Sheet Metal Workers Local 19 (Delcard Associates)

National Labor Relations Board - Board Decisions

Feb 23, 1995

316 N.L.R.B. 426 (N.L.R.B. 1995)

426
316 NLRB No. 91
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 admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We adopt the judge’s finding that the Respondent was engaged in
a joint venture with several other unions and thus was liable for the
unlawful acts committed by the other unions. However, at least inso-
far as area standards picketing of Joseph Stong, Inc. is concerned,
the record does not establish that the Respondent joined the group
effort before June 4, 1993. Accordingly, we do not find that the Re-
spondent is liable for the unlawful conduct of any other union prior
to that date.
The Respondent contends that the judge’s finding that its pickets
unlawfully blocked ingress to jobsites is inconsistent with Service
Employees Local 50 (Evergreen Nursing Home), 198 NLRB 10
(1972), and Machinists Lodge 1233 (General Dynamics), 284 NLRB
1101 (1987), and that those decisions cannot be reconciled with
those cited by the judge. We disagree. The conduct found lawful in
the cases cited by the Respondent was both less egregious and less
extensive than the Respondent’s conduct here. In addition, no excep-
tions were filed by either the General Counsel or the charging par-
ties to the judge’s dismissal of blocking allegations in General Dy-
namics; thus, that issue was not ruled on by the Board.
1 Certain errors in the transcript have been noted and corrected.
Sheet Metal Workers International Association,
Local Union No. 19 and Delcard Associates,
Inc. and Omni Mechanical, Inc. and Joseph
Stong, Inc. Cases 4–CB–6783, 4–CB–6879, 4–
CB–6944, and 4–CC–2005–1
February 23, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
On May 31, 1994, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel and Charging Parties Delcard As-
sociates, Inc. and Joseph Stong, Inc. filed answering
briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sheet Metal Workers Inter-
national Association, Local Union No. 19, Philadephia,
Pennsylvania, its officers, agents, and representatives,
shall take the action set forth in the Order.
Richard P. Heller, Esq., for the General Counsel.
Dennis P. Walsh, Esq., of Philadelphia, Pennsylvania, for the
Respondent.
Lawrence S. Coburn, Esq., of Philadelphia, Pennsylvania, for
the Charging Parties.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These consoli-
dated cases were heard at Philadelphia, Pennsylvania, on
September 20, 21, 22, and 23 and October 18 and 19, 1993.
The charges were filed respectively on November 20, 1992,
by Delcard Associates, Inc. (Delcard), on March 29, 1993,
by Omni Mechanical, Inc. (Omni), and on June 15 and 23,
1993, by Joseph Stong, Inc. (Stong). The consolidated com-
plaints, which issued respectively on January 29, April 29,
and August 20, 1993, and were amended at the hearing, al-
lege that Sheet Metal Workers International Association,
Local Union No. 19 (the Union, Local 19, or Respondent),
violated Section 8(b)(1)(A) and 8(b)(4)(i)(ii)(B) of the Na-
tional Labor Relations Act (the Act). The gravamen of the
complaint is that in connection with picketing at three loca-
tions, each involving different employers, the Union blocked
ingress of employees to the jobsite, and in some instances
engaged in threats and acts of violence, and at one site en-
gaged in secondary boycott picketing. Respondent’s answers
deny the commission of the alleged unfair labor practices.
All parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally, and to file briefs.
General Counsel, the Charging Parties, and the Union each
submitted a brief. Briefs were received by me on February
14, 1994.
On the entire record in this case1 and from my observation
of the demeanor of the witnesses, and having considered the
arguments of counsel and the briefs of the parties, I make
the following
FINDINGS OF FACT
I. THE BUSINESS OF DELCARD, OMNI, AND STONG
Delcard, a Delaware corporation with an office and facility
in Wilmington, Delaware, is engaged in the construction in-
dustry. Omni, a Pennsylvania corporation with an office and
facility in Gilbertsville, Pennsylvania, is engaged in the sheet
metal and HVAC (heating, ventilation, and air-conditioning)
contracting industry. Stong, a Pennsylvania corporation with
its principal place of business in Chester, Pennsylvania, is
engaged in the installation and service of plumbing, HVAC,
and fire protection systems. In the operation of their respec-
tive businesses, Delcard annually purchases and receives at
its Wilmington, Delaware facility goods valued in excess of
$50,000 directly from points outside of Delaware. Omni and
Stong each annually perform services valued in excess of
$50,000 for customers located outside of Pennsylvania, and
Stong annually purchases and receives at its Chester, Penn-
sylvania facility goods valued in excess of $50,000 directly
from points outside of Pennsylvania. Delcard, Omni, and
Stong are each employers and persons engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
427SHEET METAL WORKERS LOCAL 19 (DELCARD ASSOCIATES)
2 All dates herein for the Delcard case are in 1992 unless other-
wise indicated.
II. THE RESPONDENT UNION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Delcard Case
Delcard is a nonunion contractor. About 1 year prior to the
picketing in question, the Union unsuccessfully sought to or-
ganize the Company’s employees.
Delcard obtained a subcontract to perform the mechanical
work on a renovation project at the Stone & Webster build-
ing in Cherry Hill, New Jersey. Delcard commenced work
about October 1992.2 Delcard worked continuously at the
project until March 1993, and thereafter on an intermittent
basis. Delcard was still performing work intermittently at the
project at the time of the present hearing. At the peak period,
Delcard had some 45 to 50 employees on the project. In No-
vember, Delcard had about 10 employees at the jobsite, al-
though the number of employees fluctuated.
It is undisputed and the parties so stipulated as follows:
On November 9, Union Business Representative John Bush
and Union Organizer Gerard Slavin set up an area standards
picket line at the Stone and Webster jobsite. The picketing
lasted 5 days a week, Monday through Friday, throughout the
month of November, and continuing until mid-January 1993.
Bush and Slavin were present on the first day of picketing.
On all subsequent days of picketing, Bush or Slavin were
present. On some days both were present.
It is also undisputed that the Union picketed the jobsite in
furtherance of its area standards dispute with Delcard. The
pickets, except Bush, wore signs stating ‘‘NOTICE—CON-
TRACTOR IS DESTROYING SHEET METAL INDUSTRY
STANDARDS. WE PROTEST AGAINST DELCARD AS-
SOCIATES’’ (name inserted on duct tape) followed by the
Union’s name.
There were three entrances to the Stone and Webster job-
site, herein referred to respectively as gates A, B, and C. Ini-
tially the Union picketed at all three entrances. After the first
3 days of picketing (November 9, 10, and 11), gate B was
set aside as a reserve gate for Delcard. Thereafter the Union
confined its picketing to gate B. The number of pickets is
in dispute.
The complaint alleges that the Union, by its agents and
representatives, blocked ingress of employees to the jobsite
on November 9, 10, 11, 18, and 19. The complaint further
alleges that the Union: on November 10, threatened an em-
ployee with violence; on November 11, threatened an em-
ployee with violence, and struck the window of a vehicle
carrying employees; on November 18, rocked a vehicle car-
rying employees, struck the vehicle windows, and bent the
mirror on the vehicle; and on November 19, kicked and
caused damage to the vehicle carrying employees and bent
the antenna on the vehicle. The complaint alleges that by the
foregoing conduct, the Union violated Section 8(b)(1)(A) of
the Act.
General Counsel presented five witnesses, all employed by
Delcard, who testified concerning the picketing and alleged
unlawful conduct at the Stone & Webster jobsite: William
Phillips, Charles Campagne, Robert Torres, Vincent Ganc,
and Daniel Hunt. Phillips was general foreman, overseeing
all mechanical work on the project. Phillips reported to Com-
pany Superintendent Herman Smith. On the jobsite, the
Company had area or ‘‘floor’’ foremen who reported to Phil-
lips. Phillips testified that he could write up an employee but
had no authority to hire, fire, or exercise further discipline.
Rather, such matters were handled by Smith. General Coun-
sel concedes that Phillips was a supervisor within the mean-
ing of the Act.
In November, Campagne, Torres, and Hunt were floor
foremen at the Stone & Webster jobsite. Campagne testified
in sum as follows: He was in charge of the mechanical work
on floor 3. Some three or four employees reported to him,
although sometimes there was only himself and one helper.
Campagne gave them their daily work assignments. If a
problem arose with an employee, he would report it to Phil-
lips. However Campagne did not encounter any such prob-
lems on the job. Campagne did not consider himself a super-
visor. He spent at least 75 percent of his workday performing
manual labor. To his knowledge, he received the same bene-
fits as other employees. He had no authority to hire, fire, or
discipline employees.
Robert Torres testified in sum as follows: He was in
charge of demolition, with one employee to assist him. He
directed and instructed the employee in performing that
work. Torres initially reported to Superintendent Smith, and
subsequently to Phillips. Torres was not involved in hiring
or firing. If a disciplinary problem arose, he would inform
Phillips. However there were no such problems on the job.
After demolition work was completed (in late November),
Torres performed sketching (modifying blueprints), working
along with other employees. Torres previously worked as a
foreman on other jobs but has also worked as a rank-and-
file employee. In 1990, while serving as a foreman, he was
eligible to vote in the Board-conducted representation elec-
tion.
Daniel Hunt testified in sum as follows: He was foreman
in charge of mechanical work on floor 4, which involved
duct installation. He initially had one, and subsequently two
employees assisting him. Hunt gave them their work assign-
ments. He reported to General Foreman Phillips on work
progress and problems.
Vincent Ganc, General Counsel’s remaining witness in the
Delcard case, was a sheet metal apprentice. It is undisputed
that he had no authority to direct other employees. Ganc re-
ported to Phillips, whom he described as his supervisor.
The Union cross-examined General Counsel’s witnesses
but did not present any witnesses or documentary evidence
with respect to their duties or responsibilities. In its brief, the
Union did not take any position with respect to their status.
I find that Campagne, Torres, and Hunt, like Ganc, were at
all times material herein employees within the meaning of
the Act, and entitled to the protection of Section 7 and
8(b)(1)(A) of the Act. The authority exercised by the Compa-
ny’s floor foremen in directing their helpers’ work, con-
stituted the kind of authority commonly exercised by skilled
workers over helpers and apprentices, and does not warrant
their classification as supervisors within the meaning of Sec-
tion 2(11) of the Act. See Koons Ford of Annapolis, 282
NLRB 506 fn. 17, 513–514 (1986), enfd. 833 F.2d 310(T)
(4th Cir. 1987).
