Mississippi Gulf Coast Building

MISSISSIPPI GULF COAST BUILDING Mississippi Gulf Coast Building and Construction Trades Council and its Constituent Members; Brick Masons and Plasterers International Union of America, Local No. 10, AFL-CIO; United Brother- hood of Carpenters and Joiners of America, Local Union 1518, AFL-CIO and Roy C. Anderson, Jr., Inc. Cases 15-CB-1571 and 15-CC-604 January 30, 1976 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On August 11, 1975, Administrative Law Judge Maurice A. Bush issued the attached Decision in this proceeding. Thereafter, the Respondents and the Charging Party filed exceptions and supporting briefs, and the General Counsel filed limited excep- tions, a supporting brief, and a brief supporting the Administrative Law Judge's Decision. Subsequently, the Charging Party filed a brief answering the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions, as herein modified, of the Administra- tive Law Judge and to adopt his recommended Or- der. The Administrative Law Judge found that the Respondent's conduct herein violated Section 8(b)(4)(i) and (ii)(B) and 8(b)(1)(A) of the Act. We agree. As more fully set forth by the Administrative Law Judge, the record shows that in 1974 1 Bell Telephone Company contracted with Roy Anderson, a general contractor and the Charging Party herein, for the construction of a third partial floor addition to its Gulfport facility. Anderson itself, and most of its subcontractors, uses union labor. However, it sub- contracted the electrical work on the building to Messer Electrical Company, a nonunion firm. Early on the morning of October 2, the Respon- dents established a picket line which encompassed the entire jobsite. The signs carried by the pickets contained the following language: For the information of the Public Messer Electric Co. Unfair Paying Substandard Wages 1 All dates are 1974 unless stated differently. Under Substandard Conditions No Dispute with any other Contractor on this job We seek no recognition Miss. Gulf Coast Building and Construction Trades Council 649 Some 18 to 20 employees, including the employees of Anderson and the employees of Evans, a union sub- contractor, did not work on October 2. On the afternoon of October 2, signs were placed on the various gates designating certain gates to be used by Messer, and certain gates to be used by other contractors, their suppliers, and employees. The Re- spondents limited their picketing to the Messer gates on October 3 and 4, and did not picket the site on the weekend of October 5 and 6, nor on Monday, Octo- ber 7. The record reveals that on some occasions be- tween October 2 and 11 employees of some neutral employers on the project were seen using the gates reserved for Messer. The record also reveals that on October 2 one of Messer's supervisors was seen leav- ing the jobsite through a neutral gate, and it appears that on October 4 two of Messer's electricians were seen entering and exiting from a neutral gate. On October 8, a Messer employee was seen exiting from a neutral gate. On October 8, the Respondents started again to picket the entire jobsite and continued to do so on October 9, 10, and 11. During the 7 days of picketing between October 2 and 11, Messer had employees working on the project for only 2 days, to wit, Octo- ber 4 and 8. After receiving assurances from Ander- son that the reserve gate system would be strictly ad- hered to, the Respondents ceased all picketing after October 11. Meanwhile, certain Anderson employees who were represented by the Respondent Carpenters Local 1518, and employees of subcontractor Evans, who were represented by Respondent Brick Masons Lo- cal No. 10, continued to work during the time the jobsite was being picketed. Thereafter business agents of the two unions informed the respective members of each union that charges were being brought against those who worked during the picket- ing. As the result of such charges, fines were levied against the employees involved. At all relevant times both Anderson and Evans were parties to collective- bargaining agreements with the Respondent Council which contained no-strike, no-lockout clauses. In his Decision, the Administrative Law Judge set forth the four criteria enunciated in Sailors Union of the Pacific, AFL (Moore Dry Dock Company).2 He '92 NLRB 547 (1950) 222 NLRB No. 98 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found that, inasmuch as the Respondents picketed the jobsite on 5 days when Messer had no employees working there, the Respondents failed to comply with the first Moore Dry Dock criterion. Regarding criterion 3, "that the picketing take place reasonably close to the situs," the Respondents contend that, inasmuch as the reserve gate system was infringed by (a) the use of the primary gate by neutrals and (b) the use of the neutral gate by Messer employees, Respondents were relieved of the duty of confining their picketing to the gates designated and reserved for Messer employees. The Administrative Law Judge concluded that it was immaterial that neutral employees used the Mes- ser gate since such employees are free to cross a pick- et line if they so choose. With regard to the instances in which Messer employees used the secondary gates, he found that this infringement of the reserve gate system was de minimis and did not justify the Re- spondents' picketing of the entire jobsite, even if the Respondents arguably had a right to expand their picketing to the two neutral gates which were trans- gressed. Further finding that Anderson took all prop- er and reasonable steps to see that the reserved sys- tem was honored, the Administrative Law Judge rejected the Respondents' "tainted gate" defense.3 Accordingly, he concluded that Respondents failed to comply with the third criterion of Moore Dry Dock, and that, by failing to comply with criteria 1 and 3, Respondents violated Section 8(b)(4)(i) and (ii)(B) of the Act. In addition, the Administrative Law Judge found that, exclusive of the criteria of Moore Dry Dock, the Respondents' real object in picketing the entire work project was to enmesh Anderson into their dispute with Messer. In reaching this conclusion, he relied on the following factors: (1) Respondents' members had previously done all electrical work on the project, and one of Respondents' reasons for the picketing was their anger over Anderson's contracting the elec- trical work out to a nonunion firm. (2) The picketing was commenced without any notice to Anderson so as to permit him to put up reserve gates in advance and was so done to cause an immediate general work stoppage. (3) Although the Respondents accused Messer of substandard wages- and work conditions, the Respondents had no current, direct, or reliable knowledge