United Brotherhood Of Carpenters And Joiners Of America, Carpenters' District Council

National Labor Relations Board - Board Decisions

Dec 11, 1986

282 N.L.R.B. 422 (N.L.R.B. 1986)

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, Carpenters' District Council of West-
ern Pennsylvania, AFL-CIO and Bridges and
Co., Inc. Case 6-CC-1668
11 December 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 2 October 1986 Administrative Law Judge
Bernard Ries issued the attached decision. The Re-
spondent filed exceptions and a supporting brief
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge' s rulings, findings, and
conclusions and to adopt the recommended Order
as modified.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, United Brotherhood of Carpenters and
Joiners of America, Carpenters' District Council of
Western Pennsylvania, AFL-CIO, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
1. Delete paragraph 2(b).
2. Substitute the following for paragraph 2(c)
and reletter it as new paragraph 2(b).
"(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
1 The judge granted the General Counsel 's request that the Order in-
clude a visitatorial clause authorizing the Board , for compliance pur-
poses, to obtain discovery from the Respondent under the Federal Rules
of Civil Procedure under the supervision of the United States court of
appeals enforcing the order We have concluded that under the circum-
stances of this case such a clause is not warranted.
Further , contrary to the judge, we do not find that the litigation-costs-
remedy of Tiidee Products, 194 NLRB 1234 (1972), is appropriate in this
case. We shall modify the recommended Order accordingly.
Michael Poprik, Esq., for the General Counsel.
Ronald L. Gilardi, Esq. (Gilardi & Cooper), of Pittsburgh,
Pennsylvania, for the Respondent.
Deborah M. Brodsky, Esq. (Eckert Seamans, Cherin &
Mellott), of Pittsburgh, Pennsylvania, for the Charging
Party.
DECISION
BERNARD RTES , Administrative Law Judge. This case
was heard in Pittsburgh, Pennsylvania, on 13 August
1986.1 The complaint alleges that Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the Act by its picketing
on 29 April through 2 May and 29 May through 6 June.
Briefs have been received from all the parties. After
considering the testimony2 of the sole witness and re-
viewing the briefs, I reach the following conclusions.
1. FACTS
Ronald Wagner is a general superintendent for Bridges
and Co., Inc., whose duties include supervision of the
construction of the Greentree Commons office building
in Greentree, Pennsylvania. Bridges, which is not union-
ized, has some of its own employees on the site, includ-
ing carpenters and laborers, and has subcontracted some
work to various other firms whose employees are repre-
sented by labor organizations, among them Moore and
Morford, Inc., a structural steel erector; Ferry Electric
Co., an electrical contractor; Marshall Elevator, Inc., an
elevator installer; and M. C. Poynter, Inc., a waterproof-
ing contractor.
The building site, surrounded on three sides by fences,
has two gates about 60-feet apart for purposes of enter-
ing and exiting. Bridges moved onto the site in Decem-
ber 1985. On 9 April pickets appeared at the two gates,
bearing signs stating , "We Want The Public To Know
That Bridges and Company Are [sic] Undermining
Wages" and carrying the name "Carpenters District
Council." The complaint avers and the answer admits
that at all material times the Respondent has been en-
gaged in a labor dispute with Bridges but not with any
of its subcontractors. Officials of the District Council
were seen directing the picketing, which continued
throughout April.
Until 29 April, the two gates had no posted signs or
other markings; on that date, at 7 a.m., Bridges erected a
sign at each gate. At one gate, the sign read:
STOP-READ
This gate is reserved for all personnel, visitors and
suppliers of the contractors [sic] listed below:
BRIDGES & CO.
All others must use gate #2.
At gate 2, the sign read:
STOP-READ
This gate is to be used by personnel, visitors or sup-
pliers of the contractors [sic] listed below:
MOORE-MORFORD
All others must use gate #1.
1 The underlying charge was filed on 30 May and the complaint issued
on 3 July. All dates herein refer to 1986, except as indicated.
2 The General Counsel has filed a motion to correct certain errors in
the transcript The motion is unopposed, the errors are obvious, and the
motion is granted.
282 NLRB No. 56
CARPENTERS (BRIDGES & CO.)
In addition to Moore-Morford, as various unionized sub-
contractors began working-on the project, their names
were added to the sign at gate 2.
On the morning of 29 April, Bridges also sent a tele-
gram to the District Council (which received the mes-
sage that morning) advising in detail that "separate en-
trances have been established" at the site, gate I being
for "personnel visitors and suppliers of Bridges & Com-
pany Inc" and ' gate 2 "for all others." The telegram
ended, "If you wish to picket Bridges & Company Inc.
while they are working on this project do so only at gate
#1. Picketing any other location at this jobsite will be
considered secondary and all other appropriate legal
action will be taken." Letters were also sent to all sub-
contractors to advise them which gate to use.