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
With regard to the first day of picketing, November 9,
Foreman Phillips testified in sum as follows: He drove to
work with service technician Gary Hicks and apprentice
Ganc. They arrived at about 6:45 a.m. There was a picket
line of about six pickets across the gate A entrance (north
side of King Avenue, parallel to stop sign) blocking the en-
trance. (In his investigatory affidavit, Phillips said there were
six to eight pickets.) Phillips proceeded up to the stop sign
at the south side of King Avenue. The pickets were yelling
and cursing, telling the vehicle occupants to get out and go
back to Delaware, that ‘‘you’re on our turf now.’’ (Phillips
testified at one point that Union Business Representative
Bush made the remarks, and at another point that Bush made
most of the remarks. In his affidavit, Phillips indicated that
the pickets, including Bush, yelled the obscenities and other
remarks.) Phillips did not try to talk to the pickets and they
did not attempt to converse with him. Phillips waited about
30 seconds and then proceeded to a pay phone on Route 70,
where he called his superintendent. The superintendent called
the local police. About 20 minutes later the police escorted
the Phillips vehicle into the jobsite.
Robert Torres testified in sum as follows: He drove alone
to the jobsite on November 9, arriving at about 6:30 a.m.,
ahead of the other employees. Bush and about four pickets
blocked the gate A entrance. Torres approached the picket
line and stopped. Bush came over to him and asked if he
was a glazier. Torres answered no. Bush then asked for
whom he worked. Torres answered that he worked for
Delcard, and wanted to get in. Bush, using profanity, told
Torres to get out and go back to Delaware. The other pickets
yelled at Torres. Torres waited about 3 minutes, then he
backed out and proceeded to a fast food restaurant, where he
waited with other employees until they were escorted by se-
curity into the jobsite. Torres testified that they got into the
site between 9 and 9:30 a.m. However in his affidavit, Torres
stated that he got into work about 8 a.m.
With regard to November 10, Phillips testified in sum as
follows: He again drove to work with Hicks and Ganc, arriv-
ing about 6:45 a.m. This time they approached gate B, off
Cuthbert Boulevard. About six pickets were stationed on the
right half of the entrance. Some cars got through the left
side. However as Phillips approached, Bush told the pickets
to spread out and cover the entrance, which they did. Phillips
stopped his vehicle. The pickets surrounded his vehicle (two
on each side and two in front), yelling the kind of remarks
they made the previous day. (In his affidavit, Phillips stated
that 8 to 10 pickets rushed up to his vehicle.) Phillips backed
up his vehicle, and again tried to enter the jobsite. The pick-
ets again reformed their line, and then surrounded Phillips’
vehicle. Phillips again backed away. This time he headed for
gate A. At gate A, about six pickets stood in the left lane.
They permitted Stone & Webster employees to enter through
the right lane. As Phillips approached gate A, the pickets
shifted across the entrance, blocking his way. Phillips entered
the jobsite by swerving over the curb and onto the adjacent
grassy area, around the picket line.
Vincent Ganc, in his testimony, substantially corroborated
Phillips’ testimony regarding the events of November 10, al-
though on cross-examination he evidently confused gates A
and B. Ganc specifically corroborated Phillips’ testimony that
Bush ordered the pickets to block their vehicle so that they
could not get through.
Charles Campagne testified in sum as follows: On Novem-
ber 10 he arrived at the jobsite at about 6:45 a.m. and sought
to enter through gate B. Robert Torres got in, followed by
another vehicle. Then about four pickets formed a line across
the entrance, blocking Campagne’s vehicle. There was no
conversation. Campagne backed up and drove slowly to gate
A. Again, about four pickets formed a line across the en-
trance, blocking his way. Campagne returned to gate B, but
the pickets again formed a line and blocked his way. He
parked in a nearby lot and waited. About 15 seconds later
a black vehicle pulled alongside, and Business Representative
Bush got out. Bush, cursing at Campagne, told him to get
back to Delaware, and if he tried to get through, Bush would
kill him. Bush did not at this time accuse Campagne of
speeding. Campagne walked to the Stone & Webster build-
ing. He called security (a local police officer) who escorted
his vehicle into the jobsite at about 7:15 a.m. Campagne told
Phillips and other employees what happened. Campagne told
the police officer that Bush threatened his life. When the of-
ficer informed Bush of the accusation, Bush falsely told the
officer that Campagne approached the gate at 40 miles per
hour and tried to run over the pickets.
On November 11, by prearrangement, Delcard personnel
organized themselves into a caravan, so as to proceed in a
line into the jobsite. This was Daniel Hunt’s first day on the
job. Hunt drove to work in his van, accompanied by Phillips,
Hicks, and Ganc. Phillips had a camera. Torres, driving alone
in his pickup truck, was behind the Hunt vehicle and a pick-
up truck driven by Delcard employee Wayne Geiger. They
approached gate A from Route 70.
Hunt testified in sum as follows: There were at least four
pickets at gate A. Hunt was proceeding at 5 to 10 miles per
hour. Bush told the pickets to get in front of Hunt’s van.
Bush came over to Hunt, said he’d ‘‘kick Hunt’s ass,’’ and
using more profanity, told him to go home. Bush then went
to the passenger side of the van and hit the window with his
elbow. After stopping for about a minute, Hunt inched his
vehicle through the picket line. Hunt then saw the pickets
surround Torres’ vehicle. Hunt did not speak to Bush or the
other pickets.
Robert Torres testified in sum as follows: After the Hunt
and Geiger vehicles passed through the picket line, the pick-
ets blocked his vehicle. Torres blew his horn but the pickets
would not move. Bush came over to Torres and, using his
usual profanity, told Torres to get out. Bush struck the car
window with his elbow. Torres backed out and proceeded to
gate B. About three pickets blocked his way. Torres backed
away, parked briefly, and then entered the jobsite through
gate B. Torres told other employees about the incidents on
November 9 and 11.
Phillips and Ganc, in their testimony, substantially cor-
roborated the testimony of Hunt and Torres with respect to
the picket line conduct at gate A. (Phillips was seated in the
front passenger seat of Hunt’s van and Ganc in the middle
front.) Phillips testified that as Hunt approached gate A,
about six pickets spread out across the entrance, and Bush
yelled to the pickets at gate B to come over and help them.
Phillips further testified that the pickets surrounded the van,
yelling and pounding on the doors and windows, and as the
vehicle passed through the line, bent the mirrors and antenna.
However there was no damage to the vehicle. Phillips further
testified that in addition to his usual remarks, Bush told Hunt
429SHEET METAL WORKERS LOCAL 19 (DELCARD ASSOCIATES)
something to the effect that ‘‘I’m going to get you.’’ Ganc
testified that the pickets surrounded Hunt’s vehicle. Both
Phillips and Ganc testified that Bush struck the passenger
side window with his forearm or elbow.
After the Hunt vehicle passed through the picket line, Phil-
lips took a photograph of the Torres vehicle (white Ford
pickup truck) and pickets. The photo shows one picket on
the passenger side and at least two pickets in front of the ve-
hicle. The photo also shows, behind the pickets standing in
front of the vehicle, footwear which does not match that of
either of the two pickets. Therefore it is evident that the
photo reflects three pickets standing in front of the vehicle.
Torres testified that there were also pickets on the driver side
of his vehicle. As the photo does not show the driver side,
his testimony is plausible.
As indicated, after November 11 the Union confined its
picketing to gate B, now designated as a reserve gate for
Delcard. The remaining allegations pertain to November 18
and 19.
On November 18, at about 6:45 a.m., Phillips, driving a
van leased by Delcard, arrived at gate B. About seven em-
ployees, including Torres and Hunt, were passengers in the
van. Phillips testified in sum as follows: As he approached
the picket line, the pickets surrounded the van (two in front
and two on each side). They yelled their usual remarks. They
leaned on the van, scratched it, bent the mirrors and antenna,
and rocked the vehicle from front to rear. Phillips waited 4
to 5 minutes and proceeded to ease forward. As the pickets
moved aside, they continued to bang on the vehicle and bend
the antenna. Phillips does not know whether the vehicle was
damaged on this occasion. There were no other vehicles ar-
riving at this time.
Torres testified in sum as follows: There were three or
four pickets blocking the gate B entrance. (In his affidavit,
Torres said there were five or more pickets.) They blocked
the van, but the van was stopped for less than a minute.
Torres felt the van rocking. Hunt testified in sum as follows:
He was in the front passenger seat. Some four or five pickets
got in front of the van, yelling at them to go home. Bush
came around to the passenger side, pointed at Torres, and
said, ‘‘I want you.’’ Torres heard a loud bang behind him,
indicating to him that someone punched a window. Torres
did not recall the van rocking. The van was stopped less than
a minute. In his affidavit, Torres stated that the van was
stopped for about 5 minutes. However Torres testified that
his estimate of less than a minute was based on his viewing
of a videotape, although the tape was actually filmed the
next day.
On November 19, Phillips arrived at the jobsite at 5:30
a.m. There were no pickets present at that time. Phillips had
a video camera. He proceeded to the fifth floor of the Stone
& Webster building, where he set up the camera facing gate
B, about 100 yards away.
At about 6:45 a.m., the Delcard leased van, driven by
Wayne Geiger, arrived at gate B. Robert Torres was the only
occupant of the vehicle to testify concerning the picketing on
November 19. Torres testified in sum as follows: Hunt and
other employees were passengers in the van. Torres was seat-
ed on the left side of the middle of three rows. Bush and
at least four pickets blocked the entrance. Geiger stopped the
van. Pickets leaned on the van, and one got on the front.
Torres heard a thump on the passenger side where Bush was
standing. The van was stopped for only a few seconds. After
the van passed through the picket line, Torres observed that
the sliding door was scratched and the antenna bent. The em-
ployees said nothing to the pickets on either November 18
or 19 and they did not make any gestures.
General Counsel presented in evidence Phillips’ videotape
of the encounter. The videotape shows that at least six pick-
ets, including Bush, crowded around the van as it arrived at
gate B. The videotape further shows that one of the pickets,
who appears to be Bush, kicked the passenger side of the
van as it passed through the picket line. Phillips testified,
based on his observation of the scene and the videotape, that
one picket lay down on the hood of the van and that Bush
was the picket who kicked the van. Phillips further testified
that he reported the November 19 incident to the police be-
cause of damage to the van. Specifically, there were scratch
marks on both sides, a mark where Bush kicked it, and a
bent antenna.
The Union presented Business Representative Bush and
Organizer Slavin as its witnesses with respect to the Delcard
case.
Bush and Slavin testified in sum as follows: They initially
set up the picket line, using four pickets, wearing signs, at
each of the three entrances to the Stone & Webster premises.
In addition, Bush stationed himself at gate A and Slavin at
gate B. The pickets did not move from one gate to another.
