Martel Construction

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 921 (N.L.R.B. 1993)

921
311 NLRB No. 89
MARTEL CONSTRUCTION
1 On June 28, 1990, the judge issued his original decision. The Re-
spondent filed exceptions and a supporting brief and the General
Counsel filed a response brief, a clarification of the response brief,
and a motion to correct and clarify the judge’s decision. On April
15, 1991, the Board issued a Decision and Order at 302 NLRB 522,
remanding the proceeding to the judge to take evidence the Re-
spondent had sought to introduce in support of its defense that the
Unions had engaged in illegal picketing of its reserved gate and to
consider what effect, if any, that defense had on his findings and
conclusions that the Respondent unlawfully terminated the alleged
discriminatees. The Board at that time did not rule on the Respond-
ent’s other exceptions nor on the General Counsel’s motion to cor-
rect and clarify the judge’s decision.
2 The National Labor Relations Board has delegated its authority
in this proceeding to a three-member panel.
3 In referring to a certain complaint allegation in his initial deci-
sion, the judge inadvertently stated that the Respondent had violated
Sec. 8(4)(1) and (3) of the Act. That reference should be to Sec.
8(a)(1) and (3). Similarly, the judge’s reference in sec. III of his
findings to Sec. 8(b)(1) should be to Sec. 8(a)(1); his reference in
item 3 of his conclusions of law and in the remedy section should
be to Sec. 8(a)(1) and (3); and his reference in item 5 of his conclu-
sions of law should be to Sec. 2(6) and (7) of the Act. Finally, in
the judge’s recommended order, the paragraph after 1(a) should be
designated paragraph (b) rather then 2(b), and the term ‘‘later orga-
nization’’ in that paragraph should be ‘‘labor organization.’’
4 Consequently, we find it unnecessary to consider whether a pe-
riod of 1 week to respond would have been reasonable under the cir-
cumstances. We do note, however, that the Respondent did not prof-
fer reinstatement until 2 weeks after its unlawful dismissal of
Waliser and Williams. The timing of its offer thus casts doubt on
the imnmediacy of its need to know whether Waliser or Williams
intended to return.
Martel Construction, Inc. and Western Montana
Area District Council of Carpenters, affiliated
with United Brotherhood of Carpenters and
Joiners of America and International Union of
Operating Engineers Local No. 400, affiliated
with International Union of Operating Engi-
neers, AFL–CIO. Cases 19–CA–20435 and 19–
CA–20436
May 28, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 31, 1992, Administrative Law Judge Bur-
ton Litvack issued the attached supplemental decision.1
The Respondent filed exceptions and a supporting brief
and the General Counsel filed a brief in support of the
judge’s supplemental decision.2
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions and to adopt the recommended Order.
1. In adopting the judge’s decision, supplemental de-
cision, and recommended Order, we note in particular
that no evidence was introduced that either of the al-
leged discriminatees, Robert Williams and Raymund
Waliser, who had refrained from entering the jobsite
through the primary gate intended for their use, there-
after participated in any illegal secondary picketing at
the neutral gate. Under these circumstances, we agree
with the judge that Williams and Waliser’s with-
holding of services from their employers was lawful
primary strike activity and that the protected character
of their activity was not forfeited solely because, on
the second day of picketing, the Unions, without the
participation of Williams or Waliser, unlawfully pick-
eted the neutral gate in addition to the primary gate.
Consequently, we agree that the Respondent’s conten-
tion that Williams and Waliser had engaged in unpro-
tected activity lacks merit.
2. In examining the Respondent’s exception pertain-
ing to the adequacy of its July 28 reinstatement offers
to Williams and Waliser, we, unlike our dissenting col-
league, find that the wording of those offers amounts
to precisely what the Board in Esterline Electronics
Corp., 290 NLRB 834 (1988), specified would not suf-
fice to toll an employer’s backpay obligations. The dis-
sent, in citing Esterline for the proposition that the
Board will not find a reinstatement offer invalid mere-
ly because the ‘‘specified reporting date is unreason-
ably short,’’ ignores the condition precedent that the
offer be valid and Esterline’s clear explanation that:
[t]he offer will be treated as invalid . . . if the
letter on its face makes it clear that reinstatement
is dependent on the employee’s returning on the
specified date or if the letter otherwise suggests
that the offer will lapse if a decision on reinstate-
ment is not made by that date. [290 NLRB at 835,
emphasis added.]
Contrary to our colleague, we do not find that the
discriminatees had up to a week to consider the Re-
spondent’s offers. The plain language of those offers
instructed them ‘‘to immediately report to work no
later than twenty-four (24) hours after receipt of this
letter, or Friday, August 4, whichever occurs first.’’
(Emphasis added.)4 Clearly the next and concluding
sentence in the offer, ‘‘[i]f you do not report by those
deadlines, we will assume that you are no longer inter-
ested in working for our company,’’ indicates that the
offers would lapse if the discriminatees did not report
within 24 hours of receiving them or at the latest by
August 4. Not only were these offers inadequate by
virtue of the lapsing language, but the evidence is also
uncontradicted that neither claimant received notice of
the Respondent’s offer at a time when it was, by its
terms, still outstanding and thus capable of acceptance.
