Laborers Union Local 1290

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers Union Local 1290 and Walters Foundation, Inc. Case 17-CC-453 February 11, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 27, 1971, Trial Examiner Lloyd Bu- chanan issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a support- ing brief and the General Counsel filed exceptions and a supporting brief. Respondent also requested oral ar- gument. ' 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 Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions only to the extent consistent herewith. The complaint alleges that Respondent violated Sec- tion 8(b)(4)(i) and (ii)(B) of the Act by picketing at a gate used exclusively by neutral employers. The Trial Examiner found that certain of Respondent's picketing at such locations violated Section 8(b)(4)(i)(B) but that Respondent did not thereby violate Section 8(b)(4)(ii)(B). This case arose out of a dispute at the Park-Mar Estates construction site in Lawrence, Kansas. The facts are, in all significant respects, uncontroverted. The general contractor for the Park-Mar Estates project is Park-Mar Contractors. Among the several subcontractors performing work on the project is the Charging Party, Walters Foundations, Inc. Although the west side of the Park-Mar project site is not en- closed by a fence, and no physical gates exist, there are three access routes leading into the project from Kasold Avenue, which borders the project on the west. These entrances are referred to as the North Gate, the South- west Gate (approximately 1,300 feet south of the North Gate), and the South Gate (approximately one-half block south of the Southwest Gate). At the time of the dispute, work was being performed at only one loca- tion, approximately 100 feet in from the Southwest Gate and 1,300 feet from the North Gate. From the area where the work was being performed, the North Gate was not visible. On Thursday, May 13, 1971, Respondent began picketing at the project site, displaying a sign indicating that "Walters is breaking down established working conditions of Laborers Local 1290, AFL-CIO." This picketing took place at the Southwest Gate. Although the precise basis for the dispute is unknown, it is clear that Respondent's dispute was with Walters and not with Park-Mar or any other employer working at the site. The picketing continued the next day, May 14, also at the Southwest Gate. On Saturday, May 15, Walters' attorney notified Respondent by telegram that, begin- ning Monday, May 17, the North Gate would be set aside for employees of Walters. All other employees would use the Southwest Gate. On May 17, appropriate signs were placed at the North Gate and Southwest Gate signifying which em- ployees were to use which gate. Both signs were placed prior to 8 a.m. When the picket arrived at the site he began picketing at the Southwest Gate, as he had done previously. Upon receiving Walters' telegram, John J. Rider, Respondent's field representative, went to the site and, at approximately 8 a.m., moved the picket to the North Gate,' the gate designated for Walters' em- ployees. At that time there was a road construction crew working on Kasold Avenue just north of the project, within 20 feet of, and progressing toward, the North Gate. After stationing the picket at the North Gate, Rider contacted Respondent's counsel and informed him that the only work being performed in the area of the North Gate was that being done by the road con- struction crew. None of the Park-Mar Estates work could be seen from the North Gate. Thereafter, Re- spondent's counsel telephoned counsel for Walters and informed him that Respondent would honor any prop- erly constituted reserved gate, but that Respondent felt that the North Gate was inappropriate. Respondent's counsel then asked to be notified if the reserved gate were moved. At or about noon, the picket was moved from the North Gate back to the Southwest Gate, where he remained until approximately 4:30 p.m. Prior to 1:30 p.m. road construction work on Kasold Avenue had progressed to the point at which the road crew was cutting away the bank of the roadway near the North Gate, causing the project to become inacces- sible from the North Gate. The situation prompted Wayne Hall, Park-Mar's superintendent, to remove the sign from the North Gate and place it at the South Gate at or about 1:30 p.m. Just after 1:30 p.m. the North Gate was, in fact, blocked. As he moved the sign from the North Gate to the South Gate, Hall told the picket that the sign was being moved, although he did not tell ' Respondent's request for oral argument is hereby denied In our opin- ion, the record, including the exceptions and briefs , adequately presents the issues and positions of the parties ' The General Counsel does not contend that the initial picketing at the Southwest Gate on May 17 violated the Act. 195 NLRB No. 71 LABORERS UNION LOCAL 1290 371 the picket to notify Respondent, nor did Hall notify Respondent's business agent. Thereafter, all Walters' employees used only the South Gate. There was no picketing by Respondent after this date, May 17. On the basis of the above facts, the Trial Examiner concludes that Respondent's picketing at the South- west Gate from noon, when the picket was moved, until 1:30 p.m., when the reserved gate was changed, vi- olated Section 8(b)(4)(i)(B) of the Act. In support of his conclusion, the Trial Examiner reasons