Despite the foregoing, the picketing continued at gate
2 on and after 29 April. On 11 May, the Charging Party
filed a charge with the Region 'alleging that the Union
was violating Section 8(b)(4)(i) and (ii)(B). The following
clay, the pickets disappeared from gate 2 and remained at
gate 1, and on 12 May Bridges withdrew the charge. Ap-
parently, the pickets continued to appear only at gate 1
from 2 until 28 May. -
On 29 May four or five pickets appeared at both gates
1 and 2, carrying signs with' the same legend,as set out
before. On that day, when the unionized employees of
Ferry Electric and Poynter did not show up to work,
Wagner was told that the employees would not "cross
the picket line." Other union employees did, however,
cross the line. When Bridges established 'a new starting
time for the employees of the, subcontractors so that they
would not have to actually cross the picket line to get on
the site, the Poynter and Ferry employees returned to
work, probably on 1 or 2 June.3
On 30 May, Bridges filed another charge, but picket-
ing at gate 2 "continued for a few days after that, as I
recollect." Superintendent Wagner observed a' union
business representative at gate 2 during this period,
sometimes himself carrying a sign. When, on one occa-
sion, Superintendent Wagner said to the business agent
that the picketing was "supposed to be at gate one," he
replied, "Well, were picketing this gate now."
After the two gates were' first established, "[b]asically
all non-union contractors" used gate 1; Wagner testified
that these firms ("the heating man," "the plumber," the
"concrete people") were considered to be "suppliers" of
Bridges. Some of these subcontractors brought identifia-
ble trucks onto the site, some came in personal cars
through this gate. Wagner testified that since the gates
were first established the, employees and suppliers of and
visitors to Bridges have been "using, gate one." He fur-
ther said that "gate watchers" were assigned at the gates
to make sure that the right people entered the right gate;
"if they happened to approach the wrong gate, we just
sent them to the other one."
S Respondent's brief errs in stating that "[o]nly one contractor's em-
ployees stayed off the project and then only for several days."
423
11. DISCUSSION
In J. F. Hoff Electric Co. v NLRB, 642 F.2d 1266
(1980), the Court of Appeals for the District of Columbia
laid out the principles, applicable here (at 1269-1271):
It is settled that a union may picket a primary em-
ployer with which it has a labor dispute; indeed,
such picketing is expressly exempted from the pro-
hibitions contained in, section 8(b)(4). The Union
may not, however, picket a 'neutral employer in
order to force that employer to cease doing business
with the primary employer, Such picketing is "sec-
ondary" in that it constitutes an attempt to draw a
neutral party into the dispute between the union
and the primary employer, 'a dispute in which the
secondary employer has no direct interest, and
which it is powerless to resolve. On construction
sites, where many subcontractors work side by side
and are dependent upon each other, the attempt to
reconcile these principles and to accommodate both
the legitimate interest of the union in bringing eco-
nomic pressure to bear on the primary employer
through picketing, and the interests of neutral em-
ployers who wish not to be involved in the dispute,
has proved- especially difficult. In an attempt to
strike a reasonable balance among the competing in-
terests in this situation, certain rules and practices
have been evolved by the Board and approved by
the courts. In [Sailors Union (Moore Dry Dock), 92
NLRB 547], the Board announced several criteria
which, if met, raise a presumption that common
situs picketing is directed against the primary and
not a secondary employer. Those rules are:
[P]icketing of the premises of a secondary em-
ployer is primary if it meets-the following condi-
tions: (a) The picketing is strictly limited to times
when the sites of dispute is located on the sec-
ondary employer's premises; (b) at the time of the
picketing the primary employer is engaged in its
normal business at the sites; (c) the picketing -is
limited to places reasonably close to the location
of the sites; and (d) the picketing discloses clearly
that the dispute is with the primary employer.
Id., at 549 (footnotes omitted).
It has also been decided by the Board and the
courts that in order to isolate a labor dispute and to
minimize disruption of the entire work force in
common work situs situations, special gates may be
reserved for the subcontractor who is the object of
picketing. So long as the employees and suppliers of
that subcontractor are limited to that gate, the
union may not picket the "neutral gate" used by
others not involved in the dispute. A case involving
picketing at a plant owned by the primary employ-
er, Local 761, Int'1 Union of Electrical Workers v.
NLRB (General Electric), 366 U.S. 667, 81 S.Ct.
