Operating Engineers, Local 450

National Labor Relations Board - Board Decisions

Aug 5, 1975

219 N.L.R.B. 997 (N.L.R.B. 1975)

OPERATING ENGINEERS , LOCAL 450 997
International Union of Operating Engineers, Local
Union No. 450, AFL-CIO and Linbeck Construc-
tion Corporation . Cases 23-CC-558 and 23-
CC-559
August 5, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On January 30, 1975, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, both Respondent and
General Counsel filed exceptions and supporting
briefs.
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 at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
1. We agree with the Administrative Law Judge
that Respondent's picketing near the Linbeck gate
from June 24 through June 26, 1974, did not violate
Section 8(b)(4)(i) and (ii)(B) of the Act inasmuch as
there was evidence that Linbeck was bringing in ma-
terials through the Linbeck gate for Luckie's use dur-
ing this period. In our view, it makes no difference
that Linbeck was the legal owner of these materials.
What is important is that, in bringing in such materi-
als, Linbeck was acting as a supplier of Luckie and
was therefore required to use the same reserve gate as
any other supplier of Luckie-that which had been
set aside and reserved for Luckie. By failing to do so
and by delivering the materials instead through the
Linbeck gate, Linbeck subjected itself to the same
pressures by the Union that the Union could use
against any supplier of the primary.
Contrary to the Administrative Law Judge, howev-
er, we do not consider it significant that the Luckie
gate was a reserve gate in name only at times when
no labor dispute with Luckie existed at the jobsite
and before Linbeck's telegram to Respondent. Ab-
sent the evidence set forth above with respect to
Luckie's suppliers delivering through the Linbeck
gate, the June 21 telegram would have been suffi-
cient, in our opinion, to put Respondent on notice
that a valid reserve gate was, in fact, being estab-
lished for Luckie as of that date.
2. We also agree with the Administrative Law
Judge, for the reasons stated by him in his Decision,
that Respondent violated Section 8(b)(4)(i) and
(ii)(B) of the Act by picketing the Luckie gate on
July 1, 1974, when the primary employer, Luckie,
was not on the jobsite.
3. We find merit, however, in Respondent's excep-
tions to the Administrative Law Judge's findings that
Respondent violated Section 8(b)(4)(i) and (ii)(B) of
the Act in picketing the reserve gate designated for
Luckie, the primary employer, from July 25 through
August 2, 1974, and violated Section 8(b)(4)(ii)(B) by
threatening Linbeck with such picketing on July 25.
With respect to this conduct the Administrative
Law Judge found the following facts: On July 17,
Linbeck notified Respondent that commencing at 5
p.m. on Friday, July 19, Luckie would resume work
on the project according to the schedule set forth.
The schedule indicated that during weekdays Luckie
would work from 5 p.m. to 7 a.m. and on weekends
around the clock. The letter further indicated that
Luckie employees, materials, and suppliers would use
the gate exclusively reserved for Luckie, and that all
others would use the Linbeck gate.
At about the same time this letter was sent to Re-
spondent, Linbeck barricaded the Luckie gate with a
chain and also covered the sign which theretofore
had been used to designate the gate as reserved for
Luckie. When questioned as to the meaning of this
by Respondent, Linbeck explained that the gate
would be barricaded and the sign covered when
Luckie was not working on the site.
Luckie commenced work on Saturday, July 20,
worked through the weekend, then left the jobsite on
Sunday, July 21, taking all its equipment with it.
Luckie returned both Tuesday (July 23) and Wednes-
day (July 24) evenings, worked from 5:30 to 8:30
p.m. each evening, then left, each time taking its
equipment with it. On the evening of July 24, Re-
spondent resumed its picketing at the Luckie gate
while Luckie was employed on the site. It continued
its picketing throughout the next day, July 25, albeit
with its picket sign covered, even though, as noted
above, Luckie had stopped work on the site at its
usual time the evening before. When questioned by
Linbeck as to why it was picketing with a covered
picket sign, Respondent replied that it would cover
its picket sign each time the Luckie gate was covered,
and that Respondent had a dispute with Luckie and
intended to picket as long as it was on the job. The
picketing resulted in a complete shutdown of work at
the project.
Respondent picketed with a covered picket sign
again on Friday, July 26, with the same effect. The
following week, Respondent continued its picketing
during the day on each day from Monday, July 29,
219 NLRB No. 133
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through Friday, August 2, when on Friday about 11
a.m. picketing was terminated upon orders of a Fed-
eral district judge.' Respondent has not since re-
sumed its picketing. The picketing resulted in the
shutdown of the project for that entire week.
At the hearing in this case, Respondent adduced
testimony that union observers had seen Luckie and
his foreman Joe Jackson on the job during the day
on July 24, 25, and 26. Linbeck's project manager,
Williams, admitted that Luckie would sometimes
come on the worksite during the day to inspect the
work performed the evening before and to prepare
for that evening's work. Moreover, the Administra-
tive Law Judge found that throughout this time Lin-
beck was bringing in material through the Linbeck
gate during the day which would be used by Luckie
in its work in the evening.
The Administrative Law Judge found
Respondent's picketing during this period to be vio-
lative of 8(bX4)(i) and (iiXB) because it was not limit-
ed to times when the primary was engaged in its nor-
mal business at the site , and thus did not meet the
Board's Moore Dry Dock standards 2 established for
common situs picketing. In so finding, the Adminis-
trative Law Judge reasoned that any asserted confu-
sion resulting from Linbeck's covering of the Luckie
gate did not justify the Union's picketing at times
when the primary employer was obviously not on the
jobsite; nor did the fact that Luckie agents and mate-
rials entered the jobsite during the day through the
Linbeck gate. The Administrative Law Judge further
found the proscribed motive manifested in
Respondent's telling Linbeck on July 25, in response
to its inquiry concerning picketing with a covered
picket sign, that it would do so each time the Luckie
gate was covered, and that Respondent had a dispute
with Luckie and intended to picket as long as he was
on the job. Considering that answer in the context of
Respondent 's ongoing picketing of what had previ-
ously been the Luckie gate but at that time was cov-
ered because Luckie was not scheduled to work dur-
ing the day, the Administrative Law Judge found
that by that statement Respondent was indicating
"that it would continue to do what it was doing so
long as Luckie was a subcontractor on the project."
In addition to finding a secondary object reflected in
this statement by Respondent, the Administrative
Law Judge also found the statement to constitute a
separate and independent threat to neutral Linbeck
to continue unlawful picketing in violation of Section
8(b)(4)(ii)(B) of the Act. For the reasons detailed be-
low, we believe, contrary to the Administrative Law
Judge, that under the circumstances here Respon-
dent did not violate the Act by picketing at times
when Luckie was not actively employed on the job-
site , or by threatening Linbeck with the continuance
of such picketing.