that Respond- ent's grievance was against Walters and, by its picket- ing at the Southwest Gate, Respondent sought to en- mesh neutral employees in a refusal to work, with an object of forcing neutral employers to cease doing busi- ness with Walters. We do not agree. In developing standards by which to measure the legality of the type of picketing involved herein, the controlling consideration has been to require that the picketing be so conducted as "to minimize its impact on neutral employees insofar as this can be done with- out substantial impairment of the effectiveness of the picketing in reaching the primary employees."3 The Board has refused to apply these standards in an inflexi- ble manner, but rather has attemped realistically to balance the interest of neutrals with the union's interest in reaching the primary employer.' The ultimate aim remains to insulate neutrals to the extent this can be accomplished in a manner that does not impair a un- ion's ability to engage in primary picketing. In the present case, it is undisputed that Respond- ent's conduct complied in all respects with the stan- dards for lawful common situs picketing established in Moore Dry Dock, 5 with the arguable exception of pick- eting covering a 4-hour period during which Respond- ent's failure to confine its picketing to a gate reserved for primary employees allegedly established a pro- scribed secondary objective. It is true that neutral em- ployers may, by the device of a separate gate, limit the situs of the primary dispute and thereby preclude law- ful picketing at other locations. However, it is equally clear that such an arrangement must be established in a manner which avoids confusion and the possible en- trapment of a union, and under conditions which rea- sonably assure that picketing at the designated primary entrance will reach the on-site business activity of the primary employer. In this case, from the initial estab- lishment of the North Gate, it was apparent that said Retail Fruit & Vegetable Clerks' Union, Local 648, Retail Clerks Inter- national Association, AFL-CIO (Crystal Palace Market), 116 NLRB 856; Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 International Brotherhood of Electrical Workers, Local 441 (Suburban Development Co), 158 NLRB 549, Building & Construction Trades Council of New Orleans, AFL-CIO (Markwell and Hartz, Inc.), 155 NLRB 319 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), supra. entrance would remain open only until the road con- struction crew had progressed far enough south on Kasold Avenue to block access to the site through the North Gate. When Respondent's picket first arrived at the North Gate, the road crew was already within 20 feet of the North Gate. It was obvious, therefore, that Walters' employees and those of its suppliers, at some time that day, would have to use some entrance other than the North Gate. In fact, prior to 1:30 p.m. it became apparent even to Park-Mar that the North Gate could no longer be used by Walters' employees. In the face of the uncertainty presented by imminent closure of the North Gate, Respondent, at noon, moved its picket from the North Gate, back to the Southwest Gate, the gate previously used by primary employees. Before the picket was moved, however, Respondent's counsel had requested to be notified in the event a different gate was established for Walters' employees. Yet, when Park-Mar transferred the primary gate from the North Gate to South Gate, Respondent's counsel was not notified as requested. Indeed, although com- munication as to the location of the gates previously had been between Respondent's officials and Walters, the change in gates was accomplished merely by Park- Mar's superintendent telling Respondent's lone picket that he had "removed the sign that was at the North Gate and was taking it to the South entrance and putting the sign up there." On the basis of the foregoing, we are unable to con- clude that the situs of the dispute was defined either with a sufficient degree of certainty or permanence to circumscribe the area of lawful primary picketing. Con- sidering the brief period of allegedly unlawful picketing in relation to the ambiguities presented by the tempo- rary availability of the North Gate, the changing of the primary gate only a half day after its establishment, and the failure to give notification of such change to respon- sible union officials as had been done in the past and as requested, we are not persuaded that Respondent's picketing at the Southwest Gate supports an inference of proscribed secondary activity. Accordingly, we find that Respondent's picketing did not have an unlawful object proscribed by Section 8(b)(4)(i)(B)6 and we shall order the complaint herein dismissed in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. ' Although the General Counsel filed exceptions to the Trial Examiner's refusal to find that Respondent's conduct violated Sec 8(b)(4)(ii), in view of our disposition of the case we find it unnecessary to reach that issue. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner: The complaint herein (issued June 16, 1971; charge filed May 17, 1971) alleges that Local 1290 has violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, 73 Stat. 519, by inducing and encouraging individuals employed by persons engaged in commerce to engage in a strike or refusal in the course of their employment to use , process, transport, or otherwise handle or work on goods , articles, materials, or commodities , or to perform services, and by threatening, restraining, and coercing persons engaged in commerce, such persons being secondary employers herein; an object of such acts and conduct being to force and require such persons to cease doing business with a main contractor, also a secondary employer herein , so that the latter would cease doing business with the primary employer . The com- plaint is framed in terms of violation of the reserved gate doctrine, not of threats or violence . The answer, as modified by stipulations, denies the allegations of violence. The case was tried before me at Lawrence, Kansas , on July 7, 1971. Briefs have been filed by the General Counsel and Local 1290. The General Counsel's unopposed motion to correct the transcript as therein indicated is granted. The Company stickles on an issue which, were it meritorious, should claim the attention of the legislature. Upon the entire record in the case and from my observa- tion of the witnesses , I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW I THE BUSINESS OF THE VARIOUS COMPANIES, AND THE LABOR ORGANIZATION INVOLVED It was admitted at the trial that Park-Mar Contractors, a partnership, is the general contractor in construction of Park- Mar Estates at Lawrence , Kansas; that Walters Foundation, Inc., is constructing concrete foundations and floors , Charles H. Dunbar d/b/a W. A. Dunbar & Sons is excavating and hauling materials, and R. H. Rhodes d/b/a Rhodes Heating and Roofing Co. is installing heating, air conditioning, sheet metal and roofing materials, all on the Park-Mar project; and that Park-Mar, Walters, Dunbar, and Rhodes are severally engaged in commerce within the meaning of the Act, the latter three as subcontractors of Park-Mar . I find and con- clude accordingly . I also find and conclude that , as admitted, 1290 is a labor organization within the meaning of the Act. II THE UNFAIR LABOR PRACTICES After the admissions concerning commerce, and tentative agreement and many modifications , a lengthy stipulation was read into the record at the end of the morning session.' On ' At the afternoon session, citing part of the discussion at the morning session while this stipulation was being arranged , Mr Reinhold, counsel for 1290, charged me with "a bias or a prejudice at least as to this particular case or as to the admission of evidence ," he requested that I declare a mistrial and disqualify myself At the opening of the trial I received after more than 2 hours of discussion stipulations concerning facts not in dispute , which materially lessened the number of witnesses and shortened the trial . During these discussions off the record and after apparent agreement between counsel, Mr Reinhold several times injected additional matters for inclusion in the stipulation I humor- ously remarked in an attempt to lessen tension among counsel that repeated belated injections of new matter after the proposed stipulation had been so arduously prepared, modified, and reread for approval of counsel might raise a question concerning the credibility of the supplementary material When we reconvened that afternoon , Mr Reinhold made the charge and request noted above Denying that I was biased or prejudiced, I told him that Thursday, May 13, 1971, 1290 began to picket Walters at the project; the picketing continued on May 14, all at the Main or Southwest Gate. On Saturday, May 15, Walters' attorney notified 1290 by telegram that as of Monday morning, May 17, the North Gate on the project would be set aside for the use of Walters employees only and that all other contractors and employees would use the Southwest Gate exclusively. On the morning of May 17 a sign, copy of which was received as General Counsel's Exhibit 2-A, was posted at the North Gate, and another sign, General Counsel's Exhibit 2-B, was posted at the Southwest Gate . General Counsel's Exhibit 2-A read : "Entrance for exclusive use of following contractors and suppliers Walters Construction Company." General Counsel 's Exhibit 2-B read: "Entrance for exclusive use of following contractors and suppliers " and listed the following names : White Installation, Morrison Drywall, Wickes Lumber, Robinson Brothers, Rhodes Heating, Scott Construction, Ransford Electric, Penny Red-Mix, Nelson Painting, W. A. Dunbar, and Hetzel Haul. The picket sign appears in the background of General Counsel's Exhibit 2-B: "Walters is breaking down established working conditions of Laborers Local 1290, AFL-CIO." The sign itself, as distin- guished from its placement, is not under attack. The primary employer, with whom 1290 has been in dis- pute, is Walters; 1290 has no labor dispute with Park-Mar, the general contractor who, like Rhodes , Dunbar, and the other contractors or suppliers named, is thus a secondary employer. It is not claimed that 1290 committed any violation prior to approximately 12 noon on May 17. About noon the picket, who had been stationed at the North Gate that morning (following the telegram of May 15), was transferred from there to the Southwest Gate, where he remained until approx- imately 4:30 that afternoon. There are actually three en- trances to the project. Besides the North and Southwest Gates, which are approximately 1,300 feet apart , there is a South Gate about or less than half a block south of the Southwest Gate. From the place where construction was be- ing