1285, 6 L.Ed.2d 592 (1961), established the legitima-
cy of a limitation of picketing to specially designat-
ed gates used by the primary object of the picket-
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. At the same time , the Court cautioned against
any "mechanically applied" tests that disregard the
fundamental criteria : the object of the picketing, if
it is to be legitimate, must be limited to disruption
of the primary employer's business . If, from all the
circumstances it can be determined that the object
of ' the picketing is inducement of secondary em-
ployees to strike, thus forcing their employer to
cease doing business with the primary employer, the
picketing is unlawful secondary activity.
Thus, so long as the Moore Dry Dock limitations
are met, a union may legitimately picket at a
common work situs in such a way that all employ-
ees, suppliers, and customers of the primary em-
ployer are reached by the pickets ; neutral employ-
ers may insulate themselves from the picketing only
if the reserved gate practice is faithfully observed.
I draw from all the facts the inescapable inference that
Respondent's picketing of the designated neutral gate be-
tween 29 April and 2 May and again between 29 May
and the early part of June was designed to ensnare in
Respondent's controversy with Bridges the neutral con-
tractors who used that gate . The posted signs were un-
mistakably clear; so was Bridges' telegram of 29 April
("If you wish to picket Bridges & Company Inc. while
they are working on this project do so at gate # 1. Pick-
eting any other location at this project will be considered
secondary. . . ."). Despite this well-articulated dichoto-
my, the Union continued to picket at the secondary gate
on 29 and 30 April and 1 May, and only after the Com-
pany had filed a charge did the picketing come into com-
pliance with the signs and the telegram . This detente ap-
parently continued until 29 May when picketing was re-
sumed at the neutral gate ; this renewal continued for "a
few days" even after Superintendent Wagner had re-
minded a union representative that he was supposed to
be picketing at gate 1 and even after the Charging Party
had filed another charge.
Respondent advances no meritorious rebuttal to this
strong inference of unlawful intent . The first substantive
argument in Respondent 's brief is that it was "difficult, if
not impossible , to distinguish the employees of the vari-
ous contractors"; something like this testimony was
given by Wagner when he was asked if "the contractors
who used Gate One, other than yourself, other than
Bridges, were . . . easily identifiable." This fact, howev-
er, has nothing to do with the right of the Union to
picket the neutral gate . And although it is then argued
that "further confusing the situation . . . a number of
contractors, not identified on any reserved gate signs,
routinely used the Bridges gate," that fact is also plainly
irrelevant to the issue. 4 The inference of unlawful intent
is not dissipated simply because some neutral employees
enter through a primary reserve gate; it is only when pri-
mary employees or their allies use a neutral reserve gate
that a union may be in a position to argue that the re-
4 I put aside the points that the Union offered no evidence whatsoever
to confirm that anyone was "confused " about anything or that the Union
had any basis for believing that individuals entering the neutral gate were
Bridges' employees or allies.
serve gate system has broken down, thus possibly permit-
ting a union to picket , without raising an adverse infer-
ence, at the no-longer-neutral "reserve gate." Electrical
Workers IBEW Local 369 (Kelley Electric), 216 NLRB
141, 143 (1975), enfd. 528 F.2d 317 (6th Cir. 1976). Car-
penters Local 639 (American Modulars), 203 NLRB 1112,
1118 (1973).
[E]ven if neutral employers and their employees
had used [the primary employer 's reserved gate]
during the picketing , that would not have excused
any violations of the `reserve' gate status of gates 1
and 2 of the neutral employers.
Finally, Respondent argues that "the picketing, even
when present at both gates , had little or no impact on
the job." Not only is this erroneous as a matter of fact,
but it is also immaterial ; the statute does not require a
showing of actual impact . For our purposes, it is enough
for Respondent to "induce or encourage [employees] to
engage in a strike ..." or to "threaten, coerce, or re-
strain" persons engaged in commerce, and picketing
may, as many cases have held, satisfy these statutory re-
quirements even absent the failure of the picketing to ac-
complish its intended objective . Electrical Workers IBEW
Local 501 v. NLRB, 756 F.2d 888, 892 (D.C. Cir. 1985);
Service Employees Local 254 (Janitronic, Inc.), 271 NLRB
750, 752 ( 1984); Teamsters Local 85 (Graybar Electric),
243 NLRB 665, 666 (1979).
I conclude, therefore, that Respondent's deliberate and
repeated violations - of the reserve gate system established
by the Charging Party prove the charged violations of
Section 8(b)(4)(i) and (ii)(B) of the Act.
CONCLUSIONS OF LAW
1. Bridges and Co., Inc . is an employer engaged in
commerce within the meaning of the Act, and Moore
and Morford, Inc., Marshall Elevator, Inc., Ferry Elec-
tric Co., and M.C. Poynter, Inc. are persons within the
meaning of the Act.
2. Respondent United Brotherhood of Carpenters and
Joiners of America, Carpenters , District Council of
Western Pennsylvania, AFL-CIO is a labor organization
within the meaning of the Act.