The Board has long held that the Moore Dry Dock
standards are not to be applied in an indiscriminate
"per se" basis or with "mechanical precision." In-
stead, the Board has indicated that it will apply them
with "common sense" 3 and with a view to "the dual
congressional objectives of preserving the right of la-
bor organizations to bring pressure to bear on of-
fending employers in primary labor disputes and of
shielding unoffending employers and others from
pressures in controversies not their own." 4 The
Board and courts have also approved the use of re-
served time schedules during which the primary is
scheduled to work on a common situs on the ground
that they serve the same purpose as reserved gates in
attempting to isolate and restrict the labor dispute to
the parties immediately involved so as not to unnec-
essarily enmesh neutrals .s However , the announce-
ment of a reserved time schedule during which the
primary is scheduled to work, like the posting of re-
served gates, only can limit the situs of the dispute
for picketing purposes if those schedules are com-
plied with by the primary. We believe Luckie' s fail-
ure to honor the time schedule provided Respondent
is critical here, and relieved Respondent thereafter
from limiting its picketing to the reserved time.
The source of our disagreement with the Adminis-
trative Law Judge stems from the significance to be
placed on the fact that Respondent had observed
Luckie supervisors enter the jobsite through the Lin-
beck gate on July 24, 25, and 26 to perform work in
preparation of their regularly scheduled evening
hours. It appears that the first day Respondent ob-
served Luckie on the jobsite during the day (July 24),
it resumed its picketing that evening and continued it
through the next day. Although the Administrative
i It picketed from Monday , July 29, through Wednesday, July 31 , with an
uncovered picket sign ; however, on Thursday, August 1 , and Friday morn-
ins, August 2, it had its picket sign covered while picketing.
Sailors ' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB
547 (1950). Those standards are (a) picketing is strictly limited to times
when the situs of dispute is located on the secondary employer's premises,
(b) at the time of the picketing the primary is engaged in its normal business
at the situs, (c) the picketing is limited to places reasonably close to the
location of the situs, and (d) the picketing discloses clearly that the dispute
is with the primary employer.
7 International Brotherhood of Electrical Workers, Local Union 861
(Plauche Electric, Inc.), 135 NLRB 250 (1962)
4 N.L. R. B. v. Denver Building and Construction Trades Council [Gould &
Preisner]. 341 U.S. 675, 692 ( 1951).
3 See, e.g., Linoleum, Carpet and Soft Tile Layers Union No 1236 (Cascade
Employers Association Inc.), 180 NLRB 241 (1969); Local Union No. 519,
United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada , AFL-CIO [H L. Rob-
ertson and Associates , Inc.] v N. L.R B, 416 F.2d 1120 at 1125 (C.A.D C.,
1969); New Power Wire and Electric Corp. v. N.L.R B., 340 F .2d 71 (C.A. 2,
1965).
OPERATING ENGINEERS , LOCAL 450 999
Law Judge recognized that Luckie's presence at the
jobsite during the day would have justified
Respondent's picketing while Luckie was actually
present, he nevertheless found that Luckie's periodic
and sporadic presence there did not justify
Respondent's picketing at times when Luckie clearly
was not on the site. We disagree.
We believe the situation here is not substantially
different from that presented in International Union
of Operating Engineers, Local 675, AFL-CIO (Indus-
trial Contracting Co.), 192 NLRB 1188 (1971). In that
case, as here, the respondent union was charged with
secondary picketing for continuing its picketing of a
construction site, which in all other respects com-
plied with the Moore Dry Dock standards, at times
when it had been notified that the primary would not
be on the site. There was also evidence there, as here,
that the primary had not fully honored the an-
nounced time restrictions during which it was to
work. Under the circumstances, the Board majority
found the union was in substantial compliance with
the Moore Dry Dock standards. The Board's reason-
ing there is equally applicable here:
Our dissenting colleagues treat [the primary's]
notification that it would not have employees
working at the project nor make any deliveries
at certain times as requiring the Respondent to
accept such notification at face value. However,
the facts would suggest that the primary was
playing a "cat and mouse" game by absenting
its employees in such a way that the Union real-
ly had no certainty when [the primary's] employ-
ees would or would not be working.. .
Viewing the totality of both the Respondent's
and the primary's conduct, we find that the rec-
ord, contrary to our dissenting colleagues, sup-
ports the Trial Examiner's conclusions that the
Respondent's picketing at all times satisfied the
Moore Dry Dock criteria. [192 NLRB at 1189.]
Similarly, in this case we find that the delivery of
materials to be used by Luckie and the presence of
Luckie and his foreman during the day, both in prep-
aration for work to be performed during its an-
nounced hours of work in the evening, was clearly
activity in support of the primary's normal opera-
tions on the situs. Under these circumstances, we do
not believe that "Respondent had any way of know-
ing in advance when [the primary] would have come
to the jobsite to do its work and Respondent could
not foretell whether the primary employees, though
absent, would not return instanter." 6
6 Local 25, International Brotherhood of Electrical Workers, AFL-CIO (Eu-
gene Iovine, Inc.), 201 NLRB 531 (1973); see also New Power Wire and
Electric Corp. v. N.L R. B., supra.
We recognize that Respondent's picketing at times
with a covered picket sign did not comply with the
Board's Moore Dry Dock standard that the picketing
clearly indicate the primary employer with which the
union has the dispute. However, under the circum-
stances we do not believe that this sporadic breach of
a Moore Dry Dock standard reflected a secondary
object in Respondent's picketing. In this regard, we
note that Respondent covered its picket sign only af-
ter Linbeck covered the Luckie gate sign and assert-
edly hoped (albeit wrongly) that it would have the
same legal effect ; Respondent continued its picket-
ing only in front of the Luckie gate which was barri-
caded and not being used by others; there is no evi-
dence that by covering its picket sign that
Respondent reached neutrals that would not have
been otherwise affected by its picketing, or that at
this late point in its dispute with Luckie anybody
employed on the site would reasonably have had any
doubts about who the picketing was intended to
reach. Indeed, during this same period, picketing oc-
curred about half the time with uncovered signs that
clearly identified Luckie as the employer with which
Respondent had a dispute. We also note that, inas-
much as Luckie was using the Linbeck gate to enter
the jobsite and bring in materials during nonsched-
uled hours, Respondent could have legitimately
broadened the scope of its picketing to the Linbeck
gate with uncovered signs during these periods, yet
chose to restrict its picketing to the barricaded and
unused Luckie gate, thereby further indicating that
its quarrel was limited to Luckie.
For all the above reasons, we do not believe that
Respondent's partial and sporadic breach of the
Moore Dry Dock requirement that the primary be
clearly identified by the picketing union tainted
Respondent's picketing with an unlawful secondary
object?
Nor do we find any evidence of secondary intent
manifested in Respondent's answer to Linbeck's in-
quiry of July 25, as to why Respondent was picketing
r West Kentucky Building & Construction Trades Council, AFL-CIO (Dan-
iel Construction Company, Inc.), 192 NLRB 272 (1971 ). We further note that
Linbeck was not an altogether "unoffending" neutral employer here either.
Although it represented to Respondent that Luckie and its suppliers would
only use the Luckie gate and would be employed only during the an-
nounced hours , it was aware of the fact that Luckie was coming on the site
during the day and that suppliers of Luckie were delivering supplies during
the day and entering the site through the Linbeck gate, and yet did nothing
to prevent it. Under somewhat similar circumstances , the Board has stated
in International Brotherhood of Electrical Workers, Local 640, AFL-CIO
(Timber Buildings, Inc.), 176 NLRB 150, 152 (1969), that such conduct by
the alleged neutral "was designed , not to limit [respondent union 's] picket-
ing to Moore Dry Dock standards , but to mislead [respondent union] as to
when [the primary ] was engaged in normal business at the situs so as to
undercut those standards ." See also Painters District Council No . 20 of West-
chester and Putnam Counties New York, Brotherhood of Painters, Decorators
and Paperhangers of America, AFL-CIO (Uni-Coat Spray Painting, Inc.), 185
NLRB 930 (1970).
