Local 18, Operating Engineers

LOCAL 18. OPERATING ENGINEERS Local 18, International Union of Operating Engineers, AFL-CIO and Dodge-Ireland, Inc. Case 9 CC- 915 May 18, 1978 DECISION AND ORDER BY CHIAIRMAN FANNING ANt) MFMBI:RS JEfNKINS ANt) Pi:NI .I.I O On January 10, 1978, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the Charging Party filed a limited cross-exception and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' 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 Respondent, Local 18, International Union of Operating Engineers, AFL CIO, its offi- cers, agents, and representatives, shall take the action set forth in the said recommended Order. I Relsing in part on lfississippi Gulf (Coast Building and ('onsirution Trades Council. ei al (Ro C(. 4nderson. Jr, Inc ,. 222 NLRB 649 ( 1976i the Administrative Law Judge found that the picketing at gates reserved for neuiral emplohers here was in violation of Sec 8ihb)4t(i) and (ii)ub) ,of the Act Chairman Fanning. who dissented in 'Misitssipp (Gu/l (Coa.t, finds that case distinguishable. and agrees with the resu!l reached bh the Administra- tive t.aw Judge. In itsirsissppi Gulf Coasr. employees of the prilnar, em- ployer. including its vice president general manager. disregarded the reserve gate system which had been established. and used the gates which had been set aside for the emploces and suppliers of the neutral emplohsers on num- erous occasions. In the instant case. the evilence shows that the primary and neutral employers toiok esers reasonahle precaution to assure the inleg- rity oef he resere gate system, and the few inltances of misuse olf . neutral gate by suppliers of the primar ermplo.er sere not sufficient to justify Respondent's picketing of the neutral gates In addition, in finding the vio- lation herein. Chairman Fanning places no reliance on the finding of the majority in Local Union N, 369. Inllernational Brotherhood s, Elec its.al 4'rkers, '. . C(10 (Ciarst-Recereur (Consiructrin C'omripian, s /t i. 229 Nl.RB 68 (1977). in which he dissented DECISION STAITEMENT OF THE CASE DAVID S DAVIDSON, Administrative Law Judge: The charge in this case was filed on August 4, 1977, and the complaint issued on August 22. 1977. The complaint alleg- es that in furtherance of a primary dispute with Jack Conie Sons, Inc., Respondent, sometimes referred to herein as the Union, picketed at gates to a common situs which were reserved for the employees and suppliers of Dodge-Ireland and employers other than Conie, thereby violating Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended. Respondent denies the commission of any' un- fair labor practices. A hearing was held before me on September 27, 1977, at Columbus, Ohio. At the close of the hearing the parties waived oral argument. All parties have filed briefs. Upon the entire record in this case and from my obser- vation of the witnesses I make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYERS INVOLVED Dodge-Ireland, Inc., and Jack Conie Sons, Inc., are Co- lumbus. Ohio. based contractors in the building and con- struction industry. During a representative 12-month pe- riod each had direct inflow in interstate commerce in excess of $50,000. I find that each is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. I1 THE L ABOR ORGANIZATION INVOLVED Local 18, International Union of Operating Engineers, AFL.-CIO, is a labor organization within the meaning of Section 2(5) of the Act. iI1 tHE AtI. GED UNFAIR LABOR PRACTICES A. The Facts I. Introduction The work involved in this proceeding was performed on a tract of approximately 1,600 acres in Franklin and Dela- ware counties. Ohio, being developed for sale by a limited partnership known as Muirfield Limited. During July' and August 1977,1 Conie, Dodge-Ireland, Dublin Building Systems. Columbus and Southern Ohio Electric Company, The Ohio Bell Telephone Company, and various subcontractors were engaged in work on sev- eral projects within the overall confines of the Muirfield Limited tract. Conie and Dodge-Ireland both employed heavy equip- ment operators on the tract who were covered by contracts All dates below were in i977 unless otherwise indicated. 236 NLRB No. 36 199 DECISIONS OF NATIONAl I.ABOR RELATIONS BOARD with the Union. Conie's agreement had expired on April 30, and the parties continued negotiations until early July. On July 13 Conie's operators did not appear for work, and Conie continued to work with men who were available at the jobsite. As described in more detail below, on the fol- lowing morning the Union started to picket at the jobsite. 