Teamsters Local No. 83

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1097 (N.L.R.B. 1977)

TEAMSTERS LOCAL NO. 83
Construction, Building Materials & Miscellaneous
Drivers, Local No. 83, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America and Allied
Concrete, Inc. Cases 28-CC-591 and 28-CB-1074
August 31, 1977
DECISION AND ORDER
On October 19, 1976, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the General Counsel
filed an answering brief, and the Charging Party
adopted the General Counsel's brief as its own.
The Board has considered the record and the
attached Decision ih light of the exceptions and
briefs' and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The issue here is whether Respondent violated the
secondary boycott provisions of the Act by engaging
in ambulatory picketing around an employer's trucks
at a construction site. We conclude that it did not.
Ashton Company, Inc. (Ashton), is a general
contractor engaged in the construction of a highway
overpass near Phoenix, Arizona. Allied Concrete,
Inc. (Allied), which processes, mixes, and delivers
ready-mix concrete, contracted with Ashton to
supply concrete for the project.
Allied employs 20 to 50 drivers. Its most recent
collective-bargaining contract with Respondent ex-
pired May 31, 1976,2 and no new contract had been
agreed upon as of the date of the hearing. Respon-
dent struck Allied on June 25 and the strike was still
continuing as of the date of the hearing.
The controversy here involves Allied's attempts to
deliver concrete to the project on two occasions
during the strike. Prior to making any deliveries,
Allied posted signs at roads leading to the jobsite,
designating one entrance for Allied employees and
suppliers, and two entrances for those of Ashton and
all other contractors. Allied notified Respondent of
the designations. On July 20, a delivery of concrete
was attempted. Three vehicles containing picketers
accompanied Allied's truck, fore and aft, along the
route from its plant to the highway jobsite. Upon
arrival, both Allied's truck and the vehicles contain-
ing the picketers entered the project area through one
of the entrances designated for use of Allied
employees and then proceeded to the concrete pour
site. The picketers then left their vehicles and
picketed Allied's truck with signs reading: "Picketing
' The Respondent has requested oral argument. This request is hereby
denied as the record. the exceptions, and the briefs adequately present the
issues and the positions of the parties.
231 NLRB No. 181
Teamsters Local 83 on strike against Allied Con-
crete." In response thereto, Ashton's employees
walked off the job. Later the same day, Respondent's
shop steward, Walker, told Ashton's foreman, Parker
(who was a teamster and joined the other Ashton
employees in walking off the job), that he appreciat-
ed the action they had taken. Allied attempted
another delivery on July 27. As before, picketers
followed the Allied truck to the pour site and
picketed around the truck with identical signs, with
the result that the Ashton employees walked off the
job.
Respondent contends that it had not only the right,
but also the duty to follow Allied's mixer trucks onto
the jobsite and to picket "between the headlights." In
applying the secondary boycott provisions of the
Act, the Board must balance the interests of unions
in picketing at the sites of their disputes against the
interests of secondary employers to be free from
picketing arising out of controversies in which they
are not directly involved. Where both the primary
and secondary employers are working at the same
jobsite, as in many construction projects. the com-
mon job situs affects the rights of both secondary
employers and the picketing unions.
In Sailors' Union of the Pacific, AFL (Moore Dry
Dock Company), 92 NLRB 547, 549 (1950), the Board
established four criteria by which to measure the
presumptive lawfulness of picketing in common situs
situations. Such picketing is presumptively lawful if:
"(a) the picketing is strictly limited to times when the
situs of dispute is located on the secondary employ-
er's premises; (b) at the time of the picketing the
primary employer is engaged in its normal business
at the situs,' (c) the picketing is limited to places
reasonably close to the location of the situs; and (d)
the picketing discloses clearly that the dispute is with
the primary employer." While picketing in compli-
ance with these requirements is not lawful per se, the
criteria are, nevertheless, instructive in analyzing
whether certain picketing is primary or secondary in
nature. International Brotherhood of Electrical Work-
ers, Local Union 861, and Arneth Lard, its Agent
(Plauche Electric, Inc.), 135 NLRB 250 (1962). There
is no dispute that Respondent's picketing here met
these criteria. The issue is whether it exceeded the
permissible limits of criterion "c" and revealed an
intent to appeal to employees of a neutral employer.
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Truck Drivers
and Chauffeurs, Local Union No. 807 (Schultz
Refrigerated Service, Inc.), 87 NLRB 502 (1949), is
both factually and legally analogous to the picketing
here. Although Schultz had a terminal, it ran its
2 All dates herein are in 1976. unless otherwise indicated.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transportation business primarily through a large
fleet of commercial trucks. Striking employees
followed Schultz' delivery trucks to various locations
where pickups and deliveries were made. The
employees picketed only around the trucks at the
point of pickup and/or delivery. A Board majority
found such ambulatory picketing to be lawful
primary activity. In their view, Schultz' business was
not confined to its terminal because a substantial
number of transactions occurred at the locations of
its customers where deliveries were made. Thus, the
only effective way for the union there to bring direct
pressure on Schultz was to picket "between the
headlights" of the trucks as they made their deliveries
to the customers. It would have been pointless to
require the union to limit its picketing to Schultz'
warehouse since this would not permit the union to
effectively communicate its appeal to the public. As
long as the picketing was confined "between the
headlights" of Schultz' trucks at the neutral employ-
ers' premises, the union was able to communicate its
dispute with Schultz to the public while the neutral
employers-i.e., Schultz' customers-were free from
interference in the conduct of their business.
In our judgment, Schultz is dispositive of the
instant matter. Like Schultz, Allied's business of
delivering readymade concrete is conducted not only
at its terminal where the concrete is made, but also at
the pour sites where the concrete is delivered to
customers like Ashton. Respondent had a right to
communicate its dispute with Allied to the public by
picketing Allied's trucks wherever they happened to
be, not only at the terminal but at the pour sites as
well. By picketing only "between the headlights" of
Allied's trucks with signs indicating that their dispute
was confined to Allied, the picketers avoided all
direct interference with neutral employers, including
Ashton. Thus, the picketing conformed with the third
criterion of Moore Dry Dock, discussed supra, as well
with the other criteria, and consequently was
presumptively lawful.
In determining the validity of Respondent's picket-
ing, the facts that Ashton's employees walked off the
jobsite and Respondent's shop steward told Ashton's
foreman that he appreciated the action Ashton's
employees had taken are irrelevant. Respondent's
object in picketing, if otherwise lawful, may not be
rendered unlawful merely because neutral employees
elect to respect the picket line. In the General Electric
case,3 the Supreme Court stated that: "picketing
which induces secondary employees to respect a
picket line is not the equivalent of picketing which
has an object of inducing those employees to engage
in concerted conduct against their employer in order
:' Local 761, International Union of Electrical, Radio d Machine Workers,
A FL-CIO [General Electric Company] v. N.L R.B., 366 U.S. 667 (1%961).
to force him to refuse to deal with the struck
employer." 366 U.S. at 673-674. Accordingly, the
fact that Respondent appreciated the support which
it received when the Ashton employees walked off
the job does not bring its otherwise lawful primary
activity within the purview of the secondary boycott
provisions of the Act.