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a covered picket sign. Under the circumstances,
for Respondent to say that it would cover its picket
sign each time the Luckie gate sign was covered and
that it would continue its picketing as long as Luckie
was on the job, in our view, indicates no more than
that Respondent intended to use the same tactics in
attempting to reach the primary as were then being
used by Linbeck to prevent Respondent from picket-
ing the primary during the day-that is, by continu-
ing to picket with a covered picket sign, just as Luck-
ie continued to enter the site behind the covered gate
sign . We have already indicated that Respondent
was free to picket during the day because it had evi-
dence that Luckie and materials destined for
Luckie's use were entering the site during the day
through the Linbeck gate . Consequently, to the ex-
tent Respondent threatened to do that which it was
legally entitled to do-picket the site as long as Luck-
ie was employed thereon-we do not find that
Respondent's lawful picketing was thereby trans-
formed into illegal picketing by the additional state-
ment that it would conduct such picketing with a
covered sign each time Linbeck covered the Luckie
reserved gate sign.
Accordingly, for the reasons indicated above, hav-
ing found that Respondent's picketing substantially
complied with the Moore Dry Dock standards and
having also found no direct evidence of secondary
intent in any of Respondent's communications,
we find, contrary to the Administrative Law Judge,
that Respondent's picketing from July 24 through
August 2, 1974, did not violate 8(b)(4)(i)(ii)(B).
We further find, contrary to the Administrative
Law Judge, that Respondent's July 25 threat to con-
tinue such lawful picketing did not constitute unlaw-
ful coercion of a neutral employer in violation of
Section 8(b)(4)(ii)(B) of the Act. Accordingly, we dis-
miss those allegations of the complaint.
Order of the Administrative Law Judge , as modified
below , and hereby orders that the Respondent , Inter-
national Union of Operating Engineers , Local Union
No. 450, AFL-CIO, Austin , Texas , its officers,
agents , and representatives, shall take the action set
forth in the said recommended Order, as modified:
1. Delete paragraph 1(b) of the Administrative
Law Judge 's recommended Order.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage individuals
employed by Linbeck Construction Corpora-
tion, or any person engaged in commerce, or in
an industry affecting commerce, to engage in a
strike , or a refusal in the course of their employ-
ment to use, manufacture , process , transport, or
otherwise handle or work on any goods , materi-
als, articles , or commodities , or to perform any
services for Linbeck, where an object thereof is
to force or require Linbeck Construction Corpo-
ration to cease doing business with Bruce Luckie
Construction Co.
Our dispute at Northcross Mall construction pro-
ject in Austin , Texas, is solely with Bruce Luckie
Construction Co. and not with the general contrac-
tor, Linbeck Construction Corporation.
INTERNATIONAL UNION OF OPERATING
ENGINEERS , LOCAL UNION No. 450,
AFL-CIO
DECISION
REMEDY
Having adopted the Administrative Law Judge's
finding that Respondent violated Section 8(b)(4)(i)
and (ii)(B) of the Act by its July 1 picketing, but
having rejected the other violation findings which he
made, we shall modify the Administrative Law
Judge's recommended Order to delete those provi-
sions which go beyond remedying the single violation
we have found.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: This
is a secondary boycott case involving the legality of picket-
ing at a common situs , including the application of the
so-called reserved gate doctrine. As detailed below, I find
certain of the picketing unlawful.
The cases arise out of unfair labor practice charges filed
with the National Labor Relations Board (herein the
Board) by Linbeck Construction Corporation (herein Lin-
beck) in Case 23-CC-558 on June 25, 1974,1 and in Case
23-CC-559 on July 25, both against International Union
of Operating Engineers, Local Union No. 450, AFL-CIO
(herein the Union or Respondent). Based on these charges
a complaint issued August 7 in Case 23-CC-559 and an-
lations Board adopts as its Order the recommended 1 All dates herein are in 1974 unless otherwise indicated.
OPERATING ENGINEERS, LOCAL 450
other complaint on September 4 in Case 23-CC-558, both
alleging that the Respondent had engaged in unfair labor
practices in violation of Section 8(bX4)(i) and (ii)(B) of the
National Labor Relations Act, as amended (the Act). Re-
spondent answered both complaints, admitting jurisdic-
tional allegations and the identity of the principal persons
involved, but denying the commission of unfair labor prac-
tices . On September 6 the Board' s Regional Director for
Region 23 ordered the two cases consolidated. The consoli-
dated cases were heard before me at Austin, Texas, on
October 17 and 18.
Upon the entire record, my observation of the witnesses,
and consideration of the arguments and the briefs of coun-
sel, I make the following:
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED
This case involves the construction of the Northcross
Mall Shopping Center in the vicinity of Austin, Texas. Lin-
beck, the general contractor, is a Texas corporation with its
principal office at Houston, Texas. It is a general contrac-
tor in the construction industry in Texas as well as in other
States. It annually purchases materials valued in excess of
$50,000 from suppliers outside Texas which are shipped
directly from points outside Texas to points within Texas.
Linbeck subcontracted various work in the Northcross
Mall Shopping Center to various subcontractors. Such sub-
contracted work included electrical, plumbing, drywall,
and roofing. In addition Linbeck subcontracted excava-
tion, paving, and sanitary and storm sewer work to Bruce
Luckie, doing business as Bruce Luckie Construction Co.
(herein called Luckie). Luckie, whose principal office is in
Austin, Texas, is engaged in the construction industry as
an excavation, paving, sanitary and storm sewer contractor
in various States including Texas.
The complaints allege , and the answers admit, that Lin-
beck and Luckie are each persons within the meaning of
Section 2(1) of the Act and employers engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act. I so find.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is an organization which represents equip-
ment operators. It is a large local union of 4,500 members.
Its territorial jurisdiction includes 106 counties in south-
eastern Texas, including Austin, the location of the shop-
ping mall involved here . It is a labor organization within
the meaning of Section 2(5) of the Act.
Respondent 's principal officer is its business manager,
J. A. McMahon , Jr. Its business representative , Beuford
Ingram, is immediately in charge of Respondent's activities
at the shopping mall. Both McMahon and Ingram are
agents of Respondent within the meaning of Section 2(13)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
1001
A. The Allegations
The complaints alleged that Respondent violated Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act in the following man-
ners : (a) On June 24, 25, and 26 by picketing a gate at the
shopping mall set apart for employees and suppliers of Lin-
beck and subcontractors other than Luckie; (b) on July 1
by Picketing a gate reserved for Luckie, his employees and
suppliers, at a time when Luckie was not engaged on the
job; (c) on about July 25 by McMahon's informing Lin-
beck that Respondent would picket the shopping center 24
hours a day whether Luckie was there or not; and (d) on or
about July 25 and thereafter by picketing "the entrance" to
the shopping center when Luckie was not there. As set out
below, I find for Respondent on point (a), and for the Gen-
eral Counsel on points (b), (c), and (d).
B. The Dispute
At all times material to this matter Respondent has had
a labor dispute with Luckie concerning wages, hours, and
other conditions of employment of Luckie's employees in
that Luckie does not have an agreement with Respondent.
