Gulf Coast Constuction Co.

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters District Council of Sabine Area and Vi- cinity and Carpernters Local 753 (Gulf Coast Construction Company) and H. D. Phelan. Case 23-CC-746 March 28, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On August 21, 1979, Administrative Law Judge James M. Kennedy issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and sup- porting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tachedDecision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. I The General Counsel and the Charging Party have excepted to cer- tain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In par. 12 of the "Analysis and Conclusions" section of his Decision, the Administrative Law Judge incorrectly stated that "no neutral subcon- tractors appeared at the site until July 13." It appears that the Adminis- trative Law Judge intended to refer to the date of March 13, rather than July 13. In fact, the record reveals, and the Administrative Law Judge found, that employees of Gold Crest Electric Company, a neutral sub- contractor, began work at the site on March 12 and that an unnamed roofer worked at the site during the weekend of March 10--11. This inad- vertent error in the Administrative Law Judge's Decision does not affect his conclusions or our adoption thereof. The General Counsel and the Charging Party have ao excepted to the Administrative Law Judge's finding that the testimony of Holliday, vice president of H & H Design, Inc. (the general contractor and Party in Interest herein), regarding his attempts to schedule subcontractors was uncorroborated hearsay which should not be given significant weight. While it is correct, as argued by the General Counsel, that Holliday's tes- timony regarding his own statements made to various subcontrators was not hearsay, it is also clear that these statements, standing alone, were merely requests that the subcontractors schedule work at the jobsite. Such requests, by themselves, are not probative of the actual responses made by the subcontractors as to when and if they could schedule the work. Holliday's testimony regarding the responses of the various sub- contractors, however, was hearsay, and we agree with the Administrative Law Judge's analysis of the weight to be given to such self-serving hear- say testimony which was not corroborated, either by testimony from the subcontractors involved in the conversations or by any documentary evi- dence. Further, o inference as to motive can be drawn from the subcon- tractors' failure to actually begin work at the jobsite until March 10, 1979, since they may have had other jobs to finish before they could schedule work for this project. Therefore, the evidence resented by the General Counsel and the Charging Party regarding the supposed refusals of the subcontractors to schedule work at the jobsite and the reasons for such refusals is not sufficient to meet their burden of proof on this issue Chairman Fanning concurs in the dismissal He notes particularly the absence of employees of any employer other than the primary employer 248 NLRB No. 111 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. at the time of the picketing. See Local 25. International Brotherhood of Electrical Workers. AFL-CIO (Eugene ovine. Inc.), 201 NLRB 531 (1973). DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge: This case was heard before me at Beaumont, Texas, on May 3, 19 7 9 ,t pursuant to a complaint issued by the Regional Director for the National Labor Relations Board for Region 23 on March 21, and which is based on an amended charge filed by H. D. Phelan (herein called Phelan) by his attorney Brian S. Greig on March 9. The complaint alleges that Carpenters District Council of Sabine Area and Vicinity and Carpenters Local 753 (herein called Respondents) have engaged in certain vio- lations of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended (herein called the Act). Issues Whether or not Respondents' picketing of a residential construction site during February and March was at a time when neutral persons were present at the site, and, if so, whether or not such picketing had an object of en- meshing those neutrals in Respondents' primary dispute with the framing contractor, Doug Kuritz d/b/a Gulf Coast Construction Company. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of all parties. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. INTERSTATE COMMERCE Respondents admit H & H Design, Inc., an alleged neutral in this dispute, is a Texas corporation engaged in the business of designing and constructing residential buildings and having an office located in Beaumont, Texas. They further admit that during the past year, in the course and conduct of its business, H & H Design, Inc., has purchased and received goods and materials from suppliers outside Texas for use on the project in question valued in excess of 50,000. Accordingly, they admit, and I find, that H & H Design, Inc., is engaged in i All dates herein refer to 1979, unless otherwise indicated. CARPENTERS DISTRICT COUNCIL OF SABINE AREA. LOCAL 753 803 commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondents admit, and I find, that they are labor or- ganizations within the meaning of Section 2(5) of the