2. The work being performed at the Muirfield Limited jobsite All work involved in this proceeding was located within what may be roughly described as a rectangle bounded by Glick Road on the north, Dublin-Bellepoint Road on the east, Brand Road on the south, and Avery Road on the west. The rectangle is bisected from north to south by Muirfield Drive which intersects Glick Road on the north and Brand Road on the south. The distance between Glick Road and Brand Road along Muirfield Drive is approxi- mately a mile and three quarters. A portion of the tract lying in the southeast quadrant known as Phase I had been developed into residential lots of which a number had been sold, and there were 90 occu- pied residences in Phase I as of July and August. This residential area is reached by Memorial Drive which runs east from Muirfield Drive and intersects Muirfield l)rive approximately three-quarters of a mile north of Brand Road. In the southeast quadrant of the rectangle there is also a golf course which was in operation at the time of the events here involved but on which some work remained. The golf course is also reached by Memorial Drive. On the west side of Muirfield Drive. about midway be- tween Glick and Brand Roads, there is a tennis facility which was close to completion by mid-July. It is reached by Muirfield Drive. In the northeast quadrant of the tract lies acreage known as Phase 7 or Muirfield 7. which was in the preliminars stages of development at the time of the exents herein. I he northern boundary of Phase 7 lies several hundred feet south of C(lick Road and parallel to it. Phase 7 abuts Muir- field Drive on the west, and it:. southern boundarx inter- sects Muirfield D;ive somewhat to the north of the ternnis facility which is on the opposite side of Muirfield [)rive. As of mid-July, Conie was the general contractor for Muirfield lIimited to install underground sewer water and storm sewer lines in Phase 7. Before mtidal-Juls nd afier August 30, Conie also performed work installilg sewei lines on Muirfield Drive, but Conie's work was confined to Phase 7 before July 14 and it remained so confined until the end of August because Muirfield Limited was awVare that Conie was having union problems and wanted ('Coni isolated in the event of a strike and picketing.: In July and August. Dodge-Ireland was doing excava- tion and grading work on the south bound lanes of Muir- field Drive between Glick Road and Memorial Drive 3 as a general contractor and in Phase 7 as a subcontractot to I here Is e aidence that (onie ailso perfortled ismic 's.rk hcl, cn .1h 11 1I4 and August 10 ini .Inther section of the tract known II.. Ph.als 6 hih l ,l reached from Duhblin -Bellepoint Road That work aindi :ni dpckcli 11 L: nlrictlio n rth i! i [i4t clelvat to this proceel in.n IThe north 1,ullld lianes had been completed nlrl lusll Conie. Dodge-Ireland was also cleaning out a lake for the Muirfield golf course and was moving fill dirt from Phase 7 and locations along Muirfield Drive to the golf course. During this period Dublin Building Systems was under contract to complete the tennis facility, anId Dodge-Ireland was performing grading operations at that facility as a sub- contractor for Dublin. The tennis facility was scheduled to open on August 8, 1977, with a tennis tournament.4 In July and August the work being performed on Phase 7 could be reached by two access roads. One, known as Drake Road, runs from Glick Road to the Phase 7 acreage. The other access was a gravel road which runs east from Muirfield Drive into the acreage and which intersects Muirfield Drive approximately 700 feet south of the inter- section of Muirfield Drive with Glick Road. For purposes of convenience in this proceeding the parties have referred to the intersection of Drake Road and Click Road as gate A, the intersection of Glick Road and Muirfield D)rive as gate B. and the intersection of Brand Road and Muirfield Drive as gate C. They have referred to the intersection of Muirfield Drive and the unnamed gravel road which leads into Phase 7 as the D-I entrance. Before July 14. Conic's employees as well as those of the other contractors used Muirfield Drive to reach their job- sites entering through gates B and C'. Employees of Conie and Dodge-Ireland entered Phase 7 from Muirfield Drive through entrance D-I and the unnamed gravel road. Conie's suppliers for the most part entered Phase 7 through gate A using Drake Road, but on occasion they also en- tered through entrance D-I depending upon the portion of Phase 7 they were trying to reach. (omnie's employees on Phase 7 were scheduled to start work at 8 a.m. but often arrived at the jobsite as early as 7 a.m. and by 7:30 a.m. started engines of Conie's heavy equipment, greased their machines. and prepared for work. Dodge-Ireland employ- ees started work at 7 a.m. 3. 