Operating Engineers Local 150 (Hamstra Builders)

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 482 (N.L.R.B. 1991)

482
304 NLRB No. 59
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), 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing the findings.
In agreeing with the judge that the Respondent violated Sec. 8(b)(4)(i) and
(ii)(B) of the Act, we find it unnecessary to rely, as the judge did, on evidence
that about 20 picketers were stationed at the north gate, only 4 of whom car-
ried signs.
1 The Union admits that Hamstra is an employer engaged in commerce with-
in the meaning of Sec. 2(2), (6), and (7) of the Act, that the Union is a labor
organization within the meaning of Sec. 2(5) of the Act, and that at all times
material the Union has been engaged in a labor dispute with Hamstra.
2 Hamstra filed its charge on November 14, 1989. (The charges in CC–692
and CC–692–2 are identical. One was transmitted to Region 25 electronically,
the other by mail.) The complaint issued on December 26. The complaint was
amended at the hearing which I held in Valparaiso on August 7, 1990.
Local 150, International Union of Operating Engi-
neers, AFL–CIO and Hamstra Builders, Inc.
Cases 25–CC–692 and 25–CC–692–2
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On February 26, 1991, Administrative Law Judge
Stephen J. Gross issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local 150, International
Union of Operating Engineers, AFL–CIO, shall take
the action set forth in the Order.
John Petrison, Esq., for the General Counsel.
Bernard M. Mamet and Paul Berkowitz, Esqs., of Chicago,
Illinois, for the Respondent.
J. Charles Sheerin, Esq., of Michigan City, Indiana, for the
Charging Party.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. At issue is
whether the Respondent, Operating Engineers Local 150 (the
Union), violated Section 8(b)(4)(i) and 8(b)(4)(ii)(B) of the
National Labor Relations Act (the Act) by its picketing of
the Strongbow construction site in Valparaiso, Indiana, on
November 13 and 14, 1989. (All the events I refer to in this
decision occurred in 1989, unless I specify otherwise.)
The Union has long had a primary dispute with Hamstra
Builders, Inc.1 Hamstra is in the construction business. Its
employees are not represented by a union.2
The Strongbow construction site is located immediately
south of Route 30 in Valparaiso. Wal-Mart planned to have
a store on the site. The Wal-Mart store, in turn, was expected
to be one of many on the site. Wal-Mart contracted with
Hamstra to build the store. Hamstra began its work at the
site on November 13.
During the period in question there were two vehicular en-
trances onto the site. One led onto the site from Route 30.
That was at the northern edge of the site and, naturally
enough, was called the ‘‘north gate.’’ The other entrance was
near the southwest corner of the site. Penna Hill Road dead-
ended at the site there. Everyone called that entrance the
‘‘south gate.’’
The Signs at the Gates
Three Hamstra employees and Hamstra’s project super-
intendent arrived at the site before 7 a.m. on November 13.
The first thing they did was erect a sign at the north gate
that read:
This gate is reserved for the exclusive use of the em-
ployees and suppliers of the following named busi-
nesses:
Hamstra Builders, Inc.
All other employees or suppliers are to use the South
Gate.
The Hamstra crew next erected a sign at the south gate. It
read:
This entrance may not be used by employees and
suppliers of:
Hamstra Builders, Inc.
All other persons may use this entrance.
With the sign-erecting completed by about 8 a.m., the
Hamstra crew began their work at the Wal-Mart site.
The Picketing
The Union had long known that Hamstra would be en-
gaged in construction at the site (from published reports).
Union Business Representative James Parker arrived at the
site about 6:30 a.m. on November 13 and shortly thereafter
confirmed that Hamstra employees were working there. (The
Union admits that Parker is its agent.) Parker called Local
150’s union hall, asking for some picketers.
The picketers arrived at about 10 a.m. Parker stationed
them at both the north and south gates even though he was
aware of the reserved gate system that had been established.
(Parker’s stated reason for picketing the south gate as well
as the north: he saw a Hamstra truck drive onto the site
through the south gate. I will discuss that ‘‘taint’’ in the fol-
lowing part of this decision.) The picket signs read:
483OPERATING ENGINEERS LOCAL 150 (HAMSTRA BUILDERS)
Notice to the public. Hamstra Builders does not pay
the prevailing wages and economical [sic] benefits for
Operating Engineers which are standard in the area.
Our dispute means only the [sic] substandard wages
and benefits paid by this company.
