Nashville Bldg. & Constr. Trades Council

1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nashville Building & Construction Trades Council, International Brotherhood of Electrical Workers Union, Local 429, Plumbers Local 352, and Laborers International Union of North America, Local 386, AFL-CIO and H. E. Collins Contract- ing Company, Inc. Case 26-CC-129 July 10, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On February 9, 1968, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that Respondent, Laborers In- ternational Union of North America, Local 386, AFL-CIO, referred to herein as Respondent Laborers, had engaged in certain unfair labor prac- tices as alleged in the complaint, and recommend- ing that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that Respondents Nashville Building & Construction Trades Council, referred to herein as Respondent Council, Plumbers Local 352, referred to herein as Respondent Plumbers, and In- ternational Brotherhood of Electrical Workers Union, Local 429, herein referred to as Respondent Electrical Workers, had not engaged in unfair labor practices and recommended dismissal of the com- plaint as to them. Thereafter, General Counsel, the Charging Party, and Respondent Laborers filed ex- ceptions to the Trial Examiner's Decision and sup- porting briefs, and the other Respondents filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent con- sistent herewith. In March or April 1967, the Charging Party, H. E. Collins Contracting Company, Inc., a general contractor, was contacted by certain persons in- terested in erecting a shopping center in the vicinity of Nashville, Tennessee. The interested parties proposed paying Collins an amount calcu- lated on the basis of a similar job previously per- formed by Collins. As Collins had used nonunion electrical and mechanical subcontractors on this other job, at a cost price less than that charged by similar union subcontractors, Collins' president, Jolley, sought assurances from Respondent Council before contracting for the erection of the shopping center that he would be permitted to use nonunion electrical and mechanical subcontractors without the danger of picketing of the jobsite by the Coun- cil or its members. Having received the requested assurances, Collins accepted the contract to erect the shopping center and accepted bids for mechani- cal work from three nonunion subcontractors: Smith and Waller Contracting Company for plumb- ing and electrical work; F. K. Holland Co. for heat- ing, ventilation , and air-conditioning work; and Eatherly Construction Company for earth work. All other work was contracted to union subcontractors. Collins itself employed only union members. Following the letting of contracts to the subcon- tractors, Council representatives informed Jolley that they had changed their minds and that unless Collins used only union subcontractors, they would picket the jobsite. When Jolley said that he could not legally cancel the contracts with the nonunion subcontractors, the union representatives suggested that he talk with low bidding union subcontractors to ascertain whether an arrangement could be worked out for the union subcontractors to man the job. Jolley agreed to this proposal, but nothing came of it. Another settlement proposal, to use union members on the job or to have employees of the nonunion subcontractors obtain temporary work permits from the unions, was also fruitless. At this point, Jolley instructed his job superinten- dent to erect signs reserving one of the two en- trances to the jobsite for employees of Collins and the union subcontractors, and the other for the nonunion subcontractors and their employees. The signs were erected on October 17, 1967. On October 23, two pickets appeared near the gate reserved for neutrals, the south gate,' with signs reading: Picketing Smith & Waller Electric Co. Sub-standard wages & working conditions IBEW-Local 429. On the morning of the following day, one of the two pickets on his own initiative began picketing at ' Unlike the north gate, the south gate did not open directly upon the main highway The picketing at this gate was conducted by the stationing of a picket approximately 150 feet distant at the point where a public drive provided sole access to this gate for persons approaching it from the main highway 172 NLRB No. 105 NASHVILLE BLDG. & CONSTR. TRADES COUNCIL 1139 the gate reserved for the nonunion subcontractors and their employees, the north gate. On the after- noon of this day, Collins changed the wording of its posted sign at the two gates. The one at the north gate stated: NOTICE THIS ENTRANCE RESERVED FOR SMITH- WALLER CO., INC., F. K. HOLLAND COMPANY AND EATHERLY CONSTRUCTION CO., THEIR SUPPLIERS AND MATERIAL CARRIERS. ALL OTHER PERSONS USE THE SOUTH ENTRANCE. The sign at the south gate read: NOTICE THIS ENTRANCE NOT TO BE USED BY SMITH-WALLER, F. K. HOLLAND CO., AND EATHERLY CONSTRUCTION CO., OR THEIR SUPPLIERS. THIS ENTRANCE TO BE USED BY H. E. COLLINS CONSTRUCTION COMPANY, INC. AND ALL SUBCONTRACTORS EXCEPT SMITH-WALLER CONTRACTING CO., INC., F. K. HOLLAND COMPANY AND EATHERLY CONSTRUCTION CO. Picketing continued at both gates from October 23-3 1. On the latter date picketing at the south or neutral gate was discontinued. Picketing at the north gate continued until November 13. While the neutral gate was picketed, employees of union sub- contractors refused to cross the picket line to re- port for work; employees of the nonunion subcon- tractors, who used the north gate, ignored the pickets at the gate and reported for work. When the picket at the south gate was removed November 1, employees of the neutral subcontrac- tors except for certain ironworkers returned to their jobs. The ironworkers returned when all picketing ceased on November 13. The complaint alleged that Respondents violated Section 8(b)(4)(i) and (ii)(B) by picketing the south or neutral entrance to the jobsite between October 23 and 31, 1967. The Trial Examiner found that the picketing was not unlawful. The General Counsel has excepted to this finding. We find merit in the exception. In finding the picketing at the neutral gate to have been lawful primary activity, the Trial Ex- aminer looked both to the geography of the jobsite and the alleged disregard of the neutral gate by em- ployees of the nonunion or primary employers. The gates were located just off the public highway at either end of the premises. The passageways at each gate were leveled to a width of about 30 feet and it appears that only through these gates