'Ihe picketing at the jobsite On the morning of July 14, 1977, at approximately 7 a.m. some of Conie's striking operators appeared and pick- eted at the intersections of Muirfield Road with Gilick Road and Brand Road identified above tas gates B and C. The pickets' signs bore a preprinted legend stating that Op- erating Engineers Local I1 was on strike Below that the name Jack Conie & Sons was handprinted with a black marking advice. The preprinted material was in larger let- ters than the handprinted material and could be read at a greater distance. 5 Employees of Columbus and Southern Ohio Electric Compan) and Dodge-lIreland did not cross the picket line to work that morning, and Dodge-Ireland's operators did not work for the entire da. ('onie continued its operations on Phase 7 on that dtay with whatever per- sonnel was present. That morning Robert Dodge. picsidient of )od-e-lre- land. arrived at the jobsite between 7:30 and 8 a.m After 4 l,.ldge-l-lch iid tarted Sirk tn t he lenlls f.1 cl l,, after Jult 4 riid fin- ished oin Auilll 5 ir 6 Piiul SWc; llzer. di lC tor ht , la relations lot the (}it () 'illatiirs -s5c- oaltili cstl:llitcd that the preprlicd male'crial 'ldui he read t a . l 1 iiLC ,If l[ feet [ ind t h. It lidprinted illnierln lll A i dtl i cc f 2< feet 200 LOCAL 18, OPERATING ENGINEERS discovering that none of his employees were at work, he went to a restaurant on Glick Road where he found his employees. He asked them why they did not go to work. and they replied that it was because of the pickets. Dodge said that the picket line was for Conic and not for them. They replied that in order to work they had to cross the picket line because of its location and they could not cross it. During the day on July 14 Erwin Madison. field super- visor for Muirfield Limited, telephoned Union Agent Jake Buckles and told him that Muirfield Limited had no prob- lem with the Union striking Conie if it so desired but that Muirfield Limited objected to the location of the pickets because they were stopping others from working on pro- jects that Conie was not involved in. In response Buckles said in effect that Madison could resolve the problem by getting Conic back into good standing with the Union or getting Conic off the job. Madison replied that Muirfield Limited had a contract with Conie which was signed when Conic was apparently in good standing with the Union and that it had no means of not utilizing Conie. The same morning Dodge called Ohio Contractors Asso- ciation representative Sweitzer. told him what had hap- pened, and asked him to come to the jobsite. While Sweit- zer was at the jobsite near gate B several Dodge-lreland operators told him that they would not work behind the picket lines. While there Sweitzer met with Dodge and Madison. and they decided to establish reserved gates at gates A. B. and C, to have Madison obtain signs, and to put them in place as quickly as possible. Later that day Sweitzer spoke to Buckles by telephone and advised him that separate gates were going to be estab- lished. Buckles replied that his lawyer had approved the language on the picket signs and that they would stay in place until his lawyer advised him about the reserved gates. However. Buckles also said that the Union was not inter- ested in stopping Dodge-lreland's work and was only inter- ested in picketing Conie. 4. The establishment of the reserved gates and the cessation of picketing at gates B and ( On July 15. Madison arrived at thejobsite before 7 a.m. and installed signs at gates A. B and (C. The sign at gate A was as follows: Gate ~-I Attn: Non-IUnion Firms This gate reserved for the following firms, their sub- contractors, their employees. suppliers and material handlers: 1. Jack Conie & Sons 4. Fleetwavs 2. Rennance Universal 5. 3. Anderson 6. No unauthorized persons allowed on this jobsite, without the written permission of the owner and or the general contractor. Violators will be prosecuted to the fullest extent of the law. , Madison testified thai he poste ipni a it B d d (h.au, thiuat as wherre tile pi :ket, h;d been the pir-eius duI Signed Muirfield Ltd (Owner and/or General) NOTE: All Union Firms Use Gate #2 Located at: Muirfield Dr. At locations B and C identical signs were erected which read: Gate t: 2 Attn: Union Firms This gate reserved for the following firms, their sub- contractors, their employees. suppliers and material handlers. 