Act. II111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting and the Participants The dispute under scrutiny involves the construction of a four-plex residence in a Beaumont, Texas, subdivi- sion known as Willow Creek I. The building in question is located in that city on the southeast corner of the in- tersection of Major Drive and Willow Bend Drive. Willow Bend Drive is a newly constructed road which serves as the principal access to the entire subdivision, consisting of approximately 38 lots. Unlike many subdivi- sions, however, the construction in Willow Creek I is being performed by different developers and different contractors. At the time of this dispute, February and March, the lot in question was owned by one of those developers, Phelan Investments, a limited partnership, one of whose partners is the Charging Party, Phelan. Phelan Investments has no collective-bargaining agree- ment with any labor union and engages in no construc- tion work itself. It has an office in Beaumont, Texas. At this particular site, which for convenience shall be called the Phelan project, Phelan Investments had con- tracted with H & H Design, Inc., to serve as the general contractor. As previously noted, H & H Design, designs and constructs residences. Its vice President is John Hol- liday. H & H Design, like Phelan Investments, had no employees performing construction work at the site, nor does it have any collective-bargaining relationship with any labor organizations. It subcontracted, or intended to subcontract, all construction work at the Phelan project to various subcontractors. During the course of this dis- pute, the only individuals from either Phelan Investments or H & H Design who visited the Phelan project were Phelan and Holliday who conducted inspections to de- termine the speed and quality of the work being per- formed by the only subcontractor then actually working at the site, Doug Kuritz, d/b/a Gulf Coast Construction Company. For several years Gulf Coast has had a collective-bar- gaining relationship with Respondent District Council. H & H Design hired Gulf Coast as a subcontractor to per- form the necessary framing work on this two-story build- ing. Between February and early March, Gulf Coast as- signed a number of its carpentry employees, including Kuritz himself, to erect the framing and to install the ex- terior wallboard and window frames. B. The Primary Dispute and the Picketing Gulf Coast's Kuritz testified that his firm began work at the Phelan project on January 31. On that date Bill Rice, Respondent Local 753's assistant business agent, visited him there. Rice informed Kuritz that Gulf Coast was delinquent on fringe benefit payments for certain of his employees who were not union members and de- manded payment on their behalf. Kuritz told Rice he had no intention of paying those moneys. Approximately 3 days later, two individuals appeared at the Phelan jobsite carrying picket signs which said: CARPENTER DISTRICT COUNCIL OF SABINE AREA AND VICINITY AFL-CIO PROTESTING SUBSTANDARD CONDITIONS ON THIS JOB At no time did the picket signs ever specifically name Kuritz or Gulf Coast Construction Company as the pri- mary disputant.2 On February 16, attorneys for Respondent District Council wrote Kuritz a letter threatening to sue or to take other action unless within 15 days Gulf Coast had made arrangements to pay the fringe benefit arrearages demanded by Rice. The letter notified Kuritz that he had 15 days to file his payments with John Wallace, the ex- ecutive secretary of Respondent District Council. Ap- proximately 10 days later Kuritz contacted Wallace and agreed to make the payments in two installments. The first payment was not made until March 12; the second on March 19. In the meantime, throughout the remainder of Febru- ary and at least until March 8 the picketing continued. It was always conducted by the same two individuals, Robert Priest and G. C. Watkins. Both are retired union members in their 70's. On March 8 Respondent District Council began picketing a second project which Gulf Coast had begun, known as the Messina project. That site is also located on Willow Bend Drive, five lots to the east and on the north side of the street. No conten- tion has been made that Respondents' picketing of the Messina job was in any way unlawful. C. The Telegrams Kuritz testified that by March I his firm had complet- ed the framing and related work on the Phelan job. However, he admitted that there remained approximately I day's work, the installation of four bay windows. The material for those windows remained stored at the Phelan site. It appears, therefore, that Gulf Coast, except for the bay window work, had left the Phelan job to go 2 At approximately the same time, early February, Phelan caused a single sign to be posted at the dirt alley bordering the rear of the project The sign, written in red paint on bare plywood, simply said. "Entrance Kuritz Con." It was placed on Major Drive next to a gate which consist- ed of two posts connected by a steel bar, but which did not actually block access to the alley The alley itself disappeared several hundred feet from its beginning. Parked on this dirt road was a truck trailer be- longing to Phelan Investments. The trailer was relatively near the Phelan project, although it