could vehicular traffic proceed into the jobsite. The Trial Examiner noted that there were no physical impediments to nonvehicular entry onto the jobsite between the two entrances. It appears from the record that there was approximately 900 feet of unenclosed land between the gates fronting on a public highway which could be used to gain in- gress to the property on foot. It further appears that entry was also possible through a partially con- structed service station located on a square of ground bordering the property where the south gate picket was stationed. The Trial Examiner observed that "at this common situs there were no gates, there were no fences, no locks, no guards. While cars and trucks had to use the leveled passageways from the public roads to enter the area of work, employees, or any other persons, could walk on at will at any point on the perimeter of the entire tract." Viewing the unsettled nature of the jobsite as inviting entry by employees at unauthorized and unreserved locations the Trial Examiner went on to find that in fact such entry did occur. He con- cluded that "In the total circumstances it cannot be said that the picketing was not limited to places reasonably close to the primary situs, or that the posted signs effectively restricted the situs of the primary dispute to the North end of the property." Accordingly, he found that the picketing was not conducted in a manner from which a secondary ob- jective was inferable, i.e., to induce the employees of neutral employers to cease work. We do not agree with the Trial Examiner that the picketing in this case complied with the Board's Moore Dry Dock requirements.' Rather, it appears clear that Respondents' picketing was deliberately designed to enmesh the employees of the neutrals in the dispute, which it in fact did. Although it is true that entry onto the premises was possible at various locations other than the reserved gates set up for that purpose, we find no record evidence that employees of the primary employers disre- garded the gate reserved to them during the period in issue, October 24-31. Indeed the uncontradicted testimony of the primary employers' supervisors shows that their employees were instructed to enter the premises through the north gate and that the employees heeded these instructions during this period. To show that the employees of the primary employers disregarded the reserved gate between October 24 and 31 the Trial Examiner considered several instances of apparent disregard of the reserved gate which occurred after November 1. As only the picketing taking place between October 24-31 was alleged to be unlawful (on November 1 the picket at the neutral south gate moved to the north gate), we are unable to agree with the Trial Examiner that evidence of possible disregard of the ' Sadore' Union of the Pacific, AFL (Moore Dr, Dock Company), 92 NLRB 547, 549 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reserved gate occurring after November 1 may be used to defend against the charge of unlawful picketing occurring before November 1. Moreover, even assuming, arguendo, that Respondents were correct in believing that em- ployees of the primary employers were entering the jobsite at unauthorized points along the highway between October 24 and 31, this would still not jus- tify the picketing at the neutral south gate. Respon- dents do not even contend that employees of the primary contractors were seen entering the south gate . If the employees were entering the premises along the unfenced portion of the highway, as Respondents allege, this might well justify the picketing of these areas as well as the north gate. It would not, however, justify the picketing of the south gate where no employees of primary em- ployers are alleged to have entered. The Board has long held that picketing must be conducted so as to minimize its impact on neutral employers insofar as this can be done without sub- stantial impairment of the effectiveness of the picketing in reaching the employees of the primary employer.3 These are the dual congressional objec- tives which it is the Board's duty to balance.' To allow picketing of the gate publicly reserved ex- pressly for employees and suppliers of neutral em- ployers would be to countenance a willful enmesh- ment of neutrals, in violation of Section 8(b)(4)(B) of the Act. Further, there is additional evidence that the true motive of Respondents Council and Electrical Wor- kers' in picketing the neutral south gate was to exert unlawful pressure on secondary employer Collins. As noted above, on several occasions representatives of Respondents Council and Elec- trical Workers attempted to persuade Collins to can- cel its contracts with nonunion subcontractors and award the work to union contractors. When Collins refused to comply with these requests the union representatives threatened to picket the job. Respondents demonstrated no interest in discussing with the nonunion subcontractors Respondents' desire to represent the employees of those subcontractors, until after the attempts to persuade Collins to use union subcontractors had failed. This would indicate that they were more in- terested in bringing pressure on Collins, a neutral, to force cessation of business with the primary em- ployers, the nonunion subcontractors, than in seek- ing to resolve their dispute with the latter. In this context it is clear that at least one of the objects of the picketing was to give force and weight to Respondents' demand that Collins cease doing business with the nonunion subcontractors even after it had entered into contracts with them. This the Act forbids.' Accordingly, we find that by the foregoing conduct Respondents Council and Electrical Workers violated Section 8(b)(4)(i) and (ii)(B) of the Act.' For the reasons stated by the Trial Examiner we agree with his dismissal of the complaint against Respondent Plumbers. We also affirm the Trial Ex- aminer's finding that Respondent Laborers violated Section 8(b)(4)(i)(B) of the Act for the reasons expressed in his Decision. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dents, Nashville Building & Construction Trades Council, International Brotherhood of Electrical Workers Union, Local 429, and Laborers Interna- tional Union of North America, Local 386, AFL-CIO, their officers, agents, and representa- tives, shall: 1. Cease and desist from engaging in, or induc- ing or encouraging any individual employed by H. E. Collins Contracting Company, Inc., or any other person engaged in commerce or in an industry af- fecting commerce, to engage in, a strike or a refusal in the course of his employment, to use, manufac- ture , process, transport, or otherwise handle or work on any goods, articles , materials , or commodi- ties, or to perform any services; and Respondent Trades Council and Electrical Workers shall cease and desist from threatening, coercing, or restraining the above-named employers or any other person engaged in commerce or an industry affecting com- merce where, in either case , an object thereof is to force or require H. E. Collins Contracting Com- pany, Inc., to cease doing business with Smith and Waller Contracting Company, Inc., F. K. Holland Co., and Eatherly Construction Company. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act: ' Retail Fruit & Vegetable Clerks' Union Lox al 1017, and Retail Clerks In- ternational Association, AFL-CIO (Crs stal Palace Market), 116 NLRB 856, 859 ' N L R B v Denver Building and Construction trades Council (Gould & PreisnerT, 341 US. 675.692 S Carpenters District Council of Kansas City and Vicinity , AFL-CIO (Ralph H McClain), 158 NLRB 1101 "Nashville Building and Construttion Trades Council ( Marl,,,i'll & Hart, Inc.), 164 NLRB 280, enfd. 383 F .2d 562 (C.A. 6) NASHVILLE BLDG. & CONSTR. TRADES COUNCIL 1141 (a) Post at their business offices and meeting halls in Nashville, Tennessee, copies of the attached notices marked "Appendix."' Copies of said notices, on forms provided by the Regional Director for Re- gion 26, after being duly signed by Respondents' representative, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail copies of said notices to the Regional Director for Region 26 for posting by H. E. Collins Contracting Company, Inc., if willing, at all locations where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps the Respondents Council, Elec- trical Workers and Laborers have taken to comply herewith. MEMBER BROWN, dissenting in part: Whether Respondents Council and Electrical Workers violated Section 8(b)(4)(B) turns on whether an object of their picketing was to enmesh neutral employees and employers in their dispute with the nonunion subcontractors at the common work situs involved. Moore Dry Dock standards are the evidentiary guides for determining the true ob- ject of common situs picketing. And the Board has held that: While ... picketing at locations other than a properly marked primary gate may indicate a noncompliance with Moore Dry Dock stan- dards, the mere posting of signs does not itself limit the situs of the dispute. To hold otherwise would condone, without regard for the com- peting interests that must be accommodated in ascertaining objective under Section 8(b)(4)(B), a mechanistic application of Moore Dry Dock requirements." I must dissent, therefore, to my colleagues' decision insofar as it holds that the mere posting of a sign at a gate reserved expressly for employees and sup- pliers of neutral employers necessarily removes that area from permissible common situs picketing. I dissent, too, from their conclusion that the record otherwise supports a finding of an unlawful picketing object. Even looking beyond the mere signs posted at the entranceways, my colleagues hold that Respondents' picketing elsewhere than at the north entrance reserved for them, or at least "at the neutral South gate," shows that it was directed at neutrals. They so conclude because of testimony by supervisors that primary employees were in- structed to enter, and did enter, the construction site through the north entrance during the period October 24-31; that evidence of disregard of the north entrance by primary employees after November 1 is immaterial; and that no primary em- ployees are alleged to have entered through the south passageway. However, the south picket's picketing station, neither alone nor in the attendant circumstances, is any reason for finding an unfair labor practice. As more fully described by the Trial Examiner, at least 900 feet of highway offering access to the construc- tion site separated the north and south passageways. Witnesses who testified that the pri- mary employees heeded instructions to use the north passageway also testified, as found by the Trial Examiner, that "they could not see the open perimeter through which anyone would always walk, or the South picket point, or the gas station open construction site." And it was at the gas sta- tion, where a ramp permitted vehicle entrance into the jobsite, that the south picket was posted, 150 feet away from the south entrance. The Trial Ex- aminer also recites testimony which persuasively establishes that, on a day during the last week in October, there were about 10 primary employees at work on the job who entered at some other point than the north passageway. It also appears that, after November 1, at least one car entered the con- struction site through the aforementioned gas sta- tion and there is other testimony which indicates disregard of the north entrance.' At no time does it appear that the south picket orally appealed to secondary employees or that he engaged in any other conduct that might be regarded as evidence of an intent to extend his appeal to other than pri- mary employees. Finding, in agreement with the Trial Examiner, that the mere posting of the signs did not limit the situs of the dispute, and the picketing, to the north entrance; that the south picket was stationed at the gas station entrance, 150 feet from the south en- trance, where, albeit a point passed by traffic from ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall he substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order " "buernauonal Brotherhood of Elmirica! WorAer.