Laborers Union Local 1290

National Labor Relations Board - Board Decisions

Feb 11, 1972

195 N.L.R.B. 370 (N.L.R.B. 1972)

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers Union Local 1290 and Walters Foundation,
Inc. Case 17-CC-453
February 11, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 27, 1971, Trial Examiner Lloyd Bu-
chanan issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a support-
ing brief and the General Counsel filed exceptions and
a supporting brief. Respondent also requested oral ar-
gument. '
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings , and conclusions only to the extent
consistent herewith.
The complaint alleges that Respondent violated Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act by picketing at a
gate used exclusively by neutral employers. The Trial
Examiner found that certain of Respondent's picketing
at such locations violated Section 8(b)(4)(i)(B) but that
Respondent did not thereby violate Section
8(b)(4)(ii)(B).
This case arose out of a dispute at the Park-Mar
Estates construction site in Lawrence, Kansas. The
facts are, in all significant respects, uncontroverted.
The general contractor for the Park-Mar Estates
project is Park-Mar Contractors. Among the several
subcontractors performing work on the project is the
Charging Party, Walters Foundations, Inc. Although
the west side of the Park-Mar project site is not en-
closed by a fence, and no physical gates exist, there are
three access routes leading into the project from Kasold
Avenue, which borders the project on the west. These
entrances are referred to as the North Gate, the South-
west Gate (approximately 1,300 feet south of the North
Gate), and the South Gate (approximately one-half
block south of the Southwest Gate). At the time of the
dispute, work was being performed at only one loca-
tion, approximately 100 feet in from the Southwest
Gate and 1,300 feet from the North Gate. From the
area where the work was being performed, the North
Gate was not visible.
On Thursday, May 13, 1971, Respondent began
picketing at the project site, displaying a sign indicating
that "Walters is breaking down established working
conditions of Laborers Local 1290, AFL-CIO." This
picketing took place at the Southwest Gate. Although
the precise basis for the dispute is unknown, it is clear
that Respondent's dispute was with Walters and not
with Park-Mar or any other employer working at the
site . The picketing continued the next day, May 14, also
at the Southwest Gate. On Saturday, May 15, Walters'
attorney notified Respondent by telegram that, begin-
ning Monday, May 17, the North Gate would be set
aside for employees of Walters. All other employees
would use the Southwest Gate.
On May 17, appropriate signs were placed at the
North Gate and Southwest Gate signifying which em-
ployees were to use which gate . Both signs were placed
prior to 8 a.m. When the picket arrived at the site he
began picketing at the Southwest Gate, as he had done
previously. Upon receiving Walters' telegram, John J.
Rider, Respondent's field representative, went to the
site and, at approximately 8 a.m., moved the picket to
the North Gate,' the gate designated for Walters' em-
ployees.
At that time there was a road construction crew
working on Kasold Avenue just north of the project,
within 20 feet of, and progressing toward, the North
Gate. After stationing the picket at the North Gate,
Rider contacted Respondent's counsel and informed
him that the only work being performed in the area of
the North Gate was that being done by the road con-
struction crew. None of the Park-Mar Estates work
could be seen from the North Gate. Thereafter, Re-
spondent's counsel telephoned counsel for Walters and
informed him that Respondent would honor any prop-
erly constituted reserved gate, but that Respondent felt
that the North Gate was inappropriate. Respondent's
counsel then asked to be notified if the reserved gate
were moved.
At or about noon, the picket was moved from the
North Gate back to the Southwest Gate, where he
remained until approximately 4:30 p.m.
