Operating Engineers, Local 17, et al

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers Local No. 17, 17A and 17B, AFL-CIO and Firelands Sewer and Water Construction Co., Inc. Case 3-CC-809 April 19, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 14, 1974, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a brief in support thereof and the General Counsel filed limited exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge as herein modified, and to adopt his recommended Order. The record discloses and the Administrative Law Judge found that a meeting had been arranged with the Buffalo Sewer Authority for July 11, 1973, to discuss the Authority's award of a contract to Firelands Sewer and Water Construction Co., Inc., a nonunion contractor with which Respondent had its primary dispute. The Authority informed the repre- sentatives of the various unions at the meeting that Firelands was the lowest responsible bidder. Accord- ing to Respondent's business representative, Thomas McPartlan, whose testimony about the meeting was credited by the Administrative Law Judge, someone asked the union representatives what their local unions intended to do. McPartlan replied that if Firelands were awarded the contract, the Respon- dent would engage in informational picketing. The Administrative Law Judge, citing United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 639 (American Modulars Corpo- ration), 203 NLRB No. 162, concluded that M%,j'at- lan's statement constituted a threat within the meaning of Section 8(b)(4)(ii)(B) of the Act inasmuch as it was "by its terms unrestricted in scope and contemplated picketing the entire jobsite including future phases and any employer working there." We do not agree. In American Modulars Corporation respondent union, when several neutral contractors were work- ing at the jobsite, threatened to engage in "informa- tional picketing of the Sherwood Acres jobsite." The Board found, "This statement, by its breadth, 210 NLRB No. 30 contemplated picketing of the entire jobsite and anyone working there, whether connected with the primary or neutral persons or employers." Unlike the situation in American Modulars Corporation, McPart- lan's statement was not a threat to picket neutral contractors who were or would in the future be working at the jobsite. To find that the statement was a general threat to picket neutrals is to disregard the context in which the statement was made. Discussion at the meeting had centered on Firelands; no contracts other than the one to Firelands had been let; no other contractors or subcontractors were at the time involved in the contracted work or talked about at the meeting; and McPartlan was responding to a question as to what Respondent would do. In these circumstances, McPartlan's statement, al- though not specific, is reasonably construed as threatening to picket Firelands. A threat made to a contractor to engage in informational picketing against a subcontractor with which a union has a primary dispute is not a threat to engage in proscribed activity but rather is the mere giving of notice of prospective picketing against a subcontrac- tor of the general contractor. Such is the case here. For the above reasons, we find that McPartlan's statement at the July 11, 1973, meeting with the Buffalo Sewer Authority is not violative of Section 8(b)(4)(ii)(B) of the Act. Since we are adopting the Administrative Law Judge's finding that the Respon- dent engaged in unlawful picketing which violates both clauses (i) and (ii) of Section 8(b)(4)(B) of the Act, the remedy remains the same. Accordingly, we shall adopt the Administrative Law Judge's recom- mended Order in toto. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, International Union of Operating Engineers Local No. 17, 17A and 17B, AFL-CIO, its officers, agents, and repre- sentatives, shall take the action set forth in the said recommended Order. MEMBER KENNEDY, dissenting in part: I agree with the majority's adoption of the Administrative Law Judge's finding that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by its picketing at the Squaw Island jobsite, I disagree with the majority's reversal of his related finding that Respondent violated Section 8(b)(4)(ii)(B) by threat- ening the Buffalo Sewer Authority with a picket line if Firelands Sewer and Water Construction Co., Inc., was awarded a contract at the Squaw Island site. OPERATING ENGINEERS, LOCAL 17, ET AL. According to the credited testimony, at a meeting called by the Sewer Authority to discuss the awarding of a contract to Firelands, Respondent's business representative, McPartlan, said that if the contract was awarded to Firelands, his Union would engage in an informational picket. The Administra- tive Law Judge found that this threat "was by its terms unrestricted in scope and contemplated picket- ing the entire jobsite including future phases and any employers working there" and therefore constituted a violation of Section 8(b)(4)(ii)(B). My colleagues disagree with the Administrative Law Judge's interpretation of McPartlan's threat. They say his threat did not contemplate anything more than lawful informational picketing limited to Firelands. It seems to me that this interpretation is disingenuous; it can only be reached with the aid of blinkers. I would remind my colleagues that as observed by Justice Holmes, "Words are not crystals, transparent and unchanged." Meaning of words can rarely be deduced simply by contemplating the words in a vacuum. It is the context in which the words are uttered, the before and after which must be examined to ascertain meaning. It is a fact that when the time came for Respondent to carry out its threat to "engage in an informational picket," it unlawfully picketed the entire Squaw Island jobsite and not simply Firelands' operation at the site. It would be naive not to believe that this was Respondent's intent when it threatened to engage in