1. Dodge-Irelan 4. Martin Paint 2. Peterson Fence 5. C & Soe 3. Decker-Paving 6. No unauthorized persons allowed on this jobsite without the written permission of the owner and/or general contractor. Violators will be prosecuted to the fullest extent of the law. Signed Muirfield Ltd (Owner and/or General) NOTE: All Non-lUnion Firms Use Gate # I Located at: DRAKE ROAD About 7 a.m. pickets again appeared and took positions at gates A, B, and C, and Dodge-Ireland's employees did not start work at their customary starting time. Sweitzer arrived at the jobsite shortl? after 7 and found a group of Dodge-lreland employees gathered near the D-I entrance to Phase 7. Sweitzer spoke to them, and they told him that the: did not care to work behind the picket lines even though reserved gates had been established. Around 8 a.m. Sweitzer left the jobsite and went to the Union's office where he spoke to Buckles and Hartman, another union representative. Sweitzer told them that the reserved gates had been established and that the continued picketing at gates B and C would probably be construed as a secondary boycott. Sweitzer said that Dodge-Ireland em- plosces were refusing to work because of the pickets at gates B and C and that Dodge-Ireland was ready to file charges. Buckles. llartman. and Sweitzer then drove to the jobsite where they spoke with Dodge. Buckles told Dodge that he had no problem with Dodge-Ireland, that all he wanted to do was picket Conie, and that he did not want to stop Dodge-lreland's work. Buckles said he would cooper- ate and would remove the pickets from gates B and C and would continue to restrict the picketing as long as Conie did not violate gates B and C. Buckles said that he would have people watching gates B and C and would inform Dodge through Sveitzer as soon as possible if he had infor- mation that the gates were being violated. After the pickets were removed from gates B and C. those Dodge-Ireland employees who had remained at the jobsite started to work at the tennis facility and the Muir- field Drive extension. Dodge-Ireland employees who had left the jobsite before the pickets were removed from gates B and ( did not return to work that day. No Dodge-Ire- land emploees worked on Phase 7. and on that day as well as the day before Dodge-lreland employees told Dodge that thes would not w'ork on Phase 7 with Conie. 201 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the reserved gate signs were posted, Madison spoke to Conie management and asked it to restrict their personnel and suppliers to gate A. Richard Conie, vice president of Conie, spoke to Conie's employees and con- tacted all suppliers to tell them that they were to enter and leave the premises only through gate A. From July 15 until August 3 the Union continued to picket at gate A from Monday through Friday. It did not picket on Saturdays when Conie was not scheduled to work but when Dodge- Ireland often did. 5. The reinstitution of picketing at gates B and C Around July 19 Buckles telephoned Sweitzer and told him that he had reports that gates B and C had been vio- lated by employees of Conie and that if the separation of the gates was not observed the pickets would be put back on those gates. Buckles did not give further detail as to the nature of the alleged violations. Sweitzer immediately in- formed Dodge of his conversation with Buckles and sug- gested that Dodge contact Madison to reinforce the neces- sity that Conie and its employees respect the reserved gates. As a consequence Madison again spoke to Conie management. On July 25 Buckles or Hartman told Sweitzer that an employee of Carr's Equipment and "pipe people" had not used the gate reserved for Conie. Again no further details were given. Sweitzer again informed Dodge and told him that it appeared that the Union was attempting to police the reserved gates and that unless they were honored pick- eting could resume. He suggested again that Dodge work through Madison to make sure that Conie employees and suppliers used the proper gate, and again as a result Madi- son spoke to Conie. On one other occasion between July 15 and August 2 at a semisocial gathering between the members of the Ohio Contractors Association Negotiating Committee and union representatives, Buckles again told Sweitzer that Conie em- ployees and/or suppliers were not observing the reserved gates but gave no further specifics. In that conversation, Buckles again indicated to Sweitzer that he was not inter- ested in stopping Dodge-Ireland from working but that he wanted Conie to honor the reserved gates. Between July 15 and August 3 Richard Conie was told that his suppliers and employees had left the jobsite through entrance D-l, and thereafter he made it a point to sit at entrance D-l from 4:15 until 5 p.m. but he observed no one leaving through that entrance to Phase 7. On one occasion Madison told him that a supplier had entered and left through the wrong gate, and on one occasion, on a Saturday morning when no pickets were present, Conie's supervisors intercepted a pipe truck which had entered gate C destined for Phase 7. They directed it out gate B and into Phase 7 through gate A. Late in the afternoon on August 2 Sweitzer received a message that he should call Buckles. 