3. By, from 29 April to 1-29 May 1986 to the first few
days in June 1986, inducing and encouraging employees
of the above-named persons to engage in a refusal in the
course of their employment to perform services, and by
threatening the above-named persons, with an object of
forcing or requiring the above-named persons to cease
doing business with Bridges and Co., Inc ., Respondent
has engaged in unfair labor practices proscribed by Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act.
4. The foregoing unfair labor practices affect com-
merce within the meaning of the Act.
THE REMEDY
I shall recommend that Respondent be required to
cease and desist from the unfair labor practices found
and to take certain affirmative action necessary to effec-
tuate the policies of the Act . I further recommend that
CARPENTERS (BRIDGES & CO.) 425
the "visitatorial clause" requested by the General Coun-
sel be incorporated into the Order, so that the General
Counsel may have a tool for determining whether Re-
spondent has complied with the notice provision of this
Order.
Finally, I recommend that Respondent be taxed with
the costs incurred by the Board and the Charging Party
in conducting this litigation. Tiidee Products, 194 NLRB
1234 (1972); Heck's Inc.; 215 NLRB 765 (1974). There
were no "debatable" facts involved or defenses advanced
here. Respondent offered no evidence, and its few con-
tentions made on brief based on the uncontroverted testi-
mony of the single witness are easily classifiable as "friv-
olous."
It appears to me that this is precisely the sort of base-
less litigation, unnecessarily burdening the purses of the
Board and the Charging' Party, which is contemplated by
Tiidee'and Heck's. On facts uncontested by Respondent,
and under a body of law that afforded Respondent no
conceivable chance for exculpation, Respondent insisted
on a "day in ' court" that could have yielded only one
result. I would, accordingly, require Respondent to make
the Board and the Charging Party whole for the ex-
penses that they have been forced to incur in litigating
this case. Tiidee, supra at 1236-1237.5
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
ORDER
The Respondent, United Brotherhood of Carpenters
and Joiners of America,' Carpenters' District Council of
Western Pennsylvania, AFL-CIO, its officers, agents,
and representatives, shall
1. Cease and desist from engaging in, inducing, or en-
couraging individuals employed by Moore and Morford,
Inc., Marshall Elevator, Inc.,, Ferry Electric Co., M.C.
Poynter, Inc., and any person engaged in commerce or
in an industry affecting commerce, to engage in a strike
or a refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or
work on goods, articles, 'material, or commodities, or to
perform any services, and from threatening, coercing, or
restraining the above-named Employers when in either
case an object thereof is to force or require any such
neutral employer to cease and desist doing business with
Bridges and Co., Inc.
2. Take the following affirmative action necessary to
effectuate'the policies of the Act.
(a) Post, at its business offices and meeting halls copies
of 'the attached notice marked "Appendix."T Copies of
8 The Board might wish, however, to reconsider the Tiidee remedy of
"investigation" expense reimbursement, because that expense seemingly
cannot bg charged to "frivolous litigation."
6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the finding, conclusions, and recommended
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 pur-
Poses
7 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the-notice, on forms provided by the Regional Director
for Region 6, after being signed by Respondent's author-
ized representative, shall be posted by Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to members are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(b) Make whole the Board and the Charging Party for
the reasonable expenses incurred by them in the investi-
gation, preparation, presentation, and conduct of this
proceeding before the Board, including reasonable coun-
sel fees, salaries , witness fees, transcript costs, printing
and stenographic costs, travel expenses, per diem ex-
penditures, and other reasonable costs and expenses.
(c) Notify the Regional Director in writing within, 20
days from the date of this Order what steps Respondent
has taken to comply. For the purpose of determining or
securing compliance with this Order, the Board, or any
of its duly authorized representatives, may obtain discov-
ery from Respondent, its officers, agents,, and representa-
tives, or any other person having knowledge concerning
any compliance matter, in the manner provided by the
Federal Rules of Civil Procedure: Such discovery shall
be conducted under the supervision of the United States
court of appeals enforcing this Order and may be had on
any matter reasonably ' related to compliance with this
Order, as enforced by the court.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten or coerce Moore and Morford,
Inc., Ferry Electric Co., Marshall Elevator, Inc., M.C.
Poynter, Inc., or any other neutral employer, and WE
WILL NOT encourage employees of such employers, to
engage in a strike, work stoppage, slowdown, or other
such job action, where the purpose of any such conduct
is to disrupt the business relationships between Bridges
and Co., Inc. and such neutral employers or in order to
cause such neutral employers to cease doing business
with Bridges and Co., Inc.
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA , CARPENTERS'
DISTRICT COUNCIL OF WESTERN PENNSYL-
VANIA, AFL-CIO