In sum, contrary to our dissenting colleague, we find
that the Respondent’s offer employed language that
would not lead any reasonable person to believe that
it survived after August 4. Under Esterline this was
not a cognizable offer of reinstatement, at least for any
person who, like the discriminatees, did not see it until
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
after August 4, and they would therefore have no duty
of further inquiry.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Martel Construction, Inc.,
Bozeman, Montana, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
MEMBER OVIATT, dissenting in part.
I join my colleagues in finding that the Respondent
violated Section 8(a)(1) of the Act by threatening em-
ployees with discharge and no future employment un-
less they ceased their affiliation with any union, and
that the Respondent violated Section 8(a)(3) and (1) by
discharging Raymond Waliser and Robert Williams be-
cause they refused to cross a picket line and report for
work. Unlike the majority, however, I find that the Re-
spondent’s July 28, 1989 reinstatement offers to
Waliser and Williams tolled the Respondent’s backpay
obligations.
On July 28, 1989, the Respondent sent reemploy-
ment offers to Waliser and Williams in identical reg-
istered letters. These letters stated, inter alia, that nei-
ther union membership or the lack of union member-
ship was a condition of employment, but that reporting
for work each day as assigned was an employment re-
quirement. The reinstatement offers also stated that if
Waliser or Williams participated in a strike against the
Respondent, they ‘‘will be subject to replacement and
subsequent reinstatement only as allowed and required
by law.’’ Most significantly, the letters closed by stat-
ing that
If you choose to accept reemployment, please im-
mediately report to work no later than twenty-four
(24) hours after receipt of this letter, or Friday,
August 4, whichever occurs first. If you do not re-
port by those deadlines, we will assume that you
are no longer interested in working for our com-
pany.
Waliser testified that the letter arrived at his home
before August 4, but that when it was delivered he was
out of the state attempting to find work elsewhere.
Waliser stated that he did not learn of the letter’s con-
tents until 4 days after his wife received it, and that
he did not respond to the offer, because of its reporting
requirements. Williams testified that he first saw a
copy of the Respondent’s reinstatement offer on Au-
gust 12. He stated that it had been correctly addressed,
but speculated that his wife had received notice of at-
tempted deliveries but had not informed him.
The judge found that these two reinstatement offers
were invalid under the principles set forth in Esterline
Electronics Corp., 290 NLRB 834 (1988), because
each letter
on its face makes it clear that reinstatement is de-
pendent on the employee’s returning on the speci-
fied date or the letter otherwise suggests that the
offer will lapse if a decision on reinstatement is
not made by that date.
In the circumstances presented here, I do not agree
that the Respondent’s reinstatement offers were inad-
equate under Esterline or under any other Board prece-
dent. In Esterline at 835, the Board stated that
A discriminatee who receives an otherwise valid
offer, however, cannot rely on the mere inclusion
of an unreasonably short report-back date in the
letter to justify a failure to make some response
to the employer, if only to ask for more time to
consider the offer. A failure to make such a re-
sponse within a reasonable time after the offer has
been made will toll the running of backpay.
[Footnote omitted.]
With this in mind, I find that the failure of Waliser
and Williams to respond to the Respondent’s reinstate-
ment offer tolled the running of the backpay period.
The employees’ stated reasons for doing so do not, in
my view, justify their failure to fulfill their obligation
to respond in a relatively prompt manner to the Re-
spondent’s letter. It does not place an undue burden on
an employee to require him to inform his employer of
his intention regarding reinstatement within a reason-
able time after notice.
The underlying rationale of Esterline is that both the
employer and the employee must deal in good faith
with each other over matters of reinstatement offers
and their implementation. I believe that the Respondent
acted in good faith concerning its reinstatement offers,
but that the employees did not demonstrate the dili-
gence necessary to continue the backpay period be-
yond the suggested reporting dates specified by the
Respondent’s letter. The Respondent gave the two em-
ployees up to a week to respond to the reinstatement
offers, but the employees declined to express any inter-
est in continued employment with the Respondent.
It is significant with respect to this issue that the Re-
spondent is engaged as a general contractor in the con-
struction industry. As such, the Respondent had a par-
ticular need to know whether Waliser or Williams had
any intention of returning to work within a reasonable
period of time. This is especially true in the case of
Waliser, who was particularly valuable to the Respond-
ent because he was able to operate the complicated
piece of machinery known as the ‘‘Grove’’ crane. The
majority’s adoption of the judge’s recommended rein-
statement and backpay remedy unduly penalizes an
employer that expressed its willingness to reemploy
these employees unconditionally, and rewards two em-
ployees who, for all intents and purposes, had aban-
doned any interest in future employment with the Re-
923MARTEL CONSTRUCTION
1 In addition to the issue raised by the Board’s remand, counsel
for Respondent sought permission to introduce additional evidence
related to its offers of reinstatement to the two discriminatees. Coun-
sel for the General Counsel objected to any such evidence on the
grounds that such was beyond the subject of the Board’s remand
order to me. I received the proffered evidence subject to my ruling
herein.
2 Respondent hired both union and nonunion employees to work
for it on the project and utilized subcontractors, who were signatory
to collective-bargaining agreements with labor organizations, and
subcontractors, which were operating on a nonunion basis.