Prior to 1:30 p.m. road construction work on Kasold
Avenue had progressed to the point at which the road
crew was cutting away the bank of the roadway near
the North Gate, causing the project to become inacces-
sible from the North Gate. The situation prompted
Wayne Hall, Park-Mar's superintendent, to remove the
sign from the North Gate and place it at the South Gate
at or about 1:30 p.m. Just after 1:30 p.m. the North
Gate was, in fact, blocked. As he moved the sign from
the North Gate to the South Gate, Hall told the picket
that the sign was being moved, although he did not tell
' Respondent 's request for oral argument is hereby denied In our opin-
ion, the record , including the exceptions and briefs , adequately presents the
issues and positions of the parties
' The General Counsel does not contend that the initial picketing at the
Southwest Gate on May 17 violated the Act.
195 NLRB No. 71
LABORERS UNION LOCAL 1290 371
the picket to notify Respondent, nor did Hall notify
Respondent's business agent.
Thereafter, all Walters' employees used only the
South Gate. There was no picketing by Respondent
after this date, May 17.
On the basis of the above facts, the Trial Examiner
concludes that Respondent's picketing at the South-
west Gate from noon, when the picket was moved, until
1:30 p.m., when the reserved gate was changed, vi-
olated Section 8(b)(4)(i)(B) of the Act. In support of his
conclusion, the Trial Examiner reasons that Respond-
ent's grievance was against Walters and, by its picket-
ing at the Southwest Gate, Respondent sought to en-
mesh neutral employees in a refusal to work, with an
object of forcing neutral employers to cease doing busi-
ness with Walters. We do not agree.
In developing standards by which to measure the
legality of the type of picketing involved herein, the
controlling consideration has been to require that the
picketing be so conducted as "to minimize its impact
on neutral employees insofar as this can be done with-
out substantial impairment of the effectiveness of the
picketing in reaching the primary employees."3 The
Board has refused to apply these standards in an inflexi-
ble manner, but rather has attemped realistically to
balance the interest of neutrals with the union's interest
in reaching the primary employer.' The ultimate aim
remains to insulate neutrals to the extent this can be
accomplished in a manner that does not impair a un-
ion's ability to engage in primary picketing.
In the present case, it is undisputed that Respond-
ent's conduct complied in all respects with the stan-
dards for lawful common situs picketing established in
Moore Dry Dock, 5 with the arguable exception of pick-
eting covering a 4-hour period during which Respond-
ent's failure to confine its picketing to a gate reserved
for primary employees allegedly established a pro-
scribed secondary objective. It is true that neutral em-
ployers may, by the device of a separate gate, limit the
situs of the primary dispute and thereby preclude law-
ful picketing at other locations. However, it is equally
clear that such an arrangement must be established in
a manner which avoids confusion and the possible en-
trapment of a union, and under conditions which rea-
sonably assure that picketing at the designated primary
entrance will reach the on-site business activity of the
primary employer. In this case, from the initial estab-
lishment of the North Gate, it was apparent that said
Retail Fruit & Vegetable Clerks' Union, Local 648, Retail Clerks Inter-
national Association, AFL-CIO (Crystal Palace Market), 116 NLRB 856;
Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB
547
International Brotherhood of Electrical Workers, Local 441 (Suburban
Development Co), 158 NLRB 549, Building & Construction Trades Council
of New Orleans, AFL-CIO (Markwell and Hartz, Inc.), 155 NLRB 319
Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), supra.
entrance would remain open only until the road con-
struction crew had progressed far enough south on
Kasold Avenue to block access to the site through the
North Gate. When Respondent's picket first arrived at
the North Gate, the road crew was already within 20
feet of the North Gate. It was obvious, therefore, that
Walters' employees and those of its suppliers, at some
time that day, would have to use some entrance other
than the North Gate. In fact, prior to 1:30 p.m. it
became apparent even to Park-Mar that the North
Gate could no longer be used by Walters' employees.
In the face of the uncertainty presented by imminent
closure of the North Gate, Respondent, at noon, moved
its picket from the North Gate, back to the Southwest
Gate, the gate previously used by primary employees.
Before the picket was moved, however, Respondent's
counsel had requested to be notified in the event a
different gate was established for Walters' employees.