At no times material has Respondent had any labor dis-
pute with Linbeck.
C. The Site Involved
1. The bordering streets
The Northcross Shopping Mall is on a tract of about 18
acres, roughly triangular in shape, bordered on the north
by Anderson Lane, a heavily traveled street, on the west
and southwest by Northcross Drive, a lightly traveled
street, and on the east by Burnet Road, a heavily traveled
street . The southern portion of the tract borders on adjoin-
ing private property.
The bordering streets are public thoroughfares with
street curbs and gutters surrounding most of the tract
which were installed prior to the commencement of con-
struction. The curbing constitutes the only demarcation be-
tween the tract and the public ways. There has never been
a fence around the site.
2. The entrances
When the street curbing was installed six curb openings
were incorporated to accommodate entry into the mall.
Two of these curb openings are on Northcross Drive, two
on Anderson Lane, and two on Burnet Road. In addition,
on Northcross Drive a short distance south of the entranc-
es built into the street curbs a seventh entrance was created
during construction by depositing fill over the curb area,
thus allowing vehicles to pass over the curb without injur-
ing it.
As a result of some picketing unrelated to the present
case , which took place in June 1973 , a sign was erected at
this seventh entrance designating the area for the use of
Luckie and its suppliers. This sign reads as follows:
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This area is for the use of employees and material
suppliers of the Bruce Luckie Const. Co. All others use
entrance at 2501 Anderson Lane.
At the same time another sign was erected at the most
easterly of the two entrances on Anderson Lane designat-
ing that area for the use of Linbeck. This sign reads as
follows:
This area is for use of employees and material sup-
pliers of the Linbeck Const. Corp.
As a result of these signs the two entrances have been re-
ferred to, respectively, as the Luckie gate and the Linbeck
gate. They are located about one-half mile from each other.
The sign at the Linbeck gate has continually been dis-
played through the events involved here. The sign at the
Luckie gate has also continued to exist but at certain times,
as set out later herein , it has been covered . About 2 to
2-1/2 months after the project began access through en-
trances other than the Linbeck and Luckie gates was ob-
structed by the placing of barricades across the curb open-
ings . The evidence indicates that the Linbeck gate has
continued to be the principal entrance. The Luckie en-
trance has been used to bring Luckie equipment on the job
and also materials . But the evidence also indicates that, at
least until the present dispute arose , materials and supplies
intended for use by Luckie came onto the site by the most
convenient means , even if that meant going over the curb
on any of the surrounding streets. The testimony of Bruce
Luckie indicates that he also used the Linbeck gate prior to
June 21, 1974.
3. Luckie's work on the site
As the subcontractor for storm sewer, sanitary sewer,
water main , curb and gutter installation within the project,
and parking lot installation , Luckie intermittently has
come on and off the project and has frequently been ab-
sent from the project for significant periods of time.
From time to time Luckie has worked all over the proj-
ect, including the area along Anderson Lane . In June and
July 1974, however, he was not working on the northern or
northwestern area of the project, although there was still
some work there to be done. In those months he was prin-
cipally engaged in the southeastern corner of the site.
By June 1974 Luckie had finished the sewer and water
main work and was principally doing paving and parking
lot work which involved the placement of crushed rockfill
delivered by a supplier. Prior to June 21 this crushed stone
was purchased by Linbeck but received on the job, and
signed for, by Luckie employees. After June 24, when the
picketing discussed later herein commenced , crushed stone
was purchased by, received on the project by, and signed
for by, Linbeck employees. Both before and after June 24
at least some of this material was delivered through the
Linbeck gate.
Sometime prior to the events involved in the present
matter Linbeck's construction's superintendent, Homer
Williams, instructed Luckie to store equipment and sup-
plies in the southern part of the project away from the area
used by other contractors and to use the Luckie gate for
access to the job. Prior to that time traffic generated by
Luckie had come through the Linbeck gate resulting in
congestion and a dust problem. Although the matter is not
entirely clear, I infer from the record as a whole that after
the establishment of this special area for Luckie and the
Luckie gate less traffic identified with him came through
the Linbeck gate. Nevertheless, up to the time picketing
began on June 24 some of the traffic connected with Luck-
ie, his employees, and his suppliers came through at vari-
ous points around the project, including the Linbeck gate.
D. The Initial Picketing in June
1. The evidence
About Thursday, June 20, Linbeck's project manager,
Homer Williams, heard rumors that Respondent might
picket at the project. This news caused him to send a tele-
gram to the Union the next day, Friday, June 21, contain-
ing the following message:
This is to advise you that entrance gate at 7700 North-
cross Boulevard has been designated to the Bruce
Luckie Construction Company for the use of his em-
ployees subcontractors materials and equipment.
The telegram indicated that the sender was Linbeck Con-
struction Corporation, with an address in Austin, and that
the addressee was Respondent Union at its Austin address.
Williams testified that he could not be sure that Respon-
dent received this message prior to Monday, June 24. He
did recall, however, that Respondent's Austin business
agent, Beuford Ingram, telephoned him on the morning of
June 24 after Ingram had received the telegram.
Respondent's business manager, J. A. McMahon, who was
stationed in Houston, testified that he received a copy in
Houston on the afternoon of Monday. Considering all the
evidence on the point I find that Respondent received the
telegram prior to noon on Monday, June 24.
At noon on Monday, June 24, Respondent established
pickets at both the Luckie gate and near the Linbeck gate
on Anderson Lane. It is undisputed that the picket at the
Luckie gate was in fact picketing the gate. There is some
dispute regarding picketing near the Linbeck gate. The par-
ties stipulated that no picketing has occurred in front of the
Linbeck gate itself. But the evidence establishes that the
picketing on Anderson Lane, including that on June 24,
involved patroling on Anderson Lane in the area west of
the Linbeck gate for a distance of 100 to 150 feet and to
within 100 feet of the Linbeck gate. This picketing was
visible to oncoming traffic from either direction on Ander-
son Lane, including traffic entering the Linbeck gate.
The picket signs carried at both gates on June 24 and all
times thereafter bore the following legend:
This is to advise the public that Bruce Luckie Constr.
Co. does not have a contract with I.U.O.E. Local 450
AFL-CIO
The picketing on June 24 continued until 4:30 p.m., the
normal quitting time for employees on the job. Employees
who had begun at 8 a.m. on that day included employees
of Linbeck and various subcontractors and included car-
OPERATING ENGINEERS , LOCAL 450 1003
penters, laborers, and steel erectors who continued to work
throughout the day, and electricians, plumbers, and pipe-
fitters who left when the pickets began at noon. The effect
of their walkoff was to partially shut down the job.
On June 24, after the picketing began, Linbeck's project
superintendent, Williams, and its project engineer, Merle
Abbott, approached the picket on Anderson Lane near the
Linbeck gate and told him he was at the wrong gate. The
picket said nothing, but Respondent's business agent, In-
gram , came up and told them, "Don't interfere with my
picket." Williams replied, "I am not interfering with him. I
am just trying to tell him he is at the wrong gate." To this
Ingram replied, "Well, I'll take care of that." Nevertheless,
the picketing continued on Anderson Lane.
Williams testified that after June 21 he knew of no use of
the Linbeck gate by Luckie, his employees, his suppliers, or
by equipment, material, or supplies owned by Luckie. Ac-
cording to him all of these came through the Luckie gate.