3 At the time of the commencement of the picketing allegations
that Respondent had engaged in conduct violative of Sec. 8(a)(1) and
(5) of the Act, by failing to execute successor collective-bargaining
agreements with the three labor organizations, were pending before
Administrative Law Judge Jay Pollack, and, I credited discriminatee
Waliser, that, when he arrived at the jobsite at approximately 8
o’clock that morning, he was told by business agents of the Oper-
ating Engineers that the picketing was to protest unfair labor prac-
tices of Respondent. Subsequently, Judge Pollack dismissed the
above allegations.
As I noted in my decision, that the Unions’ picketing began on
this date does not appear to have been happenstance. Thus, accord-
ing to William Martel, Respondent’s president, concrete pours were
scheduled to begin at that time.
I have previously concluded that the two discriminatees, Waliser
and Williams, arrived at the jobsite that morning at their normal
times; that each observed the picketing and decided not to cross the
picket line and report for work; and that, after remaining for a short
time, each left and returned home. There is no record evidence that
either Waliser or Williams participated in the picketing on July 13.
4 At the southeast corner of the jobsite were Respondent’s office
trailer, an architect’s office and lunch trailer, and a tool van. The
entrance was between the tool van and the lunch trailer.
spondent by failing to respond to the letters offering
reinstatement. Accordingly, I dissent from my col-
leagues’ adoption of the judge’s recommended rein-
statement and backpay order.
Michael S. Hurtado, Esq., for the General Counsel.
Donald C. Robinson, Esq. (Poore, Roth & Robinson, P.C.),
of Butte, Montana, appearing on behalf of the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. On June 28,
1990, I issued my decision in the above-captioned matter,
finding that Martel Construction, Inc. (Respondent), termi-
nated two employees, Robert Williams and Raymond
Waliser, in violation of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act), and recommending that
Respondent be ordered to reinstate said employees to their
former positions of employment or, if said positions no
longer exist, to substantially equivalent positions and to make
each whole for any wages lost, with interest. Subsequently,
on April 13, 1991, the National Labor Relations Board (the
Board), issued a Decision and Order, remanding the case to
me to reopen the hearing and to ‘‘take evidence related to
the Respondent’s defense concerning the Union’s alleged il-
legal secondary picketing and, thereafter, consider the effect,
if any, of that defense on his findings that the Respondent
engaged in unlawful conduct.’’ Pursuant to the order of the
Board, the hearing, in the above-captioned matter, was re-
opened by me in Bozeman, Montana, on September 24,
1991, and, at said reopened hearing, all parties were afforded
the opportunity to examine and cross-examine witnesses, to
offer any relevant evidence, and to argue their legal positions
orally on the issues, as framed by the Board’s order.1 Addi-
tionally, having been afforded the opportunity, both counsel
for the General Counsel and counsel for Respondent filed
posthearing briefs, which have been carefully considered.
Accordingly, on the entire record of the reopened hearing, in-
cluding the posthearing briefs and my observation of the tes-
timonial demeanor of the several witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. THE ALLEGEDLY UNLAWFUL SECONDARY PICKETING
A. The Facts
Respondent is engaged in business as a general contractor
in the building and construction industry in the State of Mon-
tana, and, in April 1989, commenced work on a multimillion
dollar project, a Federal reserve bank building, in Helena,
Montana. The record establishes that the jobsite was bor-
dered on the south by Neill Avenue, on the east by Front
Street, and on the west by Getchell Avenue; that to the north
was a 10-acre vacant lot which was not separated by any nat-
ural demarcation from the jobsite; and that the jobsite was
completely enclosed by a fence except along the northern
end where the fence stopped at a dirt road which cut through
the vacant lot to the jobsite. The record further establishes
that the jobsite was located on a steep hill, with the northern
end at the base of the hill; that the main entrance to the job-
site was on front Street near the corner of Neill Avenue and
Front Street; that a second entrance to the project was lo-
cated on Front Street 330 feet to the north of the main en-
trance; and that, given the steep hill and the difficult turn
into the main entrance, drivers of large delivery trucks would
often utilize the dirt road, which cut through the vacant lot
to the north of the jobsite, to deliver their loads to the
project.2
Early in the morning of Thursday, July l3, l989, business
agents of the Western Montana Area District Council of Car-
penters, affiliated with United Brotherhood of Carpenters and
Joiners of America (Carpenters), the International Union of
Operating Engineers Local No. 400, affiliated with Inter-
national Union of Operating Engineers, AFL–CIO (Operating
Engineers), and Laborers Local 254, affiliated with Laborers’
International Union of North America, AFL–CIO (Laborers),
commenced picketing at the jobsite with placards which read,
‘‘On strike due to unfair labor practices against Martel Con-
struction.’’3 Clarence (Clancy) Gaworski, Respondent’s
project superintendent, testified that at least 10 individuals
congregated on the sidewalk and in the street next to the
jobsite’s main entrance, which is a driveway 18 to 20 feet
wide,4 and that none of the pickets were at the other Front
Street entrance to the jobsite, Gaworski also testified that he
spoke to Lars Erickson, a representative of the Carpenters
who was carrying a picket sign, on the sidewalk near the
main entrance, and ‘‘I kind of asked him what they were
doing there, and he said that they were picketing the jobsite
against Martel.’’ Gaworski mentioned that there were two
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 During cross-examination, Gaworski stated that there was an
opening in the jobsite fence on Neill Avenue and in front of the
Martel office trailer and that employees would enter and exit the job-
site through said opening. He added that said opening, which was
three feet wide, was ‘‘probably’’ used by jobsite workers on July 13.