+, LAxa! 44! (Suburban Development Co , O'Brien Electric Co ), 158 NLRB 549, 551 " Unlike my colleagues, I consider the events after November I to hear materially on events immediately before that date It is fair to assume that they mirror pre-November I happenings in similar circumstances or at least are an indication of employee reaction to the posted signs which Respondents could reasonably have anticipated during their first week of picketing 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the main highway, all the evidence indicates the picket might reasonably have expected "primary" traffic; and that the picketing examined in the light of Moore Dry Dock standards was not otherwise conducted in a manner from which a secondary ob- ject is inferable , I would dismiss the complaint against Respondents Council and Electrical Wor- kers as recommended by the Trial Examiner. APPENDIX A NOTICE TO ALL MEMBERS Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our members that: WE WILL NOT engage in , or induce or en- courage any individual employed by H. E. Col- lins Contracting Company, Inc., or any other person engaged in commerce or in an industry affecting commerce, to engage in, a strike or refusal in the course of his employment, to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materi- als, or commodities, or to perform any ser- vices, and WE WILL NOT threaten, coerce, or restrain the above-named Employer or any other person engaged in commerce or an in- dustry affecting commerce where, in either case an object thereof is to force or require the above-named Employer or any other person to cease doing business with Smith and Waller Contracting Company, Inc., F. K. Holland Co., and Eatherly Construction Company, or any other person WE WILL NOT in any other manner interfere with, restrain , or coerce employees in the exer- cise of the rights guaranteed by Section 7 of the National Labor Relations Act. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. APPENDIX B NOTICE TO ALL MEMBERS Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our members that: WE WILL NOT engage in, or induce or en- courage any individual employed by H. E. Col- lins Contracting Company, Inc., or any other person engaged in commerce or in an industry affecting commerce, to engage in, a strike or refusal in the course of his employment , to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materi- als, or commodities, or,to perform any ser- vices. WE WILL NOT in any other manner interfere with , restrain , or coerce employees in the exer- cise of the rights guaranteed by Section 7 of the National Labor Relations Act. LABORERS INTERNATIONAL UNION OF NORTH AMERICA , LOCAL 386, AFL-CIO (Labor Organization) Dated By NASHVILLE BUILDING & CONSTRUCTION TRADES COUNCIL, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS UNION, LOCAL 429, AFL-CIO (Labor Organization) Dated By (Representative ) (Title) (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 746 Federal Office Building , 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. NASHVILLE BLDG. & CONSTR. TRADES COUNCIL 1143 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner : A hearing in the above-entitled proceeding was held before the duly designated Trial Examiner at Columbia, Ten- nessee , on November 29 and 30 , 1967, on com- plaint of the General Counsel against Nashville Building & Construction Trades Council , herein called the Council ; International Brotherhood of Electrical Workers Union , Local 429, herein called IBEW Local 429; Plumbers Local 352, herein called the Plumbers Local; and Laborers Interna- tional Union of North America , Local 386, AFL-CIO, herein called Laborers Local 386, and all herein together referred to as the Respondents. The issue presented is whether the four Respon- dents violated Section 8(b)(4)(i ) and (ii)(B) of the statute at a construction project of H. E. Collins Contracting Company, Inc., herein called the general contractor , or the Charging Party. Briefs were filed after the close of the hearing by all parties Upon the entire record and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS The Collins Company, a Tennessee corporation, with its principal place of business at Signal Moun- tain, Tennessee, is engaged in general construction work. During the past 12 months it performed ser- vices valued in excess of $50,000 in States other than the State of Tennessee. During the same period it purchased and received directly from points located outside that State goods and materi- als valued in excess of $50,000. The sole location involved in this proceeding is a shopping center then under construction in Maury County, Tennes- see. There were a number of subcontractors per- forming diversified construction work at the same jobsite under contract with the Collins Company. As this is a secondary boycott case, in which it is charged that employees of the Collins Company were induced to cease work by concerted action despite the fact the Collins Company was not itself engaged in a labor dispute with the Respondent Unions, it suffices for purposes of exercising Board jurisdiction that the Collins Company was in fact engaged in commerce both within the meaning of the statute and within the area of the Board's established jurisdictional standards. Accordingly, I find that the Collins Company was at all times material herein engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED Nashville Building & Construction Trades Coun- cil; International Brotherhood of Electrical Wor- kers Union, Local 429; Plumbers Local 352; and Laborers International Union of North Amer- ica, Local 386, AFL-CIO, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES This is a secondary boycott case. The Nashville Building & Construction Trades Council authorized picketing at a building construction site, and one of its member unions, IBEW Local 429, established and maintained two pickets at the jobsite. There did exist a labor dispute at the time between these two unions and two subcontractors then doing work at the project-Smith and Waller Contracting Com- pany, herein called S & W, and Eatherly Construc- tion Company, herein called Eatherly. S & W was doing the electrical work, and Eatherly the excava- tion and foundations. Collins, the general contrac- tor, and several other subcontractors-including Larson and Soloff and the James Wilson Co.-em- ployed only union employees, covered by collec- tive-bargaining agreements. None of this latter group was in dispute with any labor organization, so far as employment conditions of their own work- men is concerned. The events took place where a new shopping center was to be established in a suburban area where the land was totally unimproved. To make it possible for vehicles to come on to the property, a 20-acre tract stretching 900 feet along Mount Pleasant Pike, a highway, two passageways were leveled at each end of the long premises, each about 30 feet wide and amounting to no more than a leveling of the ground a certain distance into the inner area, where the physical structures were to rise and an eventual parking lot to be placed. IBEW Local 429 placed a picket near each passage, one at the north and one at the south end. Within a week the south end picket moved to the north and thereafter only the north driveway was picketed. Each picket at all times carried a sign as follows: PICKETING SMITH AND WALLER ELECTRIC CO. SUBSTANDARD WAGES AND WORKING CONDITIONS IBEW-L. U. 429 Anticipating organized protest against the, non- union contractors, the general contractor placed signs-each about 4 or 5 feet square and standing on pegs driven into the ground-one at each vehicular passage, designating the south entran- ceway exclusively for employees and suppliers of the union subcontractors and of Collins, and the other limited to use by employees of and deliveries to the nonunion employers. 