informational picketing. The Administrative Law Judge so construed the threat; and so do I. Accordingly, I would adopt the Administrative Law Judge's decision in its entirety. DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Administrative Law Judge: This case was heard at Buffalo, New York, on November 19 and 20, 1973,1 pursuant to a charge filed on October 16 by Firelands Sewer and Water Construction Co., Inc. (herein referred to as Firelands) and a complaint issued on November 1. The complaint alleged that the International Union of Operating Engineers Local No. 17,17A and 17B, AFL-CI- O (herein referred to as the Respondent) violated Section 8(b)(4)(i) and (iiXB) of the National Labor Relations Act, as amended (herein referred to as the Act), by threatening the Buffalo Sewer Authority (herein referred to as the Authority) it would strike and/or picket if the Authority awarded Firelands a contract; ordered, instructed, request- ed, and appealed to the employees of the Authority, Dunbar and Sullivan Dredging Co. (herein referred to as 1 All dates referred to are in 1973 unless otherwise stated. 2 The picketing conducted by Respondent at Tifft Street Farms where Firelands as part of its contract with the Authority was also performing work was not alleged to be unlawful 151 Dunbar), Herbert F. Darling, Inc. (herein referred to as Darling), and other neutral persons to cease work at Squaw Island ; and by unlawfully picketing at Squaw Island2 with an object of forcing or requiring the Authority, Dunbar, Darling, and other neutral persons to cease using , selling, handling, transporting, or otherwise dealing in the prod- ucts of and to cease doing business with Firelands. Respondent in its answer filed on November 8 denied having violated the Act. The issues involved are whether the Respondent violated Section 8(bX4Xi) and (iiXB) of the Act by threatening the Authority; inducing employees of neutral or secondary persons to cease work ; and by picketing at Squaw Island for the proscribed object alleged. The parties at the hearing were afforded the opportunity to introduce relevant evidence, to examine and cross- examine witnesses , to argue orally on the record, and to submit briefs. Upon the entire record in this case , from my observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent ,3 I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS Firelands, with its principal office and place of business located in Ohio, is engaged in the construction industry. During the 12-month period preceding November 1, Firelands, in the course of its operations, performed services valued in excess of $50,000 in states outside the State of Ohio. The Authority operates and maintains a sewage and water treatment disposal facility for the city of Buffalo, New York, which is located at Squaw Island. Dunbar, with its principal office and place of business located at Dearboard, Michigan, is engaged in the business of dredging and building docks. Darling, with its principal office and place of business located at Williamsville, New York, is engaged in business as an engineering contractor in the construction industry. Firelands has a contract with the Authority, valued at approximately $10.4 million, for the removal of decom- posed garbage from the Authority's waste facility located at Squaw Island. Firelands in connection with this contract awarded Dunbar a contract for the construction of a dock at Squaw Island and Dunbar awarded Darling a contract for the pile-driving work to be performed in constructing the dock. Respondent admits, and I find that Firelands, Dunbar, Darling, and the Authority4 are employers and/or persons engaged in commerce within the meaning of Section 2(6) and (7) and Section 8(bX4) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find that the International 3 The Charging Party did not submit a brief. 4 Public employers are "persons" protected from secondary activity within the meaning of Section 8(b)(4) of the Act Local No. 16, International Longshoremen and Warehousemen's Union (City of Juneau), 176 NLRB 889. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union of Operating Engineers Local No. 17, 17A and 17B, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Respondents Threat Made to the Authority Gillman Laehy, who is the general manager of the Authority, testified in December 1972 that Authority opened bids for the site preparation of a secondary treatment plant to be constructed on Squaw Island (herein referred to as the Squaw Island jobsite), which involved removal of approximately 2 million yards of solid waste material from Squaw Island to a disposal site located approximately 6 or 7 miles distance at Tifft Street Farms. After the contract was rebid in June it was awarded by the Authority to Firelands which was the lowest responsible bidder. Thomas McPartlan, who is the business representative of Respondent, stated after learning in June that Firelands who worked as an open-shop contractor in other areas was the low bidder on the job, he had a meeting arranged through the Buffalo AFL-CIO Council with the Authority. George Wessel, who is the president of the Buffalo AFL- CIO Council testified he arranged the meeting. This meeting at which awarding the contract to Fire- lands was discussed was held on July 11, and was attended by representatives of the Authority and various labor organizations including Respondent. General Manager Laehy stated during the meeting there was a discussion concerning why the Authority would employ an open-shop contractor rather than a union contractor whereupon it was explained that the Authority because of the funding involved, including the use of Federal funds, had no choice but to award the contract to the lowest responsible bidder which was Firelands. Laehy testified about the middle of the meeting which lasted approximately 1 1 /2 to 2 hours he heard Respondent's Business Representative McPartlan make the