6 One of the men depicted in this photograph is also seen in R.
Exh. 4(b).
7 The message on the placards was the same as on the placards
carried the day before by pickets at the jobsite.
8 According to Gaworski, this photograph was taken at approxi-
mately 8 a.m. by a representative of the Federal reserve bank.
Gaworski added that the picture was taken after work had com-
menced on the project that morning inasmuch as the entrance gate
is shown to be open.
entrances to the jobsite, but Erickson said they were ‘‘illegal
gates’’ because no signs were posted.5 After speaking to
Erickson, at approximately 8:30 or 9 a.m., Gaworski tele-
phoned William Martel at Respondent’s office in Bozeman
and told him that the jobsite was being picketed. Martel re-
sponded that they would go to a two-gate system, and
Gaworski, recalling what Erickson told him, said they would
need posted signs. At approximately 11 a.m., Martel
‘‘faxed’’ the ‘‘legal language’’ for the gate designation signs
to Gaworski, and Gaworski contacted a sign painter in Hel-
ena with instructions to have the completed gate signs ready
early the next morning. That afternoon, according to
Gaworski, anticipating that the three unions would continue
their picketing the next day, he dug holes by the two en-
trances off of Front Street for the placement of the gate
signs, placed wire across the opening in the fence in front
of the office trailer, informed the workers on the jobsite that
gate designation signs would be posted by the entrances the
next morning, and instructed them as to which entrances
were to be used by Respondent’s employees and the employ-
ees of the various subcontractors.
Also, on July 13, on becoming aware of the above pick-
eting at the Federal reserve bank building jobsite in Helena,
Respondent mailed and ‘‘faxed’’ the following letter to the
picketing labor organizations:
You are hereby notified that Martel Construction,
Inc. has erected separate reserved gates as follows:
Gate 1
Location: On Front Street at North Entrance across
from Job Service Building.
Language on sign: This sign reserved for the exclu-
sive use of employees, suppliers, and visitors of Martel
Construction, Inc. . . .
Gate 2
Location: On corner of Neill and Front Street near
Job Office. Language on sign: This gate reserved for
the exclusive use of employees, suppliers, and visitors
of: Metalworks of Montana, Yellowstone Electric, Big
Sky Fire Protection, Missoula Sheet Metal, Shipman
Brothers Masonry, Structural Steel, Helena Sand &
Gravel, and Lagerquist Elevators.
If your Union engages in picketing activities, Martel
Construction, Inc. expects the officers, agents and mem-
bers of the Union to confine your activities to Gate 1.
Picketing at any other location will constitute an illegal
secondary boycott.
According to Clancy Gaworski, on Friday, July 14, the
sign painter delivered the completed gate designation signs at
approximately 5 a.m.; each sign was approximately 4 feet
square; and he proceeded to place the signs by the proper en-
trances. Thus, by the main entrance to the jobsite, near the
corner of Neill Avenue and Front Street, he posted the fol-
lowing sign: ‘‘GATE 2; THIS GATE RESERVED FOR
THE EXCLUSIVE USE OF EMPLOYEES, SUPPLIERS &
VISITORS OF: Big Sky Fire Protection, Structural Steel,
Yellowstone Electric, Missoula Sheetmetal, Helena Sand &
Gravel, Metalworks of Montana, Shipman Bros. Masonry;
NO OTHER PERSON MAY USE THIS GATE,’’ and, by
the other entrance on Front Street, located 330 feet north of
the main entrance, he posted the following sign: ‘‘GATE 1;
THIS GATE RESERVED FOR THE EXCLUSIVE USE OF
EMPLOYEES, SUPPLIERS & VISITORS OF: MARTEL
CONSTRUCTION . . .; NO OTHER PERSON MAY USE
THIS GATE!’’ After completing the posting of the gate des-
ignation signs, Gaworski went inside the office trailer and,
shortly thereafter, exited the trailer in order to return to his
home. At this point, according to Gaworski, he observed an
individual picketing at Gate 2, the main entrance. Gaworski
walked over to the picket and said he should not be carrying
his sign at that entrance, and the picket, whom Gaworski
could not identify, replied, ‘‘We can picket wherever we
want.’’ The project superintendent then left the jobsite, re-
turning at approximately 6:45 a.m. By the time work was
scheduled to commence, and continuing for the remainder of
the morning, according to Gaworski, the striking labor orga-
nizations had individuals, with placards, stationed at Gates 1
and 2 and had pickets walking between the entrances on
Front Street and along the southern end of the jobsite on
Neill Avenue. In support of Gaworski’s testimony, Respond-
ent offered into evidence a photograph of the scene at Gate
2, which photograph, Gaworski testified, was taken by him.