carried on inside and near the Southwest Gate , the North Gate cannot be seen. The nearest work on the project was approximately 100 feet from the Southwest Gate; no work was being performed on the project less than approximately 1,300 feet from the North Gate. There were no actual gates or fences on this west side of the project; at each of the three gates mentioned there was a path or access route leading into the project. Other contractors and crews were constructing a public cement road on Kasold Avenue, which runs north and south and which abuts on the Park-Mar project's west side. Some of these were working within 20 feet of the North Gate on May 17, and were closer to it than were Walters employees although, as we shall see, road work was being performed along the entire street and in front of all three gates. On the morning of May 17 counsel for 1290 informed Walters' attorney by telephone that 1290 would recognize a properly constituted reserve gate but that this (the North) I had formed no advance opinion and showed him my trial notes which carried the notation to await the testimony on the point which he said he intended to cover To counsel's statement that his motion was not personal (I believe that this was off the record), I replied that it was personal to the extent that it was directed toward a person but that it was not offensive (This was repeated on the record in Iron Workers Local 10 (R & T Steel Contractors, Inc) Case 17-CP-119, 120, which was tried the next day and which Mr Reinhold, attorney for Iron Workers Local 10, opened with a motion that I disqualify myself because I had said that his motion in the instant case was personal, my statement that it was literally personal but not offensive was apparently still not clear to him although I had stated the day before that he had every right to make the motion ) LABORERS UNION LOCAL 1290 373 gate was not properly constituted because it was too far from the gate used by the other Park-Mar project employees and from the work being done on the project. Supplementing these facts, it appears that General Coun- sel's Exhibit 2-A was placed at the North Gate between 7:30 and 8 a.m. on Monday, May 17. The reserved gate sign, General Counsel's Exhibit 2-B, was placed at the Southwest Gate about or shortly after 8 a.m. The North Gate was still accessible from the street at 1:30 p.m. but work by the road construction company on the street in front of the project and all three of the gates was making the project inaccessible as it proceeded from the north. The Walters sign, General Counsel's Exhibit 2-A, was moved from the North Gate to the South Gate at approximately 1:30 p.m., and entrance from the street was no longer possible at the North Gate shortly after 1:30. Having entered through the North Gate (a supervisor entered through the South Gate between 3:30 and 4 p.m.), all Walters employees (and that supervisor) left via the South Gate that afternoon. There is no reason to doubt the testimony by Hall, Park- Mar's superintendent, that he made and placed the gate signs and that there were only two. When a sign was placed at the South Gate, it was one of the two which had been placed previously, specifically the one which had been at the North Gate. There is no question but that the reserved' gate sign was placed and remained at the Southwest or Main Gate. Stultz, later identified as the business representative and financial secretary of a Carpenters local, was at least mistaken when he testified that he saw one like it at the South Gate. All of this would indicate violation from noon, when the picket arrived at the Southwest Gate, until 4:30, when he left that afternoon. Hall testified that he did not call 1290 but told the picket at the Southwest Gate that he was moving the sign from the North to the South Gate, which was to be for the exclusive use of Walters' employees. The picket, assigned and moved about by 1290, had already violated the reserved gate rule when, on assignment by 1290, he was stationed at the South- west Gate at noon and thereafter. It becomes unnecessary to decide whether, with respect to the picketing after 1:30, the picket's knowledge that the Walters sign, General Counsel's Exhibit 2-A, had been moved to the South Gate is attributa- ble to 1290. In any event, the violation occurred and continued between noon and 1:30 p.m. when, after establishment of the separate gate for Walters' employees at the North Gate and before the South Gate was used or any sign placed there (so that the issue was during that period admittedly confined to the North and the Southwest Gates alone), the picket was stationed at the Southwest Gate Stultz testified that he saw "Robinson" come out of the South Gate and that the sign posted there had Robinson's name on it Even were this testimony, uncertainly given, to be relied on, and it is not, it would not show use of that gate by any employees other than Walters'. If used by Robinson, the only identification of anyone with that name (this is not to slight Defoe) is the inclusion of Robinson Brothers as one of the contractors on the job named in General Counsel's Exhibit 2-B, not an employee. ' Reference throughout was to G.C.'s Exh 2-A, as the reserved gate sign While that sign indicated reservation for Walters employees, it is correct to refer to the Southwest Gate, reserved for employees of secondary employ- ers, as the reserved gate , and to G C's Exh 2-B as