Yet, when Park-Mar transferred the primary gate from
the North Gate to South Gate, Respondent's counsel
was not notified as requested. Indeed, although com-
munication as to the location of the gates previously
had been between Respondent's officials and Walters,
the change in gates was accomplished merely by Park-
Mar's superintendent telling Respondent's lone picket
that he had "removed the sign that was at the North
Gate and was taking it to the South entrance and
putting the sign up there."
On the basis of the foregoing, we are unable to con-
clude that the situs of the dispute was defined either
with a sufficient degree of certainty or permanence to
circumscribe the area of lawful primary picketing. Con-
sidering the brief period of allegedly unlawful picketing
in relation to the ambiguities presented by the tempo-
rary availability of the North Gate, the changing of the
primary gate only a half day after its establishment, and
the failure to give notification of such change to respon-
sible union officials as had been done in the past and as
requested, we are not persuaded that Respondent's
picketing at the Southwest Gate supports an inference
of proscribed secondary activity.
Accordingly, we find that Respondent's picketing
did not have an unlawful object proscribed by Section
8(b)(4)(i)(B)6 and we shall order the complaint herein
dismissed in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
' Although the General Counsel filed exceptions to the Trial Examiner's
refusal to find that Respondent 's conduct violated Sec 8(b)(4)(ii ), in view
of our disposition of the case we find it unnecessary to reach that issue.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner: The complaint
herein (issued June 16 , 1971; charge filed May 17, 1971)
alleges that Local 1290 has violated Section 8(b)(4)(i) and
(ii)(B) of the National Labor Relations Act, as amended, 73
Stat . 519, by inducing and encouraging individuals employed
by persons engaged in commerce to engage in a strike or
refusal in the course of their employment to use , process,
transport , or otherwise handle or work on goods , articles,
materials, or commodities , or to perform services, and by
threatening , restraining, and coercing persons engaged in
commerce , such persons being secondary employers herein;
an object of such acts and conduct being to force and require
such persons to cease doing business with a main contractor,
also a secondary employer herein , so that the latter would
cease doing business with the primary employer . The com-
plaint is framed in terms of violation of the reserved gate
doctrine , not of threats or violence . The answer , as modified
by stipulations , denies the allegations of violence.
The case was tried before me at Lawrence , Kansas , on July
7, 1971. Briefs have been filed by the General Counsel and
Local 1290. The General Counsel's unopposed motion to
correct the transcript as therein indicated is granted. The
Company stickles on an issue which , were it meritorious,
should claim the attention of the legislature.
Upon the entire record in the case and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
I THE BUSINESS OF THE VARIOUS COMPANIES, AND THE
LABOR ORGANIZATION INVOLVED
It was admitted at the trial that Park-Mar Contractors, a
partnership , is the general contractor in construction of Park-
Mar Estates at Lawrence , Kansas; that Walters Foundation,
Inc., is constructing concrete foundations and floors , Charles
H. Dunbar d/b/a W. A. Dunbar & Sons is excavating and
hauling materials , and R . H. Rhodes d/b/a Rhodes Heating
and Roofing Co. is installing heating , air conditioning, sheet
metal and roofing materials , all on the Park -Mar project; and
that Park-Mar , Walters , Dunbar , and Rhodes are severally
engaged in commerce within the meaning of the Act, the
latter three as subcontractors of Park-Mar . I find and con-
clude accordingly . I also find and conclude that , as admitted,
1290 is a labor organization within the meaning of the Act.