Our dissenting colleagues have failed to recognize
that lawful ambulatory picketing, as the picketing
herein clearly was, and the establishment of a
reserved gate are not mutually exclusive. In the view
of our colleagues, if an employer sets up a reserved
gate, then primary picketing anywhere else becomes
secondary. Thus our colleagues seem to imply that
primary ambulatory picketing on one side of the
Allied sign is lawful primary picketing, but that same
picketing on the other side of the sign is unlawful
secondary picketing. The logic of that conclusion
escapes us. Entry onto the premises in order to picket
the truck as closely as possible to the primary situs
may constitute trespass if the owner of the premises
validly limits the right of entry, but the conduct does
not thereby become secondary picketing.
Here. the Union picketed only where Allied
primary employees performed their duties, i.e., near
the trucks located at the pour site, and at no time
picketed at points reserved only for neutral employ-
ees. The fact that neutral employees are nearby and
participating in the same work as the primary
employees does not convert the primary picketing to
secondary activity.
Our colleagues seem to think that establishment of
a reserved gate somehow limits a union's right to
engage in primary picketing elsewhere. But peaceful
primary picketing of any type and at any location is
explicitly permitted by the statute, regardless of the
effect on neutral employers' operations. Primary
picketing does not become less than primary or
unlawful simply because there are other locations at
which it might be carried on out of sight or hearing
of, or having other effects on, neutral employees.
Nothing in Denver Building Trades4 suggests other-
wise. The "accommodation of conflicting rights" by
limiting primary picketing, which our colleagues
seem to think desirable, is in fact an importation of
their own preferences into the Act which specifically
provides to the contrary; and they support the
importation only by a Supreme Court decision which
did not in any way touch the issue. If the picketing is
primary, no "accommodation" or limitation is, or
can be, proper. Indeed, this Was the reason underly-
ing the reserved gate principle to which Denver
Building Trades led, to separate the primary picketing
from secondary picketing, by separating the primary
I N.LR.B. v. Denver Building and Construction Trades Council, et al.
[Gould & Preisner]. 341 U.S. 675 (1951).
1098
TEAMSTERS LOCAL NO. 83
and neutral operations in order that lawful picketing
of mixed operations would not shut down the entire
project. Allowing reserved gate picketing rules to
define and control lawful primary picketing, as our
colleagues would do, makes the bat boy's activity
determine the ball game.
The "gates" herein were merely signs along what
appears to have been a public right of way, and were
established by Allied, the primary employer, rather
than by the owner of the overpass site or the general
contractor-the parties who traditionally establish
reserved gates. This allowed Allied-the primary
employer-to make all decisions relative to the
establishment of the signs, including their wording
and placement.5 Allied's initiative in establishing the
"reserved gates" is significant, for Section 8(b)(4)(i)
and (ii)(B) is intended to protect the rights of neutral
employers and was not designed for the aid and
convenience of primary employers.
In view of the foregoing, we find that Respondent
Union engaged in lawful primary picketing and did
not violate Section 8(b)(4)(i) and (iiXB) of the Act.
Accordingly, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBERS PENELLO AND WALTHER, dissenting:
The issue here is whether Respondent could legally
ignore the reserved gates, proceed onto the actual
worksite, and picket at the concrete pour site.
Contrary to the majority, we believe that the
Administrative Law Judge correctly found that
Respondent's picketing on the actual worksite-
rather than at the gate reserved for the primary
employer-violated the secondary boycott provisions
of the Act. Accordingly, we dissent.
The controversy involves attempts by the primary
employer, Allied, to deliver concrete to a highway
construction project on two occasions, July 20 and
27. There is no dispute between general contractor
Ashton and Respondent.
Allied, after conferring with Ashton, established
clearly marked reserved gates at the jobsite, one for
Allied employees and suppliers and two for those of
Ashton and all other contractors. The gate reserved
for Allied was placed approximately 300 yards away
from the center of the project. On July 19, Allied
: We note that Allied, taking advantage of its initiative in this regard,
placed the reserved gate for its own employees over 300 yards from the pour
site.
notified Respondent of all details concerning the
reserved gates.
On July 20, a delivery of concrete was attempted.
Three vehicles containing Respondent's picketers
accompanied Allied's truck, fore and aft, along its
route to the jobsite. Upon arrival, the truck stopped
at Allied's reserved gate to learn where the concrete
should be delivered. It then entered into the interior
of the jobsite and proceeded to the pour site where
two of the carloads of picketers awaited. When the
third car of picketers arrived shortly thereafter, the
picketers left their vehicles and picketed the truck
with signs reading: "Picketing Teamsters Local 83 on
strike against Allied Concrete." In response, Ash-
ton's employees walked off the job. Since there were
no longer any employees available to handle the
concrete, the fully loaded truck had to return to
Allied's plant.
Later that day, Respondent's shop steward, Walk-
er, told Ashton Foreman Parker (who was a teamster
and joined the other Ashton employees in walking
off the job) that he appreciated the action they had
taken. Parker replied, "It was our duty, it was an
authorized [T]eamsters' strike and we weren't al-
lowed to work behind picket lines."
Allied attempted another delivery on July 27.
Again, picketers followed the Allied truck through
the reserved gate to the concrete pour site and
picketed the truck with identical signs. As before, the
Ashton employees walked off the job. By letter dated
July 27, Ashton canceled its contract with Allied
because of the picketing.
Section 8(bX4) and its proviso were enacted by
Congress in response to the conflict between the
interests of unions in picketing employers with whom
they have primary disputes and the interests of
neutral employers in being free from becoming
enmeshed therein. As the Supreme Court stated in
N. L R. B. v. Denver Building and Construction Trades
Council, et al. [Gould & Preisner], 341 U.S. 675, 692,
there exist in this area "the dual congressional
objectives of preserving the right of labor organiza-
tions to bring pressure to bear on offending employ-
ers in primary labor disputes and of shielding
unoffending employers and others from pressures in
controversies not their own."
Resolution of such conflicting interests becomes
particularly difficult in cases involving "ambulatory"
or "common" situs picketing where both the primary
and secondary employers are engaged in operations
at the same geographical location. While Moore Dry
Dock established guidelines to aid in resolving these
conflicting interests, such guidelines are evidentiary
in nature and are to be employed only in the absence
1099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of more direct evidence as to the intent and purposes
of the particular labor organization involved in each
case. N.L.R.B. v. International Hod Carriers, Building
and Common Laborers' Union of America, Local No.