was used to store material used by various contrac- tors working on other Phelan Investments projects within the subdivi- sion. The record is not clear regarding what kinds of materials or sup- plies were actually stored in the trailer. The lumber utilized by Gulf Coast on the Phelan project was purchased by H & H Design and stored openly on that lot, but the delivery occurred before Gulf Coast com- menced work. The sign which Phelan had caused to be posted in front of the dirt alley was never honored in any way by Gulf Coast. At all times during Gulf Coast's presence at the project, Kuritz and his crew entered through the front of the lot facing Willow Bend Drive 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to work on the Messina job as of the first week in March. On March 6 two telegrams were sent. One by Phelan and one by Attorney Greig representing Phelan. Phelan's wire was addressed to Respondent Local 753 and Greig's wire to Respondent District Council. Copies apparently were also sent to Gulf Coast. In essence, each wire, though worded differently (and in Phelan's case perhaps inartfully), advised that Gulf Coast employees, subcon- tractors, suppliers, and materialmen were to be allowed on the Phelan job only on Saturdays between 8 a.m. and 5 p.m. Greig's wire went on to say that Gulf Coast would not be present at any other time and asserted that picketing at any other time at that site would be illegal. The parties stipulated that each addressee received his telegram on March 7-the District Council at 10 a.m. and Local 753 at 12:29 p.m. Until the receipt of those wires, Priest and Watkins had continuously picketed the project by patroling the sidewalk on Willow BEend Drive between Major Drive and the east property line. The picketing occurred each weekday between 7:30 a.m. and 1 p.m. Wallace testified that upon receipt of the telegram he told Rice to check it out and, if Gulf Coast was abiding by the terms of the telegram, to remove the pickets.3 Rice, pursuant to Wallace's directive, notified the pickets by telephone that afternoon that they were to cease pick- eting the Phelan project but should return to the site each day until directed otherwise in order to observe whether or not any carpentry work was being done and to report any such activity to him. D. Testimony Regarding March 8-13 Picket Conduct Both Priest and Watkins testified that on March 8, 9, 12, and 13 (March 10-11 was the weekend) they sat in their cars which were each parked on Major Drive, straddling the entrance to Willow Bend Drive, and ob- served the project.' They say they had picket signs with them but the signs were each locked in their respective automobile trunks. Their testimony is corroborated by Rice who visited them, and by Stanley Tyler, one of the individuals who had on March 8 begun picketing the 3 Wallace's testimony is somewhat confused here, as he believed the telegram also related to a reserve gate matter and contained a reference to Gulf Coast's probable presence on Sundays as well as Saturdays. His confusion is understandable as he no doubt later learned that, on March 6, Phelan had attempted to improve the reserve gate situation, discussed above in fn. 2, by posting two more signs on the property, one on Willow Bend Drive in front of the building and the second, the primary gate, below the plywood sign at the alley entrance on Major Drive. When Gulf Coast returned to the site 10 or 11 days later to install the bay windows, it did not honor the signs, entering through the front on Willow Bend Drive. Rice testified that, on March 8, he went to check on Priest and Wat- kins to see if they were serving as observers rather than pickets. He prob- ably observed Phelan's new signs at that time. Moreover, the pickets had also seen them. Undoubtedly that information was relayed to Wallace in some fashion. Furthermore, Wallace had reason to believe that Gulf Coast had not honored the terms of the telegram because lie had a report from Rice, corroborated by a carpenter named James Hill, that on Friday, March 16, Gulf Coast had entered the Phelan site to complete the bay window work. I attach no significance to Wallace's confusion re- garding his recollection of the exact terms of the telegram. 4 Priest could see the building; Watkins could not because his view was blocked by a brick wall. Messina project six lots up the street from their location on Major Drive. All of these individuals testified that at no time did anyone patrol the Phelan project. They say the picket signs were never removed from the auto- mobile trunks. However, Holliday testified that on March 8 he ob- served Priest and Watkins sitting in their cars with picket signs propped up against the vehicles. Phelan said he saw them patroling on March 9 and on March 12 saw them in their cars with signs propped against them. Kuritz tes- tified that during these days a picket's car was parked in the middle of Willow Bend Drive on an unfinished bou- levard or esplanade immediately in front of the Phelan project. He said that the vehicle had a picket sign propped up against it. Yet, neither Phelan nor Holliday corroborated him with regard to the location of that ve- hicle. Moreover, Kuritz would not corroborate Phelan's testimony that the pickets patroled the Phelan project on March 