II THE UNFAIR LABOR PRACTICES
After the admissions concerning commerce , and tentative
agreement and many modifications , a lengthy stipulation was
read into the record at the end of the morning session.' On
' At the afternoon session, citing part of the discussion at the morning
session while this stipulation was being arranged , Mr Reinhold, counsel for
1290, charged me with "a bias or a prejudice at least as to this particular case
or as to the admission of evidence ," he requested that I declare a mistrial
and disqualify myself
At the opening of the trial I received after more than 2 hours of discussion
stipulations concerning facts not in dispute , which materially lessened the
number of witnesses and shortened the trial . During these discussions off the
record and after apparent agreement between counsel , Mr Reinhold several
times injected additional matters for inclusion in the stipulation I humor-
ously remarked in an attempt to lessen tension among counsel that repeated
belated injections of new matter after the proposed stipulation had been so
arduously prepared , modified, and reread for approval of counsel might raise
a question concerning the credibility of the supplementary material
When we reconvened that afternoon , Mr Reinhold made the charge and
request noted above Denying that I was biased or prejudiced , I told him that
Thursday, May 13, 1971, 1290 began to picket Walters at the
project; the picketing continued on May 14, all at the Main
or Southwest Gate. On Saturday, May 15, Walters' attorney
notified 1290 by telegram that as of Monday morning, May
17, the North Gate on the project would be set aside for the
use of Walters employees only and that all other contractors
and employees would use the Southwest Gate exclusively.
On the morning of May 17 a sign, copy of which was
received as General Counsel 's Exhibit 2-A, was posted at the
North Gate, and another sign , General Counsel's Exhibit
2-B, was posted at the Southwest Gate . General Counsel's
Exhibit 2-A read : "Entrance for exclusive use of following
contractors and suppliers Walters Construction Company."
General Counsel 's Exhibit 2-B read : "Entrance for exclusive
use of following contractors and suppliers " and listed the
following names : White Installation , Morrison Drywall,
Wickes Lumber , Robinson Brothers , Rhodes Heating, Scott
Construction, Ransford Electric, Penny Red-Mix, Nelson
Painting , W. A. Dunbar, and Hetzel Haul. The picket sign
appears in the background of General Counsel's Exhibit 2-B:
"Walters is breaking down established working conditions of
Laborers Local 1290, AFL-CIO." The sign itself, as distin-
guished from its placement , is not under attack.
The primary employer, with whom 1290 has been in dis-
pute, is Walters ; 1290 has no labor dispute with Park-Mar,
the general contractor who, like Rhodes , Dunbar , and the
other contractors or suppliers named, is thus a secondary
employer.
It is not claimed that 1290 committed any violation prior
to approximately 12 noon on May 17. About noon the picket,
who had been stationed at the North Gate that morning
(following the telegram of May 15), was transferred from
there to the Southwest Gate, where he remained until approx-
imately 4:30 that afternoon. There are actually three en-
trances to the project. Besides the North and Southwest
Gates, which are approximately 1,300 feet apart , there is a
South Gate about or less than half a block south of the
Southwest Gate. From the place where construction was be-
ing carried on inside and near the Southwest Gate , the North
Gate cannot be seen. The nearest work on the project was
approximately 100 feet from the Southwest Gate; no work
was being performed on the project less than approximately
1,300 feet from the North Gate. There were no actual gates
or fences on this west side of the project; at each of the three
gates mentioned there was a path or access route leading into
the project.
Other contractors and crews were constructing a public
cement road on Kasold Avenue, which runs north and south
and which abuts on the Park-Mar project's west side. Some
of these were working within 20 feet of the North Gate on
May 17, and were closer to it than were Walters employees
although , as we shall see , road work was being performed
along the entire street and in front of all three gates.
On the morning of May 17 counsel for 1290 informed
Walters' attorney by telephone that 1290 would recognize a
properly constituted reserve gate but that this (the North)
I had formed no advance opinion and showed him my trial notes which
carried the notation to await the testimony on the point which he said he
intended to cover To counsel's statement that his motion was not personal
(I believe that this was off the record ), I replied that it was personal to the
extent that it was directed toward a person but that it was not offensive
(This was repeated on the record in Iron Workers Local 10 (R & T Steel
Contractors, Inc) Case 17-CP-119, 120, which was tried the next day and
which Mr Reinhold, attorney for Iron Workers Local 10, opened with a
motion that I disqualify myself because I had said that his motion in the
instant case was personal, my statement that it was literally personal but not
offensive was apparently still not clear to him although I had stated the day
before that he had every right to make the motion )
LABORERS UNION LOCAL 1290 373
gate was not properly constituted because it was too far from
the gate used by the other Park-Mar project employees and
from the work being done on the project.