1140, AFL-CIO [Gilmore Construction Co.], 285 F.2d
397 at 401 (C.A. 8, 1960), cert. denied 366 U.S. 903
(1961). Therefore, compliance with the four Moore
Dry Dock requirements does not necessarily make a
union's picketing lawful where other evidence reveals
an unlawful secondary objective. General Teamster,
Warehouse and Dairy Employees Union Local No. 126
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America; Local #139, etc. (Ready Mixed Concrete,
Inc.), 200 NLRB 253, 254-255 (1972); New York
Mailer's Union No. 6, International Typographical
Union, AFL-CIO [N. Y. Herald Tribune, Inc. & Neo-
Gravure Printing Co.] v. N.L.R.B., 316 F.2d 371, 372
(C.A.D.C., 1963).6 Additionally, where a primary
and neutral employer engage in business at a
common situs (including a temporary common situs
where, for example, a trucking firm's ambulatory
situs interfaces with the permanent situs of another
employer), a union's picketing must "be so conduct-
ed as to minimize its impact on neutral employees [and
employers] insofar as this can be done without
substantial impairment of the effectiveness of the
picketing in reaching the primary employees [and
employer]." Wire Service Guild, Local 222, The
Newspaper Guild, AFL-CIO-CLC (The Miami Her-
ald Publishing Company), 218 NLRB 1234, 1238
(1975) (dissent of Members Penello and Kennedy).
Application of the aforementioned principles dic-
tates our adoption of the Administrative Law Judge's
finding that Respondent violated Section 8(b)(4)(i)
and (ii)(B) of the Act. Respondent could have
effectively accomplished its legitimate objective of
communicating its dispute with Allied to Allied's
employees had it limited its picketing to the gate
reserved for Allied's employees and suppliers while
Allied employees made their deliveries at the pour
i As stated bv the Court of Appeals for the Ninth Circuit in N.L. R.B. v.
Northern California District Council of Hod Carriers and Common Laborers of
Anmerica. A FL (10, Construction and General Laborers Union, Local No.
185_. AFL (CO1, 389 F.2d 721. 725 (C.A. 9, 1968):
Respondent next argues that the picketing was primary and not
secondary in nature in that it complied with the requirements for
primary picketing established by the Board in Moore Dry Dock Co., 92
NLRB 547 (1950). It would appear that its reliance on this doctrine is
misplaced. Moore Dry Dock does not establish a formula whereby
picketing with a secondary object can be done lawfully. Rather, it
simply establishes [an ] evidentiary aid for the Board to determine the
object of picketing where the other evidence is equivocal. The Board is
not bound by the inference of lawfulness from compliance with the
VMoore Drv Dock standards. ICitations omitted.]
7 The pour site was only 300 yards from the Allied gate. Record evidence
establishes that the pour site was clearly visible from the Allied gate, and,
similarly. the Allied gate was clearly visible from the pour site.
site and during the time when the Allied trucks made
their way from the pour site until they actually exited
the reserved gate. 7 At the same time, Respondent's
honoring of the reserved gate would have insulated
Ashton from any interference arising out of its labor
dispute with Allied. Instead, the picketers ignored the
reserved gate (which they earlier had been informed
about in writing and in detail) and picketed directly
at the pour site-and, in direct response thereto,
Ashton's employees walked off the job. These actions
indicate a complete unwillingness on Respondent's
part to minimize its impact on neutral employer
Ashton and demonstrates Respondent's intent to
enmesh Ashton and its employees in the dispute in
which it engaged with Allied. Thus, such conduct
constitutes prima facie evidence of Respondent's
unlawful object.
We are not surprised that the majority is unable to
understand the logic of our conclusion since they
apparently imply that all ambulatory picketing is
primary in nature and therefore per se lawful. An
example of their misunderstanding is their statement
that "[o]ur colleagues seem to think that the
establishment of a reserved gate somehow limits a
union's right to engage in primary picketing else-
where." (Emphasis supplied.) s Our dissent does not
provide that a union is prohibited in all instances
from picketing an ambulatory site on the premises
inside a gate reserved for the primary employer.
Rather, we conclude that such a prohibition exists
only when the union could have otherwise effectively
accomplished its objective without enmeshing the
neutral secondary employer by picketing inside the
reserved gate at the actual common situs.9 This
result, contrary to the majority's per se approach,
comports with the Supreme Court's interpretation of
the congressional intent of Section 8(b)(4)-to
accommodate the legitimate rights of both labor
organizations and neutral employers.10 In each case,
the Board should weigh the evidence carefully in
8 This quotation from the majority's opinion demonstrates that they have
attempted to "rig" the "ball game" (to borrow their vernacular) by utilizing
their familiar device of inserting the word "primary" before the word
"picketing." This tool enables even an otherwise questionable assertion to
have a particularly persuasive ring. Instead, the majority should fairly
analyze the facts in this case in order to determine if the picketing was
primary or secondary. (See, e.g., our analysis employed in fn. 9 of our
dissent, infra.)
9 For example, if the pour site in this case was not clearly visible from the
reserved gate, we would have been more inclined to find the picketing to
have been primary in nature.
I' See, e.g., Denver Building and Construction Trades Council, supra at
692; International Rice Milling Co., Inc., et al. v. N.L.R.B., 341 U.S. 665, 673,
fn. 7 (1951); N.LR.B. v. Local 825, International Union of Operating
Engineers IBurns and Roe, Inc.], 400 U.S. 297. 302-303 (1971). The
majority's per se approach completely ignores these cases insofar as the
Supreme Court interpreted the legislative intent of the secondary activity
provisions of the Act.
1100
TEAMSTERS LOCAL NO. 83
order to seek accommodation of the conflicting
rights of the parties.
We note that the majority has made an unwarrant-
ed accusation that we have imported our own
preferences into the Act because we seek to "accom-
modate conflicting rights." Such a pronouncement,
however, not only clearly flies in the face of many
Supreme Court decisions,1 but also impeaches the
majority's own statement made earlier in their
opinion, wherein they said: "In applying the secon-
dary boycott provisions of the Act, the Board must
balance the interests of unions in picketing at the
sites of their disputes against the interests of
secondary employers to be free from picketing
arising out of controversies in which they are not
directly involved."
Our colleagues rely on Schultz Refrigerated Service,
Inc., supra, for the proposition that it is lawful for a
union to picket a primary employer's trucks on the
premises of neutral employers if such picketing is
conducted only "between the headlights." However,
Schultz is inapposite as no reserved gate system (or
other alternative picketing location) was established
at the premises of any of the neutral employers
involved in that proceeding.