Bush sometimes stopped by at gate B, but not when cars ap-
proached. However Slavin was sometimes at gates A or C
when cars approached. Sometimes a picket brought coffee to
pickets at other gates. This arrangement continued during the
first 3 days of picketing (November 9, 10, and 11). In sum,
there were a total of 14 pickets, including Bush and Slavin,
during this period. After gate B was established as a reserve
gate, the Union stationed only four pickets at that gate, plus
Bush and Slavin (occasionally only one of them).
Bush testified that for the first 3 days, he did not know
which arriving vehicles contained Delcard employees, al-
though he looked for Delaware license plates. Bush testified
that some Stone & Webster employees commuted from Dela-
ware. However it is undisputed, as testified by Robert Torres,
that construction employees, including Delcard employees,
reported to work earlier than Stone & Webster employees.
Slavin testified that by the third day of picketing he knew
which vehicles carried Delcard employees.
Bush testified in sum as follows: He instructed the pickets
to move in a rotating manner at the picketed entrances. ‘‘We
tried to stop and slow down everyone to speak to them so
that we could let them know who we were and why we were
out there.’’ Bush wanted to find out which employees were
sheet metal workers, and to determine if they were making
area wages. He also wanted to explain to non-Delcard em-
ployees and the public why they were there, i.e., ‘‘that we
were protesting Delcard on a wages and standard[s] issue.’’
However Bush gave no instructions to the pickets as to who
if anyone should speak to occupants of vehicles or what if
anything they should say. ‘‘The only instructions I gave the
pickets that I had there was to be very careful, that there was
a lot of traffic, and to keep moving in a rotating manner.’’
Bush personally approached each vehicle, and after he ex-
plained the Union’s protest, the pickets stepped out of the
way. Some vehicles went through the picket line without
stopping, in which case the pickets quickly got out of the
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
way. Bush never received the information which he sought
from the Delcard employees. Organizer Slavin testified that
the Union initially needed pickets at all gates ‘‘to get our
message out,’’ namely, as stated on the picket signs, that
Delcard was destroying Sheet Metal Workers’ area standards.
On the basis of Bush’s own testimony, it is evident that
the Union intentionally blocked access to the jobsite. Robert
Torres testified that the roadway at gate A was 16 feet wide,
and 8 to 10 feet wide at gate B. Bush testified that gate A
was 20 to 25 feet wide, and Slavin testified that the driveway
at gate B was about 25 feet wide. Photographs taken by Wil-
liam Phillips indicate that gate B, at its entrance, was nar-
rower than gate A, although widening beyond the entrance.
At neither entrance would it have been possible for a vehicle
to safely proceed ahead, while four to six pickets were mov-
ing back and forth across either entrance. I find incredible
Slavin’s testimony that the van carrying Delcard employees
proceeded through gate B at 10 miles per hour while six
pickets (including himself and Bush) walked in a circle at the
entrance. Moreover, Phillips’ videotape plainly demonstrates
that the pickets did not simply confine themselves to rotating
across the entrances, but sought to surround approaching ve-
hicles which carried Delcard personnel. To this extent, at
least, the videotape corroborates the testimony of General
Counsel’s witnesses.
The testimony of Bush and Slavin also lacks credibility in
another significant respect, namely, the Union’s professed
purpose in picketing. The Union already knew that Delcard
paid wages and provided benefits which were inferior to
those which the Union considered to be area standards. Bush
and Slavin, in their testimony, did not indicate that the Union
had any current interest, through the picketing or otherwise,
in organizing Delcard’s employees. Therefore it would make
no sense for the pickets to repeatedly stop vehicles carrying
Delcard personnel for the purpose of learning their job de-
scriptions or wage rates. It would also make no sense to stop
other vehicles for the purpose of giving the occupants the
same message conveyed on the picket signs. Moreover, if the
purpose of the picketing was to obtain information or plead
the Union’s cause, it would make no sense for Bush to fail
to give the pickets any instructions as to whether they should
speak or what they should say. And if only Bush and Slavin
could ask questions or provide information, there would be
no need to have four or more additional pickets at each en-
trance. Rather, the number of pickets, coupled with their be-
havior as shown on Phillips’ videotape, tends to corroborate
the testimony of General Counsel’s witnesses, in sum, to the
effect that the Union engaged in picketing in order to frus-
trate and intimidate Delcard’s employees from entering the
jobsite.
With respect (evidently) to the incident involving Charles
Campagne, Bush testified in sum as follows: On November
9 or 10, a light-colored large van proceeded on King Avenue
at 25 to 35 miles per hour eastward (from gate B) to gate
A. The driver stopped at gate A for 5 to 10 seconds, and
then drove back to gate B at 25 to 30 miles per hour. There
he approached the picket line, slammed on his brakes,
stopped for about 10 seconds, backed out, and proceeded to
park in no. 2 executive campus lot, across King Avenue from
the Stone & Webster facility. Bush, who was at gate A,
knew that the driver was a Delcard employee. Bush drove
over to him in his black Oldsmobile and asked if he was a
Delcard employee (Bush subsequently testified that he did
not recall whether he asked him). Bush asked the employee
if he were crazy, and trying to kill somebody, and admon-
ished him for his unsafe driving. The employee just kept say-
ing ‘‘Yes, sir.’’ Bush did not threaten to kill him or anyone
else. Bush then returned to the picket line. The employee
walked to the Stone & Webster facility, later returned to his
vehicle, and drove into the jobsite through gate B. Neither
the police nor security spoke to Bush about the matter.
Bush further testified in sum as follows: He did not hear
any picket say scab, or get back to Delaware, or use profan-
ity, nor did he use such language. He never said ‘‘I want
you,’’ although he may have said ‘‘I want to talk to you.’’
He never hit a car window with his elbow, although he may
have tapped on a window to indicate that he wanted to talk.
To his knowledge, no one struck or damaged a car mirror
or antenna. However (referring to the Delcard leased van and
videotape) ‘‘someone’’ kicked the van, because one of the
passengers made an obscene gesture. (Bush did not claim
that he expressed disapproval of the picket’s conduct.) No
one tried to rock or move the van. The van, with seven to
nine passengers, was too heavy to be rocked. The driveway
was icy, which may have accounted for pickets slipping. On
another occasion (evidently referring to Phillips’ testimony
concerning November 10), a driver approached gate A,
stopped briefly, proceeded to gate B, and then returned and
went past gate A by driving over the curb and grass at 30
to 40 miles per hour.
With reference to the videotaped incident, Organizer
Slavin testified that he was on the driver side, about 3 feet
from the van, but did not see anyone touch the van. The tes-
timony of Bush and Slavin confirms that Bush was on the
passenger side of the van. As indicated, I have found that
Bush kicked the van. If Bush or any other picket was dis-
posed to engage in such conduct on the one occasion when
they happened to be videotaped in the act, then it is prob-
able, as testified by General Counsel’s witnesses, that the
pickets engaged in other such acts. Indeed, by intentionally
kicking the van, Bush in effect signaled the pickets that they
were free to engage in similar conduct.
As indicated, I have reservations as to the credibility of
Bush and Slavin regarding significant aspects of this case. In
contrast, the few discrepancies in the testimony of General
Counsel’s witnesses were relatively insignificant. Given the
large number of pickets on the first 3 days of picketing, and
evidence indicating that pickets, including Bush, moved from
one gate to another, it is not surprising that a witness might
be confused as to the number of pickets at a gate at any
given time. General Counsel’s witnesses generally impressed
me as credible.
For the reasons discussed above, I find that the testimony
of General Counsel’s witnesses, in sum, substantially indi-
cates what occurred in connection with the picketing. I spe-
cifically find that on November 9, 10, 11, 18, and 19, the
Union by its pickets, including Bush and Slavin, intentionally
blocked and impeded ingress of employees to the Stone &
Webster jobsite. I further find that on November 10, Bush
threatened to kill employee Campagne if he tried to go
through the picket line; on November 11, threatened to kick
employee ‘‘Hunt’s ass’’ when he tried to get through the
picket line; and on November 18, pointed at employee Torres
and told him ‘‘I want you.’’ In the context in which Bush
431SHEET METAL WORKERS LOCAL 19 (DELCARD ASSOCIATES)
3 All dates herein for the Omni and Stong cases are in 1993 unless
otherwise indicated.
made this last remark, the remark constituted an implied
threat of violence. I further find that on November 11, the
Union by its pickets struck the vehicles of Hunt and Torres,
bending the mirrors and antenna on Hunt’s vehicle; on No-
vember 18, struck, leaned on, and rocked the Delcard leased
van, scratching it and bending the mirrors and antenna; and
on November 19, again struck and leaned on the van,
scratching it and bending the antenna. I further find that the
Union, by its pickets, engaged in such acts and conducts with
the participation, direction and approval of Business Rep-
resentative Bush, for the purpose of frustrating and intimidat-
ing Delcard’s employees from entering the jobsite.
By the foregoing conduct, the Union violated Section
8(b)(1)(A) of the Act. As indicated, despite the Union’s con-
duct, Delcard’s employees, sometimes with police or security
assistance, eventually got into work each day. However, it is
established law that nonstriking employees have a statutory
right to pass through picket lines without physical hindrance.
Therefore ‘‘blocking an entrance or an exit even for a short
period of time constitutes restraint and coercion’’ within the
meaning of Section 8(b)(1)(A) of the Act. Iron Workers
Local 455 (Stokvis Multi-Ton), 243 NLRB 340, 346 (1979);
Metal Polishers Local 67 (Alco-Cad Nickel), 200 NLRB 335,
336 (1972). The Union could not, as it claimed to do here,
arrogate to itself the right to determine when and under what
conditions employees could pass through its picket lines.
Therefore the Union violated Section 8((b)(1)(A) by phys-
ically blocking entrances to the Stone & Webster jobsite, in-
cluding picketing in such a manner as to impede or prevent
access to the jobsite.
The Union, and specifically Bush, also violated Section
8(b)(1)(A) by expressly and impliedly threatening Delcard
employees with violence because they sought to go to work
through the Union’s picket lines. G & H Towing Co., 168
NLRB 589, 591–592 (1967); Teamsters Local 115 (Oakwood
Chair), 277 NLRB 694, 698 (1985). The Union further vio-
lated Section 8(b)(1)(A) by striking, kicking, rocking, and in
some instances causing damage to vehicles carrying Delcard
employees. Whether or not vehicles were damaged, the
Union’s conduct was part and parcel of its picket line cam-
paign, including threats, designed to intimidate employees
who sought to cross the picket line. Such conduct is coercive
and unlawful. Laborers Local 721 (Crouse Nuclear), 256
NLRB 195, 200 (1981); compare Iron Workers, supra at 348.