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The sign at the north end read as follows: NOTICE THIS ENTRANCE RESERVED FOR SMITH-WALLER CO. INC., F. K. HOLLAND COMPANY AND EATHERLY CONSTRUCTION CO. THEIR SUPPLIERS AND MATERIAL CARRIERS ALL OTHER PERSONS USE SOUTH ENTRANCE ....1 The sign at the south end read as follows: NOTICE THIS ENTRANCE NOT TO BE USED BY SMITH- WALLER, F. K. HOLLAND CO. AND EATHERLY CONSTRUCTION CO. OR THEIR SUPPLIERS. THIS ENTRANCE TO BE USED ONLY BY H. E. COLLINS CONTRACTING COMPANY, INC. AND ALL SUBCONTRACTORS EXCEPT SMITH-WALLER CONTRACTING CO., INC. F. K. HOLLAND COMPANY AND EATHERLY CONSTRUCTION CO. Between October 24 and 31, while both ends of the property were being picketed, all employees of the union contractors quit work-those of Collins and of Larson and Soloff and James Wilson. Em- ployees of the nonunion contractors, S & W and Eatherly, did not honor the pickets, either before November 1 or thereafter. When on November 1, the south end picket also went to the north corner, employees of the union contractors-all except cer- tain ironworkers-returned to their employment. All picketing was discontinued on November 13 and then even the ironworkers returned to duty. All has been quiet since. Despite the mandatory lan- guage of Section 10(1) of the statute, the General Counsel did not petition the Federal district court to enjoin the picketing now called unlawful. The issues raised by the pleadings will be better understood after a brief statement of the background situation which gave rise to the picket- ing. Collins, the general contractor and the Charg- ing Party, came to the Nashville area with the in- tention of building the shopping center by using both union and nonunion subcontractors. His own employees were going to be union represented workmen. His conceded purpose was to save money with nonunion employees. He started, in ad- vance of any actual work, by meeting with an agent of the Carpenters local union (Collins planned to use Carpenters) and agents of about 10 other local union members of the Nashville Building and Con- struction Trades Council. Among these locals were those representing operating engineers, laborers, masons, and ironworkers, all categories which Col- lins intended would be employed by union subcon- tractors on the job. He wanted advance assurance that they would work side by side with nonunion employees, peacefully, and neither picket nor honor any picket line which some other local union might set up. They promised as he requested, and told him that as no local union could place pickets without the sanction of the Council, and as they- the business agents then present-constituted a majority of the Council members, there was little chance of a majority of the locals voting within the Council for any kind of picket line on the project. The word got around and before long, still while no real work was being performed on the project, William Dollard, executive secretary of the Coun- cil, talked with Jolley, president of the Collins Company. With him were business agents of the other group of council members, representing glaziers , roofers, pipefitters, electricians, and plum- bers. They tried to persuade Jolley to use union contractors for this type of work also, but he said he could not pay that much. They also advised Jol- ley the Council had decided to picket the site under the circumstances. These talks took place late in September and early in October, long before any picketing. There also came a time when the busi- ness agents of the electricians and the plumbers visited the home office of S & W, the nonunion subcontractor who was planning to use electricians and plumbers on the project. They asked S & W to sign-up with their locals, but it refused. The complaint names the Council and IBEW Local 429 as Respondents; with the Council ad- mitting it sanctioned the picketing and with IBEW Local 429 as the union which in fact picketed in its own name, this is understandable. Laborers Local 386 is also named Respondent, and there is evidence, set out below, that its steward on the job, McDonald, successfully induced the union member laborers employed by Collins to cease work when the pickets arrived. Local 386 is therefore also properly a respondent. But the complaint also names Plumbers Local 352. Why this one, among the several locals which together with Dollard said the Council intended to picket the site, was selected a respondent is not clear on the record, and the General Counsel does not address himself to this question in his brief. The Plumbers Local did not picket, and there is no showing that its agents were responsible in their separate union capacity as distinguished from their membership in the Council for the picketing carried on only by the IBEW lo- cal. There is no evidence of employee inducement activities by the Plumbers at any point. S & W was employing nonunion labor, and, as Jolley testified, it was also going to use plumbers. Had the Plum- bers picketed, this would have been a primary dispute with S & W, and not necessarily unlawful. There did not exist, at the time of its participation in any conversation, any such thing as "gates," or reserved primary against neutral entrances to the jobsite. In short, there is no probative evidence of wrongdoing under the statute by that labor or- ganization, and, without further reference, I shall ' When this notice was posted the general contractor had already en- gaged the services of F K Holland Company, a third subcontractor, who was to do heating, ventilation, and air-conditioning work, and who was also .t nonunion contractor Holland did not enter the premises for any purpose until late in November, after all picketing had ceased NASHVILLE BLDG. & CONSTR. TRADES COUNCIL therefore recommend dismissal of the complaint with respect to Plumbers Local Union 352. The theory of the complaint is that the picket who stood for 7 workdays at the south corner of the property was put there to induce union member employees of the union subcontractors and of the general contractor to cease work, which they did, and