a re-
served gate had been established at Milligan Street and
threatened to seek injunctive relief unless the Union re-
stricted its picketing to that location. Woodall refused to
comply.
On January 12, the following sign was posted at the main
construction entrance, on Main Street:
THE FOLLOWING NAMED CONTRACTORS,
THEIR EMPLOYEES, SUPPLIERS OR SUB
CONTRACTORS MAY NOT USE THIS ENTRANCE
BLOOMING GLEN THE ABOVE STATED
PERSONS MUST USE THE MILLIGAN STREET
ENTRANCE
llllllllll
Notwithstanding the signs and warning, the Union picketed
at all three gates on a daily basis from December 21 until
the Regional Director’s Motion for a Preliminary Injunction
was granted on January 30 by United States District Court
Judge Joseph L. McGlynn Jr.
No Blooming Glen employees were present during the
week following Christmas, from December 26 through 29.
Nonetheless, the Union picketed until about 11 a.m., each
morning. Woodall had been informed by Gibbons, on De-
cember 27, that those employees were not on the site; be-
cause he observed employees doing the same work as the
Blooming Glen employees, using the same equipment,
Woodall did not believe Gibbons.
The signs were generally effective in controlling gate use;
no more than three or four incidents of misuse were alleged
923LABORERS LOCAL 135 (PHOENIXVILLE HOSPITAL)
3 Respondent’s contention that no violations can be based upon activities oc-
curring after the January 9 filing of the charge is without merit. In NLRB v.
Fant Milling, 360 U.S. 301, 309 (1959), the Court stated that ‘‘the Board is
Continued
or reported. Prior to the onset of picketing, materials had
been delivered to Blooming Glen through the Nutt Road
driveway. On December 21 or 22, a truck loaded with pipe
came in through that driveway. A second truck started to do
so and was turned back. Seeing these incidents, the Union
began to picket at Nutt Road although it had not initially
done so. Sometime later, another pipe truck attempted to
enter the site from Main Street; it, too, was turned back and
required to enter through Milligan Street. On one occasion,
a Blooming Glen employee entered through a gate other than
on Milligan Street. He was observed and, pursuant to the no-
tice Blooming Glen had posted, was suspended for 1 week.
At some point, a van with Haines and Kibblehouser sur-
veyors entered improperly. On another occasion, the son of
a Twin superintendent visited the site, entering through Nutt
Road.
B. Analysis and Conclusions
The provisions of Section 8(b)(4) reflect ‘‘the dual con-
gressional objective of preserving the right of labor organiza-
tions to bring pressure to bear on offending employers in pri-
mary labor disputes and of shielding unoffending employers
and others from pressures in controversies not their own.’’
NLRB v. Denver Building Trades Council, 341 U.S. 675, 692
(1951). Thus, a union is permitted to picket a primary em-
ployer with whom it has a labor dispute but runs afoul of
Section 8(b)(4) if it pickets a neutral employer with a pro-
scribed object of enmeshing that neutral employer in a con-
troversy not its own. In assessing union picketing activities
at a common situs, the Board is confronted by the difficult
problem that unrestricted picketing activity would be incon-
sistent with the neutral employer’s intended immunity. Con-
versely, depriving a union of all opportunity to picket at a
common situs might render nugatory its right to bring pres-
sure upon a primary employer.
In order to accommodate these conflicting interests, the
Board in Sailors Union (Moore Dry Dock), 92 NLRB 547
(1950), evolved criteria to help resolve the question of
whether a union had the proscribed motive of enmeshing
neutral employers. The rule as originally stated by the Board
is as follows:
When a secondary employer is harboring the situs of
a dispute between a union and a secondary employer,
the right of neither the union to picket nor the sec-
ondary employer to be free from picketing can be abso-
lute. The enmeshing of premises and situs qualifies
both rights. In the kind of a situation that exists in this
case, we believe that picketing of the premises of a sec-
ondary employer is primary if it meets the following
conditions: (a) The picketing is strictly limited to times
when the the situs of the dispute is located on the sec-
ondary employer’s premises; (b) at the time of the pick-
eting, 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.