According to testimony of Ingram, who was in charge of
the picketing, Luckies's materials were all over the job and
he established Respondent's pickets on the Anderson Lane
side because Luckie was working on that side of the project
and had equipment parked on that side behind the barri-
caded entrance through the street curbing west of the Lin-
beck gate.
Base material applied by Luckie belonged to Linbeck.
The testimony of Luckie indicated that the only supply
brought on by him was diesel fuel. I infer, therefore, that
supplies such as cement and steel were, like the crushed
stone, purchased by Linbeck for use by Luckie in the per-
formance of his subcontract. The weight of the evidence
shows that when Luckie equipment (which was unmarked)
was left on the job it was generally parked in the Luckie
area in the vicinity of the Luckie gate in the southwestern
portion of the project, a substantial distance away from
Anderson Lane. But there is no specific denial that on the
days in question Luckie equipment was parked near An-
derson Lane. Luckie testified that in June and July he was
not working in the area of Anderson Lane although there
remained work to be done in that vicinity; that in those
months he was engaged in the southeastern portion of the
project away from Anderson Lane. But his testimony does
not specifically deal with June 24 to 26. In the circum-
stances I credit the more precise testimony of Ingram.
On Tuesday, June 25, picketing resumed at 7 a.m. and
continued for the balance of the workday on both streets
and in the same manner as the prior day. As a result em-
ployees of a subcontractor, Republic Roofing, left after 3
hours. The effect the picketing on the job as a whole was to
stop it.
On Wednesday, June 26, the pickets again returned for
the entire day at both locations. Ingram testified that on
that day he had no picket on Anderson Lane, the only
picketing being at the Luckie gate. I do not credit his testi-
mony because the credited testimony of Linbeck's house
counsel, Oscar Hibler, was to the effect that he was at the
project the entire day of June 26 and observed picketing
the entire day at both the Luckie gate and on Anderson
Lane to within 100 feet of the Linbeck gate.
Around midday on June 26 Linbeck's project superin-
tendent, Williams, sent identical telegrams to Respondent
and to all subcontractors on the job. The message in these
telegrams was as follows:
You are hereby notified that Bruce Luckie Construc-
tion Company will be removed from the Linbeck job
site at Northcross Mall on the corner of Burnet Road
and Anderson Lane in Austin, Texas effective 7:30
a.m., June 27, 1974. In the future Bruce Luckie Con-
struction Company will not perform any work on this
job site between 7:30 a.m. and 4:30 p.m., Monday
through Friday.
The next morning Thursday, June 27, the picket re-
turned for about 1 to 1-1/2 hours in the early morning
with the result that employees scheduled for that day failed
to come onto the job and the project was substantially
shutdown. This was the last picketing which occurred in
June.
According to Williams, Luckie complied with the re-
quirements of the work schedule as announced in his tele-
grams of June 26. He testified that Luckie performed no
work and had no equipment or material on the job during
the proscribed hours. And Bruce Luckie himself testified
that after 7:30 a.m. on June 27 he kept himself, his employ-
ees, and his materials off the jobsite during the normal
work hours during the week. I credit this testimony insofar
as it relates to the situation in June. But this still leaves
unanswered the established fact that crushed stone (and
possibly other materials) which previously had been re-
ceived by Luckie employees and after June 21 was received
by Linbeck employees, continued to be used by Luckie.
After June 21 such material entered the job through the
Linbeck gate where previously some had come in through
the Luckie gate. In addition, Ingram testified credibly and
without specific contradiction that in both June and July
he saw Luckie equipment and material (he did not indicate
what type of material) enter the job from the Burnet Road
side where barricades were removed to allow entry. Specifi-
cally with respect to crushed stone, he testified that it was
hauled into the job and remained for more than a day
before being spread around by Luckie. With respect to ce-
ment and steel, he testified that he observed it entering the
job at various points during the picketing, both through the
Linbeck gate and south of the Luckie gate while it was
barricaded.
2. Analysis of the June picketing
It is undisputed that the Northcross Shopping Mall was
a common situs where both Luckie, the primary employer,
and various neutral employers including Linbeck were
working.
The General Counsel and the Charging Party contend
that during the June picketing a so-called reserved gate
situation existed. I disagree. On the record here I am un-
able to find that the situs of the dispute was clearly re-
stricted to the vicinity of the Luckie entrance. See Interna-
tional Brotherhood of Electrical Workers, Local 441,
AFL-CIO (Suburban Development Co.; O'Brien Electric
Co.), 158 NLRB 549 (1966). In Laborers Union Local 1290
(Walters Foundation, Inc.), 195 NLRB 370 at 371 (1972),
the Board said, "It is true that neutral employers may, by
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the device of a separate gate , limit the situs of the primary
dispute and thereby preclude lawful picketing at other lo-
cations . However, it is equally clear that such an arrange-
ment must be established in a manner which avoids confu-
sion and the possible entrapment of a union , and under
conditions which reasonably assure that picketing at the
designated primary entrance will reach the on-site business
activity of the primary employer."
In the present matter no contention is made that, prior
to June 21 , a reserved gate situation existed on the project
even though for approximately a year a sign had been post-
ed at the so-called Luckie entrance reserving that area for
him and another sign had been posted at the so-called Lin-
beck entrance reserving that area for Linbeck and other
neutrals . Thus, a reserved gate status did not result from
the mere existence of the signs.
Then Williams ' telegram of June 21 further advised Re-
spondent that the Luckie gate had been designated for the
use of primary employees , subcontractors , materials, and
equipment . It is from this springboard that the General
Counsel and the Charging Party launch the affirmative
case . But I find the letter made no significant difference
because it was hardly more than a declaration of the ex-
isting situation . It apprised Respondent of no changed cir-
cumstances on the job. In fact , as of June 21 no change
occurred at the construction site itself . As before , it contin-
ued to be basically an open site separated from the sur-
rounding public ways by the street curbing and apparently
separated in no way from the adjoining private property on
the south . There is no evidence of constant surveillance to
ensure that the proper entrances would be used . The evi-
dence indicates that both before and after the telegram of
June 21 access to the project was easily available through
places other than the reserved gate . Thus on one occasion
the barricade across the curb entrance on Burnet Road was
removed to allow cement trucks to enter.
If Respondent could have lawfully picketed with a prop-
er sign along Anderson Lane prior to receipt of the tele-
gram of June 21 , it seems to me its picketing thereafter (the
only change being its receipt of that telegram) is insuffi-
cient to support a finding of a secondary object under the
reserved gate principles.
The picketing, therefore , must be tested without refer-
ence to the so-called reserved gates and in accordance with
ordinary common situs standards .2 No contention is made
in this case that Luckie was absent from the project during
the June picketing . The General Counsel contends only
that the Anderson Lane picketing was at the wrong place
and therefore unlawful . But this case is different from Re-
tail Fruit & Vegetable Clerks' Union, Local 1017, etc. (Crys-
tal Palace Market), 116 NLRB 856 ( 1956), where the Union
was invited onto the property to picket as closely as possi-
ble to the primary employers . Linbeck did not invite Re-
spondent onto the job to picket where Luckie was working.