that therefore the Council and IBEW Local 429 violated the secondary boycott ban. There is no contention that the north end picketing was ever unlawful, or that anything untoward occurred from November 1 and thereafter. As this was a construc- tion industry common situs situation, the rule of law in point becomes Moore Dry Dock.2 As pin- pointed precedent support for an unfair labor prac- tice finding in this case, the General Counsel relies on the lead decision in the so-called "reserved gate" case.3 The truth of the matter is, however, that at this common situs there were no gates, there were no fences, no locks, no guards. While cars and trucks had to use the leveled passageways from the public roads to enter the area of work, employees, or any other persons, could walk on at will at any point on the perimeter of the entire tract. From the General Counsel's brief: "However, one could gain entrance to the jobsite on foot at practically any point between the reserved and neutral gates and certain other points around the site." While these decisions bear examination here, the facts at hand also require consideration of a per- haps more basic truism, and that is that there in- here in the statute "dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending em- ployers and others from pressures in controversies not there own." Denver Building and Construction Trades Council, 341 U.S. 675, 692. In balancing the two rights in any given situation the controlling test must be to be sure that the picketing is such as "to minimize its impact on neutral employees insofar as this can be done without substantial impairment of the effectiveness of the picketing in reaching the pri- mary employees." Retail Fruit and Vegetable Clerks' Union Local 1017 (Crystal Palace Market), 116 NLRB 856, 859. With this thought in mind, the question becomes whether it can be found as a fact that the object of the south end picket was to in- duce the employees of the neutral employers-Col- lins and the union subcontractors-to cease work; or, restated, whether in the circumstances of this case-and no two common situs sets of facts ever are exactly comparable-the Respondents were required, in order to assure the statutory protection accorded the neutrals, to limit the picketing entire- '.Sailor's Union of the Pacific, AFL (Moore Drvv Deck Conipmn•), 92 NLRB 547 'Local 761, International Union of Electrical Workers, Radio and Mac bore Workers, AFL-CIO [General Electric Co J v N L R B, 366 U S 667 1145 ly to the north entranceway. For a fair answer, all the pertinent facts must be considered. To start with, it has been held that the mere post- ing of signs does not itself limit the situs of the dispute.' The absence here of any physical impedi- ment to entry upon the property at any other point becomes particularly significant because it was the length of the tract, 900 feet, which bordered the public highway, and nowhere else would employees feel restrained from going to work freely and without the embarrassment of crossing a picket line. While it is true that a union seeking to inter- rupt work on any project will want to impede the delivery of supplies, at bottom it is the employees to whom the pickets' appeal is directed. Any at- tempt unreasonably to limit the union's right to alert employees of the primary employer to the labor dispute must fail, just as indefensable en- croachment upon the rights of neutrals must be en- joined. S & W, which did mechanical work utilizing various crafts, was from out of town, and at one point during the prepicketing conferences, it was suggested its employees, as well as those of Eatherly, obtain permits for work from the local unions which are members of the Nashville Coun- cil. Does this mean that nonunion contractors used craftsmen nongrata to the Respondents because they were members of local unions from other areas? It would not be the first time a like dispute erupted over conflicting territorial claims among unions. In any event, it is to be expected that even employees who belong to no union at all will think of avoiding direct confrontation with a picket, if a way can be found to bypass him. Here the opportu- nity was readily available all over the place, and from all directions. The picket at the south end, the one called il- legal, was not stationed near the south passageway, but 150 feet distant from it, at the point where a side road meets the Mount Pleasant Pike. Along the south border of the construction site there is a public road, Trotwood Avenue, 50 feet wide and running at least a few hundred feet distant from the highway. All that is shown on the record is that there is a private residence several hundred feet up this road, and across the street from the construc- tion area. At the intersection of Trotwood Avenue and the Pike, on a square of ground cut into the larger rectangle constituting the shopping area as a whole, an unrelated contractor was building a gasoline service station. He had his own employees (union or nonunion remains unknown, none shown to have been affected by the picketing), he was building for some other owner, and he had nothing to do with any of the employers on the shopping 4 Local Union No 519, United Association ofJourneym en mid Apprentices of the Plumbing and the Pipefitung Industry of the United States and Canada, AFL-CIO (Center Plumbing and Heating Corp ), 145 NLRB 215 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD center project involved in this case . The record is not clear concerning the progress stage of the gasoline station ; the shopping center job was 30 percent finished . Jolley, the Collins president, did testify , however, that the gas station was in "mid- construction ," and among other things a ramp was being constructed for cars to proceed to and from the shopping center . He also said there was no physical barrier preventing persons from walking through the gasoline station area into the Collins construction site. How many employees of S & W, or of Eatherly , came through the gas station into the shopping center area? The long stretch along the highway ( the 900 feet ) was abandoned ground, irregular in height , perhaps 3 or 4 feet of rock area in some places and making access inconvenient. When it rained one day and the north passageway was impassable because of the mud , one car at least made its way in through the gas station 's temporary driveway. There is testimony by the Collins Company su- perintendents , James Mayer and Don Faulkner, that they told the people in charge of all subcon- tractors