7 He attempted to do so, and in Buckles' absence spoke with another union 7Although there is some confusion in the testimony as to this date. it appears that the picketing at gates B and C resumed on August 3 and that Sweitzer received the message on the previous afternoon. agent, Ramey, who told him that he knew why Buckles was trying to reach Sweitzer and said that the Union was going to resume picketing at gates B and C the next morning because the reserved gates had not been observed by Conie employees and/or suppliers. Ramey supplied no further detail as to the nature or circumstances of the violations. After speaking with Ramey, Sweitzer told Dodge about the call. Dodge called his foremen and told them that they could use an abandoned farm lane that ran from Avery Road to the tennis facility to enter on the next morning so that they would not have to use Muirfield Drive. The next morning the Dodge-Ireland operators met on Avery Road and entered by way of the farm lane. On August 3, at 7 a.m., picketing at gates B and C re- sumed, and it continued on a daily basis excluding Satur- days and Sundays until August 11. Each day the pickets stayed at gates B and C from about 7 to 9 or 9:30 a.m. On August II picketing at gates B and C stopped and in late August or early September all picketing stopped. On August 3 the Dodge-Ireland operators entered the work site through the farm lane and they worked that day. When they learned that there were pickets at gates B and C, they told Dodge they would not enter again by way of the farm lane. On August 4, some of the Dodge-Ireland employees did not report for work although several did and worked at the lake, on the Muirfield Drive completion project, and on the tennis facility. On August 5 some Dodge-Ireland employees worked on the lake and Muir- field Drive, but not at the tennis facility which was essen- tially completed. Dodge-Ireland supervision did not instruct any employ- ees to work on Phase 7 because on July 14 and 15 they had told their foremen they could not work there because of Conie, and as Robert Dodge put it "there was no point in pursuing a dead horse." For the duration of the picketing all those who reported for work worked on Dodge-Ire- land's other projects on the Muirfield Limited tract. ° The only direct evidence of violation of the restrictions placed on the gates, other than the Saturday morning inci- dent described by Richard Conic, came from Michael Bel- cher who picketed at the jobsite on most days that the pickets were present. On August 2, while picketing at gate A, he climbed a small hill nearby and at 2 p.m. saw, through binoculars, an Anderson concrete truck go through gate B to entrance D-I and into the Phase 7 site, complete its delivery, and leave through gate A. The same afternoon Belcher saw a pipe truck enter Phase 7 through gate A, complete its delivery, and leave through entrance D-I and gate B. Belcher reported these incidents to the union hall. After picketing resumed at gates B and C, on one occa- sion when Belcher was picketing at gate B at 7 or 7:30 a.m., a laborer employed by Conic came up Muirfield Drive from gate C, exited through B, and went to gate A where he entered the Phase 7 jobsite. On two other occasions, I to 3 days apart, Belcher saw an employee of Carr Equipment who serviced Conie's equipment, enter and leave the Phase 7 jobsite through gate B and entrance D-I. Belcher believed After August 4 at least one Dodge-lreland operator. Buckles' son, stopped reporting for work. It is not clear whether others refused to work at all on the Muirfield lIimited site 202 LOCAL 18, OPERATING ENGINEERS one of these occasions was in the afternoon. He initially placed these incidents at the end of July but later testified that he was uncertain whether they occurred before or after August 5. B. Conclusions The complaint alleges that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by picketing at the gates which were reserved for the use of neutral employers and from which Conie's employees and suppliers had been barred. Respondent contends that the resumption of pick- eting at gates B and C was lawful because the restrictions on their use had been violated and that in any event there is no evidence that Respondent's intent was to engage in secondary picketing. The General Counsel and the Charg- ing Party contend that the misuse of gates B and C was de minimis and insufficient to justify resumption of picketing at these gates. Apart from the issues arising from the reservation of the gates the General Counsel and Charging Party also con- tend in their briefs that all picketing at gates B and C was unlawful under Moore Dry Dock standards.9 because these gates were not reasonably close to the situs of Conie's oper- ations. The Charging Party further contends in its brief that the signs carried by the pickets failed to disclose ade- quately that the dispute was only