Said photograph, Respondent’s Exhibit 4(b), shows two men,
carrying placards, standing at the corner of Neill Avenue and
Front Street and a few feet from the entrance designated as
Gate 2; three placards, placed against the jobsite fence, be-
tween the pickets and the entrance driveway; and the en-
trance gate, which is shut across the driveway. While there
is no date stamp on this exhibit to corroborate Gaworski’s
testimony that the photograph was taken at 6:45 a.m. on June
14, 1989, corroboration for the fact that the gate designation
signs were erected on July 14 does exist. Thus, Respondent’s
Exhibit 2(d) is a photograph bearing the date stamp ‘‘14–7–
89’’ and showing two individuals,6 who are carrying plac-
ards7 and standing in the driveway of the main jobsite en-
trance, which is designated by the posted sign as Gate 2.8
Finally, according to uncontroverted testimony of William
Martel, the picketing at the main entrance, designated Gate
2, on July 14 resulted in the refusal of employees of Yellow-
stone Electric, Respondent’s electrical subcontractor, whose
employees were required to enter the jobsite through Gate 2,
to enter the jobsite and work.
There is no dispute that picketing occurred at both en-
trances to the jobsite on the morning of July 14; however,
what is in dispute is whether the gate designation signs had
been posted that day. Thus, discriminatee Raymond Waliser
testified that he arrived at the jobsite at 7:50 a.m., that, just
925MARTEL CONSTRUCTION
9 Discriminatee Robert Williams also drove to the jobsite on July
14, observed that the pickets had returned, and, after a few minutes,
went home. There is no record evidence that either discriminatee en-
gaged in picketing on this day.
10 Federson testified that the picketing, on July 13 and continuing
thereafter, resulted from the Unions’ belief ‘‘that the Martel Com-
pany had committed an unfair labor practice,’’ involving an agreed-
upon collective-bargaining agreement.
11 Asked to explain the plain meaning of the words of his reply
letter to Martel, Federson stated that the letter was merely a reply
to what Martel had written and that ‘‘I knew there was no gates’’
on the jobsite at the time.
12 Federson testified that most of the subcontractors had their job
shacks just inside the fenced-in area but that the employees parked
‘‘outside of the fence’’ where Respondent and the subcontractors
had placed much of their materials. Consequently, according to
Federson, on several occasions, he observed forklifts being driven
out of the jobsite for materials.
13 Federson’s testimony suggests that he was present at the jobsite
until approximately 12:30 in the afternoon. However, he originally
testified that he remained at the jobsite only until ‘‘late morning.’’
Then, Federson changed his testimony, saying that, on Friday, July
14, ‘‘I was probably there until . . . at least one’’ o’clock in the
afternoon. Finally, asked again what time he left the jobsite that day,
the witness testified, ‘‘I think I left at what I call late morning, prob-
ably 10:30, and then came back numerous times during the day.’’
14 Contrary to counsel for the General Counsel, I believe that, at
all times, Gaworski was referring to the employees of Structural Sys-
tems as entering through the northern area of the jobsite. In this re-
gard, the record evidence is that employees of Structural Systems
should have utilized the main entrance, Gate 2 for entry and exit on
July 14.
15 Apparently, on July 18, a jobsite delivery to Respondent was
made through Gate 2. Eugene Federson wrote a letter, dated July 18,
to Respondent, noting two such neutral gate violations by Respond-
ent’s concrete supplier on that date. William Martel wrote back that
such neutral gate violation was inadvertent and against explicit in-
structions.
16 Gaworski testified that he observed individuals, who had en-
gaged in picketing at Gate 2 before it was relocated, sitting in a car
next to the entrance, and that said individuals would speak to work-
ers as they walked onto the jobsite.
as the day before, picketing was occurring at both entrances
on Front Street, and that he stood at the corner of Front
Street and Neill Avenue for 15 minutes and observed what
was occurring before leaving and returning to his house.9 As
to whether the entrances were designated as Gates 1 and 2
at the time he was at the jobsite that morning, Waliser testi-
fied, ‘‘The gates were not up. These particular signs were not
up the morning of the 14th.’’ Not quite corroborating the tes-
timony of Waliser, Eugene Federson, the business manager
of the Montana District Council of Laborers,10 testified that
he arrived at the jobsite at 7 a.m. on July 14, that he re-
mained there most of the morning, and that he could not re-
call seeing the gate designation signs posted that morning.
Casting doubt on the veracity of Federson’s asserted lack of
recollection and, also, on Waliser’s testimony is the former’s
admission that he received William Martel’s letter, informed
the picketing labor organizations of the establishment of the
reserved gate system at the Federal reserve bank building
jobsite, later that morning and immediately replied with a let-
ter, dated July 14, reading: ‘‘This is to inform you that we
believe that the two gate system which you have established
on the Federal Reserve Bank in Helena, has not been prop-
erly established. We therefore will continue to picket all
gates as needed until such time as they are properly estab-
lished.’’ (Emphasis added.)11
In addition to insisting that there were no posted gate des-
ignation signs at the jobsite entrances on July 14, Federson
asserted that, on that day, ingress to and egress from the job-
site was nothing less than ‘‘a three ring circus.’’ Elaborating,
Federson testified that the jobsite was ‘‘very confusing’’ with
numerous people and trucks entering and leaving the jobsite
through the two Front Street entrances, the open area at the
northern end of the project, and the hole in the fence, in
front of the office trailer on the Neill Avenue side of the
project. With regard to the northern area at the point where
the dirt road enters the project, according to Federson, ‘‘I
saw numerous people and vehicles coming out through this
area,’’ including electricians, plumbers, employees of Re-
spondent, and suppliers.12 As to the opening in the fence on
Neill Avenue, Federson assertedly observed two individuals,
whom he identified as carpenters employed by Respondent,
leaving the jobsite ‘‘at the lunch period’’ between 12:25 and
12:35 p.m.13 Later, Federson said that what he observed was
people going into the jobsite through the opening in the
fence ‘‘after the noon break.’’