9. Picket Robert Priest testified that on March 9 an indi- vidual driving a Gold Crest Electric Company truck stopped at the Phelan project. Seeing Priest parked on Major Drive across Willow Bend Drive, he went over and asked Priest if there was "still a picket on the place." Priest said he told him no, there was not, whereupon the man proceeded to unload his truck and go to work. As- sistant Business Agent Rice also testified that on March 9 he observed Gold Crest Electric there at approximately 9 a.m. However, the testimony of Rice and Priest is somewhat inconsistent. Rice said he observed Gold Crest's presence at 9 a.m. Priest said Rice had come and gone before the Gold Crest employee appeared and that he waited a day or two before informing Rice of Gold Crest's arrival. Gold Crest's office manager, Margaret Martindale, presented company records, including timesheets and billing charges, tending to show that Gold Crest did not work at the Phelan project that day. All of the foregoing evidence was adduced with the purpose of showing whether the picketing did or did not cease on March 8. The Gold Crest incident was present- ed by Respondents to show that because Gold Crest's employees worked on March 9, it was unlikely that any picketing was in progress. The General Counsel respond- ed with Martindale's testimony to the effect that it was unlikely that Gold Crest was present at the site that day. However, Gold Crest's records do show that, on March 12, it had assigned two employees to perform work at the Phelan project. If that were so, it may simply be that Priest was mistaken about the day he ob- served them for he was present on March 12. That, how- ever, does not explain Rice's testimony that he observed them working on March 9. Even so, if Gold Crest were working at the Phelan project on March 12, it tends to show, though hardly conclusively, that no picketing oc- curred on that day at least. In analyzing the testimony, it seems to me that Phelan and Kuritz had a tendency to exaggerate on this particu- lar point. Phelan willingly gave an affidavit to the Re- gional Office stating that picketing was occurring on March 8, although he could not have known if it was true except through hearsay evidence as he was in Hous- CARPENTERS DISTRICT COUNCIL OF SABINE AREA, LOCAL 753 805 ton at the time. He admitted as much. Indeed, the suppli- er of his information, Holliday, simply said that on that date the pickets "were there." Holliday said, however, that was the day the pickets ceased patroling and began sitting in a car with a picket sign propped against it. One other matter should be noted here. Holliday first testified before Phelan but did not discuss the March 8- 12 picketing. After Kuritz and Phelan testified about that period of picketing in Holliday's presence, Holliday was recalled and testified as related above. He had heard their testimony on that time period period. Frankly, I found the testimony of all the witnesses on this point subject to doubt. I do, however, believe the testimony of Priest and Watkins to the effect that they never removed the picket signs from their vehicle trunks on those days. They are corroborated by Tyler. Howev- er, I am not convinced that Rice and Priest are accurate about the date Gold Crest began work at the project. Since Gold Crest's records show that work began on the project on March 12, the last day Priest and Watkins were at the site, I do not find it to be particularly persua- sive regarding the absence of pickets on the previous days. Yet, both Priest and Watkins impressed me as honest,5 although suffering from lack of good recall re- garding dates. I recognize that they, as well as Tyler, are longtime union members and their loyalties no doubt lie with the Unions. In that sense they may be biased. How- ever, the credibility of Phelan, Holliday, and Kuritz suf- fers from a similar bias, that of pecuniary interest. More- over, Holliday had the opportunity to tailor his testimo- ny, though it is not clear that he did. On balance, there- fore, I credit the pickets' testimony to the effect that they never removed their picket signs from their vehicle trunks between March 8 and 12. E. Hollidays Testimony Regarding Other Subcontractors Holliday testified that, by February 20, Gulf Coast had proceeded far enough with the framing to justify calling additional subcontractors to the site. He said on Febru- ary 25 he telephoned three subcontractors to schedule them for work. These were Quinto Air Conditioning, Knowles Plumbing, and Gold Crest Electric. He said each of those firms, through either the owner or a re- sponsible employee, told him they would not cross the picket line but agreed to send employees to the site after 1 p.m. when the pickets were gone. None of these three actually sent employees to work after February 25, but Holliday said a roofer, James Lewis, came about March 1; he left after nailing on "about ten squares." According to Holliday, a second roofer was later engaged who worked on the weekend of March 10-11. No official of Quinton, Knowles, or Gold Crest was called to testify about Holliday's assertions; neither was roofer Lewis. The only evidence to the effect that the first three contractors would not cross the picket line is from Holliday, for Phelan's testimony is