The Board and the courts have uniformly held that com-
mon situs picketing violates Section 8(b)(4) if any of the
Moore Dry Dock requirements are breached. See Electrical
Workers IBEW Local 323 (J. F. Hoff Electric), 241 NLRB
694 (1979), enfd. 642 F.2d 1266 (D.C. Cir. 1980); Teamsters
Local 126 (Ready Mixed Concrete), 200 NLRB 254 (1972).
Further, in order to insulate neutral employers, their em-
ployees and suppliers, employers upon a common situs are
permitted to establish and maintain separate gates for use by
those involved in a labor dispute and those not involved.
Electrical Workers IUE Local 761 (General Electric) v.
NLRB, 366 U.S. 667 (1961). Where such gates are properly
established, a union may lawfully picket only at the gate of
the employer with whom it has a dispute.
Contrary to the contention of Respondent, the MOB
project was, I find, a common situs to which the Moore Dry
Dock standards are applicable. Present on the site with
Blooming Glen were the Hospital and its employees, Twin
and some of its employees and, from time to time, the em-
ployees of several other contractors. See Electrical Workers
IBEW Local 332 (Lockheed Missiles), 241 NLRB 674
(1979).
The Union’s second contention is that no proper reserved
gate system was established when the initial sign at Milligan
Street was erected. The sign at Blooming Glen’s gate on
Milligan merely precluded neutral employers from using
Blooming Glen’s gate. Neither that sign, nor any other sign
posted before January 12, precluded Blooming Glen, its em-
ployees, suppliers, and subcontractors from using other gates.
Therefore, the Union argues, since the primary employer was
free to use any of the gates, the Union was similarly free to
picket any of the gates in order to reach the primary and its
employees.
While there is a certain logic to Respondent’s argument,
no precedent has been offered in its support and I have found
none. On the contrary, the Board has held that a single sign,
reserving one gate for the exclusive use of the primary, ef-
fectively limits picketing to that gate at least where, as here,
the Union is advised of the existence of that gate and there
is no substantial deviation from its proper use. See Lockheed
Missiles, supra. See also NABET Local 31 (CBS), 237 NLRB
1370 (1978), and Sun Refining Co. v. Trades Council, 117
LRRM 2127 (D.C. Pa. 1984).
In Sun Refining, supra, a sign had been posted which re-
served a gate for the exclusive use of the primary’s employ-
ees and suppliers, precluding others from using that gate but
failing to specifically forbid the primary’s employees and
suppliers from using other gates. The court held that such an
instruction could be inferred from the language and from the
neutral’s instructions to the primary. Here, as in Sun Refin-
ing, the primary employer was given explicit instructions re-
garding which gate its people were to use. Additionally, the
primary issued explicit orders to its employees regarding gate
use and, in the single case of misuse by one of those em-
ployees, severely disciplined that employee. Where its sup-
pliers attempted to use an improper gate, they were required
to back out and go to the right gate.
Even assuming that the gates were improperly established
prior to January 12, it is clear that the gates were perfected
on that date. Notwithstanding this, the Union’s picketing
continued at all three gates until enjoined on January 30.3
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not precluded from ‘dealing adequately with unfair labor practices which are
related to those alleged in the charge and which grow out of them while the
proceeding is pending before the Board.’ National Licorice Co. v. Labor
Board, 309 U.S. 350, at 369.’’
4 Contrary to Respondent’s contention, I find no evidence of any substantial
taint of the gates. What misuse occurred happened early on, was limited in
number, and was quickly corrected. Several of the incidents cited, including
trucks which attempted to use the wrong gate and were required to back out,
and a visit to the site by the nonemployee son of the general contractor’s su-
perintendent, do not constitute taint at all. See Plumbers Local 274 (Stokely-
Van Camp), 267 NLRB 1111 (1983), and Operating Engineers Local 18
(Dodge-Ireland), 236 NLRB 199 (1978).
5 It also noted the absence of taint of the neutral gate and its prior use by
the primary indicating the absence of any ‘‘bad faith ploy’’ intended to render
the union’s picketing ineffective.