B. The Omni Case
On March 29, 1993, Union Organizer Pat Keenan set up
an area standards picket line at the entrance to the offices
and shop of Omni, located at 69 Congo Road, Gilbertsville,
Pennsylvania.3 Omni is nonunion. The picketing continued
for about 2 weeks, and thereafter intermittently for about 2
months. However the only alleged violations occurred on the
first day of picketing. The complaint alleges that on March
29, in connection with its picketing, the Union on two occa-
sions blocked ingress of employees to Omni’s facility, and
thereby violated Section 8(b)(1)(A) of the Act.
Congo Road is a two-lane country road. The Omni facility
is located in a residential area. The facility is connected to
Congo Road by a driveway which is about 75 feet in length
and 8 to 10 feet wide. At the end of the driveway, Omni’s
offices are to the left and its shop to the right. There are
trees which block view of the Omni facility from Congo
Road.
Organizer Keenan, the Union’s only witness with respect
to this matter, testified in sum as follows: He set up the pick-
et line at the driveway entrance at about 6:20 a.m., with six
pickets and himself. He instructed the pickets to keep mov-
ing back and forth, to move out of the way if someone want-
ed to enter, and to let Keenan do the talking. The pickets fol-
lowed these instructions. The pickets, including Keenan,
wore signs protesting Omni’s alleged destruction of Sheet
Metal industry standards.
General Counsel presented two Omni employees as wit-
nesses. Sheet metal mechanic Lance Utley testified in sum
as follows: At about 6:40 a.m. on March 29 he approached
the Omni facility in his car, a 1991 black Chevrolet, accom-
panied by his helper, Larry Moners. Utley intended to drop
off some papers and pick up material for a job. It was a
sunny day. He proceeded to make a left turn toward the
driveway, using his directional signals. There were no other
vehicles in the vicinity. His vehicle was facing the center of
the driveway. There were 7 to 10 pickets at the driveway en-
trance, circling and blocking his way. They came toward his
car. Utley inched forward. He said to the pickets: ‘‘Come on
guys, I got to get in there and go to work.’’ The pickets
shook their heads negatively, and did not move. After about
1 minute, Utley said he would call the police. He waited a
total of 3 to 5 minutes. Utley then turned around, drove to
a nearby convenience store, and called the shop foreman,
who in turn called the police. Utley did not go to the facility
that day. He gave his paperwork to another employee
(Merwin Dumbar), and proceeded to his job. However, as he
did not pick up the material, he ran out of work, and went
to another job.
Shipper-receiver Merwin Dumbar testified in sum as fol-
lows: At about 6:45 a.m. he arrived at the facility, driving
alone in his 1981 Dodge light blue compact station wagon.
Most shop employees (about four or five) had already ar-
rived. Office employees normally reported to work between
7:30 and 8 a.m. Dumbar positioned his vehicle to make a
right turn into the driveway. There were six or seven pickets
in the driveway, one of whom (evidently Keenan) stood to
one side. Dumbar proceeded at 10 to 15 miles per hour, and
got about 6 or 7 feet into the driveway, but the pickets
blocked his path. He asked a picket if they were going to
let him enter. One picket answered no, and the pickets re-
mained in his way. Some walked back and forth, and others
stood. Dumbar waited for 1 to 2 minutes. (He subsequently
testified that he waited 2 to 3 minutes.) He then backed out
and proceeded to the nearby convenience store, where he
found Utley. Dumbar took Utley’s paperwork and proceeded
to a nearby school parking lot, where he awaited the police.
The police escorted him into the Omni facility before 8 a.m.
Dumbar subsequently left the facility on business, and re-
turned about 9:30 a.m., where he waited briefly until the
pickets moved out of his way.
Organizer Keenan testified in sum as follows: On the first
day of picketing, a small black car approached the entrance
to the Omni facility from the south (opposite) side of Congo
Road. The driver made a left turn signal, stopped at the
driveway entrance for about 12 to 15 seconds, and then
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
turned around and proceeded down Congo Road. Keenan did
not see this car return to the facility. Next, a red Pinto
hatchback approached the entrance. The pickets moved aside
and this vehicle entered. Next, a light blue pickup truck en-
tered the facility. The driver later stopped to ask questions
of Keenan as he left the facility. The fourth vehicle to ap-
proach the facility was a light blue Plymouth station wagon
(apparently the Dumbar vehicle). The driver, who ap-
proached from the north, initially stopped in front of a house
next to the driveway. Then he pulled up to the driveway,
used his right turn signal, but did not turn into the driveway,
stopped for 10 to 15 seconds, and then drove off. Mean-
while, the pickets continued to walk back and forth and did
not approach the vehicle. About 10 minutes later, the driver
returned with a police escort and entered the facility. To
Keenan’s knowledge, nothing was said between the driver
and the pickets.
Keenan further testified that about 6:30 a.m., he set up a
video camera in his vehicle, which was parked across Congo
Road. He positioned the camera to face the driveway en-
trance and picket line. Keenan testified that the camera did
not run continuously and was also used on other days of
picketing. The purported March 29 videotape was introduced
in evidence.
The videotape corroborates Keenan’s testimony that the
weather was rainy and cold that day. The tape also indicates
that a vehicle matching the description of Dumbar’s station
wagon, approached the driveway from the north, but drove
away without any evident attempt to enter the driveway.
About 10 to 15 minutes later the vehicle returned with a po-
lice escort. Keenan testified without contradiction that no
other vehicles entered the driveway with a police escort that
day. The tape also indicates that the Union had as many as
seven or eight pickets in the driveway, picketing in such a
manner as to block entrance of any vehicle, unless the pick-
ets stepped aside.
However, in other respects the videotape raises more ques-
tions than it answers. The tape does not, as admitted by
Keenan, show the Utley vehicle, or any other vehicle, ap-
proaching or attempting to enter the Omni facility prior to
the Dumbar vehicle. The tape purports to show that prior to
the approach of the Dumbar vehicle, a light blue pickup
truck, leaving the facility, stopped or was stopped at the
picket line for nearly a minute. However, according to Keen-
an’s testimony, this incident occurred after the four vehicles
which he described, including the pickup truck, approached
or entered the Omni facility. Following the incident as
filmed, there is an unexplained break in the tape. The tape
fails to show any vehicle entering the facility prior to arrival
of the police car. Moreover, as admitted by Keenan, it is
possible that the Dumbar vehicle could have stopped at the
driveway, but out of range of the camera (although he denied
that this occurred).
I find that the Union’s pickets, at the direction and with
the participation of Organizer Keenan, intentionally blocked
access of Utley, Moners, and Dumbar to the Omni facility
on March 29. Utley and Dumbar probably exaggerated the
amount of time and effort they expended in order to enter
the facility unaided. However I credit their explanation, in ef-
fect, that they drove away when it became apparent that the
pickets would not let them through. I have taken into consid-
eration the large number of pickets (seven or eight), in this
narrow driveway, i.e., more than enough to convey the
Union’s grievance. I have also taken into consideration the
conspicuous lack of corroboration of Keenan’s testimony
concerning the Utley vehicle. No other picket testified con-
cerning the Omni case. On the basis of Keenan’s narrative,
Utley’s approach should have been filmed on videotape.
However it did not appear, and the tape sequence is both ob-
viously incomplete and inconsistent with Keenan’s narrative.
The inference is warranted, and I so find, that a complete
tape would not have corroborated Keenan’s testimony with
respect to the Utley approach. Moreover, even according to
Keenan, both Utley and Dumbar signaled their intention to
turn into the picketed driveway, and each waited 10 to 15
seconds before driving away. As indicated by Keenan’s vid-
eotape, the pickets had no difficulty in clearing the driveway
in less time when a police car approached. It is undisputed
that the pickets did not move out of the driveway before
Utley and Dumbar drove away.
For the foregoing reasons, I find that the Union violated
Section 8(b)(1)(A) of the Act, as alleged, at the Omni facil-
ity. Iron Workers, supra; Metal Polishers, supra.
C. The Stong Case
Stong is a nonunion contractor. About November 1992,
several local labor organizations affiliated with the Building
& Construction Trades Council of Philadelphia & Vicinity
(herein BCTC), commenced an organizational campaign
among Stong’s employees. On March 12, 1993, BCTC and
the local unions (Road Sprinkler Fitters Local 669, Steam-
fitters Local 420, Plumbers Local 74, Sprinkler Fitters Local
692, Plumbers Local 690, and the present union), petitioned
for a Board-conducted election in a single unit comprising all
Stong employees performing construction and/or fabrication
work in Philadelphia and its vicinity (Case 4–RC–18058). In
the words of Union Organizer James Hochberg, the petition-
ing unions conducted ‘‘a joint campaign’’ to organize and
represent the employees. Marvin Martin of Local 669 acted
as chief spokesman. Local 420 handled most mailings. The
unions conducted meetings for all trades. The election was
conducted on May 13. The petitioning unions lost the elec-
tion, i.e., a majority of employees voted against union rep-
resentation.
Meanwhile, Swarthmore College, which is located in Dela-
ware County, Pennsylvania (within the territorial jurisdiction
of BCTC), commenced a project which involved conversion
of the ground floors of three campus buildings into dormitory
spaces. Haverstick-Borthwick Company (Haverstick) was
general contractor for the project. There were some 20 to 25
subcontractors, including Stong. Stong’s subcontract covered
sprinkler work, installation of plumbing and piping, steam-
fitter work, and related insulation. Haverstick and all of the
subcontractors except Stong were union firms. Major work
began in May, at the end of the school year, and continued
to mid-August.
When the project commenced, Swarthmore College
(Swarthmore) established and posted three separate entrances
to the campus for access to the project. Gate 1, located at
Harvard Avenue, was posted and reserved as a ‘‘primary
gate’’ for exclusive use by Stong, its employees, suppliers,
vendors, and persons doing business with it. Gate 2, located
at Route 320 (Chester Road) and gate 3, at Field House
433SHEET METAL WORKERS LOCAL 19 (DELCARD ASSOCIATES)
Road, were posted and reserved as ‘‘neutral’’ gates, for use
by all other persons.
On June 2, picketing commenced at the Swarthmore
project. General Counsel contends, in sum, that the Union,
together with Sprinkler Fitters Local 692, Plumbers Local
690, Steamfitters Local 420, and Asbestos Workers Local 14
(respectively Local 692, Local 690, Local 420, and Local
14), in furtherance of their primary labor dispute with Stong,
engaged in the picketing pursuant to a common plan as a
joint venture, with common objectives. General Counsel con-
tends that consequently the Union is responsible not only for
its own unlawful conduct in connection with the picketing,
but also for that of the other picketing unions. (The other
unions are not named as respondents in this proceeding.)