statement if they proceeded to engage Firelands as the contractor for the job his union would go on strike. Laehy's response was it seemed to him that wasn't legal because they had, followed the procedure for lettmg the contract to the letter of the law and had no choice except to give it to the lowest responsible bidder which was Firelands. Laehy, however,, did not testify concerning what conversation immediately preceded McPartlan's alleged remark and under cross-' examination expressed uncertainty whether McPartlan had used the word strike or picketing. Although at least four, other representatives of the Authority were present during this meeting none of them testified. Business Representative McPartlan denied having stated, his union would go on strike. His version was he told the Authority if the contract was awarded to Firelands hisl union would engage in an informational picket. According to McPartlan this statement was made) following a discussion about what effect awarding the first, phase of the job to an open shop or nonunion contractori l 8 The southern part of the island was formerly called Bird Island.i when at is sometimes closed. would have on future phases of the job and the representa- tives of the various unions present being asked by someone what their unions intended to do. McPartlan further stated when someone questioned the legality of informational picketing he expressed it was legal. While McPartlan claimed he did not know whether the Authority's contract with Firelands had been signed he acknowledged it was discussed at the meeting that Firelands was the lowest responsible bidder. Other union representatives present at the meeting including President Wessel of the Buffalo AFL-CIO Council, Daniel Vujakovich, who is business agent of Iron Workers Local 6, and John Kelleher who is business representative of Asbestos Local 4 substantially corrobo- rated McPartlan's testimony that he didn't mention a strike but said if Firelands was awarded the contract there would be an informational picket line put up. I credit Business Representative McPartlan's testimony which was substantially corroborated by President Wessel, Business Agent Vujakovich, and Business Representative John Kelleher rather than the uncorroborated testimony of General Manager Laehy who expressed uncertainty in his own testimony and find that McPartlan informed the Authority if Firelands was awarded the contract his union would engage in an informational picket. B. Respondent's Picketing at the Squaw Island Jobsite Squaw Islands is an island separated from the mainland by the Black Rock Channel (herein referred to as the channel) which runs north and south and was estimated to be approximately 300 feet wide . Access to Squaw Island from the mainland may be obtained by two bridges which are located approximately three-forths of a mile apart. The bridge at the north end of the Island is the International Railroad Bridge which has a road called the Authority's Access Road (herein referred to as the Access Road). The Bridge at the south end of the Island is the West Ferry Bridge (herein referred to as the Ferry Bridge). On the island itself and running parallel with and adjacent to the Channel there is a road which runs between the two bridges. Along this road between the two bridges but closer to the Ferry Bridge is located a building belonging to the Authority which has a gate that controls the use of the road (herein referred to as the Authority's Gate).6 Firelands, whose employees are not represented by any labor organization, began work on the Squaw Island jobsite about September 1. According to Firelands Project Superintendent Gillum the process to be employed for removing the waste material from Squaw Island to Tifft Street Farms was to load the waste material at Squaw Island by conveyors onto barges which would then transport the waste material to a dock located approxi- mately 6 miles south where it would be unloaded with clam buckets into trucks to be transported to and disposed of in a sanitary land fill. On October 9 Respondent began picketing at the Squaw Island jobsite with picket signs captioned: e This gate is normally open during the week except for the weekends I OPERATING ENGINEERS, LOCAL 17, ET AL. Employees of Firelands Sewer and Water Construction Company, Inc. are employed to perform Operating Engineers work on this job under wage and other conditions of employment inferior to those enjoyed by employees represented by the Operating Engineers Local 17, 17A, 17B, affiliated with the AFL-CIO.7 The picket lines were established at the entrance to the Access Road on the mainland side of the channel and on Squaw Island itself at the Authority's Gate. When the picketing began and throughout the course of the picketing, Firelands' employees, who used both the Access Road and the road through the Authority's Gate for ingress to and egress from their work area on the Squaw Island jobsite were performing work only in the area of a dock being constructed by the channel between the Authority's Gate and the Access Road. The location of this worksite was estimated by Firelands' Project Superin- tendent Gillum to be approximately 3,000 feet north of the Ferry Bridge towards the International Railroad Bridge. Dunbar, whose employees are represented by Local 18, which is the marine branch of the Operating Engineers Union, had a contract with Firelands to construct a dock at Squaw Island and to haul barge material from Squaw Island to Tifft Street Farms. Dunbar began work on the Squaw Island jobsite on the afternoon or evening of October 9 at which time using tugboats it bought two barges containing pile-driving equipment up the Channel and moored them along the bank on Squaw Island just north of Ferry Bridge. The overall length of this moored equipment was estimated by Dunbar's Representative Headley to be approximately 260 feet and Headley and Firelands' Project Superintendent Gillum