The Union further argues that its picketing on Nutt Road
met Moore Dry Dock’s ‘‘reasonably close’’ standard inas-
much as Blooming Glen was working on the parking lot in
that immediate vicinity. Where, as here, a reserved gate has
been properly established and maintained, and the neutrality
of the other gates has not been impaired,4 the Board analyzes
the ‘‘reasonably close’’ standard by examining the proximity
of the picketing to the reserved gate, not to the primary em-
ployees’ work location. The Union’s picketing was not re-
stricted to the reserved gate and thus, the Moore Dry Dock
presumption comes into play. Electrical Workers IBEW
Local 323 (Renel Construction), 264 NLRB 623, 624 (1983).
The most difficult contention is the Union’s argument that
the reserved gate was improperly established and therefore
ineffective because it prevented the Union from effectively
communicating its message to members of the public. ‘‘The
purpose of the separate gate,’’ it has been noted, is to mini-
mize the impact of picketing ‘‘on neutral employees insofar
as this can be done without substantial impairment of the ef-
fectiveness of the picketing in reaching the primary employ-
ees.’’ CBS, Inc., supra at 1375 and cases cited therein; Lock-
heed Missiles, supra.
In Electrical Workers IBEW Local 453 (Southern Sun
Electric), 237 NLRB 829 (1978), the Board found the re-
served gate to have been improperly established in part be-
cause it unjustly impaired the union’s ability to convey its
message to the primary employer’s ‘‘personnel, suppliers,
visitors, and the general public.’’ (237 NLRB at 830, empha-
sis added.) Respondent’s principal reliance is upon this lan-
guage and its contention that here, as in Southern Sun Elec-
tric, ‘‘the placement of the reserved gate in an alley which
was barely visible to the public’’ similarly impaired the
Union’s right to convey its message to the public and ren-
dered the gate system legally ineffective.
A similar contention was raised in Electrical Workers
IBEW Local Union 501 (C. W. Pond Electrical Service), 269
NLRB 274 (1984). In that case, the primary reserved gate
was located at the end of a dead-end public road, rarely used
by the general public. In its discussion in C. W. Pond, the
Board noted that in Southern Sun Electric, the neutral sign
had been placed:
approximately halfway between two entrances to the
construction site. The reserved gate sign for the primary
was located near a third entrance on a private alley
which, although owned by the general contractor, could
not be distinguished visually from the private parking
lot of the adjacent store building. Furthermore, the re-
served gate sign was barely visible from a public right-
of-way. In addition, the primary employer had ignored
the reserved gate on occasion.
The Board distinguished the facts in C. W. Pond from those
in Southern Sun Electric and found the union’s argument
misplaced. It specifically stated that ‘‘Southern Sun Electric
does not hold that a primary reserved gate on a public road
is established improperly simply because there is little traffic
by the general public at the primary reserved gate.’’
In Carpenters Local 33 (CB Construction), 289 NLRB
528, 532 (1988), the gate reserved for the use of the primary
was at the rear of a building, in an alley, obscured from pub-
lic view; the neutral gate was the main entrance to the build-
ing which was undergoing remodeling, on a busy city street.
The administrative law judge concluded that the reserved
gate had been hidden from general public view and located
so remotely and inconveniently as to substantially impair the
effectiveness of the union’s picketing. He found that this ren-
dered the union’s picketing at the neutral gate privileged.
The Board, in reaching a contrary conclusion, noted, inter
alia,5 evidence of some use of the alley and that entrance by
visitors and tenants of the building and other members of the
public, as well as other pedestrian traffic. It held at 532:
We find without significance . . . that members of
the general public might fail to notice or be unable to
read the primary gate sign because of its location . . . .
Based on the evidence of public use of the passageway,
in particular, the ‘‘limited public’’ composed of tenants,
visitors, prospective customers, or business callers uti-
lizing the rear passageway or adjacent public parking
lot, we conclude that pickets stationed in the immediate
vicinity of the primary reserved gate could have effec-
tively communicated their message. Although the pri-
mary gate location may not have been ideal, we note
that Board precedent does not require primary reserved
gate placements calculated to maximize a picket’s
chances to reach members of the public [citing Car-
penters Local 354 (Sharp & Tatro), 268 NLRB 382
(1983)].
The facts of the instant case are similar to those in CB
Construction. Milligan Street was a public roadway, used by
the public to enter a number of small businesses or profes-
sional offices, as well as to enter the Hospital’s bookshop.