the reserved gate sign There is no confusion concerning the gates and who used them, the signs and where they were posted Stultz also testified that he saw Rickle, a contractor in the area, entering the project through the South Gate. It does not appear that Rickle was a contractor here or had any em- ployees on the site. There is no testimony that any employee entered or left the project except by one of the three gates: Walters' by the North Gate, later leaving by the South Gate, all other employees by the reserved Southwest Gate. It would go beyond the facts here shown to point out that the presence of Robinson at the South Gate would not legitimatize picketing at the Southwest Gate reserved for employees of secondary employers and not used by Walters. Nor is there evidence of "mingled use"' of the reserved gate. Crisscrossing paths or tire tracks inside the project would not indicate access from outside at any place other than the three gates. Such tracks inside the project cannot support a claim that access could be had at many other places. But beyond this, to repeat, there is no testimony that employees in fact did enter except through the gates set aside for them. The project's layout, its boundary, access to it, how to "define inside or outside,"-these are not abstruse concepts. They need not be described in Devanagari. There is not a scintilla of evidence to support the statement by Rider, 1290's representative and moving spirit, that he or Reinhold was concerned lest the road construction company assume that it was being picketed. An approach to that com- pany would have forestalled such an assumption, now in the second degree as 1290 assumed that there might be an as- sumption. With work done along the entire street and in front of all three gates, the North Gate becoming impassable at 1:30, it was not shown how or why 1290's alleged concern would be lessened or the road company's assumption avoided by transfer of the picket from one gate to another. Concerned, Rider or his attorney would have attempted, when the picket was first stationed or at some time before he was moved, to explain to the road construction company (were explanation beyond the picket sign necessary) in order to avoid or lessen any not yet manifest reaction or assumption by it. But this was not done. The claim of concern is fanciful and incredible. To the extent that 1290's attorney testified to such concern, we need not make a credibility finding. Nor did Reinhold claim that he suggested to Rider that explanation be offered to the road construction company with respect to picket signs at any of these gates. Neither, as Reinhold now admitted, was there previous reference at the trial (when his telephone conversation with Walters' attorney on May 17 was being discussed, either on or off the record, although the right to add was specifically reserved when the stipulation was finally entered into) to any request that he be notified of any change in the location of the Walters' gate. It had been clearly argued that the reservation of the North Gate for Walters' employees was "inappropriate and deficient and defective" since the paths taken by various employees crisscrossed once the separated employees entered upon the project; and that the Walters (North) gate purposely set up in an "unrelated area," was therefore inappropriate: that the gate for the employees of the primary employer must be set up near the gate used by the neutral employers' em- ployees so that the latter could see and presumably would be restrained by the presence of any picket. The argument continues that the picket's sign at the North Gate was not visible from the place where the work was being done near and inside the Southwest Gate. But the rationale of the reserved gate doctrine is that full opportunity be given to picket the primary employer while yet minimizing the ' Local No. 761, IUE (General Electric Corporation) v NL R B., 366 U S 667, 682 See Nashville Building and Construction Trades Council (Markwell & Hartz, Inc), 383 F 2d 562 (C A 6), enfg 164 NLRB 280 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD impact on secondary employers and their employees.' The modulus of permitted activity remains the right of secondary employers and their employees to function without threat or inducement to the contrary while yet permitting a union to picket the primary employer. Its grievance against Walters, 1290 by proscribed picketing sought to enmesh neutral employees in a refusal to work and thus to do business with Park-Mar, and thus with Walters, an object being, as alleged, to force these secondary or neutral ' See Bricklayers, Local I (Don Salisbury Bricklaying Company), 191 NLRB No. 5 employers to cease doing business with Walters. Local 1290 unlawfully induced and encouraged employees of secondary employers, an object being to enmesh secondary employers in its dispute with Walters and to force and encourage Park- Mar to cease doing business with Walters. This was violative of Section 8(b)(4)(i)(B); I so find and conclude. With refer- ence to the allegation of violation of Section 8(b)(4)(ii)(B), it does not appear that, whatever the object, secondary employ- ers were threatened, coerced, or restrained. That allegation must be dismissed unless it be held that inducement or en- couragement of employees per se unlawfully threatens, co- erces, or restrains their employers. [Recommended Order omitted from publication.]