exactly which entranceways their respec- tive employees and suppliers must use . There is like testimony by Billy Rogers, electrical foreman of S & W, and by William Carlton , foreman of Eather- ly's excavation crew , that they did tell all their em- ployees to respect the posted signs. This testimony is of necessity uncontradicted ; no employees of the neutral companies were called in corroboration. There is' some evidence , on the other hand, that employees , and perhaps even suppliers of S & W and Eatherly , entered the project at points other than what is called the reserved "gate." The super- visors, and owners, who testified in support of the complaint, said they saw no neutral employees enter anywhere else, and they also made the flat statement that no one did come to work except through the north picket . They had to admit, how- ever , that their place of work , or their offices, was so deeply placed inside the large tract that they could not see the open perimeter through which anyone could always walk , or the south picket point, or the gas station open construction site. Among the defenses advanced is the contention that there were no effective gates, reserved or otherwise , and that in fact employees of the neutrals did go to work without using the north en- tranceway . Most of the supporting evidence given, both to show the driveway was impassable at times and that the employees and the deliverers crossed the property line elsewhere, goes to conditions and events after October 3 1, and up to final removal of all pickets on November 13. The General Counsel and the Charging Party objected to this testimony on the superficially correct ground that as it is only the early picketing at the south end that is now called illegal , evidence of whatever happened later is irrelevant . But the Unions argue, not without a certain degree of persuasion , that the unsettled physical conditions of the whole project throughout the entire period warrants an inference that condi- tions generally were the same during both the last week of October and the first one in November. For example , it rained on Monday night , October 23; the next day, Tuesday, was the first when, ac- cording to the General Counsel, a proper sign was posted at the south end and the pressure of the picket became illegal . Mayes, Collins' foreman, testified it also rained the night of October 24-25, and the night before the 27th. It also rained the fol- lowing week , when both pickets were at the north end, and everything was lawful , as the Government lawyer says. Carlton, the Eatherly foreman , recalled that one day, because of the difficult muddy condi- tion of the north entranceway , it was impossible to enter at that point with a vehicle, and he and his men had to walk. On still another occasion the rain so affected the north driveway that he had to pull a Texaco truck into the property with his dozer. There is no reason to believe that the driveway was less impassable because of the weather the week before; indeed it would be logical to assume that the earlier the stage of the project the poorer the access at any point . Although ambiguous at times, it does seem that the foregoing evidence really shows difficult or impassable entry after November 1. But if the rain could effectively close that entran- ceway, is this not also some proof that the same must have occurred when it rained several times during the week before? Clyde Brown , the man who always picketed the north end, testified that one day sometime between November 1 and 10 , he saw Woods, an employee of S & W, at work, but that the man did not cross him. He also testified Foreman Rogers was on the project with his car, but that he too had not entered at the north end. Charles Workman, the other picket, said that he too saw Woods come to work, and that the employee left the north end and walked south to enter through the south passageway . There was an S & W employee named Woods; he did not testify . Workman also testified he once saw Eatherly employees at work although the north way was impassable because there were heaps of rock on it and it was being surfaced. These things, too, happened after November 1, and it is also true the pickets arrived between 6 and 7 a.m., later than the 6 a .m. starting time of the S & W men. It is also true the pickets sometimes left their posts for coffee or when the rain was heavy. It is therefore quite possible the employees of the pri- mary employers they saw on the job on these occa- sions could have passed while the pickets were not there . The significant point is that they also could have entered at some other point, particularly those who did not come by car . It cannot be said unequivocally on this record that without exception all employees of nonunion subcontractors entered the property always by car. The burden of proof of illegal object in the picketing always rests upon the General Counsel , and it requires affirmative and substantial evidence . Had there been a fence, or NASHVILLE BLDG. & CONSTR. TRADES COUNCIL 1147 gates of one kind or another, this sort of maybe proof, or what could have happened, would serve much less to support the defense . In the circum- stances of the physical layout here, the element of probability assumes a different hue One thing is clear : the explicit " reserve gate" lan- guage written on the sign at the north end did not deter even the supervisors of nonunion contractors when the passageway was impassable. Rogers, foreman of S & W, said frankly "we [he and some of his employees] went in up through the service station there. They had made this ramp down from the parking lot down to the service station and that was the only way we could get in without going through the Collins gate, so, we went through this service station." While it is true this incident, at least, happened after November 1, it shows without question that however concerned the neutrals were with honoring the south end sign by staying away from it, they felt no compunction about disregard- ing the equally restrictive language of the "reserve gate" sign . There is no reason to believe Rogers, or his men, took a different attitude towards the sign, or towards the explicit instructions voiced to them, before and after November 1. So far as they were concerned, the signs were the signs, exclusive "gates," according to the theory of complaint. What the incident dramatically illustrates is what is likely to happen when a sign is stuck in the mud, but there are 900 feet of frontage area that can as well be