While the testimony of Clancy Gaworski was definite as
to closure of the opening in the fence on Neill Avenue on
July 13 so that such could not have been utilized for ingress
or egress on July 14, his testimony as to usage of the
unfenced northern end of the jobsite for entry and exit on
July 14 was far less certain. Thus, at the outset, Gaworski
conceded that the northern boundary fence ‘‘wasn’t all the
way across’’ the project on July 13 and 14 and that the
unfenced area was the point at which the dirt road entered
the jobsite. As stated above, because jobsite entry was dif-
ficult, if not impossible, through the main entrance for large
truck deliveries, such were routinely made through the rear
dirt entryway. Gaworski could not recall if any such deliv-
eries were made through the rear entry area on July 13 and,
when asked if any rear entry deliveries were made on the
next day, initially said ‘‘Not to my recollection’’ and then
said ‘‘I sure don’t think so.’’ As to individuals entering or
exiting the jobsite through the rear entryway, Gaworski testi-
fied that a subcontractor, Structural Systems, had a job trailer
located on the north end of the jobsite and that the sub-
contractor’s employees, members of the Ironworkers Union,
were working on the project on July 13 and 14. He added
that said individuals habitually parked their cars on the va-
cant lot beyond the northern boundary of the jobsite and en-
tered the jobsite along the back dirt road and that ‘‘some em-
ployees did’’ enter and exit the project in this manner on
July 14.14
No picketing occurred on Monday, July 17, but such re-
sumed on July 18 at both Gates 1 and 2.15 Some time after
July 18, for safety-related reasons, Respondent moved its
Gate 2 designation sign to the dirt road entrance at the north-
ern end of the jobsite and continued the Gate 1 entrance at
the same location. After this, picketing continued at the Gate
1 entrance, that which was established for Respondent and
other contractors, but, according to Gaworski, no further
picketing occurred at the Gate 2 entrance.16 The picketing of
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Besides picketing, handbills were distributed on July 24, and
videotaping of jobsite activities occurred on July 25.
18 While I continue to believe that Raymond Waliser was a truthful
witness, I believe he was mistaken in his recollection that no two
gate system had been yet posted at the jobsite when he was present
there on the morning of July 14. I think he was more concerned with
the fact that the picketing continued than with the existence of gate
designation signs.
19 Apparently, on July 13, Respondent gave notice by mail and by
fax of the reserve gate system. There is no evidence as to the receipt
of the fax transmissions and the mail was not received until the next
day.
the jobsite ended until Thursday, August 10, after having
continued for a total of 25 days.17
B. Analysis
At the outset, in analyzing Respondent’s defense, that the
picketing by the labor organizations herein constituted an un-
lawful secondary boycott; that, by honoring the picket line,
Waliser and Williams each engaged in an illegal strike; and
that, accordingly, neither was engaged in protected activity at
the time of his termination, it is important to recall that the
undersigned has previously found that Robert Williams was
terminated on July 14 and that Raymond Waliser was termi-
nated on July 17. Inasmuch as there is no contention that the
picketing on July 13 was illegal, if this aspect of Respond-
ent’s defense has any validity, it must be found that the pick-
eting on July 14 was secondary in scope. Given the Board’s
injunction that I make a finding on this point, I conclude that
the labor organization’s picketing on that date was probably
unlawfully secondary in nature; however, I also conclude
that, if unlawful, such does not constitute a valid defense to
the conclusion that the terminations of Waliser and Williams
were violative of Section 8(a)(1) and (3) of the Act.
Initially, in determining whether the picketing on July 14
was unlawfully secondary in scope, I have relied on the testi-
mony of Clancy Gaworski as to what occurred on July 13
and July 14. At least with regard to this aspect of the instant
matter, he appeared to be testifying in a candid and straight-
forward manner, obviously attempting to honestly recount
events to the best of his recollection. Moreover, I agree with
Respondent’s counsel that his testimony most logically com-
ports with the record evidence, particularly as to the posting
of the reserve gate system on July 14. Thus, given William
Martel’s July 13 letter to the picketing labor organizations
and the July 14 date stamp on the photograph, received as
Respondent’s Exhibit 2(d), as corroboration for his testi-
mony, there appears to be no reason not to credit Gaworski
as to when and how the gate system was established. In con-
trast, I was not impressed by the testimony of Eugene
Federson, who appeared to be an utterly mendacious and un-
reliable witness, on two particular points. First, noting his
July 14 letter to Respondent, regarding his claim that the two
gate system at the jobsite was not properly established, I be-
lieve his asserted lack of recall as to the existence of a re-
serve gate system at the jobsite that day was nothing but fab-
rication.18 Further, noting Federson’s letter, dated July 18, in
which he wrote about a violation of the neutral gate, Gate
2, by the concrete supplier of Respondent, inasmuch as he
failed to mention anything, in writing, about the ‘‘three ring
circus,’’ which assertedly existed on July 14, I believe his
testimony as to violations of the reserve gate system that day
likewise was a mere canard.