General Counsel further contends that the Union, in connec-
tion with the picketing at gate 1, violated Section 8(b)(1)(A)
of the Act by blocking ingress of employees to the jobsite
and impliedly threatening employees with violence. General
Counsel also contends that the Union violated Section
8(b)(4)(i) and (ii)(B) by picketing and related inducement of
neutral employees at gates 2 and 3.
The Union does not contend that it had a primary dispute
with any employer or person on the job other than Stong.
The Union also does not contend that the reserved gates were
improperly marked and set aside or that they were misused.
The Union admits that it engaged in picketing at gate 1 in
furtherance of its area standards dispute with Stong. How-
ever, the Union denies that it was engaged in a joint venture
with the other picketing unions, or that it picketed at gates
2 or 3, or that it violated Section 8(b)(1)(A) or 8(b)(4)(i) and
(ii)(B) of the Act. I shall first address the joint venture issue.
1. The joint venture issue
It is undisputed that Locals 692, 690, 420, 14, and the
Union (herein collectively the picketing unions) picketed at
gate 1 during the period from June 2 through July 22, using
signs protesting alleged destruction of area standards by
Stong, together with the name of one of the picketing unions.
Stong Foreman Steve Adamek kept a daily log in which he
recorded, among other information, the identity of the union
whose name appeared on the signs on each day of the picket-
ing. The log indicates that Local 690 commenced picketing
on June 2, 3, and 4, and thereafter followed a pattern of
picketing on Mondays and Wednesdays throughout the
month of June. Thereafter Local 690 picketed on Friday, July
2, Wednesday, July 7, and Tuesday, July 13. The log indi-
cates that Local 420 picketed on Tuesdays throughout the
picketing, except on June 22, when no signs appeared, and
July 13. The log further indicates that Local 692 picketed
Thursdays, commencing June 10, throughout the picketing.
The log also indicates, and the Union admits, that it picketed
on four Fridays: June 11, 18, 25, and July 9. The log indi-
cates that Local 14 picketed on Wednesday, July 14, Friday,
July 16, Monday, July 19, and Thursday, July 22, the last
day of picketing. On each day of picketing, the name of only
one union appeared on the signs.
All of the picketing unions except Local 14 were petition-
ers in the May election. All were affiliated with BCTC, a
subsidiary group (Delaware and Chester County Building
Trades) and a Mechanical Trades Council. All but the Union
and Local 14 were affiliated with the same International
union.
Local 690 Business Agent Joseph Mulholland, who was
presented as an adverse General Counsel witness, testified in
sum as follows: About a month before the picketing, he
learned that Stong got the subcontract on the Swarthmore
project. He discussed the situation with representatives of the
other unions, including Union Business Representative Wil-
liam (Bud) Farally (Local 19), at their various council meet-
ings. All understood that Stong operated below area wages
and standards. Mulholland visited the jobsite several times,
variously accompanied by Farally and representatives of
Local 420 and Local 14, to learn if Stong had commenced
work. Mulholland informed the representatives of the other
unions that Local 690 intended to picket Stong at the job.
About the time Local 690 commenced picketing, the other
representatives indicated that they would join in the picketing
if they determined that Stong was doing work within their
respective trade jurisdictions. On June 4, they discussed the
days that each union would picket. Mulholland said that he
preferred Monday. Local 420 took Tuesday, the Union took
Friday, and Local 692 took either Wednesday or Thursday.
They agreed that each union would have three or four pickets
at gate 1. Local 690 had more pickets on the first days of
picketing. The picketing unions also agreed to post ‘‘observ-
ers’’ at the neutral gates. (This aspect will be discussed fur-
ther at later points in this decision.) On June 11, at BCTC,
the unions discussed how the picket line was progressing,
problems, if any, in connection with the picketing, and the
number of pickets.
Union Business Representative Farally was presented was
an adverse General Counsel witness and as a witness for the
Union. Farally, in his testimony, did not dispute Mulholl-
and’s testimony as described above. Farally testified in sum
that each of the picketing unions made its own decision to
picket Stong at the job, and that each selected a day to pick-
et, because ‘‘there was no sense to have four or five trades
with picket lines there every day.’’ Farally, on behalf of the
Union, selected Friday. However Farally admitted that all of
the unions had the same purpose in picketing.
As indicated, Local 14 was a latecomer to the picketing.
Farally explained that he learned that asbestos workers were
entering the project through gate 1, and so informed Local
14’s business agent.
In April, prior to the picketing, handbills were distributed
at Swarthmore, protesting that Haverstick, as general contrac-
tor, hired an (unnamed) plumbing, heating, and air-condi-
tioning contractor who paid substandard wages and benefits.
Local 420 Business Representative Thomas Gallo testified
that in late April, his union distributed such handbills at
Swarthmore, and that representatives of the Union partici-
pated in such distribution. Gallo initially testified that the
handbills identified only Local 420, but subsequently asserted
Local 420 and the Union each used its own handbill. Union
Organizer Hochberg testified in sum that the Union distrib-
uted its own handbill (which he identified), bearing the same
text as the Local 420 handbill, but bearing the name of his
union. General Counsel introduced in evidence a ‘‘picket ex-
pense record,’’ dated April 23, for picketing at Swarthmore,
indicating that Gallo purchased coffee and donuts for ‘‘7 fit-
ters’’ and ‘‘6 sheet metal workers.’’ Gallo testified that he
approved the expense and that the sheet metal workers were
from the Union. It is undisputed that in late July, after the
picketing ceased, the picketing unions distributed handbills at
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
various locations, using the same text, over the name of the
five picketing unions.
In late June, while the picketing was in progress,
Haverstick President Bill Cobb and Project Manager George
Earle met with Local 690 Representatives Ed Keenan and
Mulholland at Haverstick’s office. Earle and Mulholland
were witnesses in this proceeding. Earle testified in sum as
follows: Cobb requested the meeting but did not want to
meet with more than two representatives of the picketing
unions, and specifically, did not want to meet with Local 19
Union Business Manager Thomas Kelly. Keenan said that he
and his subordinate, Mulholland, represented all four striking
unions, and that he was speaking for them (Local 14 had not
yet joined the picketing). Keenan said that they were en-
gaged in a collective action, but that Haverstick’s office was
too small to enable representatives of all the unions to be
present. Keenan asked how Stong, a nonunion contractor, got
the mechanical subcontract. Earle explained that Stong’s bid
was $40,000 less than that of a competing union contractor.
He asserted that Swarthmore was engaged in a major build-
ing program, and the picketing jeopardized union work on
the project, including Haverstick’s role as general contractor.
Keenan said that he and the other unions did not want to lift
the picketing. Nothing was resolved at this meeting.
Mulholland, in his testimony, confirmed that he and Keen-
an met with Cobb and Earle. Mulholland testified that he did
not recall he or Keenan saying that they spoke for the other
picketing unions. However Mulholland confirmed that Cobb
said he would not meet if Union Business Manager Kelly
were present.
Union Business Representative Farally testified, in sum,
that he learned about the meeting after it occurred, was not
invited to the meeting, and did not give permission to anyone
to speak for the Union. Farally asserted that no one other
than an official of the Union had authority to speak for the
Union at such a meeting. However Farally further testified,
in sum, as follows: About the same time as that meeting, he
set up and participated in another meeting with representa-
tives of Swarthmore. BCTC Manager Pat Gillespie was
present, together with representatives of affiliated local
unions, including Gallo of Local 420 and Mike Burns of
Local 14. Farally variously testified that he invited Gillespie
because he was respected and an ‘‘asset,’’ as a ‘‘courtesy,’’
as a matter of ‘‘policy,’’ and because the problem ‘‘would
affect all of the building trades.’’ Farally argued that
Swarthmore acted ‘‘out of character’’ by exploiting workers
and destroying area wages and standards. Farally regarded
Swarthmore and its student body as generally sympathetic to
organized labor. The participants in the meeting discussed
Swarthmore policy and why Stong was on the job, and ‘‘we
[the union representatives present] wanted to know where we
were going in the future.’’
Farally also participated in a third meeting, which resulted
in cessation of the picketing. Farally testified in sum as fol-
lows: The meeting was arranged by union plumbing contrac-
tor Herman Goldner, and took place in Gardner’s office.
Representatives of Swarthmore were present, together with
Farally, Mulholland of Local 690, Pat Adding of Local 14,
and Jack Gallagher of Local 692. Local 420 may not have
sent a representative. Goldner expressed concern that he and
other union contractors might be thrown off the job because
people were honoring the protest. In Farally’s words, ‘‘we
had to make a decision’’ whether or not to ‘‘continue the
protest.’’ Therefore ‘‘we caucused’’ and ‘‘we made a deci-
sion . . . . to bring the line down at that point.’’ The picket-
ing union representatives ‘‘felt we had a commitment on fu-
ture work on paying workers the area wages and standards
in the future on work.’’ Mulholland similarly testified that
‘‘we had a discussion and agreed to take the line down.’’
There was no further picketing.
As indicated, each participating union ostensibly had its
own day or days of the week for picketing. In fact, the osten-
sible schedule was not consistently followed, and there was
frequently mixed presence of union representatives at both
the primary and neutral gates. It is undisputed that on June
3 Local 420 Business Representative Gallo led Local 690
picketing at gate 1. Gallo was videotaped engaging in such
conduct. Gallo testified that on an occasion or two he pick-
eted with other unions. Business Representative Farally testi-
fied that he stopped by the picket line on days other than Fri-
day, remaining for an average of 10 to 15 minutes, that he
also stopped by at the neutral gates, and that Mulholland
stopped by on Fridays when the Union was picketing. Orga-
nizer Hochberg testified that he may have gone to the picket
line more than twice when other unions were picketing, and
may have stayed up to 2 hours. Hochberg testified that on
such occasions he would answer questions about the picket-
ing. Local 690 Business Agent Mulholland testified that he
may have stood with ‘‘observers,’’ including Farally and
Local 692 Business Agent Wayne Miller, at neutral gates.
Organizer Hochberg testified that he was on vacation dur-
ing the first 2 weeks of July. As indicated, Local 690 pick-
eted on Friday, July 2. Subsequently, Local 14 picketed on
Friday, July 16. As the Union ostensibly chose Friday as its
day for picketing, it is evident that Local 690 and Local 14
picketed on these Fridays pursuant to an arrangement with
the Union.
General Counsel correctly states the principles of law ap-
plicable to this issue. A joint venture relationship carries with
it responsibility on the part of the participants for each oth-
er’s actions, including any consequent unfair labor practices.