derived from I Both men were quite deaf and had difficulty understanding the ques- tions put to them. Their testimony, though not always responsive, should not be regarded as evasive; they simply could not fully hear the ques- tions. what Holliday had told him. Holliday's testimony is not corroborated in any way. Furthermore, there is no evidence whatsoever regard- ing the reason Lewis left the job on March 1. He appar- ently arrived after the pickets had gone for the day, stayed only a few minutes, and left. He was not called to testify regarding his reasons for doing that. While it is possible that Lewis may have left because he learned of the pickets, it is not clear that he did. He was not one of the individuals with whom Holliday allegedly made an arrangement to work after I p.m. Indeed, even Holliday did not testify that the picketing was the reason Lewis left. Frankly, I doubt that Lewis was even present that day as Holliday's testimony on the Lewis matter was generally vague. The only other witness to testify about roofers was Assistant Business Agent Rice who says that on March 12 at 9 a.m. he observed both painters and roofers at the site. IV. ANALYSIS ANI) CONCLUSIONS As has been often repeated, Section 8(b)(4)(B) prohib- its a labor union from picketing a primary disputant where an oject of that picketing is to enmesh a neutral person in the dispute. The problem is particularly acute in situations involving a common situs-a place where more than one person is engaged in its normal business. Construction sites are often common situs because of the practice in the construction industry of assigning certain portions of the work to different contractors. Nonethe- less, merely because a labor dispute occurs at a construc- tion site, that fact does not decide the question of wheth- er or not the dispute is located at a common situs. If it is, of course, then the guidelines set forth in Moore Dry Dock6 apply. If the Union follows those guidelines a re- buttable presumption is created to the effect that the picketing is primary in intent. Thus, in a common situs circumstance, where a union pickets a common situs but limits its picketing to times when the primary employer's employees are actually present, pickets reasonally close to the primary employer's workers, clearly names the person with whom it has a primary dispute, and, the pri- mary employer's workers are engaged in the company's normal business, the picketing is presumptively lawful. However, these factors are used as a test for lawfulness only where there is in fact a common situs. In analyzing the facts set forth above, I am persuaded that the General Counsel has failed to prove that the Phelan project constituted a common situs. In this regard, I rely principally upon the Board's decision in Los Angeles Building & Construction Trades Council, AFL-CIO (Silver View Associates), 216 NLRB 307 (1975). In that case the union had a primary dispute with a part- nership, Silver View Associates, which called itself an "owner-builder." As owner-builder it was both the pro- ject owner and the general contractor, coordinating the various phases of construction by assigning work to dif- ferent subcontractors. It engaged in no construction work of its own and had no employees at the site, al- though it did have a storage trailer at the project. Its 8 Sailors Union of the Pacific. AFL (Moore Dry Dock Co.). 92 NLRB 547 (1950). 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives visited the job approximately 16 hours per week; all of its actual work was done at its office which was located elsewhere. The union picketed the construction project which was actually being built by the various subcontractors. Their normal business was construction at construction sites. The Board held that the primary disputant was not present at the construction site and, conversely, the only persons who were present were neutral subcontractors. In that circumstance, the Board found the union's picketing had an object of en- meshing the subcontractors in its dispute with Silver View, the owner-builder. There are only two differences between the instant dis- pute and the one set forth in Silver View. First, the prima- ry disputant was not the project owner or the general contractor; it was the framing subcontractor, Gulf Coast. Second, in Silver View the functions of owner and gener- al contractor were combined in one legal entity-the Silver View partnership; here, those functions were di- vided between the owner, Phelan Investments, and the general contractor, H & H Design. Neither of these fac- tual differences, in my opinion, justifies the conclusion that the Phelan project was a common situs. In Silver View, the Board held that the owner-builder was not present at the construction site because its normal business was not construction, but development and coordination of construction. Those functions were carried out at its office located elsewhere even though its representative was physically at the construction site 16 hours per week. While the record does not show the total number of hours per week spent at this site by Hol- liday and Phelan, they testified they were there only pe- riodically each day. Certainly they engaged in no con- struction work while visiting. They merely oversaw the work