estimated the barges were moored approximately 200 feet south of the Authority's gate towards the Ferry Bridge. One barge contained a derrick with Dunbar's name on it. Both Firelands' Project Superintendent Gillum and Dunbar's representative Albert Headley estimated the distance from where these barges were moored to the area north where Firelands employees were working on the Squaw Island jobsite to be approximately 2,500 feet. Respondent offered no evidence to dispute their testimonies concerning the distances which I credit. Dunbar's Representative Headley testified on October 10 it had planned to pick up Darling's employees and to move the barges from their mooring site directly across the Channel to the mainland side where Darling was located, pick up pilings and proceed to the proposed docksite to begin driving pilings . Darling's contract with Dunbar was to furnish personnel and supply and drive the pilings. Darling's Representative Roy Shafer, corroborated Head- ley's testimony concerning the proposed plan which I credit. Dunbar's Representative Headley testified on October 9 the pickets were picketing within 50 feet of the Authority's gate. However early on the morning of October 10 he observed some of the pickets move from the area of the Authority's gate about 200 feet south along the road Respondent since September 25 had been picketing Tifft Street Farms with identical picket signs where Firelands was also performing work under its contract with the Authority. 6 Respondent had not been prohibited from picketing at the Authority's Gate. 153 towards the Ferry Bridge to where they began picketing on the road about 5 feet from and adjacent to where Dunbar's barges were moored.8 Both Firelands' Project Superintend- ent Gillum and Darling's Representative Roy Shafer corroborated Headley's testimony that on October 10 Respondent began picketing on the road adjacent to the barges. Respondent's Business Representative McPartlan acknowledged on October 9 the pickets were picketing closer to the Authority's Gate and did not deny the picketing was thereafter conducted adjacent to the barges. Headley testified Dunbar's employees who worked aboard the barges drove their vehicles across the Ferry Bridge where they parked and boarded the barges at the mooring site having to cross the picket lines. On the morning of October 10 Respondent also began picketing in the Channel using two picket boats containing identical pickets signs as those picket signs used on land.9 According to McPartlan the pickets on the picket boats were instructed to conduct their picketing activities in the channel area between the Ferry Bridge and the Interna- tional Railroad Bridge. Darling's jobsite was located on the mainland directly across the channel from where Dunbar's barges were moored. Its employees entered their jobsite through a gate with a sign designating the gate was to be used exclusively by Darling's employees. Darling's Representative Shafer testified on the morning of October 10, which was the day his company was to begin work on the job, he observed Respondent's Business Manager Chaffee walk across the Ferry Bridge from Squaw Island through Darling's gate to its jobsite where he had a discussion with Darling's employees. Shafer did not hear what was said. Shafer then observed Chaffee who had a picket sign with the wording concealed leave the work area, flip the picket sign over exposing its caption to those persons who faced him,'° and return to where the pickets were situated on Squaw Island. While Business Manager Chaffee did not testify and the incident was undenied since the evidence does not establish what was discussed or that Shafer engaged in picketing on that occasion no finding is made with respect to this incident. Both Shafer and Dunbar's Representative Headley testified they observed two picket boats picketing that morning between Dunbar's barges and the mainland and between Ferry Bridge and the docksite. Headley stated when Dunbar's employees crossed the channel that morning in a rowboat to pick up Darling's employees and transport them back across the channel to Dunbar's barges, Darling's employees refused to enter the rowboat. Headley stated while they were attempting to pick up Darling's employees the picket boats were picketing between Dunbar's barges and the east bank of the channel where they were attempting to pick them up. Respondent did not deny the picketing was conducted in the channel area where Dunbar and Darling were attempting to work which would have been included in the area where McPartlan had instructed them to picket. 9 Business Representative McPartlan had made arrangements for obtaining the picket boats several days earlier. 10 The evidence does not establish whether Darling's employees could observe the caption on the picket sign earned by Chaffee when he flipped the sign over. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Darling's Representative Shafer stated after leaving his jobsite that morning he was informed his men had refused to go to work that day. Shafer testified that from October 10 to about October 19 when Dunbar's barges were removed, that although his employees reported to their jobsite every morning they refused to perform any work . On each of these occasions Shafer observed the picket boats picketing in the Channel area between Dunbar's barges and the mainland where his employees were located as well as between the Ferry Bridge and the International Railroad Bridge . Shafer testified after his company was unable to perform any work pursuant to its contract with Dunbar its contract was rescinded. Although Darling's employees did not testify Shafer stated the only reason given by them for refusing to work was because they couldn't cross the picket line. Since Darling's employees reported to work each day and except for the picketing which was being conducted by the picket boats in the area where they were to perform