Moreover, materials intended for Luckie 's use were
placed at various points on the job awaiting his work. This
situation existed both before and during the June picket-
ing. The only difference appears to be that at some point
2 See Sailors ' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547 (1950).
Luckie employees ceased receiving and signing for the ma-
terial and Linbeck employees began to perform this func-
tion . Respondent does not contend that in doing so Lin-
beck employees were performing struck work. It is
immaterial that the ownership of the crushed stone and
other materials with which Luckie worked resided in some-
one else . The primary dispute involved Luckie's lack of a
union agreement covering his employees working with
these materials . The delivery of such materials to the situs
for the purpose of having primary employees work upon
them is in my view indistinguishable from delivering sup-
plies which Luckie might buy himself. I find that in pur-
suance of its dispute with Luckie Respondent could lawful-
ly appeal to persons delivering materials upon which his
employees were to work. Given the way in which these
materials got onto the project, including through the Lin-
beck gate, it cannot be said that the June picketing along
Anderson Lane was not as close as possible to the situs of
the primary dispute and that it therefore evidenced a sec-
ondary object on the part of Respondent.
In the light of the foregoing, I find that Respondent did
not by its June picketing along Anderson Lane engage in
unfair labor practices within the meaning of Section
8(b)(4)(B) of the Act.
E. The July 1 Picketing
From 7:30 a.m. on June 27 until July 20 Luckie re-
mained off the project . On July 1 Williams on behalf of
Linbeck rented a grader machine for use by Linbeck and
had it delivered to the job on Northcross Drive where it
was parked on the public right-of-way . Later on that day
he moved it to private property across the street. The
equipment carried no markings to indicate to whom it be-
longed , in this respect resembling equipment used by Luck-
ie which likewise was unmarked . Luckie's own equipment
included a grader, a roller , a frontend loader , and a water
truck.
At or about 1:30 p.m . on July 1 Respondent resumed
picketing at the Luckie gate with the same sign previously
used . This picketing was effective in causing approximately
three-fourths of the crafts working on the project to leave.
The picketing continued until 4:30 p .m., the normal quit-
ting time , even though at or about 2 p.m. Williams called
Ingram and explained that the equipment was not Luckie's
and Ingram promised to remove the picket . He held to his
promise in that there was no picketing the following day.
I find that this effective July 1 picketing was an unfair
labor practice within the meaning of Section 8(b)(4)(i) and
(ii)(B) of the Act because it occurred at a common situs
while the primary employer was absent . 3 Even though
Respondent's representative may have had reasons to think
that the unmarked grader could be used by Luckie, the risk
of error respecting the primary employer's presence on the
job belongs to Respondent. In the absence of the primary's
actual presence on the job, the presence of equipment
which might be thought to be that of the primary does not
create a primary presence there . It is unnecessary to make
a finding regarding the validity of picketing if in fact the
3 Moore Dry Dock, supra.
OPERATING ENGINEERS , LOCAL 450
grader had been Luckie's.
F. The Letter of July 17
On July 17 Hugh Hackney, one of Linbeck's attorneys,
sent a letter to Arthur Combs, one of Respondent 's attor-
neys, with copies to Respondent, Luckie, and the Board's
Regional office in Houston , advising that beginning at 5
p.m. on Friday, July 19, Luckie would resume work at the
project, "and will be on the job and will perform work on
this job in the future in accordance with the following
schedule." The letter then set forth a daily schedule of
hours from July 19 through August 9 indicating that Luck-
ie would be on the job on weeknights from 5 p.m. to 7 a.m.
the following morning and on weekends around-the-clock.
The letter further indicated that this work pattern would
continue in effect until further notice . It reiterated that,
"All Luckie employees material, and suppliers of materials
will use the gate exclusively reserved for Luckie Construc-
tion Company located at 7700 Northcross Lane, Austin,
Texas. All other subcontractors and the general contractor,
their employees , materials and suppliers of materials will
use the main gate located at 2501 Anderson Lane. If you
have any questions concerning this matter, please contact
the undersigned."
G. Barricading the Luckie Gate and Covering the Gate
Sign
On or about June 29 Linbeck' s management made the
decision (which was not immediately acted upon) to barri-
cade the Luckie gate and cover the sign reserving it for
Luckie during periods when Luckie was off the job. The
decision to take these measures was not communicated at
that time to the Union.
About the time the July 17 letter containing the schedule
for Luckie's work was sent out to the Union Williams put a
barricade across the Luckie gate in the form of a chain and
also covered the sign. At the time Luckie was not working
on the job. The barricade and the cover over the sign were
thereafter controlled by Williams. He kept the gate barri-
caded and the sign covered except when Luckie was actu-
ally working on the job. Luckie testified credibly, and I
find, that prior thereto traffic generated by his work on the
project passed not only through the Luckie gate itself but
also around the south side of it.
H. Luckie's Presence on the Job During July
Luckie did no work on the job during the period June 27
through July 19 even though the detailed schedule put out
by Linbeck indicated he would resume work on July 19.
However, before July 19, during the period he was not
working on the job, he admitted that he personally came
onto the site to look things over.
Luckie actually resumed work on Saturday, July 20. He
continued working on Sunday, July 21, and Sunday eve-
ning left the job, removing all his equipment . He returned
about 5:30 on the evening of Tuesday, July 23, and re-
mained until 8 : 30 p.m . when he again left with his equip-
ment . He did about the same thing on the evening of July
1005
24. In this manner he followed the schedule set out in
Linbeck's letter of July 17 in that neither his employees nor
his equipment was engaged on the site at times other than
when that letter indicated they would be there. Luckie was,
however, not working during all of the time that the July 17
letter indicated he would be there.
As already indicated the Luckie equipment was not left
on the job at times when he was not working there. The
base material which he used in the parking lot work, how-
ever, was delivered during normal working hours of Lin-
beck, came through the Linbeck gate, and was received by
Linbeck employees. This contrasted with the earlier situa-
tion when the base material was received by Luckie em-
ployees and came onto the job from all directions includ-
ing the Linbeck gate. The record shows that during July
Luckie performed no pipework, it having all been complet-
ed by that time. Some curbing and guttering work was per-
formed during July within the jobsite but this was done by
Linbeck and not by Luckie.
Although in general during July Luckie followed the
schedule set out in the letter of July 17, Williams admitted
that, during Linbeck's normal working hours on weekdays
at times when Luckie, according to the schedule, was not
supposed to be on the job, he and his foreman, Joe Jack-
son, visited the job to learn the status of work and availa-
bility of materials for their use at night and on weekends,
and that on these visits they came and left through the
Linbeck gate. Ingram observed them coming and going.
He also saw supplies which he thought were intended for
use by Luckie come onto the job through the Linbeck gate
and south of the Luckie gate while it was barricaded.
I. Picketing Commencing July 24
On the evening of July 24 (Wednesday) while Luckie
was working on the job, Respondent resumed picketing at
the Luckie gate using the same sign as previously used. The
next day at 8 o'clock in the morning picketing continued,
although Luckie was gone from the site as indicated in the
Linbeck letter of July 17. Although McMahon testified
that the purpose of the picketing was to advise the public
that Respondent did not have the contract with Luckie, the
July 25 picketing was carried on by a patrol carrying a
shrouded sign . I find that even though the sign was cov-
ered, the activity was inducement and encouragement of
employees within the meaning of Section 8(b)(4) of the
Act. International Brotherhood of Electrical Workers, Local
501, et al., [Samuel Langer] v. N. L. R. B., 341 U.S. 694, 701-
702 (1951). Some employees of Linbeck and of subcontrac-
tors on the job refused to come onto the site; others came
on and then left. Quite a few parked in a parking lot across
the street on Anderson Lane and just waited. The picketing
continued all day and the result was a complete shutdown.