It is well established that the provisions of Section
8(b)(4)(i) and (ii)(B) of the Act reflect the dual objectives of
Congress 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 controversies not their own. Denver Building
Trades Council v. NLRB, 341 U.S. 675, 692 (1951). In com-
mon situs construction project situations, such as herein in-
volved, where two or more employers are engaged in their
normal business operations, the Board has long relied on cer-
tain evidentiary guidelines to determine the true object of
picketing, with one being that the picketing must be ‘‘limited
to places reasonably close to the location of the situs’’ of the
dispute. Sailors Union of the Pacific (Moore Dry Dock), 92
NLRB 547, 549 (1950). In accord with this standard, the
Board and the courts have recognized the right of employers
at a common situs to designate a gate reserved for the exclu-
sive use of the employer, with whom labor organizations
have a labor dispute, and a gate for the use of those employ-
ers which are neutral in the labor dispute. When such gates
are properly designated and maintained, labor organizations
must confine any picketing to the date reserved for the pri-
mary employer. Electrical Workers Local 761 IBEW v.
NLRB, 366 U.S. 667 (1961); Iron Workers Local 433 (Chris
Crane), 294 NLRB 182 (1989); Operating Engineers
(Linbeck Construction), 219 NLRB 997 (1975). Picketing not
confined to some area reasonably close to the gate, which is
reserved for the primary disputant, and, thus, the location of
the situs of the dispute, is considered to constitute evidence
of an unlawful secondary objective, one designed to enmesh
neutrals in a labor dispute not their own. Electrical Workers,
supra; Carpenters Local 470 (Mueller-Anderson, Inc.), 224
NLRB 315 (1977).
Herein, based on my aforementioned credibility resolu-
tions, I find that, early in the morning on July 14 and prior
to the start of the picketing that day, Respondent’s project
superintendent, Gaworski, established a reserve gate system
at the jobsite, posting gate designation signs at both en-
trances on Front Street. Further, while it is unclear whether
the three labor organizations received notice, on July 13, of
the reserve gate system,19 one may argue that, given the ear-
lier erection of the gate designation signs, when representa-
tives of the picketing labor organizations arrived at the job-
site at approximately 6:45 a.m. on July 14, they undoubtedly
had sufficient notice of the reserve gate system so as to man-
date that they confine their picketing to the gate, which had
been reserved for Respondent. Inasmuch as the picketing
continued that day at the jobsite’s main entrance, which
clearly was designated as the entrance for neutral employers
and through which Respondent was prohibited from entering,
the labor organizations’ conduct may be considered as being
unlawfully secondary. Iron Workers Local 433, supra; Iron-
workers District Council (Hoffman Construction), 292 NLRB
562 (1989). Disputing such a conclusion, counsel for the
General Counsel argues that the two gate system, at the job-
site, was defective. In this regard, he argues that an entryway
was created where there existed a hole in the jobsite fence
on Neill Avenue in front of the office trailer. However, I
credit Gaworski that, on July 13, not only did he instruct job-
927MARTEL CONSTRUCTION
20 In my original decision, I cited to Crystal Princeton Refining
Co., 222 NLRB 1068 (1976), as support for this conclusion and reit-
erate my reliance on that decision of the Board for the legal conclu-
sion that nominal unfair labor practice strikers are transformed, in
status, to economic strikers, and entitled to the protection of the Act,
if, in fact, no unfair labor practices were committed. Contrary to Re-
spondent’s counsel, the fact that the strikers therein made an uncon-
ditional offer to return has nothing to do with the fact that the nomi-
nal unfair labor practice strikers retained their privileged status,
under the Act, as economic strikers when the reason for their strike
was found not to have been unlawful.
21 Respondent’s counsel, in his posthearing brief, argues that the
motivation for the strike, which commenced on July 13 could not,
as the record evidence indicates, have been Respondent’s alleged un-
fair labor practices. While counsel’s argument is plausible, the only
record evidence is that the picketing was to protest the pending un-
fair labor practice allegations. The fact that the picketing unions
chose to protest at the time that Respondent was to commence a
concrete pour at the Federal reserve bank jobsite does not detract
from the foregoing finding. While Respondent also argues that the
picketing had a recognitional object, such seems merely speculative,
and, even if true, such would not make the picketing unlawful. In
this regard, I note that the duration of such was less than 30 days.
site workers to no longer use this hole in the fence as an
entry and exit point but also he wired the hole shut, and I
do not credit the uncorroborated testimony of Federson that
he observed anyone using that location as an entryway on
July 14. Counsel next points to the northern end of the
project as an open area through which Respondent’s employ-
ees entered and exited the jobsite on July 14. Contrary to
counsel, while employees of a neutral subcontractor, Struc-
tural Systems, may have entered and exited the jobsite via
the dirt road, which intersected the jobsite at its northern end,
there is no evidence that Respondent’s employees entered or
exited through any entrance but Gate 1, the entrance reserved
for Respondent. Iron Workers Local 433 (Barry-Wehmiller
Co.), 303 NLRB 287 (1991). Further, inasmuch as I cannot
credit Federson, there is no evidence of any sort of ‘‘three
ring circus’’ usage of the northern boundary as an entry and
exit area. Accordingly, based on the foregoing, and the
record as a whole, it may reasonably be concluded that the
July 14 picketing by the three labor organizations constituted
unlawful secondary conduct.