their work with no other reason given by them for their refusal to work, I find such refusal resulted from the picketing. Dunbar's Representative Headley testified Respondent continued to picket adjacent to Dunbar's barges from October 10 to October 19 at which time the barges were removed by Dunbar because they were unable to get personnel to come aboard the barges to proceed with the work. Headley stated on several occasions he saw a picket boat tied to Dunbar's barge and on one occasion when he was aboard a barge he saw pickets on the barge itself. Under cross-examination Headley acknowledged he did not ask the pickets aboard the barge to leave or unmoor their boat and was informed on one occasion they had coffee aboard the barge. Firelands Project Superintendent Gillum corroborated Headley testimony that the picketing continued adjacent to the Dunbar's barges from October 10 through October 19 and that on one occasion he observed a picket boat tied to Dunbar's barge.ii Respondent's Business Representative McPartlan did not deny that during this period the picketing was conducted adjacent to Dunbar's barges. While he acknowl- edged he had observed the picket boat moored to the barge and had observed pickets aboard the barge he denied they were actually picketing on the barge itself but were instead crossing the barge to get fuel for the picket boat. According to McPartlan and one of the pickets using the picket boat, James Mann, Respondent used a docking area south of where the barges were moored to refuel the picket boats, obtain supplies, and change crews. Mann testified the only place they would refuel was by using stairs located by the Ferry Bridge. Based upon the above evidence I find that Respondent, from October 10 until the barges were removed about October 19, conducted picketing on the road adjacent to Dunbar's barges. Assuming picketing did occur aboard the barges themselves in view of the evidence I find this to be an isolated incident. With respect to these occasions on 11 Headley's testimony is unclear whether he actually observed pickets aboard the barges. which the picket boats were moored to the barges the evidence does not establish whether the picket boats were either manned or displayed picket signs. Dunbar's Representative Headley testified on three occasions in November when his company's tugboat which was identified with the Dunbar's name was proceeding up the channel to perform work at the docksite where Firelands employees were working it was turned back because of the picket boat. Headley stated the first occasion occurred on November 14 when his tugboat was proceeding to the Squaw Island jobsite to move some equipment. As the tugboat proceeded up the Channel through the Ferry Bridge it encountered a picket boat approximately 200 feet north of the Ferry Bridge. Headley first observed the picket boat while the tugboat was approximately 800 feet south of the Ferry Bridge as the picket boat was proceeding from the area where Dunbar's barges had been previously moored towards the center of the channel. Headley stated while the tugboat captain, who refused to proceed upon encountering the picket boat, was in the process of turning the tugboat around he engaged one of the two pickets in the picket boat subsequently identified as James Mann in a conversation. Headley's version was he asked Mann if there was a picket line and Mann nodded affirmatively. Headley asked who they were picketing and Mann replied "Firelands." Headley stated he then ex- plained they were a bona fide union company with union personnel and asked Mann if he was picketing them whereupon Mann replied "Yes sir." According to Headley during the conversation the picket boat was approximately 75 feet from the tugboat. Under cross-examination Headley was uncertain whether he had asked were they picketing "us" or "this company." James Mann testified on November 14 he and Harry Gerlach were in the picket boat which was moving east and west in the channel when he observed Dunbar's tugboat come through the bridge. According to Mann they had just refueled the picket boat and gotten out in the channel before seeing the tugboat.12 Mann stated as they turned the picket boat around to get out of the way of the tugboat a man on the tugboat asked were they picketing union contractors saying they were a bona fide union contractor. Mann's response was "No, I'm picketing Firelands." Mann believed either he or Gerlach pointed to the picket sign. Mann who stated he had no trouble hearing the man's voice denied hearing the man on the tugboat ask if he was picketing them or his company and denied having said they were picketing Dunbar. Harry Gerlach, who is a member of Respondent and was in the picket boat with Mann on November 14 stated after refueling the picket boat and starting out in the channel they saw the tugboat coming up the channel. On direct- examination Gerlach testified the only words of the conversation between Mann and the man of the tugboat he remembered were the last ones by someone on the tugboat asking "Are you picketing a bona fide union company" or "outfit" or something and Mann replying "No, we're picketing Firelands." 12 Mann stated they had been picketing in the channel that day in the direction north and south as well as east and west. OPERATING ENGINEERS, LOCAL 17, ET AL. 155 However under cross-examination Gerlach, who ac- knowledged he did not overhear the entire conversation because he had been having trouble with the motor and because of the noise of the tugboat, admitted he was uncertain whether he had heard the question about whether they were picketing a bona fide union company or outfit as he had testified to on his direct examination. Gerlach also admitted, contrary to Mann's testimony, that the reason they proceeded into the channel upon seeing the tugboat was to be sure the tugboat would see their picket signs.13 I credit the testimony of Headley who impressed me as being a more credible witness than Mann and find that pursuant to Headley's inquiry Mann had informed him they were picketing his company . 