Local 150, Operating Engineers
The picketers patrolled the two gates until about 2:30 p.m.
on November 13. They returned (to both gates) at 6:30 a.m.
on November 14 and picketed until about 2:45 p.m. that day.
The Union did not further picket the site.
Did Hamstra or its Suppliers Use the South Gate?
Parker’s claim that a Hamstra vehicle used the south gate.
Parker testified that he and another member of Local 150
saw a red 1-1/2-ton stake truck, with ‘‘Hamstra’’ painted on
it, enter the site via the south gate at about 9:30 a.m.
Hamstra does operate a number of red 1-1/2-ton stake
trucks that bear the ‘‘Hamstra’’ insignia. In fact Hamstra’s
superintendent for the Valparaiso site, Elmer Vandermolen,
did drive just such a truck onto the site on November 13.
But Vandermolen, along with another Hamstra supervisor
and two Hamstra employees, all testified (with varying de-
grees of specificity) that Vandermolen’s truck was the only
Hamstra truck to enter the site on November 13, that it en-
tered the site before the signs were erected, and that it en-
tered the site via the north gate.
I credit the Hamstra witnesses, not Parker, and find that
no vehicle owned or operated by Hamstra or any of its per-
sonnel entered the site via the south gate on November 13.
I therefore further find that the south gate was untainted at
the time the Union began picketing the south gate.
The use of the south gate by a Hamstra supplier. Hamstra
witnesses testified that prior to erecting the signs at the two
gates the company advised its suppliers to use the north gate
when entering or leaving the site. But Hamstra did not police
either gate. And Hamstra personnel working at the Wal-Mart
site could not easily keep an eye on the south gate.
Earl Hurd is the business manager of a union allied with
Local 150. He stopped by the site—at the south gate—just
before noon on November 13. Parker wasn’t around at the
time. According to Hurd’s testimony, a tractor-trailer bearing
a ‘‘Lakeside’’ insignia entered the site via the south gate.
Hurd talked to the driver and learned that the truck was haul-
ing a load of masonry sand for Hamstra. Hurd testified that
the truck did not unload. Instead the driver drove directly to
the north gate and left the site.
Hamstra personnel testified that, to their knowledge, no
Hamstra supplier used the south gate. Hamstra personnel fur-
ther testified that a company called ‘‘Lakeshore Brick and
Block’’ (as opposed to Lakeside) was supposed to deliver
some masonry sand on November 14; but it never completed
the delivery because, according to information that Hamstra
received from Lakeshore, the driver refused to cross the
picket line.
I find that, at a few minutes before noon on November 13,
a Lakeshore Brick and Block truck, carrying supplies for
Hamstra, did enter the site via the south gate, but that be-
cause of the pickets at the gate and because of the driver’s
conversation with Hurd, the truck exited the north gate with-
out completing the delivery.
The Impact of the Picketing on Neutral Employers
The amended complaint alleges that the Union’s picketing
‘‘has induced and encouraged’’ individuals employed by
Smith Southeast, Wal-Mart, and Warner & Sons Construc-
tion Company, and other persons, to strike or otherwise to
refuse, in the course of the their employment, ‘‘to use . .
or work on any goods . . . or to perform services, and has
coerced and restrained Smith Southeast, Warner . . . and
Wal-Mart, employers, and other persons engaged in com-
merce.’’
Warner’s departure. Smith Southeast is the developer of
the Strongbow project. Warner & Sons Construction Com-
pany is in the excavating business. Warner’s employees are
represented by Local 150. Smith Southeast contracted with
Warner to prepare the entire site for construction—including
the Wal-Mart site. As of November 13 Warner had com-
pleted almost all of the excavation work for the Wal-Mart
building and was in the midst of work on another part of the
site.
While Hamstra’s progress on the Wal-Mart site depended
upon Warner completing that excavating work, Hamstra had
no contractual relationship with Warner. (Warner did its
work under contract with Smith Southeast. Wal-Mart’s rela-
tionship was with Smith Southeast. Hamstra contracted with
Wal-Mart.)
On November 13 a crew of Warner employees was work-
ing at the site, but not in the Wal-Mart area. Early in the
morning one of the Warner employees asked a Hamstra em-
ployee if the Hamstra employees were unionized. The
Hamstra employee said that they were not. Soon after the
Union’s pickets arrived, the Warner employees left the site
(via the south gate). Vandermolen (the Hamstra supervisor)
testified that he did not see Warner employees on the
Strongbow site after November 13 and that he did subse-
quently see another excavating company at work on the site.