Here, conversely, properly established reserved
gates put Respondent on notice regarding those areas
where it could appropriately appeal to Allied's
employees.
We attach no significance to the fact that the gates
here were established by Allied, the primary employ-
er. For, such was done only after full consultation
and agreement between Allied and neutral employer
Ashton. Moreover, while reserved gates are often set
up at the initiative of secondary employers, it makes
no legal or substantive difference who establishes
them. Nor was there any element in the physical
location of the gates which negates their lawfulness.
The Allied gate was only 300 yards from the concrete
pour site and was established at an appropriate,
commonly traveled entrance to the jobsite. As stated
above, the Allied gate was clearly visible from the
pour site. Moreover, the picketers further communi-
cated their dispute to Allied employees and the
public by picketing Allied's terminal and its trucks en
route to the pour site. Therefore, we disagree with the
majority's contention that by limiting Respondent's
pickets to the area at the reserved gate the picketers
were prevented from communicating their dispute
with the drivers of Allied's trucks.
Finally, we cannot agree with Respondent's con-
tention that the picketers had a duty to enter the
jobsite and picket Allied's trucks. Local Union #612,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Ind (AAA Motor
Lines, Inc.), 211 NLRB 608 (1974), cited by Respon-
dent in support of this proposition, merely holds
that-under circumstances in which no reserved
gates are established-the Moore Dry, Dock require-
ment that picketing be "reasonably close to the
location of the situs" is not met when picketers
refrain from requesting permission to picket "be-
tween the headlights" and, instead, picket at or near
the entrance to a neutral employer's premises. Here,
unlike AAA Motor Lines, there was a gate reserved
for the primary employer and its employees. And,
even if there hadn't been, Respondent's pickets made
no request to enter the premises for the purpose of
picketing "between the headlights." Moreover, ab-
sent evidence to the contrary, we regard the very
establishment of a reserved gate for the primary
employer as constituting an implicit denial of
permission to enter the neutral premises for picketing
purposes. Cf. Teamsters "General" Local Union No.
200 (Reilly Cartage, Inc.), 183 NLRB 305 (1970).
Accordingly, we would adopt the Administrative
Law Judge's finding that the Respondent violated the
secondary boycott provisions of the Act.
" See cases cited at fn. 10. supra.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Phoenix, Arizona, on August 31,
1976.1 The complaint in Case 28-CC-591, issued on
August 13, is based upon a charge filed on July 27 by
Allied Concrete, Inc., hereinafter referred to as Allied. The
complaint alleges that Construction, Building Materials &
Miscellaneous Drivers, Local No. 83, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, hereinafter referred
to as Respondent or as the Union, violated Section
8(b)(4)(i) and (ii)(B) of the National Labor Relations Act,
hereinafter referred to as the Act. The complaint in Case
28-CB-1074, issued on August 18, is based upon a charge
filed by Allied on July 16. The complaint alleges that the
Union violated Section 8(bX )(1)(A) of the Act. On August 18
the Regional Director for Region 28 of the National Labor
Relations Board issued an order consolidating the two
above-described cases for hearing. General Counsel moved
at the hearing to sever Case 28-CB-1074 on the ground
that the parties, with approval of the Acting Regional
Director for Region 28, had settled the controversy
involved in the case. The motion was granted and Case 28-
CC-591 was heard as aforesaid.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
I All dates hereinafter are within 1976, unless stated to be otherwise.
1101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been carefully considered, were filed on behalf of the
General Counsel, the Union, and the Charging Party.
Upon the entire record and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Ashton Company, Inc. (herein called Ashton), is a
corporation organized under, and existing by virtue of, the
laws of the State of Arizona and maintains its principal
office and place of business in Tucson, Arizona. Ashton is
engaged in business as a general contractor in the building
and construction industry. During the past calendar year,
which period is representative of its annual operations
generally, Ashton purchased and caused to be transported
in interstate commerce and delivered to its places of
business in Arizona goods and materials valued in excess of
$50,000 directly from suppliers located in States of the
United States other than the State of Arizona.
I find that Ashton is, and at all times material herein has
been, a person and an employer engaged in commerce and
in an industry affecting commerce within the meaning of
Sections 2(1), (2), (6), and (7) and 8(b)(4) of the Act.
Allied is a corporation organized under, and existing by
virtue of, the laws of the State of Arizona, with its principal
office and place of business in Phoenix, Arizona. Allied is
engaged in the business of processing, mixing, and
delivering ready-mix concrete. During the past calendar
year, which period is representative of its annual opera-
tions generally, Allied sold goods and materials valued in
excess of $50,000 to Ashton in connection with the
construction of highway overpass structures located on
Interstate Highway 10 near Buckeye, Arizona.
I find that Allied is, and at all times material herein has
been, a person and an employer engaged in commerce and
in an industry affecting commerce and within the meaning
of Sections 2(1), (2), (6), and (7) and 8(b)(4) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Construction, Building Materials & Miscellaneous Driv-
ers, Local No. 83, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
Ashton is the general contractor on a job outside
Phoenix involving construction of overpasses on the
Ehrenberg-Phoenix Highway, Interstate 10 (I-10). Allied is
a subcontractor of Ashton, committed by contract dated
November 26, 1975, to supply ready-mix concrete for the
2 This description of direction is for simplicity. True direction is more
nearly east northeast-west southwest, as shown on Resp. Exh. I.
:' This distance is shown on Resp. Exh. I, which was used at the heanng
bys agreement of counsel. The distance differs from Newell's testimony,
which fixed the distance as "at least two and maybe three" miles.
overpass job described above. John Newell is president of
Allied; Red Coleman is Ashton's job superintendent.
Allied employs from 20 to 50 drivers for its trucks, those
drivers being represented by the Union. The most recent
contract between Allied and the Union expired May 31
and since that date the parties have negotiated, but they
have been unable to arrive at a settlement of their
differences. A new contract has not been signed. Union
employees commenced a strike at Allied on June 25, and
since that date have picketed Allied premises and contin-
ued their strike.
Ashton is not involved in any dispute with the Union.
1-10 is under construction at and near the Ashton
jobsite. The highway runs in an almost east-west direction 2
at the jobsite. The highway is closed to general traffic for a
considerable distance both east and west of the jobsite.
Miller Road is to cross 1-10 in a north-south direction by
means of an overpass bridge which is one of the structures
being built at the jobsite by Ashton. Oglesby Road,
approximately 1-1/2 miles 3 west of Miller Road, also is to
cross 1-10 in a north-south direction by means of an
overpass bridge now under construction by Ashton. The
east-west roadbed of 1-10 at and near the jobsite is not
completed, and is not paved. The median strip and rights
of way are graded, but not completed.