14 Apart from my observation of the witnesses Gerlach not only failed in his attempt to corroborate Mann's testimony but contradicted him by his testimony concerning the reason they had proceeded into the channel upon seeing Dunbar's tugboat. Headley stated on November 16 while he was on the dock where Firelands' employees were working he ob- served Dunbar's tugboat proceeding north towards the dock. When the tugboat was approximately 400 feet from the dock he saw the picket boat which was located approximately 50 to 100 feet north of the dock proceeding south down the channel, subsequently turn and position itself about halfway between the dock and the tugboat whereupon the tugboat turned around and proceeded south back down the channel. The evidence does not establish exactly how close the picket boat was from the dock when it actually turned in front of the tugboat. James Mann who stated he was in the picket boat on November 16 acknowledged positioning the picket boat between the dock and the tugboat but claimed he did so to get out of the way of the tugboat which had been preceded by a freighter coming up the channel . According to Mann when the incident occurred the picket boat was picketing in the area of the dock where Firelands' employees were using a crane on one barge to unload stone from another barge in the channel. Headley testified on November 17 Dunbar's tugboat was proceeding north up the channel headed for the dock and upon approaching the Ferry Bridge he observed the picket boat with Business Representative McPartlan aboard coming out from the bank of the channel proceeding towards the center of the channel about the same time they were coming through the Ferry Bridge whereupon the tugboat captain turned the tugboat around and proceeded south back out of the channel. McPartlan testified on that occasion they were proceed- ing north about the center of the channel going in the same direction as the tugboat. However, under cross-examina- tion McPartlan acknowledged that prior to this incident the picket boat had been docked at Squaw Island to get fuel and change people and as they proceeded into the channel he did not see the tugboat. According to Firelands' Project Superintendent Gillum the work performed by Firelands' employees at the dock which dock has since been completed included unloading equipment, assembling conveyors, and mounting the conveyors on the dock prepatory to loading barges. Gillum denied Firelands used the channel for performing its work including moving equipment or employees. Both Dunbar's Representative Headley and Darling's Representative Shafer denied Fireland's employees ever performed any work in the vicinity of their employees or Dunbar's barges or tugboats. Business Representative McPartlan while observing attempts by Dunbar and Darling to use the channel acknowledged that no Firelands' employees had either worked in the vicinity of Dunbar's barges or used the channel. According to McPartlan by picketing at the Authority's gate and the Access Road they would be able to reach all of Firelands' employees getting onto the jobsite. McPartlan asserted as his reason for utilizing the picket boats was because of the possibility Firelands might use the channel as an access route. While McPartlan claimed it was never their intention or desire by picketing in the channel to prevent employees of Dunbar or Darling from working he admitted he knew it had that effect. While McPartlan testified the picketing was conducted for informational purposes under cross-examination he acknowledged he did not know what kind of wages or benefits Fireland's employees were receiving nor had he investigated such matter. The picketing at the Squaw Island jobsite was still continuing at the time the hearing was held. However, with respect to the picketing conducted in the channel only one picket boat has been used since about October 23. C. Analysis and Conclusions The General Counsel contends while Respondent denies that the Respondent violated Section 8(bX4Xi) and (iiXB) of the Act 15 by unlawfully threatening the Authority it would strike or picket if Firelands was awarded the contract; unlawfully inducing employees of neutral or secondary persons to cease work ; and by unlawfully picketing the Squaw Island jobsite. Respondent asserts as its defense the picketing was for informational purposes and therefore lawful. 13 Although Gerlach was cross-examined about what instructions he had received for picketing, the form of the question which also asked about his own intentions rendered his answer on this point unclear. 14 A tape recording of the conversation between Headley and Mann which was made by Headley at the time the incident occurred and offered as evidence by the General Counsel for the purpose of impeaching Mann's testimony, the sounds of which I find are not clearly audible, had not been considered in making this credibility resolution. 15 Section 8(bX4) of the Act makes it an unfair labor practice for a union: (i) to engage in, or to induce or encourage any individual . . to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person .. where in either case an object thereof is: (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person ...: Provided That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing .... 