Parker (the Union’s business representative) denied that he
asked the Warner employees to leave the site.
In sum, there is no evidence in the record specifying why
the Warner employees left the site. Perhaps their departure
had to do with the picketing, perhaps not.
Other impacts on neutral employers. Hamstra was Wal-
Mart’s general contractor for the construction of the Wal-
Mart building on the site. Hamstra had not scheduled any
subcontractors to work on the site on November 13 or 14.
Thus, the picketing did not keep employees of Hamstra’s
subcontractors away from the site or otherwise interfere with
the work of those subcontractors.
There is nothing specific in the record about whether other
(non-Wal-Mart) parts of the site were supposed to be worked
on on either November 13 or 14—apart from Warner’s exca-
vating work. Thus, there is no evidence that employees who
were supposed to be working on those parts of the site
stayed away because of the picketing.
Did the Union Violate Section 8(b)(4)?
The period between the start of the picketing and noon on
November 13. Hamstra set up a two-gate reserved gate sys-
tem. The Union, whose dispute was with Hamstra, knew
about the two gates, knew that the south gate was reserved
for neutrals, yet picketed the south gate as well as the north.
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 A truck not belonging to Hamstra, but similar in appearance to Hamstra
vehicles, was on the site on November 13. Perhaps it entered the site via the
south gate. Thus, there is some possibility that a union agent mistakenly
thought that a Hamstra truck used the south gate. But I do not find that the
Union carried the burden of showing that any of its agents believed in good
faith that, in the first hours of the picketing, there had been any tainting of
the south gate. And see Carpenters Local 33 v. NLRB, 873 F.2d 316, 322
(D.C. Cir. 1989).
That makes out a prima facie violation of Section
8(b)(4)(i) and (ii)(B). E.g., Iron Workers Local 433 (Chris
Crane), 288 NLRB 717 (1988).
Had the Union been able to show that Hamstra employees
or suppliers used the south gate, the Union would have there-
by overcome that prima facie case. Id. But as discussed
above, the record fails to show that any Hamstra employee
or supplier used the south gate before or during the first
hours of the picketing.3
Similarly, a different situation would obtain if the Union
had been able to show that the reason that Hamstra chose the
north gate as the gate that its employees and suppliers were
to use was to render the Union’s picketing ineffective. See
Carpenters Local 33 (CB Construction), 289 NLRB 528
(1988), enfd. 873 F.2d 316, 319 (D.C. Cir. 1989). But the
evidence shows the contrary. The north gate, next to heavily
travelled Route 30, was readily visible to the public. The
south gate, on the other hand, was at the dead end of a road
that served nothing but two or three farms (apart from the
construction site). Thus, the difference in the relative visi-
bility to the public of the two gates—with the north gate
much more visible than the south gate—is further evidence
that the Union’s object in picketing the site was something
other than informing the public of Hamstra’s below par re-
muneration of its employees.
The Union vociferously argues that the evidence shows
that the picketing had no impact on any neutral employers
or their employees.
Actually, the record does not permit any determination
about whether the picketing had any impact on any neutral
or its employees. But all of that is beside the point. The
Union, without justification, picketed the gate reserved for
neutrals, and it obviously did so for a reason other than ad-
vising the public of Hamstra’s substandard wages and bene-
fits. That adds up to a violation of Section 8(b)(4)(i) and
(ii)(B). No actual impact on neutrals need be proven. E.g.,
Carpenters Local 33 v. NLRB, 873 F.2d 316, 322 (D.C. Cir.
1989).
The period commencing about noon on November 13. A
Lakeshore Brick and Block truck, carrying supplies for
Hamstra, did enter the site via the south gate a few minutes
before noon on November 13. But by then the Union’s pick-
eters had been patrolling the south gate for about 2 hours.
Moreover the union agent who called for the picketers,
Parker, was not aware of that tainting.
Since the Union obviously did not commence its picketing
in response to the use of the south gate by the Lake Shore
Brick and Block truck, and since there is no showing that
the Union would have halted its picketing sooner but for that
truck’s use of the south gate, that tainting is irrelevant: Oper-
ating Engineers Local 12 (McDevitt & Street), 286 NLRB
1203 (1987).
Other Matters
The Union makes much of the fact that Hamstra did not
notify the Union of its plan to set up a reserved gate system.