The controversy herein arose as a result of Allied's
attempts to deliver concrete to the jobsite on two
occasions, July 20 and 27. On each occasion the attempt
was not successful because of picketing, as discussed
below.
General Counsel alleges in the complaint that the
picketing engaged in by Allied employees and the Union
on July 20 and 27 was in defiance of reserved gates
established by Allied, was illegal, and resulted in Ashton's
employees engaging in work stoppages and refusals to
work, thereby causing Ashton to terminate Allied's ready-
mix contract described above.
B. Establishment of Reserved Gates
Newell testified that on July 19, the day prior to
attempting to deliver concrete to thejobsite, he printed two
signs and installed them at three places.
Newell credibly testified that on July 19, before printing
and posting the signs, he went to the jobsite and talked
with Coleman and with Ashton's vice president about the
location for the signs "to interfere the least with their
operations and their people."
By letter dated July 19 and hand-delivered that day,4
Allied notified Local 83 of the reserved gates to be
established. The letter reads as follows:
Your Union is presently engaged in a dispute with
Allied Concrete, Inc.
This is to notify your labor organization of the
establishment of separate entrances for various con-
tractors on the Ashton 1-10 Highway construction
project being built by Ashton Construction, as general
Respondent admits receipt of this letter. Newell also testified that Local
428 was notified by letter that the signs would be posted.
1102
TEAMSTERS LOCAL NO. 83
contractor. These separate entrances will be established
on or before 6:00 a.m. July 20, 1976, near Buckeye,
Arizona.
A separate entrance has been established for the
exclusive use of Allied Concrete, Inc., its employees
and suppliers, approximately 300 yards east of the
Miller Road overpass on the west bound lane of 1-10.
Two separate entrances have been established for
Ashton Construction, and all other contractors, their
employees and suppliers at either Miller Road south of
1-10 overpass or at the Oglesby Road and 1-10
overpass.
Please confine your picketing to the gate reserved for
the exclusive use of Allied. Failure to confine your
pickets to the Allied entrance will be considered an
attempt to enmesh neutral employers in your dispute
with Allied and secondary boycott charges will be
brought against your Union under the National Labor
Relations Act, as amended.
Newell credibly testified that he posted the aforesaid
signs on July 19. One was posted on the right-hand
shoulder of the Miller Road off the ramp going west, about
300 yards east of the Miller Road overpass. Counsel
stipulated that this sign read as follows:
THIS ENTRANCE RESERVED FOR THE EXCLUSIVE USE OF
ALLIED CONCRETE COMPANY, ITS EMPLOYEES AND
SUPPLIERS. ALL OTHER CONTRACTORS, THEIR EMPLOYEES
AND SUPPLIERS, MUST USE THE ENTRANCES LOCATED AT
EITHER OGLESBY AND 1-10 OR MILLER ROAD SOUTH OF
THE I-10 OVERPASS.
A second sign was posted directly north of the cattle guard,
on the right side going north, of Miller Road south of 1-10.
Miller Road there was unpaved and under construction.5
Counsel stipulated that this second Miller Road sign read
as follows: 6
THIS ENTRANCE RESERVED FOR EMPLOYEES AND
SUPPLIERS OF ALL CONTRACTORS EXCEPT ALLIED
CONCRETE, INC.
ALLIED CONCRETE, ITS EMPLOYEES AND SUPPLIERS MUST
USE ENTRANCE LOCATED AT WEST BOUND OFF-RAMP
APPROX. 300 YARDS EAST OF MILLER ROAD OVERPASS.
A third sign was posted on Oglesby Road at a point where
construction traffic left Oglesby Road to go on to the
construction site.7 The sign read the same as the No. II sign
at Miller Road, described above.
C. The Attempted Delivery of July 20
Newell testified that, on July 20, Allied's driver Warren
Elliott obtained a load of concrete mix according to work
specifications and, in the customary manner, proceeded to
the jobsite. Newell followed Elliott, driving a pickup truck.
: Locations of the two Miller Road signs are marked I and II on Resp.
Lxsh 1.
" Newell testified that, several days after Jul) 27, he found the sign he
had placed south of Miller Road broken and thrown into a ditch The words
"A public road." or words to that effect, had been added to the sign in
As they left the batch plant, a group of striking employees
was picketing at the entryway of the plant. En route to the
jobsite, with Newell following Elliott, one vehicle followed
behind Newell and two vehicles preceded Elliott. Riding in
one vehicle was Norman Rudd, business agent for Local
428, Operating Engineers. In the second vehicle were
Darrell Walker, Local 83's shop steward at Allied, and Al
Zuvers, one of Allied's mixer drivers who was on strike. In
the third vehicle were Paul Wilshire and Jim Stark, who
were striking driver employees. Prior to arrival at the Miller
Road off ramp, Newell passed Elliott, and when Newell
arrived at the off ramp he stopped just west of the Allied
sign he had posted on July 19. Elliott stopped his truck
behind Newell's pickup. They stopped because they did
not know where the pour was to be made. John Parker,
Ashton's finishing foreman, was standing on the Miller
Road overpass bridge, motioning for Elliott to come to
where he was. Newell and Elliott then proceeded west on
the southern (westbound) lane of the freeway roadbed to
the pour site, immediately east of the bridge. When they
arrived at the pour site, two of the vehicles seen earlier,
carrying Rudd and striking employees, were parked near
the pour site. The third vehicle carrying striking employees
arrived at the pour site shortly after Newell and Elliott
arrived. All four striking employees and Rudd got out of
their vehicles and picketed near the truck driven by Elliott,
with signs reading "Picket - Teamsters Local 83 on strike
against Allied Concrete." Parker and several Ashton
employees on the bridge got into a pickup and left, going
east. Other Ashton employees who were under the bridge
walked away from the site to the south. Newell then talked
with Coleman and some state highway employees for 20 or
30 minutes, during which time the picketing continued.
Since there were no Ashton employees to handle the
concrete, Newell instructed Elliott to take the load back to
the yard, which he did. By letter dated July 20, Ashton
admonished Allied and stated that continuance of the
labor dispute and picketing other than at the proper gate
would result in cancellation of the purchase agreement.
Newell testified that the rear of the sign at the Miller
Road off ramp, posted by Newell, was visible from the
bridge. Parker corroborated Newell's testimony. Parker
also testified that he talked with Walker on July 20:
He drove up there and he told me he appreciated us
walking off the job and I told him that it was our duty,
it was an authorized [Tleamster's strike and we weren't
allowed to work behind picket lines.
He asked me when the next big pour was going to be
and I told him that I didn't know ....