Having so concluded, the issue is, of course, the effect, if
any, of such on my conclusion that both Williams and
Waliser were terminated illegally. At the outset, there is no
question that sympathy strikers, who honor a secondary pick-
et line, are engaged in unprotected activity and may lawfully
be disciplined by their employer. Chevron U.S.A., Inc., 244
NLRB 1081 (1979). However, contrary to Respondent’s
counsel, such is not the situation herein. Thus, commencing
on July 13, three labor organizations, the Carpenters, the Op-
erating Engineers, and the Laborers, commenced picketing
against Respondent, at its Federal reserve bank building con-
struction project in Helena, to protest alleged unfair labor
practices involving Respondent’s failure and refusal to exe-
cute a collective-bargaining agreement. Two of Respondent’s
employees, Raymond Waliser, a member of the Operating
Engineers, and Robert Williams, a member of the Carpenters,
on July 13 and 14 refused to cross their own labor organiza-
tion’s picket line and perform work for Respondent on the
jobsite. Accordingly, each employee was engaged in a pri-
mary strike against his employer, striking in order to protest
alleged unfair labor practices. Subsequently, when Adminis-
trative Law Judge Jay Pollack dismissed the unfair labor
practice allegations, their strike was converted to an eco-
nomic strike, and, as economic strikers, each remained enti-
tled to the protection of the Act.20
Furthermore, notwithstanding that, given the establishment
of the reserve gate system at the jobsite on July 14 and the
continued picketing at the Gate 2 entrance thereafter, said
conduct became illegally secondary in scope, the conclusion
remains warranted that Waliser’s and Williams’ respective
conduct continued to be protected within the meaning of Sec-
tion 7 of the Act. Thus, the central fact herein is that, while
both discriminatees engaged in the strike against Respondent,
there is no evidence that either engaged in the picketing on
July 14. This is of crucial significance; for, while there is,
indeed, warrant for finding the picketing on July 14 illegal,
there is no record evidence that the strike was for an unlaw-
ful objective21 or that the discriminatees’ participation there-
in was unprotected. Put another way, a distinction must be
drawn between mere participation in the protected strike and
engaging in the unprotected, illegal picketing, and, while
Waliser and Williams may have lost their protected status if
either had engaged in the unlawful picketing, neither did.
Rapid Armoured Truck Corp., 281 NLRB 371, 382 (1986);
Local 707 Motor Freight Drivers (Claremont Polychemical
Corp.), 196 NLRB 613, 614–615 (1972). Thus, in my view,
the fact that the picketing labor organizations engaged in un-
lawful secondary activity had no effect on the discriminatees’
status as employees entitled to the continued protection of
Section 7 of the Act. Accordingly, based on the foregoing,
the undersigned adheres to his original findings that Re-
spondent terminated employees Raymond Waliser and Robert
L. Williams in violation of Section 8(a)(1) and (3) of the
Act.
II. EVIDENCE REGARDING THE OFFERS OF
REINSTATEMENT
In the original decision herein, I concluded that Respond-
ent’s July 28, 1989 offers of reinstatement to Waliser and
Williams were inadequate to stop Respondent’s backpay ob-
ligations to either. At the instant remand hearing, Respondent
offered evidence that the letters, offering reinstatement to the
discriminatees, were drafted with input from a field exam-
iner, employed by the Board’s Region 19, and changed to
satisfy her requirements. Inasmuch as the remand order of
the Board was quite specific as to what evidence and issues
should be addressed at the remand hearing and in the remand
decision and as evidence pertaining to reinstatement and
backpay was not mentioned by the Board, the conclusion is
mandated that the proffered evidence should not be consid-
ered. However, in the interest of due process and fairness,
I have considered the foregoing and find it insufficient to
change the prior conclusions as to the inadequacy of the of-
fers of reinstatement. Thus, Board law is fundamental that it
is not bound by advice given to respondents by Board
agents, ‘‘especially where employee rights are violated pur-
suant to that advice.’’ Capitol Temptrol Corporation, 243
NLRB 575, 589 fn. 59 (1979). Such is the case herein, and
Respondent acted at its peril in accepting the advice of the
Board agent.
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
CONCLUSIONS OF LAW
1. The picketing by the Carpenters, the Operating Engi-
neers, and the Laborers on July 14 was unlawfully sec-
ondary.
2. Inasmuch as Respondent’s employees Raymond Waliser
and Robert Williams were engaged in an economic strike
against Respondent on July 13 and 14 and as neither engaged
in the aforementioned unlawful picketing on July 14, each
was engaged in protected concerted activities when termi-
nated by Respondent.
Based on these findings of fact and conclusions of law and
on the entire record, I issue the following recommended22
ORDER
That Respondent, Martel Construction, Inc., Bozeman,
Montana, its officers, agents, successors, and assigns, shall
abide by the terms of the Order, issued by me on June 28,
1990.