Seattle District Council of Carpenters (Cisco Construction),
114 NLRB 27, 30 (1955). ‘‘To establish a joint venture it
must be demonstrated that the venturers participated in a
planned course of action, jointly conceived, coordinated and
adopted to attain a mutually agreed upon object.’’ General
Teamsters Local 126 (Ready Mixed Concrete), 200 NLRB
253, 272 (1972).
The evidence in this proceeding, and summarized above,
demonstrates that the five picketing unions engaged in their
picketing at Swarthmore as a joint venture. Indeed, even the
testimony of Farally and Hochberg demonstrates the ele-
ments of a joint venture. As indicated, Farally admitted that
all of the unions had the same purpose in picketing.
At every stage, unions affiliated with BCTC, including the
picketing unions, coordinated their activities in furtherance of
their shared dispute with Stong. Initially, they conducted a
single organizational campaign, and filed an election petition,
seeking one bargaining unit. When they learned that Stong
obtained a subcontract for the Swarthmore project, the Union
and Local 420 jointly distributed handbills, protesting the
award. After the picketing ceased pursuant to their agree-
ment, the picketing unions abandoned any pretense of sepa-
435SHEET METAL WORKERS LOCAL 19 (DELCARD ASSOCIATES)
rate action, and jointly distributed handbills, identifying all
five unions, and continuing their protest.
Initially, Local 690 commenced the picketing. However
the Union, Local 692, and Local 420 soon joined in, and the
four unions worked out and coordinated picketing at the
Swarthmore jobsite. They mutually arranged days for each
union to picket, agreed upon the manner of picketing, includ-
ing the number of pickets and the posting of ‘‘observers’’ at
the neutral gates. They monitored and consulted with each
other, and exchanged information, with respect to the
progress of the picketing. When the Union learned that Stong
was performing insulation work, Farally informed Local 114,
and the unions adjusted their picketing schedules to enable
Local 14 to participate in the picketing. Local 690 substituted
for the Union when organizer Hochberg went on vacation.
Representatives of the Union were present at each other’s
picket lines. As indicated, Local 420 Business Representative
Gallo even led picketing by Local 690.
The most telling evidence of a joint venture consists of the
meetings with Haverstick, Swarthmore, and Goldner. As in-
dicated, Haverstick president Cobb requested that only two
representatives from the picketing unions be present at the
first meeting. It is evident that Cobb did not request the
meeting simply to persuade Local 690 to cease picketing,
while leaving the other picketing unions free to continue.
Therefore it is also evident that when Cobb made, and Keen-
an agreed to the request, both sides understood that Keenan
was authorized to and did speak on behalf of all of the pick-
eting unions. As indicated, Mulholland was equivocal in this
regard, testifying that he did not recall that he or Keenan
said they spoke for the other unions. I credit Project Manager
Earle. I find that Keenan said that he and Mulholland rep-
resented all of the picketing unions, and were speaking for
them, and that in fact, the picketing unions authorized Keen-
an and Mulholland to represent and speak for them.
I further find that at the second meeting, the union offi-
cials present, in particular BCTC Manager Gillespie, were
authorized to represent and speak on behalf of the picketing
unions. As with the Haverstick meeting, there would be no
purpose in Swarthmore meeting with representatives of some
of the picketing unions to determine their terms for ceasing
the picket line, unless Swarthmore was assured that those
present spoke for all picketing unions, and consequently,
could negotiate an end to the picketing. As indicated, Farally
admitted at one point in his testimony that he invited Gilles-
pie because the problem would affect all of the building
trades.
The third meeting, at Goldner’s office, was the clincher.
At that meeting, representatives of the picketing unions, after
hearing Goldner’s plea, consulted together and arrived at a
decision to pull what Farally described in the singular as the
picket ‘‘line.’’ They concluded that by their picketing, they
had achieved an acceptable compromise on their common
goal, insofar as they felt they had an assurance with respect
to future work. The picketing promptly ceased, even though
officials of Local 692 may not have been present at the
meeting.
In sum, the picketing unions, including the Union, engaged
in their picketing pursuant to a common plan and as a joint
venture. See, e.g., Carpenters District Council of Milwaukee
(Westra Construction), 224 NLRB 1071, 1081 (1976). There-
fore the Union, the respondent herein, is responsible not only
for its own unfair labor practices, but also for any other un-
fair labor practices committed by the other picketing unions
in connection with the picketing.
2. Alleged violations of Section 8(b)(1)(A) at gate 1
(the primary gate)
The complaint alleges that on or about June 2, 3, 8, 11,
15, and 16, the Union by its agents and representatives, in
connection with the picketing, blocked ingress of vehicles
driven by employees to the jobsite. The complaint further al-
leges that on or about June 18, the Union by its agent and
representative, carried a baseball bat on the picket line in the
presence of employees. The complaint alleges that the Union
thereby violated Section 8(b)(1)(A) of the Act.
Steve Adamek is a foreman mechanic for Stong. He was
an eligible voter in the May election. Adamek was Stong
foreman on the job, in charge of a crew which averaged six
employees. In June the crew consisted of three mechanics
and one apprentice. Adamek testified that he reports to
Stong’s project manager. Adamek shows crew members the
work which they are to perform, and when necessary, directs
or guides them in their work. He does not hire, fire, or dis-
cipline employees. However he will report problems to
Stong’s supervisor for its plumbing contract division, or to
Haverstick’s site foreman. The Union does not contend that
Adamek was a supervisor. I find that Adamek was an em-
ployee within the meaning of the Act.
Adamek testified in sum as follows: On June 2, he drove
alone to the Swarthmore jobsite in an unmarked Stong van,
arriving about 7:15 a.m. The entrance to gate 1 is 10 to 15
feet wide, with stone pillars on each side. About 10 pickets,
with Local 690 signs, were walking in a tight semicircle,
blocking the entrance. Adamek turned toward the entrance
with his directional signal on, but the picketing continued.
Adamek waited for about 2 minutes. As he was blocking
traffic, Adamek drove away. He telephoned his supervisor,
and then returned to gate 1, but the same thing happened
again. Adamek returned to Stong’s shop, and did not enter
the jobsite that day. This was the only day on which Adamek
was unable to work at the site because of the picketing.
On June 3, Adamek arrived at work in the unmarked van,
accompanied by apprentice Mark Benzinger. Pursuant to
Stong’s instructions, Benzinger brought a video camera.
Benzinger filmed the picketing on June 3 and subsequent
days. Portions of his videotape were introduced in evidence.
The videotape, and Adamek’s testimony, indicates that on
most days the picketing was conducted in a similar manner,
regardless of which union’s name appeared on the signs. Six
or more pickets marched in a tight semicircle, blocking the
entrance. However their readiness to permit Stong personnel
to enter varied from day to day. On some days, Adamek and
Benzinger entered the jobsite with minimal or no delay or in-
convenience. I shall at this point summarize the evidence
with respect to those days on which the complaint alleges
that the Union blocked ingress to the jobsite.
On June 3, as on June 2, the pickets would not permit
Adamek to enter, Adamek left and called the police. He re-
turned to gate 1 and again unsuccessfully sought to enter.
The police chief arrived and requested the pickets to move.
The pickets moved, and Adamek entered the jobsite.
On June 8 the pickets wore Local 420 signs. This time
Adamek verbally asked the pickets to let him enter. He had
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not previously spoken to the pickets. He repeated his request
three times. One picket told him to read the sign. Adamek
read the sign, and so informed the picket, but the pickets did
not move. The picket said: ‘‘I’m here to protect my [first]
amendment . . . Constitutional right.’’ Meanwhile, Adamek
was blocking traffic on the road. Adamek evidently later en-
tered the jobsite.
On June 11 the pickets wore the Union’s (Local 19) signs.
Business Representative Farally and Organizer Hochberg
were present. Adamek asked to enter the jobsite, but the
pickets did not move or answer him. Farally approached
Adamek and repeatedly questioned him. Farally asked
Adamek who he was, for whom he worked, his trade, wheth-
er he was paid area standards, and whether others approach-
ing the picket line worked for Stong. Adamek answered his
questions. Farally then told Adamek to enter slowly. Adamek
and Benzinger were stopped at the picket line for about 4
minutes. After Adamek entered the jobsite, another van, car-
rying two Stong employees, approached the picket line.
Farally similarly approached the second vehicle before per-
mitting the occupants to enter. A videotape, filmed by the
Union, confirms that Adamek was stopped for about 4 min-
utes, while Farally procrastinated and the pickets blocked the
gate, and that consequently traffic, including a schoolbus,
was blocked on the road. Organizer Hochberg, in his testi-
mony, admitted that Farally delayed for several minutes be-
fore permitting the van to enter.
On June 15 Adamek approached the picket line in the van,
accompanied by Benzinger and two other Stong employees.
The pickets carried Local 420 signs. Adamek repeatedly
asked for permission to enter, but the pickets ignored his re-
quests. Adamek told the pickets he would call the police, but
the pickets continued to ignore him. Adamek left and called
the police, who arrived and enabled him to enter the jobsite.
On June 16 Adamek and the three other Stong employees
again arrived at the picket line in the Stong van. Local 420
Business Representative Gallo led the Local 690 picketing.
Again Adamek repeatedly requested to enter, and again the
pickets ignored him. One picket told him to read the sign.
Adamek informed the pickets when he read the sign, but
they still did not give way. Adamek again had to summon
the police in order to gain access to the jobsite.
The complaint does not allege unlawful blocking on Fri-
day, June 18, the second day of Union (Local 19) picketing.
However it is undisputed that when Stong vehicles arrived,
one of the pickets was holding a baseball bat. Benzinger’s
videotape does not show the picket, although Adamek can be
heard mentioning him on the audio portion. The Union’s vid-
eotape shows the picket tapping the bat on the ground.
Adamek testified that when he and the other three employees
arrived in the Stong van, the picket was carrying a baseball
bat. He switched the bat from one hand to another, tapped
the bat on the ground, and then put the bat on his shoulder
and walked away. Adamek had no difficulty entering the job-
site.
Organizer Hochberg and Local 690 Business Agent
Mulholland were present at the picket line on June 18.
Hochberg testified that the picket was hitting stones and golf
balls with the bat. He variously held the bat on his shoulder,
leaned on it, or took practice swings. Hochberg testified that
he had no objection to the picket having a bat or using it
in this manner, but he told the picket to behave himself.
There was no baseball game at the picket line.
The facts described above are substantially undisputed. As
discussed, the Union as joint venturer was responsible for
unfair labor practices committed during the course of the
picketing. I find that the Union, by its own pickets and the
pickets of its agents, the coventurer unions, blocked and im-
peded access of Stong’s employees to the Swarthmore jobsite
on June 2, 3, 8, 11, 15, and 16. For the reasons discussed
in connection with the Delcard case, the Union thereby vio-
lated Section 8(b)(1)(A) of the Act. It is evident that the
picketing unions engaged in a pattern of conduct designed to
harass and intimidate Stong’s employees from working at the
Swarthmore jobsite.