used for entry. And the point where Rogers brought the employees in is precisely where the south end picket had stood, 150 feet away from a so-called south gate. He avoided the south "gate," but he also disregarded the "reserved" one. But there is also some indication that the north passageway was not used exclusively by the em- ployees of the primary employers even before November 1. Brown, the north end picket, was positive that one day "the last week in October" he saw about 10 men doing excavation work for Eartherly although none of them had entered that end. He could not see the south end from his post, but there were no other contractors' employees working then, and Brown said they therefore must have entered at some other point. In this instance, the fact that the picket may have absented himself at times does not effectively weaken his story, because he also said the rain had so washed away the entranceway that it took Eatherly's superinten- dent 1-1 /2 hours to drive his vehicle up and through that same morning. However the picketing in this case be viewed, it cannot be found that a preponderance of the sub- stantial evidence on the record as a whole supports a conclusion that the picketing had as an object anything other than publicizing the Council's and the IBEW's primary dispute with S & W and Eatherly, the nonunion subcontractors. There is in- sufficient evidence to prove affirmatively, as the General Counsel contends, that the purpose of the picketing was to induce employees of Collins, or of the union subcontractors, to cease work. Examined in the light of the evidentiary standards set out in Moore Dry Dock, it is clear that this was the normal situs of the business of the primary employers, that the picketing was in haec verba addressed to S & W, and that it was limited to such times as its em- ployees were engaged there. In the total circum- stances it cannot be said that the picketing was not limited to places reasonably close to the primary situs, or that the posted signs effectively restricted the situs of the primary dispute to the north end of the property. Accordingly, I find that the picketing was not conducted in a manner from which a secondary objective is inferable.' One day, apparently at the start of the picketing, W. C. McDonald, steward for Laborers Local 386 and himself an employee of Wilson and Soloff, told a group of laborer members of the union, not to cross the picket on pain of being fired and expelled from their union . They did not work. 'Clearly this was a direct violation of Section 8(b)(4)(i)(B) of the statute, for Local 386 then was not in dispute with Wilson and Soloff, and McDonald was inviting a sympathy strike in support of the primary dispute of the IBEW local, and I so find. McDonald was the agent of the Laborers Local, named separately as a respondent. There is nothing to prove he was that day acting on behalf of the IBEW Local 429, or as agent of the council itself. The fact that the Laborers Local and the IBEW Local are both members of the Council does not suffice to make one ipso facto the agent of the other, in the commission of unfair labor practices.' Accordingly, the finding that Laborers Local 386 in fact illegally induced employees of a neutral con- tractor to respect the not improper picket of the IBEW local in no way taints the picketing activities of the latter with illegality.' IV. THE REMEDY Having found that the Respondent Laborers In- ternational Union of North America , Local 386, AFL-CIO, has violated Section 8 ( b)(4)(i)(B) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case , I make the following: ' Cf, International Brotherhood of Elet trtca! Workers, Lo(a! 441 (Subur- han Deselopment Co ), 158 NLRB 549 " Cf, Oerte! Breit tng Co , 93 NLRB 530, and Nassau and Suffolk Budding Conslru( lion Trades Council , AFL-CIO ( Theresa Garden Apt%, !m ), 162 NLRB 180 See footnote 5 above 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent Laborers International Union of North America , Local 386, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By inducing employees of H. E . Collins Con- tracting Company , Inc., to engage in a strike with an object of forcing or requiring the Collins Com- pany to cease doing business with Smith and Waller Contracting Company and Eatherly Construction Company , that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 ( b)(4)(i)(B ) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7 ) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , it is hereby recommended that Laborers International Union of North Amer- ica, Local 386 , AFL-CIO , Nashville , Tennessee, its officers , agents, and representatives , shall: 1. Cease and desist from engaging in, or induc- ing or encouraging individuals employed by H. E. Collins Contracting Company, Inc., or any other person engaged in commerce or in an industry af- fecting commerce , to engage in, a strike or refusal in the course of their employment , to use , manufac- ture , process, transport , or otherwise handle or work on any goods, articles, materials, or commodi- ties, or to perform any services where an object " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall he substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " thereof is to force or require H. E. Collins Con- tracting Company, Inc., to cease doing business with Smith and Waller Contracting Company and Eatherly Construction Company. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at its business offices and meeting halls in Nashville, Tennessee, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Re- gion 26, after being duly signed by Local 386's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to mem- bers are customarily posted . Reasonable steps shall be taken by Local 386 to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail copies of said notice to the Regional Director for Region 26 for posting by H. E. Collins Contracting Company, Inc., if willing, at all locations where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps the Respondent Local 386 has taken to comply herewith s It is further ordered that the complaint be dismissed insofar as it alleges unlawful conduct by Respondents Nashville Building & Construction Trades Council, International Brotherhood of Elec- trical Workers Union, Local 429, and Plumbers Local 352. " In the event that this Recommended Order is adopted by the Board, this provision shall he modified to read " Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, % hat steps Respondent has taken to comply herewith "