Parker said he knew prior to July 20 about the labor
dispute between Local 83 and Allied, and had decided in
advance of July 20 that the Ashton employees would honor
any picket line since the strike was "authorized." Elliott
corroborated Newell's testimony.
pencil and in small letters. Newell is credited, but this testimony is given no
weight because there is no indication of when the words were added to the
signs or b) whom. Newell testified that he did not notice any change in his
wording on the signs prior to his finding the sign in the ditch
Location of this sign is shown bN an "X" on G.C Exh 4.
1103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stark testified and he acknowledged that he and Wilshire
followed Elliott on July 20 and picketed at thejobsite.
D. The Attempted Delivery of July 27
Newell testified that, on July 27, a load of concrete mix
was picked up by Elliott as he had done on July 20, and he
and Elliott proceeded to the jobsite in the same manner as
before, except they came down the eastbound grade
instead of the westbound grade. Again they were followed.
Carl Woolsey was following in a pickup truck and a van
carried Jack Wausom, Wilshire, and Stark. There was a
third vehicle, carrying individuals Newell does not remem-
ber. Again Newell and Elliott slowed down or stopped at
the Miller Road off ramp sign, with one vehicle still
following. The following car also stopped at the sign
momentarily while Newell and Elliott discussed the pour
site. When Newell and Elliott arrived at the pour site the
van and pickup already were there, parked where the off
ramp met the overpass. Newell got out of his vehicle to talk
with Coleman, and Elliott took the truck to the pour site.
Ashton employees who were present near Coleman started
walking and Coleman said, "Well, they're all going to leave
again." As the pickets were walking with their signs
underneath the bridge near the pour site,8 the Ashton
employees walked away. The pour was not made and it was
returned to the plant. By letter dated July 27, Ashton
canceled its purchase agreement with Allied because of the
picketing.9
Parker corroborated Newell's testimony.
Elliott corroborated Newell's testimony and added
thereto. Elliott testified that, as he was backing the truck
into the pour site, he was facing the Miller Road off ramp
sign and saw Wilshire and Stark picketing at the sign.
Woolsey and Wausom drove from the bridge to the sign
and talked with Wilshire and Stark. Thereafter, all four
men went to the bridge and started picketing.
Stark testified and he acknowledged that he and Wilshire
followed Elliott to the jobsite July 27. Stark said he and
Wilshire stopped their vehicle near the reserved gate sign at
the Miller Road off ramp and got out with their picket
signs in their hands. They intended to picket there, but
decided not to. After being out of the vehicle a "couple of
minutes," Stark "decided that we should go down Miller
Road because I was told that was a public road, and we
could picket down there." Another truck came to the sign
area, and Stark and Wilshire returned with them to the
pour site and picketed until the mixer truck left. He
followed Elliott back to the plant, on both July 20 and 27.
Stark said, "I was supposed to be in charge of the pickets."
Discussion
The labor dispute here involved is between Allied and
Local 83. Only Allied is a primary employer; Ashton is a
secondary employer not involved in any dispute with the
Union.
I The signs read: "Teamsters Local 83 on strike against Allied
Concrete." Newell credibly testified that the picket signs were visible to
Ashton employees on July 20 and 27.
' Allied has two other facilities in the Phoenix area. Neither is involved
in this case.
The controversy thus involves a situation wherein
primary employees work on the same site as secondary
employees, i.e., at the Miller Road overpass. Respondent
argues partially on the basis of common situs picketing,
and partially on the basis of ambulatory picketing.
However, that point is not controlling. Both parties herein
clearly recognized the problem of enmeshing Ashton, an
unoffending employer, in a controversy to which it is not a
party.i° That recognition is shown by Allied's establish-
ment of reserved gates (discussed below), and by the
Union's efforts to show that it adhered to Moore Dry Dock
standards in its picketing at the worksite. However,
regardless of the methods used by the parties, the ultimate
question is whether Respondent picketed in a manner
which shows that the intent and purpose of the picketing
was to appeal to Ashton's employees in violation of Section
8(b)(4Xi) and (ii)(B) of the Act.
Respondent argues that the signs, hence the reserved
gates, were defective in that the signs were installed on
Allied's own initiative, and that the signs were posted in
such manner that they precluded Respondent's communi-
cation with Allied's employees. That argument is without
merit. The signs were installed with full advance knowledge
of the Union and Ashton, they were installed in appropri-
ate, commonly traveled places, and they were seen in place
by union representatives and picketing employees (more
fully discussed below). Further, the picketing of July 20
was discussed by the Union and Allied, and objected to by
Allied, prior to the picketing of July 27, and the Union
clearly had ready access to Allied management at all times
relevant herein.
Respondent argues that placement of reserved gates at
the 1-10 project did not preclude picketing at the Miller
Road bridge, and that Respondent had a duty to comply
with Moore Dry Dock standards, which Respondent
contends it did. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Truck
Drivers and Chauffeurs, Local Union No. 807 (Schultz
Refrigerated Service, Inc.), 87 NLRB 502 (1949), and
Teamsters Local Union #612, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Ind.
(AAA Motor Lines, Inc.), 211 NLRB 608 (1974), were cited
as authority. However, Schultz is not applicable since
reserved gates were not involved. Only the question of
ambulatory picketing was involved, with the company's
offices located out of the State and deliveries being made
within the State. AAA Motor Lines also is inapplicable,
since there a violation of Section 8(b)(4Xi) and (ii) was
found; no reserved gate was involved; and Moore Dry
Dock standards alone were involved, with no substantial
evidence of a secondary object being considered.
Respondent was alert to the possibility of work stoppages
and undertook to protect itself,- Ashton, and the State of
Arizona (owner of the site) against that possibility.
Reserved gates were established, with Ashton's knowledge,
10 N. L R. B. v. Denver Building and Construction Trades Council [Gould &
Preisner], 341 U.S. 375 (1951).
ii Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547 (1950).
1104
TEAMSTERS LOCAL NO. 83
cooperation, and assistance. The Union was advised in
advance, in specific detail, that the gates would be
established on July 20. The signs were installed at the most
logical and reasonable places.12 They were large (approxi-
mately 4 by 4 feet) and easily readable from the lanes of
traffic near which they were installed. It is found that the
signs were adequate in every respect, and conformed with
notice given to the Union in the letter delivered by Allied
to the Union on July 19. It is further found, based upon the
evidence, that the Union and the picketers involved in this
controversy were aware in advance of the reserved gates,
and deliberately refused to confine their picketing to the
gates reserved for Allied. Newell and Elliott testified that,
in each and every instance wherein they entered and left
the worksite area, they used the roadbed lane nearest the
sign at the Miller Road off ramp. Stark testified that, on
one occasion, the lane going the opposite direction was
used. Based upon observation of the witnesses and their
demeanor, Newell and Elliott are credited. Further, the
evidence shows no instance wherein the reserved gates
were used in a manner inconsistent with the posted signs.