Supplementing these facts, it appears that General Coun-
sel's Exhibit 2-A was placed at the North Gate between 7:30
and 8 a.m. on Monday, May 17. The reserved gate sign,
General Counsel's Exhibit 2-B, was placed at the Southwest
Gate about or shortly after 8 a.m. The North Gate was still
accessible from the street at 1:30 p.m. but work by the road
construction company on the street in front of the project and
all three of the gates was making the project inaccessible as
it proceeded from the north. The Walters sign , General
Counsel's Exhibit 2-A, was moved from the North Gate to
the South Gate at approximately 1:30 p.m., and entrance
from the street was no longer possible at the North Gate
shortly after 1:30. Having entered through the North Gate (a
supervisor entered through the South Gate between 3:30 and
4 p.m.), all Walters employees (and that supervisor) left via
the South Gate that afternoon.
There is no reason to doubt the testimony by Hall, Park-
Mar's superintendent, that he made and placed the gate signs
and that there were only two. When a sign was placed at the
South Gate, it was one of the two which had been placed
previously, specifically the one which had been at the North
Gate. There is no question but that the reserved' gate sign was
placed and remained at the Southwest or Main Gate. Stultz,
later identified as the business representative and financial
secretary of a Carpenters local, was at least mistaken when
he testified that he saw one like it at the South Gate. All of
this would indicate violation from noon, when the picket
arrived at the Southwest Gate, until 4:30, when he left that
afternoon.
Hall testified that he did not call 1290 but told the picket
at the Southwest Gate that he was moving the sign from the
North to the South Gate, which was to be for the exclusive
use of Walters' employees. The picket, assigned and moved
about by 1290, had already violated the reserved gate rule
when , on assignment by 1290, he was stationed at the South-
west Gate at noon and thereafter. It becomes unnecessary to
decide whether, with respect to the picketing after 1:30, the
picket's knowledge that the Walters sign, General Counsel's
Exhibit 2-A, had been moved to the South Gate is attributa-
ble to 1290.
In any event, the violation occurred and continued between
noon and 1:30 p.m. when, after establishment of the separate
gate for Walters' employees at the North Gate and before the
South Gate was used or any sign placed there (so that the
issue was during that period admittedly confined to the North
and the Southwest Gates alone), the picket was stationed at
the Southwest Gate
Stultz testified that he saw "Robinson" come out of the
South Gate and that the sign posted there had Robinson's
name on it Even were this testimony, uncertainly given, to
be relied on, and it is not, it would not show use of that gate
by any employees other than Walters'. If used by Robinson,
the only identification of anyone with that name (this is not
to slight Defoe) is the inclusion of Robinson Brothers as one
of the contractors on the job named in General Counsel's
Exhibit 2-B, not an employee.
' Reference throughout was to G.C.'s Exh 2-A, as the reserved gate sign
While that sign indicated reservation for Walters employees, it is correct to
refer to the Southwest Gate, reserved for employees of secondary employ-
ers, as the reserved gate , and to G C's Exh 2-B as the reserved gate sign
There is no confusion concerning the gates and who used them, the signs
and where they were posted
Stultz also testified that he saw Rickle, a contractor in the
area, entering the project through the South Gate. It does not
appear that Rickle was a contractor here or had any em-
ployees on the site. There is no testimony that any employee
entered or left the project except by one of the three gates:
Walters' by the North Gate, later leaving by the South Gate,
all other employees by the reserved Southwest Gate.
It would go beyond the facts here shown to point out that
the presence of Robinson at the South Gate would not
legitimatize picketing at the Southwest Gate reserved for
employees of secondary employers and not used by Walters.