as it progressed in order to carry out their respec- tive functions as project coordinator and interested owner; neither did they have employees at the site (indeed there is no record evidence that either H & H Design or Phelan Investments even employ construction workers). I conclude, therefore, that the normal business of H & H Design and Phelan Investments, as dicated by Silver View, is conducted at places other than construc- tion sites.7 It follows, therefore, that neither H & H Design nor Phelan Investments was "present" at the Phelan project and that the project was not a common situs as that term is generally understood. Moreover, I see nothing in Silver View, or the cases cited by the General Counsel, which suggests that the test for "presence" should be different for a neutral from that for a primary. In Silver View, the primary disputant was the owner-builder; the neutrals were his subcontrac- tors. Here the primary disputant is the subcontractor, Gulf Coast, while the alleged neutrals are the general contractor and project owner. In both circumstances the project coordinator and owner perform their normal businesses at places other than at the construction site. The duties of each are the same as their counterpart in I The owner-builder was not "present" at the site in Slver View despite the physical presence of his storage trailer. As noted in fn. 2, supra, owner Phelan Investments also had a similar storage van near this pro- ject. Following Silver View, I conclude the location of that van is not suf- ficient to make Phelan present at the site for common sitls purposes. Silver View. I can see, therefore, no valid reason to con- clude that the general contractor and owner here are any more "present" at the site than in Silver View. The test for "presence" should be the same whether the putative neutral is a subcontractor or an owner/general contrac- tor whose normal business is conducted offsite. As the Phelan project was not a common situs, at least until February 25, Respondents were under no obligation to comply with the Moore Dry Dock guidelines and the fact that they omitted Gulf Coast's name from the picket signs is immaterial to the resolution of this dispute. The General Counsel argues, however, that even if no neutrals were present from the first week in February to approximately February 25 that there is nonetheless a violation of the Act because of the continued picketing beyond that date as H & H Design had then arranged for other subcontractors to begin work at the project. I would not disagree with the General Counsel if it had been credibly shown that beginning on February 25, or shortly thereafter, H & H Design had actually scheduled subcontractors to do the work. However, there is no firm evidence that such was the case. It is true that both Phelan (who got his information from Holliday) and Holliday testified that after February 25 attempts were made to schedule at least three contractors for work: Quinton Air Conditioning, Knowles Plumbing Company, and Gold Crest Electric Company. Holliday gave testi- mony to the effect that representatives of each of those companies told him they would not cross the picket line. 8 Holliday could point to no written contracts or work schedules showing that these contractors had actu- ally agreed to perform work during this time. Moreover, Holliday's testimony is clearly hearsay; no contractor was called to testify regarding whether or not it intended to perform work pursuant to an agreement with H & H Design during that time. While there are circumstances which permit reliance on hearsay evidence, the Board has said that hearsay should be given such weight as its inherent quality justi- fies. Alvin J. Bart and Co., Inc., 236 NLRB 242 (1978), and cases cited therein. Certainly the receipt of such hearsay has the advantage of allowing flexibility in Board proceedings. Nonetheless, as the Supreme Court stated in Consolidated Edison Co. of New York, Inc. v. N.L.R.B., 305 U.S. 197, 230 (1938), "this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evi- dence." Thus, while the evidence given by Holliday was ad- missible, it does not follow that it should be given signifi- cant weight for it is uncorroborated hearsay. Certainly there was ample opportunity for the General Counsel to have corroborated it. First, had documentation existed showing persuasively that neutrals had contracted to per- form the work during the period in question or had been scheduled to perform the work in question I could also a The Gold Crest representative to whom Holliday spoke does not appear to be a principal in that company, but only a foreman. There is some question in my mind whether that individual actually spoke for that company's principals. CARPENTERS DISTRICT COUNCIL OF SABINE AREA, LOCAL 753 807 rely on it. However, no such documentation was ad- duced. Second, the General Counsel could have easily called the subcontractors and I could have determined whether or not their testimony would have corroborated Holliday. See N.L.R.B. v. Process & Pollution Control Co., 588 F.2d 786, 791 (10th Cir. 1978). Thus, under all the circumstances, I conclude that Holliday's testimony is only unsubstantiated hearsay having insufficient proba- tive value to be relied on to determine whether or not