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The findings, supra, concerning the threat established Respondent's Business Representative McPartlan at the July 11 meeting informed the Authority's representatives if Firelands, a nonunion contractor which was the lowest responsible bidder, was awarded the contract his Union would engage in an informational picket. Inasmuch as this threat to the Authority to keep it from awarding the contract to Firelands was by its terms unrestricted in scope and contemplated picketing the entire jobsite including future phases and any employers working there, I find that it constituted a threat within the meaning of Section 8(b)(4)(iiXB) of the Act. See United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 639 (American Modulars Corporation), 203 NLRB No. 162. Absent evidence and findings of any inducement other than the picketing itself the remaining issue is whether the subsequent picketing conducted at the Squaw Island jobsite was also unlawful. The undisputed evidence established Respondent's primary dispute was with Firelands, a nonunion contrac- tor, rather than with the Authority or the other contractors including Dunbar and Darling which were also performing work at the Squaw Island jobsite. The Board in Moore Dry Dock16 set forth the following criteria to serve as a guide in determining whether picketing a primary employer at a common situs, as here, violates Section 8(b)(4)(B) of the Act: (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer. These standards are not to be applied on an indiscrimi- nate "per se" basis but regarded merely as aids in determining whether a violation has occurred. International Brotherhood of Electrical Workers, Local Union 861 (Plauche Electric, Inc.), 135 NLRB 250, 255. In applying these standards the controlling consideration is to require that the picketing be conducted so 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 primary employees." Retail Fruit & Vegetable Clerks' Union, Local 1017 (Crystal Palace Market), 116 NLRB 856, 859, enfd. 249 F.2d 591 (C.A. 9, 1957). Respondent's contention the Moore Dry Dock standards are inapplicable here because its picketing at Tifft Street Farms was not alleged to be unlawful is rejected. The fact picketing conducted at more than one location may not be unlawful at some locations would not preclude finding it to be unlawful at a given location. Applying the Moore Dry Dock standards to the picketing conducted at the Squaw Island jobsite the findings, supra, established that Respondent, while initially picketing at the Access Road and in the immediate vicinity of the Authority's gate which entrances were used by Firelands' employees for ingress to and egress from its worksite, thereafter beginning on October 10 extended and main- tained its picketing on the road adjacent to Dunbar's barges where Dunbar's employees boarded the barges to work and utilized picket boats to picket in the channel area where the employees of Dunbar and Darling were attempting to use the channel to perform their work notwithstanding the fact Firelands' employees who did not use the channel in performing their work were at all times during such picketing confined to a worksite located at a distance of approximately 2,500 feet away . As a result of such picketing the employees of Darling and Dunbar were unable to perform their work and Darling's contract with Dunbar was rescinded. Clearly such picketing, which was not reasonable limited to places close to the worksite where Firelands was performing its work, failed to comply with the Moore Dry Dock standard that the picketing be limited to places reasonably close to the location of the situs. Apart from the manner in which the picketing was conducted, other evidence bearing on Respondent's true objective included the statement by Respondent's picket James Mann to Dunbar's Representative Headley, while Dunbar's tugboat was attempting to use the Channel, that the picketing was against his company in addition to the prior unlawful threat to the Authority to picket if it awarded the contract to Firelands. Respondent by its conduct herein found rather than seeking to insulate those employers including the Authori- ty, Dunbar, and Darling with whom Respondent had no dispute instead deliberately enmeshed them in its dispute with Firelands. Under these circumstances, I find, that Respondent by its threat to picket and by picketing the Squaw Island jobsite intended thereby to induce or encourage employees of Dunbar, Authority, and Darling to strike or engage in a refusal to perform services for their respective employers and threatened, coerced, and restrained Dunbar, Authori- ty, and Darling with an object of forcing Dunbar and the Authority to cease doing business with Firelands and forcing Darling to cease doing business with Dunbar in order to force or require Dunbar, in turn, to cease doing business with Firelands, thereby violating Section 8(bX4Xi) and (iiXB) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, found to constitute unfair labor practices occurring in connection with the operations of those employers described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Firelands Sewer and Water Construction Co., Inc., Dunbar and Sullivan Dredging Co., Herbert F. Darling, is Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, 549. OPERATING ENGINEERS, LOCAL 17, ET AL. 157 Inc., and the Buffalo Sewer Authority are employers or persons engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) and Section 8(bX4) of the Act. 2. Respondent, International Union of Operating Engineers Local No. 17, 17A and 17B, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening the Buffalo Sewer Authority with a picket line if Firelands Sewer and Water Construction Co., Inc., was awarded the contract in furtherance of its dispute with Firelands Sewer and Water Construction Co., Inc., Respondent has engaged in unfair labor practices within the meaning of Section 8(bX4XiiXB) of the Act. 4. By engaging in picketing at the Squaw Island jobsite inducing and encouraging individuals employed by Dun- bar and Sullivan Dredging Co., Herbert F. Darling, Inc., and the Buffalo Sewer Authority to engage in a strike or refusal in the course of their employment to perform services, and by coercing or restraining Dunbar and Sullivan Dredging Co., Herbert F. Darling, Inc., and the Buffalo Sewer Authority with an object of forcing or requiring Dunbar and Sullivan Dredging Co., and the Buffalo Sewer Authority to cease doing business with Firelands Sewer and Water Construction Co., Inc., and forcing or requiring Herbert F. Darling, Inc., to cease doing business with Dunbar & Sullivan Dredging Co., in order to force or require Dunbar and Sullivan Dredging Co., in turn, to cease doing business with Firelands Sewer and Water Construction Co., Inc., Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4xi) and (ii)(B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) and Section 8(bX4) of the Act. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of Section 8(b)(4xi) and (ii)(B) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act. The Remedy proposed by General Counsel for the removal of all picketing from the jobsite which would infringe upon Respondent's right to engage in lawful primary picketing is rejected. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 Respondent, International Union of Operating Engi- neers Local No. 17, 17A and 17B, AFL-CIO, its officers, representatives, agents, and assigns, shall: 1. Cease and desist from: (a) Engaging in or inducing or encouraging individuals employed by Dunbar and Sullivan Dredging Co., Herbert F. Darling, Inc., and the Buffalo Sewer Authority, or by any other person engaged in commerce or an 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 services for their respective employers ; and from threatening, coercing, or restraining the Buffalo Sewer Authority , Dunbar and Sullivan Dredging Co., Herbert F. Darling, Inc., or any other person engaged in commerce or in an industry affecting commerce, where, in either case, an object thereof is to force or require the Buffalo Sewer Authority, Dunbar and Sullivan Dredging Co., or any other person to cease doing business with Firelands Sewer and Water Construc- tion Co., Inc., or to force or require Herbert F. Darling, Inc. to cease doing business with Dunbar and Sullivan Dredging Co., in order to force or require Dunbar and Sullivan Dredging Co., in turn, to cease doing business with Firelands Sewer and Water Construction Co., Inc. (b) In any manner, or by any means, including threats to picket, picketing, orders, directions, instructions, requests, or appeals, however given, made or imparted or by any like or related acts or conduct by permitting any such to remain in existence or effect, engaging in, or inducing or encouraging any individual employed by Dunbar and Sullivan Dredging, Co., the Buffalo Sewer Authority and Herbert F. Darling, Inc., or by 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, materials, or commodities or to perform any service or in any manner, or by any means, threatening, coercing, or restraining Dunbar and Sullivan Dredging Co., the Buffalo Sewer Authority and Herbert F . Darling, Inc., or any other person engaged in commerce or in an industry affecting commerce , where in either case an object thereof is to force or require Dunbar and Sullivan Dredging Co., the Buffalo Sewer Authority, or any person to cease doing business with Firelands Sewer and Water Construction Co., Inc., or to force or require Herbert F. Darling, Inc., to cease doing business with Dunbar and Sullivan Dredging Co., in order to force or require Dunbar and Sullivan Dredging Co., in turn, to cease doing business with Firelands Sewer and Water Construction Co., Inc. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at Respondent's business office, hiring halls, meetings halls, and other places where notices to members are customarily posted, copies of the attached notice marked "Appendix." is Copies of said notice, on forms provided by the Regional Director for Region 3, after 17 In the event no exceptions are filed as provided by Sec. 102.46 of the deemed waived for all purposes. Rules and Regulations of the National Labor Relations Board, the findings, 18 In the event the Board's Order is enforced by a judgment of the Conclusions, and recommended Order herein shall, as provided in Sec. United States Court of Appeals, the words in the notice reading "Posted by 102A8 of the Rules and Regulations , be adopted by the Board and become Order of the National Labor Relations Board" shall be read "Posted its findings, conclusions, and order, and all objections thereto shall be Pursuant to a Judgment of the United States Court of Appeals Enforcing an (Continued) 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being duly signed by a duly authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for Region 3 for posting by the employers named above, if they are willing, at all places where notices to their respective employees are customarily posted. (c) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX other person engaged in commerce or in an industry affecting commerce to engage in a strike or refusal in the course of their employment to perform any services for their employers, nor will we threaten, coerce, or restrain the above-named Employers, or any other person, where an object thereof is to force or require the Buffalo Sewer Authority, Dunbar and Sullivan Dredging Co., or any other person to cease doing business with Firelands Sewer and Water Construction Co., Inc., or to force or require Herbert F. Darling, Inc. to cease doing business with Dunbar and Sullivan Dredging Co. in order to force or require Dunbar and Sullivan Dredging Co., in turn, to cease doing business with Firelands Sewer and Water Construction Co., Inc. Dated By NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage , by threats to picket, by picketing, or any other means, individuals employed the Buffalo Sewer Authority, Dunbar and Sullivan Dredging Co., Herbert F. Darling , Inc., or any INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL No. 17, 17A 17B, AFL-CIO (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Ninth Floor Federal Building, 111-West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.