with Conie., I am not persuaded that the contentions unrelated to the reservation of the gates are raised by the complaint or were fully litigated before me. The complaint does not allege that the location of the picketing was improper apart from reservation of the gates or that the signs were inadequate. While the various means of access were described fully on the record, that description was as essential to the reserved gate contention as to the additional contention raised in briefs as to the location of the pickets. Except for testi- mony that Muirfield Drive was on a dedicated right of way, there is no evidence to show whether or not the land at entrance D-l was public or private and whether pickets could have been stationed there. While Madison testified that he placed the reserved gate signs at gates B and C because that was where pickets appeared on July 14, the final paragraph on the signs conveyed the impression that those locations were the entrance to the jobsite and that no one was allowed beyond those points without authoriza- tion. If that impression was wrong, neither Madison nor anyone else said anything to the union representatives be- fore or after the signs were posted to indicate that absent reservation of the gates picketing at gates B and C was improper because these locations were too remote from where Conie was working. Further evidence might well have made it clear that Muirfield Drive either was or was not a public road open to all in July and August, but such evidence was not adduced, and I conclude that this issue was not fully litigated and is not properly before me. With respect to the adequacy of the signs, the only evi- dence is that the name of the Union was larger and blacker than the name of Conie and that the union name could be 9 Sailors' Union of the Pao ific, 4 FL (fMoLVr'e Drr Dock) (C orpanty. 92 N L.RB 547. 549 ( 1950) seen from a distance of 100 feet while Conie's name could be seen only from 25 feet. Neither the signs nor any clear picture of them was offered in evidence, although they might well have been had this issue been clearly raised by the complaint. On the evidence before me I would be in- clined to dismiss this contention as without merit, but I conclude in any event that it was not fully litigated and is also not properly before me. In support of its contention that the picketing was at all times primary Respondent seeks to analogize the picketing at gates B and C after August 3 to ambulatory picketing found lawful in Construction, Building Materials & Miscel- laneou.v Drivers, Local No. 83., affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpcrs of America (Allied Concrete, Inc.), 231 N LRB 1097 1977). In that case the Board majority held that the estab- lishment of a reserved gate and ambulatory picketing are not mutually exclusive and that the requirement that pick- eting be reasonably close to the primary situs is not vio- lated when pickets follow a primary employer's truck through a reserved gate and picket the truck. There, the striking union at no time picketed at the entrances reserved for neutral employees and picketed away from the reserved gate only when the primary employer's truck was actually on the premises making a delivery. The Board majority pointed out that resolution of the issue in that case was not to be determined by mechanical application of reserved gate picketing rules but by analysis of the nature of the picketing to determine whether it was primary picketing with lawful secondary effects or secondary picketing with an object of enmeshing of neutral employers in disputes not their own. In the cited case the Board concluded that picketing of a type found primary under International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Truck Drivers and Chauffeurs, Local LUtion No. 807 (Schultz Refrigerated Service, Inc.), 87 NILRB 502 (1949), does not become secondary because of efforts by the primary employer to confine picketing to a site remote from the site of actual delivery through estab- lishment of reserved gates. Here the facts are not analagous. The Union did not seek to follow Conie's employees or suppliers through any gate to picket at the site where they were actually engaged in their work. The issue is whether use by primary employ- ees and suppliers of reserved gates established by a neutral employer was such that picketing at those gates at times when none of Conie's employees or suppliers were present remained primary despite the reservation of the gates. If Conie's employees as a regular matter had ignored the reservation of gate A for their use and had entered through gates B and C, the Union's resumption of picketing at gates B and C would have been as lawful as if no attempt had ever been made to segregate use of the gates, for an