Members of the public and persons working in those busi-
nesses and offices parked on Milligan or in the Hospital’s
parking lot which was located thereon. Those persons could
observe both the reserved gate sign and the Union’s picket
sign. Thus, the Union was able to present its message to both
the primary employer’s employees, suppliers, and visitors
and some members of the general public. While the location
of that gate limited notice of the Union’s message by the
public, the limitation was not so great as to legitimize pick-
eting at more public locations. See C. W. Pond, supra, Sharp
& Tatro, supra, and CB Construction, supra.
Accordingly, I find that Respondent’s picketing at neutral
gates, in contravention of Moore Dry Dock and reserved gate
standards, evidenced its secondary motivation and established
that its picketing violated Section 8(b)(4)(i) and (ii)(B) of the
Act.
925LABORERS LOCAL 135 (PHOENIXVILLE HOSPITAL)
6 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 objec-
tions to them shall be deemed waived for all purposes.
7 If this Order is enforced by a judgment of the United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘ Posted Pursuant to a Judgment of the National
Labor Relations Board.’’
Finally, the General Counsel urges that the Union’s pick-
eting from December 26 through 29, when no employees of
the primary were present, contrary to the constraints of the
second proviso of Moore Dry Dock, evidenced a secondary
intent. Woodall, the Union’s representative, admitted having
been told on December 27 that there were no Blooming Glen
employees present, but claimed that he did not accept this
representation. The specific employees were not known to
the Union and, from what he could observe, the same work
was being done by employees using the same trucks and
equipment. Moreover, the Union noted, it had no reason to
believe that there would be a cessation of the work during
Christmas week as there was no tradition of it in the indus-
try. The Union picketed each day that week until about 11
a.m. According to Woodall, they remained only long enough
to ascertain whether Blooming Glen’s employees were work-
ing and left after it was observed that whatever work was
being done was the work of Teamsters or Operating Engi-
neers, not Laborers.
Respondent’s defense is not convincing. There were no
Blooming Glen employees on site during the days in ques-
tion and the Hospital’s representative had so informed the
Union. Thereafter, the Union picketed at all three gates until
about 11 a.m. each day. It stretches credulity to assert that
picketing at all three gates, for approximately one-half of
each workday, was required to determine if the primary’s
employees were working. Accordingly, I find that the req-
uisite secondary motivation has been established by the
Union’s picketing during this period, additionally supporting
a finding of violation.
CONCLUSIONS OF LAW
1. By picketing at the gates reserved for neutral employers,
their employees, and suppliers at the Phoenixville Hospital
Medical Office Building jobsite, and by picketing at that site
at times when employees of the primary employer were not
present, in furtherance of its dispute with Blooming Glen, the
Union has induced and encouraged individuals employed by
the Hospital, Twin, and other persons to refuse to perform
services at the Hospital and at the MOB jobsite with an ob-
ject of forcing or requiring the Hospital, Twin, and other per-
sons to cease using, selling, handling, transporting, or other-
wise dealing in the products of each other and to cease doing
business with each other and in order to force or require
Twin and other persons to cease using, selling, handling,
transporting, or otherwise dealing in the products of Bloom-
ing Glen and to cease doing business with Blooming Glen
and has, thereby, engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B).
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) 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 therefrom 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 recommended6
ORDER
The Respondent, Laborers Local No. 135, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Inducing and encouraging individuals employed by the
Hospital, Twin, and other persons to refuse to perform serv-
ices at the Hospital and at the MOB jobsite with an object
of forcing or requiring the Hospital, Twin, and other persons
to cease using, selling, handling, transporting, or otherwise
dealing in the products of each other and to cease doing
business with each other and in order to force or require
Twin and other persons to cease using, selling, handling,
transporting, or otherwise dealing in the products of Bloom-
ing Glen and to cease doing business with Blooming Glen.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its office in Norristown, Pennsylvania, copies
of the attached notice marked ‘‘Appendix.’’7 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees and members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(b) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Phoenixville Hospital, Twin
County Construction, and Blooming Glen Construction Com-
pany, if willing, at all places where notices to employees are
customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.