The question then is presented of whether the Union
legally could ignore the reserved gate signs, go onto the
worksite, and picket at the pour site. Early Board law was
that picketing at gates reserved for secondary employees on
secondary premises was unlawful.' 3 Subsequently, the
General Electric,14 Carrier Corp.,'5 and M & H16 cases
considered the subject of common situs picketing at gates
used by neutral employers. In M & H at 323 the Board
summarized the law on this subject as follows:
In General Electric the Supreme Court ruled that the
picketing "at a gate utilized exclusively by employees of
independent contractors who work on the struck
employer's premises" is lawful primary activity unless
the following conditions exist:
There must be a separate gate, marked and set
apart from other gates; the work done by the men
who use the gate must be unrelated to the normal
operations of the employer, and the work must be
of a kind that would not, if done when the . . .
[employer] were engaged in its regular operations
necessitate curtailing those operations.
Subsequently, in Carrier Corp., the Court approved
the Board's application of these standards so as to
-' Evidence and testimony show that the signs were erected at places
customarilr used b) vehicles involved in construction.
: Internaional Association of Machiniitsi Local Lodge 889, AFL-CIO
(Freernan Construction Companyt, 120 NLRB 753 (1958).
1 Local 761. International Union of Electrical Radio, & Machine Workers,
A FL CIO IGeneral Electric Compan jI v. N. L. R. B., 366 U.S. 667 (1961).
I; United Steelworkers of America, AF.4L CIO, et al. Carrier Corp.] v.
.i. R. B 376 L.S. 492 (1964).
Ili Building and Construction Trades Council of New Orleans, AFL-CIO
I(Markwell and Hartz, Inc.), 155 NLRB 319(1965).
I' The distinction discussed herein, relative to primary and secondary
employers, assumes the existence of a neutral employer. An "ally" therefore
is outside this discussion.
' r.L. R B v. Northern California District Council of Hod Carriers and
('o,,,itmon Labhorers of Anerica, AFL CIO, et al [Sunset International
Petroleum (Corporation], 389 F.2d 721 (C.A. 9, 1968). NVLR.B. v. Denier
Building and Construction Trades Council et al [Climar Maolvbdenumn
(',oipatl' 1./ 219 F.2d 870 (C.A. 10. 1955): Readsi Mired Concrete. Inc. 200
NI.RB 253 (1972).
permit, as legitimate primary action, picketing of a gate,
owned by a railroad but cut through a fence surround-
ing the struck employer's premises. This gate was used
exclusively by neutral railroad employees entering the
struck premises to perform delivery activities related to
the normal operations of the struck employer.
Without passing upon whether the subcontractor
gates involved herein were established and maintained
in accordance with the General Electric requirements,
we are of the opinion that the principles expressed in
that case are inapposite in determining whether a union
may lawfully extend its dispute with a general contrac-
tor on a construction site by picketing gates reserved
for exclusive use of subcontractors also engaged on that
project. Rather, we believe that this issue must be
resolved in the light of the Moore Dry Dock standards,
traditionally applied by the Board in determining
whether picketing at a common situs is protected
primary activity.
The Board then analyzed the facts of M & H, concluded
that Moore Dry Dock standards had not been met, and
found a violation of Section 8(b)(4)i) and (ii)(B) of the
Act.17
The next question then becomes one of the intent of the
Union, for intent is the crux of the matter.
Respondent's counsel argued in his brief that the criteria
set forth in Moore Dry Dock Company are applicable herein
and should be applied. It is true, as argued by counsel, that
failure to comply with Moore Dry Dock criteria may
provide the basis for a finding of illegal picketing.'
However, it does not follow that compliance with Moore
Dry Dock is assurance that the picketing is legal.' 9
Compliance with Moore Dry Dock standards may be an
evidentiary fact, used to determine the object of picketing,
but resort to those standards is not necessary if the object
otherwise is clear.20 The Union dispatched pickets to the
pour site after being told in writing, and in detail, about the
reserved gates. The pickets ignored the reserved gate sign,
followed the truck, and picketed at the pour site. Such
disregard of a reserved gate is primafacie evidence of intent
to enmesh neutrals in a dispute with a primary employer.2i
On July 27 the pickets initially started their activities at the
sign, then decided to move onto the pour site.2 2 It is
revealing that Walker, the job steward for Allied, talked
with Ashton's concrete foreman, Parker, the afternoon of
19 Ne.w York Mailers' Union No. 6, International Typographical Union.
AFL-CIO [N.Y Herald Tribune, Inc. & Veo-Gravure Printing Co.] v.
N.L.R.B., 316 F.2d 371 (C.A.D.C., 1963): Seafarers International Union of
North America, Atlantic i Gulf District, Harbor and Inland Waterway's
Division, AFL CIO [Salt Dome Production ComnpanJ v .N LR. B., 265 F.2d
585 (C.A.D.C., 1959).
20 N. L R.B. v. Hod Carriers, supra.
21 Millwrights Local Union No. 1102, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO (Dobson Heavy Haul, Inc.). 155 NLRB
1305 (1965). and Local Union No 369. International Brotherhood of Electrical
Workers. AFL CIO (Kelle, Electric Co., Inc.), 216 NLRB 141 (1975). enfd.
528 F.2d 317 (C.A. 6. 1976).
22 The jobsite and its approaches were under construction and closed to
the public. Clearly, the notice to the Union given in the reserved gate signs
constituted an appeal to refrain from enmeshing Ashton employees in the
dispute between Allied and the Union.
1105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 20 and said he appreciated the fact that the Ashton
employees walked off the job that morning. Walker pressed
the issue, and asked when the next big pour was going to be
made.23 Finally, the pickets did not stop with their actions
of July 20. They returned on July 27 and repeated their
actions of July 20, although the Union was fully informed
in the interim that Allied considered the picketing of July
20 to be illegal. 24 There is no question, under such
circumstances, but that the Union intended to enmesh
Ashton in the Union's controversy with Allied, and did so
to Allied's substantial detriment. Moore Dry Dock stan-
dards are not applicable in such a case. The evidence is not
equivocal; common situs picketing never is privileged when
it is directed, as here, to neutral employees and their
employers.25
Respondent relies upon Teamsters Local Union #612,
supra, and Local Freight Drivers Local No. 208 International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (DeAnza Delivery System Inc.), 224
NLRB 1116 (1976), in arguing that ambulatory pickets, as
here, have a duty to follow a struck employer's vehicles to
delivery sites. Those cases do not stand for the proposition
that there must be picketing "between the headlights" in
order to find a violation of Section 8(b)(4), as urged by
Respondent. The Administrative Law Judge in DeAnza,
supra at 1119 succinctly stated controlling law:
To establish a violation of Section 8(b)(4Xi) and
(ii)(B) of the Act, essentially two elements must be
shown. First, it must be established that there has been
conduct sufficient to satisfy the standard of Section
8(b)(4)(i) - i.e., in essence, that which engages in,
induces or encourages individuals to engage in, a strike
or refusal to perform their own employment duties-
and to satisfy the standard of Section 8(b)(4)(ii) of the
Act --i.e., that which threatens, coerces, or restrains any
person. Second, it must be established that the object of
that conduct is to force or require any person to cease
dealing with or doing business with any other person.