I specifically find that the Union violated Section
8(b)(1)(A) of the Act by its conduct on June 11. As dis-
cussed, a union has no right to arrogate to itself the authority
to determine when and under what conditions employees
may pass through its picket lines. Here, the Union had no
right to require Stong employees to answer a laundry list of
questions as a condition of reporting to work. Moreover, the
circumstances indicate that Farally was seeking to harass and
delay the Stong employees rather than obtain necessary in-
formation. Farally testified that he questioned the drivers of
vehicles approaching the picket line in order to inform
Haverstick employees to use the neutral gates. Farally’s ex-
planation is incredible. Farally would undoubtedly be de-
lighted if neutral union employees chose to approach the job-
site at the primary gate, and thereby have to confront a pick-
et line. This is particularly true in light of the Union’s con-
duct at the neutral gates, which will be discussed. The em-
ployers, rather than the picketing unions, would have reason
to be concerned if neutral employees used the primary gate.
I further find that the Union, by its picket and with the
approval of Organizer Hochberg, violated Section 8(b)(1)(A)
by carrying a baseball bat on the picket line. In the context
of a campaign of picket line harassment extending over 2
weeks, the Union’s conduct constituted an implied threat of
physical violence. See Clear Pine Mouldings, 268 NLRB
1044, 1047 (1984), affd. 765 F.2d 148 (9th Cir. 1985), cert.
denied 474 U.S. 1105 (1986); Production Workers Local 10
(Block & Co.), 285 NLRB 382, 383, 385 (1987).
3. Alleged violations of Section 8(b)(4)(B) at the
neutral gates
The complaint alleges that in the course of the picketing
the Union, on or about June 15 and 18 and July 17 or 19,
induced and encouraged employees of Haverstick and other
union contractors on the job to engage in work stoppage, and
threatened, coerced, and restrained those employers, in order
to force the subcontractors to cease doing business with
Haverstick, and thereby force Haverstick to cease doing busi-
ness with Stong.
As indicated, the picketing unions agreed to post ‘‘observ-
ers’’ at gates 2 and 3, the neutral gates. Each picketing
union, on the day it picketed at gate 1, posted these observ-
ers, with signs, at gates 2 and 3. Union Organizer Hochberg
testified in sum as follows: He assigned two observers to
each of the two neutral gates and gave one of the observers
at each gate a sign to wear, which Hochberg prepared. The
sign consisted of a picket sign, addressed to a labor dispute
involving a different employer (not a contractor at the
437SHEET METAL WORKERS LOCAL 19 (DELCARD ASSOCIATES)
Swarthmore project). Hochberg wrote the word ‘‘observer’’
in black marking pen on the reverse side of each sign. The
observer with the sign was to stand at the side of the en-
trance.
Hochberg further testified in sum as follows: He normally
stationed himself at gate 1. However between 7:30 and 8
a.m., after Stong’s employees entered the project, he would
go to the neutral gates to check the observers. On such occa-
sions he himself would function as an observer. If asked
about the picketing, he would inform employees and other
persons approaching the neutral gates that the Union was dis-
puting Stong’s wages and standards. The employees were al-
lowed to enter the jobsite. Hochberg instructed the other ob-
servers not to tell anyone not to cross the Union’s picket
line. However he did not instruct the observers not to say
that the Union had an area standards dispute with Stong. On
one occasion Hochberg observed as many as four or five
people standing at a neutral gate, with one of them wearing
an observer sign.
Hochberg also testified in sum as follows: On one occa-
sion, at gate 3, he saw an observer (a member of the Union)
with the area standards dispute side of the sign facing the
gate. Previously the signs were worn correctly. He instructed
the observer to reverse the sign. Thereafter Hochberg cut the
signs in half, and from then on the signs always appeared
with the observer side facing outward.
Business Representative Farally testified that he also
moved from one gate to another, and also sometimes acted
as an observer. Farally testified that the Union posted observ-
ers at the neutral gates in order to determine if Stong person-
nel or suppliers were using those gates. Farally admitted that
there was no indication of such use.
General Counsel presented testimony by three Haverstick
management personnel concerning the picketing unions’ ac-
tivity at the neutral gates.
James Balbierer was jobsite superintendent for Haverstick.
He was responsible for coordinating the work of subcontrac-
tors and assigning work to Haverstick employees. He is a
member of Carpenters Local 845. Balbierer testified in sum
as follows: He arrived at gate 3 about 6:45 a.m. on June 2,
driving alone. Three men were standing at the side of the en-
trance, with signs. Balbierer saw that one sign said ‘‘ob-
server.’’ He asked if this was a picket line. One of the men
answered ‘‘No . . . we’re observers.’’ Balbierer asked what
he should do. The man said he could not tell Balbierer what
to do, and suggested he call his business agent. Meanwhile,
union carpenters and laborers employed by Haverstick ar-
rived at gate 3. Balbierer was unable to reach his business
agent. He and the other Haverstick employees decided not to
enter the jobsite. They also did not work at the site on June
3. Haverstick assigned the employees to a different job.
Balbierer further testified in sum as follows: In late July
he drove to work, and approached gate 2. About three men
walked in the driveway, carrying picket signs. The signs
identified them as Asbestos Workers, and contained language
to the effect that they were protesting the Employer’s use of
unfair labor. Balbierer did not see any employer’s name on
the signs. As Balbierer drove through the gate, one of the
men yelled ‘‘you’re going through a picket line.’’
John Shannon was general superintendent for Haverstick.
Shannon testified in sum as follows: A supervisor reported
to him that there was a disturbance at the jobsite. On Tues-
day, June 15, at about 6:30 a.m., he went to gate 3 to inves-
tigate the situation. About six to eight people were moving
across the entrance. Some wore ‘‘observer’’ signs. They did
not display any union affiliation. As Shannon approached the
gate in his vehicle, which bore Haverstick logos on the
doors, several of the persons, who did not wear signs,
walked slowly across the entrance, causing Shannon to slow
down. However the persons promptly moved aside, permit-
ting Shannon to enter the jobsite. Haverstick’s employees
worked that day.
On Friday, June 18, the Union posted ‘‘observers’’ at
gates 2 and 3. It is undisputed that at that time, a member
of the Union was present at gate 2, wearing a rat costume.
Business Representative Farally was also present as an ob-
server. Farally testified that the term ‘‘rat’’ connotes destruc-
tion of wages, and the Union owns a rat costume which it
uses as a ‘‘form of protest.’’ Haverstick Project Manager
Earle testified that on June 18, four persons, including
Farally and Local 690 Business Agent Mulholland, were
present with the person in the rat costume. Earle testified in
sum that he understands the term ‘‘rat’’ to connote nonunion
conditions. Earle further testified that at gate 3, when he ar-
rived shortly before 7 a.m., two men were carrying union
(Local 19) signs, indicating a protest against an employer
whose name Earle did not recognize.
‘‘The words ‘induce or encourage’ [in Sec. 8(b)(4)(B) of
the Act] are broad enough to include in them every form of
influence and persuasion,’’ including but not limited to so-
called ‘‘signal picketing.’’ Electrical Workers IBEW Local
501 v. NLRB, 341 U.S. 694, 700–702 (1951). Picketing at a
common situs (as here, a construction site), conducted at an
entrance marked, set aside and used exclusively by neutral
employers and their employees, constitutes conduct violative
of Section 8(b)(4)(B) of the Act, regardless of whether the
picketing has an effect of causing any work stoppage. Simi-
larly, any other form of inducement or encouragement of a
work stoppage at a neutral gate, e.g., oral appeals, violates
Section 8(b)(4)(B) of the Act.
In the present case, it is uncontested that the Union had
a labor dispute with Stong, the Union had no dispute with
any other contractor at the Swarthmore project, and in fur-
therance of its dispute with Stong, the Union picketed the
project. It is also uncontested that gates 2 and 3 were prop-
erly marked, set aside and reserved for the exclusive use of
neutral employers and employees, and that to the Union’s
knowledge, there was no misuse of these neutral gates. The
remaining question is whether the Union, by its own conduct
or that of the other picketing unions at gates 2 or 3, induced
or encouraged neutral employees to engage in work stop-
pages.
I find that the Union, in the course of its joint venture, by
stationing so-called ‘‘observers’’ at gates 2 and 3, engaged
in picketing at those neutral gates, and thereby violated Sec-
tion 8(b)(4)(B) of the Act. As discussed, the evidence dem-
onstrates that the Union, together with its coventurers, the
other picketing unions, stationed as many as six to eight per-
sons at the neutral gates. At all times, one or more of these
persons wore or carried signs which were indistinguishable
from any conventional picket signs, except that usually (but
not always) the word ‘‘observer’’ was written on one side of
the sign. The other side purported to protest an unfair con-
tractor. On at least two occasions, as described by Balbierer
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Shannon, these persons patrolled across gate 2 or 3, in
the same manner was what may be described as conventional
picketing. On at least one occasion in late July (Local 14’s
day for picketing) these alleged ‘‘observers’’ dispensed with
‘‘observer’’ signs and simply used conventional protest signs.
On that occasion, one of the stationed persons identified their
conduct as a picket line. His statement may properly be con-
sidered as an admission that the stationing of ‘‘observers’’ by
the joint venturers, was in fact a picket line. Therefore, if for
no other reason, the Union, by its own stationing of ‘‘observ-
ers’’ and that through its coventurers, violated Section
8(b)(4)(B). See Plumbers Local 274 (Stokely-Van Camp),
267 NLRB 1111, 1114 (1983); Iron Workers Pacific North-
west Council Local 29 (Hoffman Construction), 292 NLRB
562 fn. 2 (1989).
I do not credit Business Representative Farally’s assertion
that the Union posted ‘‘observers’’ at gates 2 and 3 in order
to determine if Stong personnel or suppliers were using those
gates. Even if the assertion were credible, the system utilized
by the picketing unions went beyond any reasonable means
necessary to achieve that purpose, and in such a manner as
to predictably enmesh neutral employees in the Union’s dis-
pute. If the Union wished to ascertain if there was misuse
of the reserve gates, it could have done so in a discrete and
inconspicuous manner, e.g. by making inquiries of stewards
or other union representatives at the project, or stationing a
person, without a sign and at a distance from the gate, in
order to make clear that this was not a picket line. Instead,
the picketing unions intentionally sought to create, or at least
not dispel the impression that this was a picket line. By
using picket signs captioned ‘‘observer,’’ and containing con-
ventional ‘‘unfair’’ language on one side, the picketing
unions could and evidently did, create an impression that
they were observing which union or other neutral employees
had the temerity to work on an unfair job. At the outset of
the picketing, when Superintendent Balbierer asked the pick-
ets what he should do, they did not make clear that they
were asking persons not to cross their ‘‘observer’’ line. In-
stead, they suggested that Balbierer call his business agent.