The same picketing continued during the day on Friday,
July 26, with the same effect.
On Saturday and Sunday, July 27 and 28, picketing also
continued. Although Luckie did not work, he was sched-
uled to work according to Linbeck's letter of July 17. The
General Counsel does not contend that the picketing on
those days was unlawful.
On Monday, July 29, the picketing at the Luckie gate
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued with an uncovered picket sign from 7 in the
morning until 7 in the evening , even though Luckie was not
on the job and not scheduled to work between 7 a.m. and
5 p.m. On Tuesday , July 30 , the same situation continued.
The effect on both of these days was to substantially close
down the job.
The same situation also continued on Wednesday, July
31, and on Thursday , August 1, although on August 1 the
picket sign was again covered.
On Friday, August 2, although Luckie was not working
nor scheduled to work during the hours from 7 a.m. to 5
p.m., picketing with a covered picket sign resumed early in
the morning. Shortly before 11 a.m., pursuant to instruc-
tions from a United States district judge , the picket was
removed . By that time all of the employees who had been
scheduled to work that day had already left the site and did
not return, so that the project was substantially shutdown.
Since August 2 there has been no picketing.
I find that the above-described conduct of Respondent
induced and encouraged employees of neutral employers,
including Linbeck and its subcontractors other than Luck-
ie, to cease working for their employers on the job. I fur-
ther find from the circumstances that Respondent's object
in so doing was to force or require these various neutral
employers to cease doing business with Luckie and with
each other.
J. Respondent's Rationale for the Late July Picketing
Respondent takes the position that its conduct was justi-
fied by the confusion resulting from the covering of the
sign at the Luckie gate and by the fact that Luckie was not
on the job during all of the time indicated in the letter of
July 17. I find that any uncertainty on the part of Respon-
dent did not warrant its continued inducement of neutral
employees at a common situs at the times when the prima-
ry employer in fact (and plainly so) was not present on the
job. Respondent makes no contention that its picketing
was limited to times when Bruce Luckie and Joe Jackson,
or Luckie employees , or suppliers of materials on which
Luckie employees were destined to work , were actually on
the project.
Sometime between June 28 and July 17, the date of the
letter setting out Luckie's work schedule , Arthur Combs,
one of Respondent's attorneys , telephoned L. G. Clinton,
one of Linbeck's attorneys , to inquire about the covering of
the Luckie gate sign . Linbeck's attorney explained that
Luckie , his employees , his equipment , and his materials
and supplies were not actually on the job at that time and
the purpose of covering the gate sign was to eliminate any
possibility of dispute arising about Luckie being on the job
because the sign carrying his name was displayed.
Linbeck 's attorney further explained that when Luckie was
on the job the sign would be displayed and the gate would
be opened but that when he was not on the job the sign
would be covered and the gate barricaded . Combs ex-
pressed his disagreement with this position, stating that he
did not think covering the sign and barricading the gate
clearly delineated the situation . He gave his opinion that,
in these circumstances , Respondent had a right to picket 24
hours a day.
In explaining his asserted confusion which caused him to
authorize continued picketing McMahon explained , first,
that Luckie had not worked in accordance with the sched-
ule set out in the letter of July 17; secondly , union observ-
ers had seen Luckie and his foreman , Joe Jackson, on the
job during the daytime on July 24 , 25, and 26 on which
days material came onto the job during the day through
the Linbeck gate and was spread around in the evening by
Luckie . McMahon testified, "I did not know when he was
coming back . I had no way of knowing."
On July 25 after Respondent had begun patroling with a
covered picket sign , Linbeck 's executive vice president,
Walter Murphy , telephoned McMahon and , among other
things, asked him why the picket sign was covered. Mc-
Mahon replied , "Well, we are going to cover our picket
sign every time your gate sign is covered ." He further as-
serted that Respondent had a dispute with Luckie and in-
tended to picket as long as he was on the job . Then, refer-
ring to Linbeck's letter of July 17, McMahon protested
that Luckie was not complying with those hours . This, of
course , was true in that Luckie was not present on the job
at all times that the letter indicated he would be.
McMahon's comments must be understood in the con-
text of the ongoing picketing , which included picketing
while neutrals were working and Luckie , his employees,
and delivery of supplies for his use , were absent. The sense
of McMahon's remarks in the light of this course of con-
duct is that Respondent would continue to do what it was
doing so long as Luckie was a subcontractor on the project.
As found later herein, Respondent's course of conduct in-
cluded unlawful inducement of neutral employees. For
McMahon to tell an official of a neutral employer that the
Union would continue that conduct was to threaten,
coerce , and restrain that neutral employer, and was an un-
fair labor practice within the meaning of Section
8(bx4)(ii)(B) of the Act.
McMahon had learned directly from the pickets when
the gate sign was covered . He testified,
On Wednesday evening, the 24th of July, I believe,
was the 24th , the pickets called me that Luckie Con-
struction Company had left the job and that Mr. Ho-
mer [Williams], the gentleman that just got through
testifying, had come out and put a shroud over the
Luckie sign at the Luckie gate . I was quite confused. I
didn't know what the reasoning for this was, and they
wanted to know what to do . And I told them to just
leave everything status quo until I could think this
thing out and I would be back with them by tele-
phone.
So I thought very carefully and I called back and
talked to the man , that had been carrying the picket
up to the time this shroud was there , and the guard
had come by later on and he asked him what the
shroud was for. The security guard told him that,
"Well, when we cover the sign, the job goes away."
So here again I was quite confused because I had this
schedule that Mr. Luckie was supposed to work. It
was impossible for him to work out their after dark
according to this schedule . He never worked at any
OPERATING ENGINEERS , LOCAL 450 1007
time according to this schedule so I didn't know when
they were going to be there.
So I called them back early Wednesday morning and
told them if the sign was still shrouded and that this
made the job go away, to cover up our sign and this
made the picket go away, and for them to observe the
activities on that job and that I would be in there that
night. I know it was on a Thursday because I had
regular Union meeting in Houston which is the fourth
Thursday of every month.
I attended that meeting and got through there about
9:30 and left for Austin. I got there about midnight
that night and went on the job, stayed until about 3:00
in the morning where the pickets were, the gate. The
sign on the gate was shrouded. My men were there
observing. I stayed all night and all the next day.
My instructions to the picket, and I left-this was on a
Friday, Friday afternoon. My instructions-I called
all the pickets we had lined up for the weekend. They
were pickets only if Bruce Luckie followed his sched-
ule. If he moved in on the job, they would put up the
picket. If he did not move in on the job and the gate
stayed shrouded, to leave their sign shrouded and to
observe any activity. That if Luckie came in that gate
or any material came in that gate, to take the shroud
off and continue normal picketing.
Williams confirmed that he never notified Respondent
when he was going to cover the gate sign or barricade the
gate and never explained the significance of these moves.
But of course Linbeck's attorney already had, if any expla-
nation were necessary. According to Williams the covering
of the sign and the barricading of the gate removed the
reserved gate.