em- ployer may not by the mere posting of signs convert pri- mary picketing into secondary activity. On the other hand, an isolated breach of restrictions over a period of time would not justify resumption of picketing at reserved gates. In determining at what point resumption of picketing at reserved gates become permissible, it is necessary to look not only at the evidence of misuse of the gates, but also at the evidence as to the efforts to enforce the restrictions on 203 DECISIONS OF NATIONAL LABOR RELATIONS BOARD use of the gates, the relationship of the resumed picketing to the breaches which occurred, and any other evidence as to the Union's object.l° The evidence adduced as to actual misuse of the gates is slight. The Saturday incident described by Richard Conie occurred when pickets were not present and was not likely to have been known to the Union. Moreover, Conie suc- cessfully intercepted the truck, and while it traversed Muir- field Drive, it did not enter Phase 7 from Muirfield D)rive but entered through gate A, where pickets could have been present. Similarly, the single instance in which a Conie em- ployee was observed passing through gate B did not in- volve his entry into Phase 7 from Muirfield Drive but his apparent use of Mluirfield Drive as a means to reach gate A and enter through it. Neither of these incidents may be considered a breach of restrictions. There are only four incidents which remain, two on the afternoon of August 2 and the others on unspecified dates with at least one of them also in the afternoon. In two of the instances, the drivers of suppliers either entered or left through gate A and did not avoid it entirely. In none of the instances was gate C used. The evidence shows that while the Union complained to Sweitzer several times about abuse of the gates before pick- eting was resumed, these complaints contained few specif- ics as to the time or nature of the breaches or the identity of the offending parties. In the light of the information transmitted to them, it appears the neutral employers and Richard Conie made reasonable efforts to see that the re- strictions were enforced. When the picketing resumed, it was not responsive to the observed breaches in two respects. Picketing was resumed at gate C, despite the absence of any observed breach of restrictions there, and picketing at gates B and C lasted from 7 to 9:30 a.m. each day, despite the fact that at least three and possibly all four observed breaches at gate B occurred in the afternoon. The evidence of object apart from the picketing is mixed. On the first day of the strike Buckles told Madison that he could resolve the problem by getting Conie back in good standing with the Union or getting Conie off the job.'' However, at other times thereafter, including times when Buckles complained of violations of the reservations on use of gates B and C, he stated that he did not want to stop Dodge-lreland's employees from working. Despite Buckles' assurances given after the first day of the strike, I find the evidence persuasive that the picket- I. See "rnited A...sciaiaon of Journeymen and .4Apprenrices of the Plirhiming Pipe Filting Industry of the United Slates and Canada. Lo(ial Unitn Vio, iA .4FI (10 i(Ci rle, Inc.). 202 NLRB 99 (1973): ULnited Brotherhood l C(alr- penterv and Joinerr of America. .4 Fl CIO. L ocal Vo. h69 and Sumniti, Icdti no & Portage C(oun/et.v District C(ouncil of Carpenters (A4nerca on Atl dilar (orporaltionl, 203 NL RB 1112 (1973); Lovcal Union N'o h69. Inlrnrtionai Brotherhood of Elet irical RWorkers, AFL (10 (tKel(, Eletrric ( o . Itol 261 NILRB 141 (1975). enfd. 528 F.2d 317 (C.A. 6, 1976). Inrernatrional I it ol Operating Engineers. Local Union No. 450, A FL (10 Il.inheck (; ornriu, tno ('orporation), 219 NLRB 997 (1975). affd 550 F.2d 311 (Ci 4. 1977): Mitsisrippi (;llf ('rolst Building and Construction Trades (C;ouni(i, e il (RmI C. .4rldcion. Jr. Inc), 222 NLRB 649 (1976). '' See .Loal Inion No t69, International Brotherhood of Elec trrl, I1 ,)r - ers. 4 FlC ('10 IGarst-Reeeveur ('onstrucrion Companv. In .). 