Nor is there evidence of "mingled use"' of the reserved gate.
Crisscrossing paths or tire tracks inside the project would
not indicate access from outside at any place other than the
three gates. Such tracks inside the project cannot support a
claim that access could be had at many other places. But
beyond this, to repeat, there is no testimony that employees
in fact did enter except through the gates set aside for them.
The project's layout, its boundary, access to it, how to "define
inside or outside,"-these are not abstruse concepts. They
need not be described in Devanagari.
There is not a scintilla of evidence to support the statement
by Rider, 1290's representative and moving spirit, that he or
Reinhold was concerned lest the road construction company
assume that it was being picketed. An approach to that com-
pany would have forestalled such an assumption, now in the
second degree as 1290 assumed that there might be an as-
sumption. With work done along the entire street and in front
of all three gates, the North Gate becoming impassable at
1:30, it was not shown how or why 1290's alleged concern
would be lessened or the road company's assumption avoided
by transfer of the picket from one gate to another.
Concerned, Rider or his attorney would have attempted,
when the picket was first stationed or at some time before he
was moved, to explain to the road construction company
(were explanation beyond the picket sign necessary) in order
to avoid or lessen any not yet manifest reaction or assumption
by it. But this was not done. The claim of concern is fanciful
and incredible. To the extent that 1290's attorney testified to
such concern, we need not make a credibility finding. Nor did
Reinhold claim that he suggested to Rider that explanation
be offered to the road construction company with respect to
picket signs at any of these gates.
Neither, as Reinhold now admitted, was there previous
reference at the trial (when his telephone conversation with
Walters' attorney on May 17 was being discussed, either on
or off the record, although the right to add was specifically
reserved when the stipulation was finally entered into) to any
request that he be notified of any change in the location of the
Walters' gate. It had been clearly argued that the reservation
of the North Gate for Walters' employees was "inappropriate
and deficient and defective" since the paths taken by various
employees crisscrossed once the separated employees entered
upon the project; and that the Walters (North) gate purposely
set up in an "unrelated area," was therefore inappropriate:
that the gate for the employees of the primary employer must
be set up near the gate used by the neutral employers' em-
ployees so that the latter could see and presumably would be
restrained by the presence of any picket.
The argument continues that the picket's sign at the North
Gate was not visible from the place where the work was being
done near and inside the Southwest Gate. But the rationale
of the reserved gate doctrine is that full opportunity be given
to picket the primary employer while yet minimizing the
' Local No. 761, IUE (General Electric Corporation) v NL R B., 366
U S 667, 682 See Nashville Building and Construction Trades Council
(Markwell & Hartz, Inc), 383 F 2d 562 (C A 6), enfg 164 NLRB 280
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impact on secondary employers and their employees.' The
modulus of permitted activity remains the right of secondary
employers and their employees to function without threat or
inducement to the contrary while yet permitting a union to
picket the primary employer.
Its grievance against Walters, 1290 by proscribed picketing
sought to enmesh neutral employees in a refusal to work and
thus to do business with Park-Mar, and thus with Walters,
an object being, as alleged , to force these secondary or neutral
' See Bricklayers, Local I (Don Salisbury Bricklaying Company), 191
NLRB No. 5
employers to cease doing business with Walters. Local 1290
unlawfully induced and encouraged employees of secondary
employers, an object being to enmesh secondary employers in
its dispute with Walters and to force and encourage Park-
Mar to cease doing business with Walters. This was violative
of Section 8(b)(4)(i)(B); I so find and conclude. With refer-
ence to the allegation of violation of Section 8(b)(4)(ii)(B), it
does not appear that, whatever the object, secondary employ-
ers were threatened, coerced, or restrained. That allegation
must be dismissed unless it be held that inducement or en-
couragement of employees per se unlawfully threatens, co-
erces, or restrains their employers.
[Recommended Order omitted from publication.]