the Phelan project became a common situs after Febru- ary 25. Respondents contend that the picketing ceased after March 7; the General Counsel and the Charging Party contend that, although it changed its character on March 8, it nonetheless continued. They point to the testimony of their witnesses Phelan, Holliday, and Kuritz to the effect that pickets, though reducing the amount of pa- troling, continued to patrol and, when they did not patrol, placed picket signs on the sides of their vehicles. Both contentions are flatly denied by the pickets them- selves as well as by a fellow picket who was patroling a nearby site. Nonetheless, it does not appear that anyone was at the site between March I and 7. Even the prima- ry, Gulf Coast, had principally left (although it had yet to install the four bay windows) and had gone to the Messina site where it was being picketed by Stanley Tyler and another. No other contractors were at the site during that time. Thus, even assuming that Respondents continued to picket from March 1, when Gulf Coast left, to March 7, there is no reliable evidence that any neutral was present. As previously found, neither Phelan Invest- ments nor H & H Design was present. There is only Holliday's previously doubted testimony that a roofer named Lewis came for a few minutes 1 day and then left. The date of this occurrence is not clear; Lewis ap- parently came and left at a time when the pickets had gone. Even if I were to credit Holliday here, there is no reason to conclude that the picketing had anything to do with Lewis' departure. Accordingly, I conclude that the General Counsel has failed to show any violation of Sec- tion 8(b)(4)(B) between March I and March 7. The last time period involved is March 8 through 13, which was preceded by the Phelan and Greig telegrams. Again, there is no evidence that on any day except for March 13 any neutrals were present at the site. Thus, even if the pickets patroled or placed signs on their cars, there were no neutrals to be enmeshed. In any event, I credit the pickets' version to the effect that they never patroled after March 7 and that of all times thereafter they locked the picket signs in the trunks of their cars. That conduct is consistent with the telegraphic demands and Wallace's directive to Rice. Certainly there is no evidence corroborating Kuritz' testimony that one of the cars was ever parked on the esplanade in front of the Phelan project. Moreover, the cars were both located in places which would be unlikely to be effective for pick- eting. As noted, the cars were parked on Major Drive straddling the entrance to Willow Bend Drive. Priest's car was on the north side and Watkins' on the south. Priest's vehicle was partially hidden by a decorative brick wall paralleling Major Drive. It was not even adja- cent to the site. And, while Watkins' car was adjacent to the site, it was totally shielded from the project by a similar wall. Neither was near an access to the site. In that circumstance it is unlikely that they would have placed picket signs on their respective automobiles be- cause no person entering the Phelan project could see them as they entered. It is clear that no neutral subcontractors appeared at the site until July 13. It is undisputed that they did not picket that day but merely observed. It was obvious by then that Gulf Coast was no longer at the site. Besides, the day before, Kuritz had begun paying the fringe bene- fit arrearages and the decision had been made to cease observing and/or picketing" Gulf Coast Construction altogether. Therefore, I find that the evidence presented by the General Counsel in support of his contention that Re- spondents violated Section 8(b)(4)(B) of the Act fails to support that conclusion. Based on the foregoing findings of fact, and the record as a whole, I hereby make the following: CONCLUSIONS OF LAW 1. H & H Design, Inc., is an employer within the meaning of Section 2(2) of the Act, engaged in com- merce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondents are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondents have not engaged in the unfair labor practices alleged in the complaint. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 It is hereby ordered that the complaint be dismissed in its entirety. 9 Such a location would have been ideal to picket the entire develop- ment, but in view of Respondents' previous method of picketing I do not believe they had such an intent. They were only interested in Gulf Coast paying its arrearage. They were not interested in shutting down the entire development over a matter as small as that. 10 Respondents were still picketing the Messina site on March 12. t The original theory of the complaint, that Respondents failed to ob- serve properly posted reserve gates, was never seriously advanced. Kuritz admitted he never honored any reserve gate. Indeed, it appears he had left the site on March 1, well before the reserve gate was even posted. Even so, reserve gate analysis, like Moore Dry Dock analysis, re- quires a finding that the dispute is occurring at a common situs. Aside from Gulf Coast's noncompliance, since there was no common situs here, it follows that there was no violation of reserve gate rules. 1S In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.