229 Nl.RB 68 (1977). ing at gates B and C starting on August 3 was unlawful. The misuse of the reserved gates was not substantial. Conie made reasonable efforts to inform his employees and sup- pliers about the restrictions on the gates in response to the information he received as to violations, and perhaps most important, the resumption of picketing at gate C and the timing of the picketing at both neutral gates each day indi- cates that the picketing of these gates was not aimed at reaching those whose misuse of the gates had been ob- served, allegedly causing its resuniption. In these circumstances, I conclude that Respondent's re- sumption of picketing to gates B and (' was not a lawful extension of primary picketing directed at employees and suppliers of Conie but was an attempt to take advantage of isolated observations of misuse of gates B and C to picket at locations not reasonably close to the situs of the primary dispute to induce or encourage the employees of Dodge- Ireland to withhold their services with an object of forcing Dodge-Ireland and Muirfield Limited to cease doing busi- ness with Conie, thereby coercing and restraining the neu- tral employers with the same objective. Accordingly. I con- clude that Respondent by its resumed picketing at gates B and C on and after August 3 violated Section 8(b)(4)(i) and (ii)(B) of the Act.'12 IV THE REMIDI)Y Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. CON(I LSIONS Of LAW I. Dodge-Ireland. Inc., and Jack Conie Sons, Inc., are employers engaged in commerce or in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 18, International Union of Operating Engi- neers, AFL CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By inducing or encouraging individuals employed by persons engaged in commerce, or in an industry affecting commerce, to engage in a strike or refusal to perform ser- vices, and by coercing or restraining persons engaged in commerce, or in an industry affecting commerce, with an object of forcing or requiring Dodge-Ireland, Inc., and Muirfield Limited to cease doing business with Jack Conie Sons, Inc., Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act which affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the above findings of fact and conclu- sions of law and the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: 1 I find inapposite Respondent's cintentiin that Dodge-Ireland's em- plit ee hiad a right ito t lhhld ervices frn ri their emplo Cr the ssue raised h, the complaint is whether the C Union ;iolated the Alt h: its picket- ing. not whether the enplohsees of )todge- rchilnd engaged in unprotected Ilcllilzv hv their conduct 204 LOCAL 18, OPERATING ENGINEERS ORDER 13 The Respondent, Local 18, International Union of Op- erating Engineers, AFL-CIO, its officers, agents, and rep- resentatives, shall: 1. Cease and desist from inducing or encouraging any' individual employed by Dodge-Ireland, Inc., or any other person engaged in commerce or in any industry affecting commerce to engage in a strike or refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods. articles, mate- rials, or commodities, or to perform any' services: or threat- ening, coercing, or restraining said employers or any other person engaged in commerce or in an industry affecting commerce where in either case an object thereof is to force Dodge-Ireland, Inc., or Muirfield Limited to cease doing business with Jack Conie Sons, Inc. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post at its business office and meeting halls copies of the attached notice marked "Appendix." 1 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent Union's authorized representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notices to said Regional Director for posting by each of the Employers named in the preceding paragraphs, if willing, at all places where notices to their respective employees are customarily posted. (c) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 'i In the event no exceptions are flied ais provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclils.ions, and the recommended Order herein shall, as provided in Sec 10248 of the Rules and Regulatione, he adopted by the Board and become its finding. , onclusioins. and Order. and all objections thereto shall he deemed wed .Ic for a;ll purposes "4 In the event that this Order is enforced bh a Judgment of a United States Court of Appeals, the ivords in the notice reading "Posted hy Order of the NaIsn;lal I abor Relations Board" shall read "Posted Pursuant to a Judgment of the I nited States ( o'urt of Appeals Enforcing an Order of the National I.ahbor Reliations Boaird" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NAIIONAt LABOR RELATIONS BOARD An Agency of the United States Government WEc WILL NOr induce or encourage any' individual employed by Dodge-Ireland, Inc., or any other person engaged in commerce or in any industry affecting commerce to engage in strikes or refusals in the course of their employment to use. manufacture, process. transport. or otherwise handle or work on any goods, articles, materials, or commodities, or perform any services: and AWE Wsiili NOT threaten, coerce, or restrain the above-named employers or any other person en- gaged in commerce or in an industry affecting com- merce: where in either case an object thereof is to force Dodge-Ireland, Inc., or Muirfield Limited, to cease doing business with Jack Conie Sons, Inc. L(X AI 18, INTERNATIONAi LUNION OF OPFRATING EN(mINhI RS AFI. CIO 205