But that lack of notification did not mislead or confuse the
Union. At the time Parker called for the picketers he knew
very well that Hamstra had set up a reserved gate system,
and he knew which gate was reserved for which entities.
The Union argues that any violation by it of the Act was
for such a short time and had so little impact that the case
against it should be dismissed on de minimis grounds. The
Union cites, in that respect, Laborers Local 1290 (Walters
Foundation), 195 NLRB 370, 371 (1972). But the Board’s
focus in that case was on actions by the employer that under-
standably confused the Union, not on the brevity of the
Union’s violation.
The General Counsel argues that the Union really did not
know that Hamstra’s wages or benefits were less favorable
than area standards and that this lack of knowledge is further
evidence of the Union’s unlawful objective. But the record
shows that the Union conducted enough of an investigation
to reasonably satisfy itself that Hamstra was not meeting area
standards in the remuneration of its employees. Moreover
neither the General Counsel nor Hamstra sought to introduce
evidence showing that Hamstra’s wages and benefits did
meet area standards.
Finally, the General Counsel points out that the Union sta-
tioned about 20 picketers at the north gate, only about four
of whom carried signs. (The record does not tell us how
many picketers were at the south gate.) The General Counsel
argues that using that many picketers ‘‘indicates that there
was an intent on the part of the Respondent to do more than
merely communicate to the public of [Hamstra’s] failure to
pay area standard wages.’’ (Br. at 7.) I agree.
CONCLUSIONS OF LAW
1. Hamstra Builders, Inc. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local 150, International Union of Operating Engineers,
AFL–CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Local 150, International Union of Operating Engineers,
AFL–CIO has not has been certified under the provisions of
Section 9 of the Act as the representative of the employees
of Hamstra Builders, Inc.
4. By inducing and encouraging individuals employed by
persons engaged in commerce, or in an industry affecting
commerce, to engage in a strike or refusal in the course of
their employment to use or work on any goods or materials
or to perform services, and by threatening, coercing, and re-
straining persons engaged in commerce, or in an industry af-
fecting commerce, with an object of forcing or requiring
those persons to cease doing business with Hamstra Builders,
Inc., Local 150, International Union of Operating Engineers,
AFL–CIO, has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(b)(4)(i) and
(ii)(B) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent, Local 150, Inter-
national Union of Operating Engineers, AFL–CIO, has vio-
485OPERATING ENGINEERS LOCAL 150 (HAMSTRA BUILDERS)
4 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.
5 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
lated Section 8(b)(4)(i) and (ii)(B) of the Act, the accom-
panying recommended order requires it to cease and desist
and to take certain affirmative action designed to effectuate
the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Local 150, International Union of Oper-
ating Engineers, AFL–CIO, it officers, agents, and represent-
atives, shall
1. Cease and desist from
(a) Inducing or encouraging any individual employed by
any 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 other-
wise handle or work on any goods, articles, materials or
commodities or to perform any services, where an object
thereof is to force or require any person engaged in com-
merce, or in an industry affecting commerce, to cease doing
business with, Hamstra Builders, Inc.
(b) In any manner threatening, coercing, or restraining any
person engaged in commerce, or in an industry affecting
commerce, where an object thereof is to force or require any
person to cease doing business with Hamstra Builders, Inc.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its office and meeting halls copies of the notice
marked ‘‘Appendix.’’5 Copies of the notice, on forms pro-
vided by the Regional Director for Region 25, after being
signed by the Respondent’s representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(b) Deliver to the Regional Director for Region 25 signed
copies of the notice in sufficient number for posting by
Hamstra Builders, Inc., Smith Southeast, Wal-Mart, Warner
& Sons Construction Company, and any other employer that
was engaged in construction at the Strongbow construction
site on November 13 or 14, 1989, if such employers are will-
ing, 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.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT engage in or induce or encourage any indi-
vidual employed by any person engaged in commerce, or in
an industry affecting commerce, to engage in a strike or a
refusal in the course of his or her employment to use, manu-
facture, 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
any person engaged in commerce, or in an industry affecting
commerce, to cease doing business with Hamstra Builders,
Inc.
WE WILL NOT threaten, coerce, or restrain any person en-
gaged in commerce, or in an industry affecting commerce,
where an object thereof is to force or require any person en-
gaged to cease doing business with, Hamstra Builders, Inc.
LOCAL 150, INTERNATIONAL UNION OF OPER-
ATING ENGINEERS, AFL–CIO