As a result, union carpenters and laborers employed by
Haverstick refused to work at the jobsite on June 2 and 3.
In sum, the picketing unions failed to comply with their legal
obligation to ‘‘do everything that is reasonably necessary to
insure that secondary employees are not misled or coerced
into observing the picket line.’’ Operating Engineers Local
12 (Hensel Phelps), 284 NLRB 246, 248 (1987), and cases
cited therein.
I further find that the Union, by utilizing an ‘‘observer’’
in a rat costume, with the approval and in the presence of
Business Representative Farally, intentionally sought to cre-
ate the impression that this was an unfair job, and that the
Union was requesting neutral employees, including
deliverymen and suppliers (who might approach the gate at
any time), not to enter the project. The Union thereby unlaw-
fully induced and encouraged neutral employees not to per-
form services at the jobsite.
As indicated, I am of the view that the picketing unions’
overall course of conduct at gates 2 and 3 was unlawful.
However, the complaint is limited only as to certain dates.
Consequently, I am limited as to the extent of unfair labor
practice findings. I find, as alleged by General Counsel, that
the Union, by and through its conduct and that of its coven-
turers, violated Section 8(b)(4)(B) of the Act by its picketing
at neutral gates on June 15 (when some six to eight pickets
patrolled across gate 3); on June 18 (when one of the pickets
wore a rat costume); and in late July when pickets used con-
ventional protest signs without any observer designation, and
told Balbierer that he was going through a picket line. In
sum, I find that the Union induced and encouraged employ-
ees of Haverstick and other neutral employers to engage in
work stoppages, and coerced and restrained Haverstick and
other neutral employers, in order to force Haverstick and
Swarthmore to cease doing business with Stong. The Union
thereby violated Section 8(b)(4)(B).
CONCLUSIONS OF LAW
1. Delcard, Omni, and Stong are each employers and per-
sons engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Haverstick, Swarthmore, and Haverstick’s subcontrac-
tors on the Swarthmore project, including Stong, Holzhauer
Tile Company, Allen Brothers, Rite-Way Electric, and C. H.
Shoemaker & Sons, were at all times material herein persons
engaged in commerce or in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
3. The Union, Local 692, Local 690, Local 420, and Local
14 are labor organizations within the meaning of Section 2(5)
of the Act.
4. At all times material herein, the Union, Local 692,
Local 690, Local 420, and Local 14 were engaged in a pri-
mary labor dispute with Stong, and in furtherance of that dis-
pute, engaged in picketing at the Swarthmore jobsite pursu-
ant to a common plan and as a joint venture.
5. By restraining and coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act, the
Union has engaged in unfair labor practices within the mean-
ing of Section 8(b)(1)(A) of the Act.
6. By its picketing of reserved neutral gates at the
Swarthmore jobsite, the Union has engaged in unfair labor
practices within the meaning of Section 8(b)(4)(i) and (ii)(B)
of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Union has violated Section
8(b)(1)(A) and Section 8(b)(4)(i) and (ii)(B) of the Act, I
shall recommend that the Union be ordered to cease and de-
sist from such violations, and post and provide appropriate
notices.
General Counsel and the Charging Parties seek an order
that applies to all sites at which the Charging Parties’ em-
ployees are present, both currently and in the future. General
Counsel states that he does not seek a broad order which
would apply to employers other than the Charging Parties.
The Union argues that any remedy should be limited to the
jobsites which were involved in these consolidated cases.
With respect to the matter of remedy, unlike the merits of
alleged unfair labor practice allegations, the Board, and con-
sequently the Administrative Law Judge, is not limited to the
remedy sought by General Counsel and the Charging Party
or Parties. Rather, responsibility for fashioning an appro-
priate remedy rests with the Board, subject to Section 10(c)
439SHEET METAL WORKERS LOCAL 19 (DELCARD ASSOCIATES)
4 See also Plumbers Local 704 (McRae Fire Protection), 290
NLRB 1073 (1988); Teamsters Local 945 (Newark Disposal), 232
NLRB 1, 3–4 (1977), enfd. 586 F.2d 835(T) (3d Cir. 1978).
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 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 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.’’
of the Act. Kaumagraph Corp., 313 NLRB 624 (1994); Sin-
clair Glass Co., 188 NLRB 362, 363 (1971), enfd. 465 F.2d
209, 211 (7th Cir. 1972); Government Employees Local 888
(Bayley-Seton), 308 NLRB 646 fn. 2 (1992).
With regard to the Section 8(b)(1)(A) violations, I find
that a broad order, applying to employers generally, is war-
ranted, because the Union has demonstrated a proclivity to
engage in the kind of unlawful conduct here found, involving
several employers. See Carpenters (Reeves, Inc.), 281 NLRB
493, 499 (1986), citing Sheet Metal Workers Local 80
(Ciamillo Heating), 268 NLRB 4 fn.1 (1983).
The evidence in the present cases demonstrates that the
Union has engaged in a calculated pattern of unlawful picket-
ing, directed at nonunion contractors, ostensibly by reason of
alleged substandard wages and working conditions. In each
instance, the Union’s dispute was not limited to any particu-
lar jobsite. (In the Omni case, the Union picketed Omni’s of-
fice and shop.) In each case, the Union engaged in ‘‘belly-
to-back’’ picketing and blocking of access to the worksite.
At the Stone & Webster jobsite, the picketing was accom-
panied by threats and acts of violence. At Swarthmore, the
picketing was accompanied by an implied threat of violence.
At Omni, the Union engaged in blocking of access on 1 day.
However at the Stone & Webster and Swarthmore jobsites,
the Union’s unlawful conduct was prolonged and persistent.
In each case, Union pickets engaged in the unlawful conduct
with the participation, direction, and approval of union offi-
cials.
Given the nature of the construction industry, including the
operations of Delcard, Omni, and Stong, characterized by
multiple jobs of relatively short duration, an order limited to
particular jobsites or facilities would be meaningless. The
evidence also gives rise to a justifiable concern that unless
restrained, the Union would predictably engage in similar un-
lawful tactics directed against nonunion mechanical trades
contractors and their employees within the Union’s territorial
jurisdiction. Therefore, as indicated, I am recommending a
broad cease-and-desist order with respect to the Section
8(b)(1)(A) violations.
The Union engaged in secondary boycott violations in fur-
therance of its dispute with Stong. However those violations,
which as indicated were prolonged and persistent, resulted in
disruption of the operations of Haverstick, a neutral em-
ployer, and threatened to disrupt the operations of some 20
to 25 subcontractors, and deliverymen and suppliers to the
neutral employers and other persons. Here, I am recommend-
ing a conventional ‘‘medium order,’’ i.e., one limited to the
named primary (Stong), but not limited to named
secondaries. See Electrical Workers IBEW Local 501 v.
NLRB, supra at 705–706. ‘‘When the purpose to restrain
trade appears from a clear violation of law, it is not nec-
essary that all of the untraveled roads to that end be left open
and that only the worn one be closed.’’4
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Sheet Metal Workers International Asso-
ciation, Local Union No. 19, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Restraining and coercing employees of Delcard Associ-
ates, Inc., Omni Mechanical, Inc., Joseph Stong, Inc., or of
any other employer, in the exercise of the rights guaranteed
them by Section 7 of the National Labor Relations Act, by
blocking ingress or egress to jobsites, mass picketing, threat-
ening to inflict bodily harm, attempting to or inflicting dam-
age on property, or in any like or related manner restraining
or coercing employees in the exercise of their Section 7
rights.
(b) Picketing at construction site gates reserved for use by
neutral employers on jobsites where Joseph Stong, Inc. is en-
gaged in work, or otherwise picketing for an object of forc-
ing or requiring Haverstick-Borthwick Company or any other
person to cease dealing in the products of or cease doing
business with Joseph Stong, Inc.
(c) In any other manner or by any other means engaging
in or inducing or encouraging any individual employed by
Haverstick-Borthwick Company, or by any other person en-
gaged 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, manufacture, process, transport, or to
otherwise handle or work on any goods, articles, materials,
or commodities, or to perform any services, or threatening,
coercing, or restraining Haverstick-Borthwick Company, or
any other person engaged in commerce or in an industry af-
fecting commerce, where in either case an object thereof is
to force or require Haverstick-Borthwick Company, Swarth-
more College, or any other person to cease dealing in the
products of or to cease doing business with Joseph Stong,
Inc.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its offices and meeting halls, copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the notice, on
forms provided by the Regional Director for Region 4, after
being signed by the Respondent’s authorized 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 employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Furnish to the Regional Director for Region 4 signed
copies of said notice for posting, if Delcard Associates, Inc.,
Omni Mechanical, Inc., Joseph Stong, Inc., Haverstick-
Borthwick Company, and Swarthmore College are willing, in
their respective facilities in the places where notices to em-
ployees and members are customarily posted. Copies of the
said notice, on forms to be furnished by the Regional Direc-
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tor for Region 4, after having been signed by the Respond-
ent’s authorized representative, shall be forthwith returned to
the Regional Director for such posting.
(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 have
violated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT restrain or coerce employees of Delcard As-
sociates, Inc., Omni Mechanical, Inc., Joseph Stong, Inc., or
of any other employer, in the exercise of their right to en-
gage in, or refrain from engaging in union or concerted ac-
tivity, by blocking ingress or egress to jobsites, mass picket-
ing, threatening to inflict bodily harm, attempting to or in-
flicting damage on property, or any like or related conduct.
WE WILL NOT picket at construction site gates reserved for
use by neutral employers on jobsites where Joseph Stong,
Inc. is engaged at work, or otherwise picket for an object of
forcing or requiring Haverstick-Borthwick Company or any
other person to cease dealing in the products of or cease
doing business with Joseph Stong, Inc.
WE WILL NOT in any other manner or by any other means
engage in or induce or encourage any individual employed
by Haverstick-Borthwick Company, or by any other 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, manufacture, process, transport, or to
otherwise handle or work on any goods, articles, materials,
or commodities, or to perform any services, or threaten, co-
erce, or restrain Haverstick-Borthwick Company, or any
other person engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is to force
or require Haverstick-Borthwick Company, Swarthmore Col-
lege, or any other person to cease dealing in the products of
or to cease doing business with Joseph Stong, Inc.
SHEET METAL WORKERS INTERNATIONAL AS-
SOCIATION, LOCAL UNION NO. 19