One thing further should be noted respecting
Respondent's dilemma after the schedule for Luckie con-
tained in the telegram of June 26 and the letter of July 17
was in effect. Respondent was then in a position where it
had to keep paid pickets at the project every weeknight for
the entire night and all weekend both night and day be-
cause the July 17 letter indicated Luckie would be working
at those times. And even if in fact Luckie were not on the
job, the letter was notice that he might arrive at any time
during those hours. If the Union was to reach Luckie it had
to cover that schedule with available pickets. This obvious-
ly was an expense and a burden to Respondent. However,
it was the type of expense which existed anyway because
absent the telegram and the letter Luckie could have come
on the job even during weekdays as well as at the times
indicated in the letter.
I agree with Williams that when he first covered the sign
at the Luckie gate any reserved gate status disappeared. It
is unnecessary to make a finding (and I make none) as to
whether reserved gate status thereafter was reestablished.
With the Luckie gate sign covered the project was a com-
mon situs without a reserved gate ; Respondent was enti-
tled to make its appeals in accordance with established
standards applicable to common situs situations. I find it
ran afoul of those standards and committed unfair labor
practices within the meaning of Section 8(b)(4)(i)(ii)(B) of
the Act by making effective appeals to neutrals at times
when Luckie was in fact not engaged on the project. Such
appeals were made on July 25, 26, 29, 30, 31, and on Au-
gust 1 and 2 . Local Union No. 519, United Association of
Journeymen, etc. v . N.L.R.B., 416 F.2d 1120, 1125
(C.A.D.C., 1969).
Respondent argues that after the schedule of July 17 was
in effect it did not know when Luckie would be there. But
on the facts here that position is disingenuous. From the
telegram of June 26 Respondent knew when Luckie would
be absent . And Respondent was entitled to rely on that
word . The letter of July 17 did not revoke or alter that
word . It merely added to it . It informed Respondent when
Luckie would be there but was not a guarantee that he
would be there all of that time . And his failure to remain
on the job during all of the times scheduled in the July 17
letter was not an indication that he would be present at
other times in violation of the terms of the June 26 tele-
gram.
In any case, for the purpose of insulating neutrals from
primary picketing, the important thing to know is when
the primary employer would not be there . This information
Respondent had from the June 26 telegram. Consequently,
its picketing when Luckie was not there indicates a purpose
to reach employees of neutrals to force them to cease busi-
ness with Luckie and others.
I would not so find if the picketing were limited to times
when Bruce Luckie and Joe Jackson came on the job dur-
ing the day, or times when materials destined for use by
Luckie employees were being delivered . But Respondent
went far beyond that , maintaining its picket all day long
for several days , thereby closing down the entire job.
And whatever legal confusion arose in the minds of
union officials from the barricading of the Luckie gate and
shrouding of the gate sign , one inference that does not flow
from those changes is that Luckie would be on the job
while the barricade was up and the sign covered.
At the hearing Respondent took the position that patrols
with shrouded signs were not pickets but merely observers.
I disagree. Picketing is more than observing , it is appealing
for support. There is no dispute that when the union pa-
trols carried an uncovered sign they were engaged in pick-
eting. Considering that at times the same men continued
the same patrol with the same sign shrouded , and with the
same effect as when unshrouded , I find that no legal
change was achieved by covering the sign . Patroling with
the picket sign, whether covered or uncovered , was in these
circumstances inducement within the meaning of Section
8(b)(4) of the Act.
Respondent's argument that the patrols with covered
signs were not pickets and therefore were permissible is
partially based on the contention that comments made by
the Honorable John V. Singleton, Jr., United States Dis-
trict Judge for the Southern District of Texas , during a
proceeding on July 31 under Section 10(1) of the Act led
union officials to think that such patrols were not pickets.
This contention , of course, has no bearing on conduct prior
to July 31. With respect to patroling on July 31 and after,
examination of judicial comments during the injunction
proceeding afford no basis for a belief that Judge Singleton
gave his imprimatur to patroling with a covered picket
sign.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K. Activity at the Linbeck Gate in Late July THE REMEDY
Some of the cross-examination of McMahon indicates
that Respondent picketed in the area of the Linbeck gate
on July 29, 30, and 31 , and August 1 and 2 . Elsewhere in
his testimony he indicates that the union activity occurred
beginning July 25 at the Luckie gate ; that he believed Re-
spondent had the right to picket the Linbeck gate but did
not. The General Counsel makes no contention that there
was any unlawful activity in late July in the area of the
Linbeck gate and in the circumstances I find that during
that period no unlawful conduct occurred in that area.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in the construction industry and in con-
nection with the operations of Linbeck and its various sub-
contractors including Luckie, described in section I, above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States and
tend to lead to disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Linbeck and Luckie are each persons within the
meaning of Sections 2(1) and 8(b)(4)(B) of the Act and
employers engaged in commerce and in an industry affect-
ing commerce within the meaning of Sections 2(6) and (7)
and 8(b)(4XB) of the Act.
2. Respondent is a labor organization within the mean-
ing of Sections 2(5) and 8(b)(4)(B) of the Act.
3. Respondent engaged in unfair labor practices within
the meaning of Section 8(b)(4)(i)(iiXB) of the Act by the
following conduct:
(a) Picketing on July 1, 1974, at the Luckie entrance to
Northcross Mall construction project in Austin, Texas,
while Luckie was not working there.
(b) Picketing at the Luckie entrance to that project from
July 25 through August 2, 1974, while Luckie was not
working there.
4. Respondent engaged in unfair labor practices within
the meaning of Section 8(b)(4)(ii)(B) of the Act by on July
25, 1974, threatening Linbeck that picketing described
above would continue.
5. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
6. By picketing near the Linbeck entrance to the North-
cross Mall construction project in Austin, Texas, from
June 24 through 26, 1974, Respondent did not commit un-
fair labor practices within the meaning of Section 8(bX4)(i)
and (ii)(B) of the Act.
Having found that Respondent engaged in certain unfair
labor practices, I shall order that it cease and desist there-
from and take certain affirmative action, including posting
of notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
Respondent, International Union of Operating Engi-
neers, Local Union No. 450, AFL-CIO, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Engaging in or inducing or encouraging any individ-
ual employed by Linbeck Construction Corporation or any
other person engaged in commerce or in an industry affect-
ing commerce to engage in a strike or a refusal in the
course of his employment to perform services.
(b) Threatening, coercing, or restraining any person,
where, in either case, an object thereof is to force or require
any person to cease doing business with Bruce Luckie Con-
struction Co. or with any other person.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post in conspicuous places in Respondent's business
offices, meetings halls, and all places where notices to
members are customarily posted, copies of the attached
notice marked "Appendix." S Copies of said notice, on
forms provided by the Regional Director for Region 23,
after being duly signed by Respondent's authorized repre-
sentative , shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily post-
ed. Reasonable steps shall be taken by Respondent to en-
sure that said notices are not altered, defaced, or covered
by any other material.
(b) Furnish said Regional Director with signed copies of
the aforesaid notice for posting, if desired, by Linbeck
Construction Corporation and its subcontractors at loca-
tions where notices to their respective employees are cus-
tomarily posted.
(c) Notify the Regional Director for Region 23, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
° In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
S In the event that the Board's 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 Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."