The Administrative Law Judge went on to state that Moore
Dry Dock may be of assistance in determining the Union's
object, and he found "Respondent did not comply with the
second Moore Dry Dock standard, requiring that the
2:' Walker's conversation clearly is within the U.S. Supreme Court's
opinion that the Act's words "induce and encourage" are broad enough to
include every form of influence or persuasion. International Brotherhood of
El/ctricol WorAers, Local 501 [Samuel Langer] v. N.LR.B.. 341 U.S. 694,
701 702(1951).
21 Respondent argues that Scott's testimony relative to union policy
concerning picketing, and instructions given to picketers, negates an
intenlion to violate the Act. That testimony is given very little weight in view
of lhe Union's clear course of conduct to the contrary.
2: Mlillrigh.s' Looal Union No. 1102, supra; General Teamsters Local No.
126 (Reaod Mired Concrete), 200 NLRB 253 (1972); N.LR.B. v. Carpenters
District Council of Kansas City and Vicinity, AFL-CIO [Kaaz Woodwork
Coipancm,. Inc.]. 383 F.2d 89 (C.A. 8, 1967); N.L.R.B. v. Hod Carriers, supra;
Teamstlers, Chauffeurs & Helpers Union, Local 279 (Wilson Teaming
ConipanV). 140 NLRB 164 (1962); International Brotherhood of Electrical
W14orAcr. ILocadl Union No. 11, AFL-CIO et al. (L.G. Electric Contractors,
Inc.J, 154 NLRB 766 (1965); Carpenters District Council of Kansas City and
l'icinili, AFL CIO (J. E. Dunn Construction Co.), 158 NLRB 269 (1966);
Locol 25, International Brotherhood of Electrical Workers (Building Trades
Emplorers Association). 169 NLRB 856 (1968); United Association of
Journemen c nd Apprentices of the Plumbing and Pipe Fitting Industry (A & B
primary employer be engaged in normal business at the
situs when the picketing is conducted."
In the instant case the reserved gates clearly were marked
through mutual agreement of Ashton and Allied, the
Union was informed in advance of establishment of the
gates, the gates were "reasonably close" to the worksite and
visible therefrom, and the signs designating the gates were
placed on the only commonly traveled entrances to the
pour site. Under such circumstances, it cannot reasonably
be contended that the Union was required by law ("had a
duty") to ignore the reserved gates and, rather than
picketing "reasonably close" to the situs, actually to picket
on the situs itself.26 Clearly, no permission was given, either
by Ashton or Allied, for the Union to picket beyond the
reserved gates, much less at the pour site.
Respondent also argues that, since Allied's business is
only to deliver ready-mix concrete, N. LR.B. v. Denver
Building & Construction Trades Council, supra, is not
applicable. That argument ignores Board decisions based
upon facts similar to those involved herein, and is not
valid.27
Finally, Respondent argues that the Union is not bound
by Walker's statements to Parker, because the Union
issued picketing instructions that precluded Walker from
saying what he did, and from talking with Parker.
This argument is without merit, since Walker was the job
steward at Allied, was prominent in strike activities, and
was active in the picketing with full knowledge of the
Union. Having placed Walker in such a position, the
Union cannot now deny that it is bound by Walker's
actions and words.2 8 Further, as shown above, the
picketing of July 20 was discussed by Allied and the Union
on July 20, yet the Union's actions of that day were
repeated on July 27, clearly showing a plan of action
followed by the Union. Walker's statement was consistent
with that plan of action. Finally, Parker testified that he
has known Walker "a long time," and Parker also testified
that he was sympathetic with the picketers. Under such
circumstances Walker's inducement and encouragement of
a neutral employee is obvious. Walker's inquiry about
future pours, and the Union's actions of July 27, clearly
constituted a part of the Union's continuing plan of action
relative to Ashton's employees.
Plumbing, Inc.), 171 NLRB 498 (196 8); Local 134, International Brotherhood
of Electrical Workers (Polly Electric Co), 175 NLRB 507 (1969): Drivers,
Warehouse & Dairy Employees, Local No. 75 (Seymour Transfer, Inc.), 176
NLRB 530(1969); Iron Workers Local Union No. 167 (Tayloe Glass Co.), 180
NLRB 201 (1969).
2 Local No. 22Z International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (American Oil Company), 152 NLRB
853 (1965).
27 Teamsters, Local 126 (Ready Mixed Concrete), supra, and cases cited
therein.
28 Carpenters and Joiners of America, Local 1620 (David M. Fisher
Construction Company), 208 NLRB 94 (1974); Local Union No. 3,
International Brotherhood of Electrical Workers, AFL-CIO (New York
Telephone Company), 193 NLRB 758 (1971): International Brotherhood of
Electrical Workers, Local Union 640 (Brown Wholesale Electrical Company),
190 NLRB 456 (1971), enfd. 464 F.2d 545 (C.A. 9, 1972); Local 825,
International Union of Operating Engineers (Morin Erection Co., Inc.), 168
NLRB I (1967); and Local 456, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Sid Harvey Westchester
Corp), 142 NLRB 1409(1963).
1106
TEAMSTERS LOCAL NO. 83
For the reasons stated, it is concluded that Respondent
Union violated Section 8(bX4Xi) and (iiXB) of the Act by
inducing employees of Ashton to engage in work stoppag-
es, and by restraining and coercing said Employer, for an
object of forcing or requiring Ashton to cease doing
business with Allied.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with the operations of Ashton and Allied as
set forth in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that
Respondent be ordered to cease and desist therefrom, and
to take certain affirmative action necessary to effectuate
the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Ashton Company, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Allied Concrete, Inc., is a person engaged in an
industry affecting commerce within the meaning of Section
2(6) and (7) of the Act.
3. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
4. By inducing individuals employed by Ashton Com-
pany, Inc., to engage in a strike or refusal in the course of
their employment to perform services, with an object of
forcing Ashton to cease doing business with Allied
Conicrete, Inc., Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(bX4XiXB) and Section 2(6) and (7) of the Act.
5. By threatening, coercing, and restraining Ashton
Company, Inc., with an object of forcing said person to
cease doing business with Allied Concrete, Inc., Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8(bX4XiiXB) and Section 2(6) and (7)
of the Act.
[Recommended Order omitted from publication.]
1107