of Messer employees' working conditions. (4) On those days on which picketing occurred, the Respondents made no efforts to ascertain if Messer employees would be present on the site. (5) Upon 3 In so doing, the Administrative Law Judge found that, inasmuch as the Respondents were picketing the entirejobsite on October 8, it was immater- ial whether Messer employees limited themselves to the primary gate on that day being assured that the reserve gate system would be strictly adhered to, the Respondents ceased all pick- eting. From this the Administrative Law Judge infer- red that the cessation of all picketing resulted from the Respondents' view that, by confining their pick- eting to Messer, they would not be able to cause An- derson to cease doing business with Messer. In summary, the Administrative Law Judge found that from all the evidence of record, the "evidentiary aides" in this case, exclusive of Moore Dry Dock, and including the breaches of two of the Moore Dry Dock criteria, the Respondents' object in picketing the en- tire Bell Telephone building jobsite on October 8, 9, 10, and 11, 1974, was to enmesh neutral employer Anderson, the general contractor, into Respondents' dispute with Messer Electric in order to bring pres- sure on Anderson to cease doing business with Mes- ser Electric, which object he found was in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. We agree with the above violations found by the Administrative Law Judge. However, in so doing, we do not find it necessary to consider or pass upon his discussion of the usage by neutral employees of the reserve gate concerning the third criterion under Moore Dry Dock. Having found that the picketing of the entire job- site was illegal, the Administrative Law Judge found, and we agree, that the fines threatened, and imposed, against employees who worked behind the picket lines also violated Section 8(b)(4)(i) and (ii)(B) of the Act. Finally the Administrative Law Judge also found that, in any event, the fines for not honoring the picket lines would nonetheless, violate Section 8(b)(1)(A) of the Act because they were imposed in the face of valid no-strike clauses in the collective- bargaining agreements between Evans, Anderson, and the Respondents. We agree. We note however that in Conclusion of Law 5 the Administrative Law Judge inadvertently failed to state that these threats and fines, in the circumstances of this case, also vio- lated Section 8(b)(4)(i) and (ii)(B) of the Act. This inadvertence is hereby corrected. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents, Mississippi Gulf Coast Building and Construction Trades Council and its constituent members; Brick Masons and Plasterers International Union of America, Local No. 10, AFL-CIO; and United Brotherhood of Carpenters MISSISSIPPI GULF COAST BUILDING 651 and Joiners of America, Local Union 1518, AFL- CIO, Gulfport, Mississippi, their officers, agents, and representatives, shall take the action set forth in the said recommended Order. MEMBER FANNING, dissenting: I would dismiss this complaint. My colleagues by affirming the Administrative Law Judge penalize the picketing Union in a context of employee disregard of proper reserve gate use. On the first day of picket- ing, October 2, 1974, as soon as the gate reserved for the employees of nonunion subcontractor Messer was established, the Union shifted its picketing to that gate. Numerous employees-of neutrals neverthe- less entered and exited that gate.4 In addition, Messer employees and a Messer vice president/general man- ager used gates other than the gate reserved for the primary. A weekend and a Monday -intervened. On Tuesday, October 8, the Union began picketing the whole project because the reserve gate system was obviously not working. Again a Messer employee used a neutral gate. After that the Union picketed for 3 more days, on the last of which the general contrac- tor guaranteed that the gate would be respected. The Union picketed the site no more. Unlike my colleagues, I am-unwilling to speculate that the Union's cessation of picketing showed that its true purpose must have been to enmesh neutrals. It had already limited its picketing on Wednesday afternoon, Thursday, and Friday, October 2, 3, and 4, to the reserved gate despite the fact that the system was not being used as intended. The Union was pick- eting lawfully for area standards 5 and in my view was entitled to anticipate that the reserved gate would again be violated, which indeed it was, and to extend picketing to the project as a whole. The Administrative Law Judge declined to regard the "Messer infringement" on October 8 as a contin- uation of Messer's infringement on October 2 and 4. He viewed October 8 as "long after" October 4 and the Messer infringements, as de minimis. The former conclusion defies reason. I cannot agree with the lat- ter. As the picketing in issue here concerns only Octo- ber 8 through 11, the Administrative Law Judge clouds the question of intent by referring to Messer having worked only 2 of the 7 days of picketing. More importantly, on all 7 days neutral employees were entering and exiting the premises as if no re- serve gate had been set up. I would draw no adverse inference from the Union's failure to ascertain that Messer was not working on October 9, 10, and 11. Although Messer was not working on a daily basis, it appears that its work records do not show any stops made at the site for the purpose of picking up materi- als or tools. The Union was not advised by the gener- al contractor, contrary to what often occurs in these cases, that Messer would not be working until a spe- cific date. As things stood, the Union was entitled to anticipate that Messer might return any day, at any time.6 The picketing itself showed no unlawful secondary object and the only work stoppage that occurred was on the first day. The signs clearly stated that the Union had no dispute with any-other contractor on the job. The Union made a significant attempt to respect the reserve gate system until it became clear that it alone would be doing so. In these circum- stances, I would find no intent to enmesh neutrals. Thus I would find no violation of Section 8(b)(4)(B). The additional allegations based upon the fines imposed by constituent unions of the council upon employee members who worked behind the picket line must fail as well-a disposition recog- nized as appropriate by the parties in the event the picketing itself is not a violation. 4 The Administrative Law Judge discounted the usage by employees of neutrals in discussing the third Moore Dry Dock criterion, a discussion my colleagues do not pass upon. 5 I see no basis on this record for the Administrative Law Judge's infer- ence that the picketing Union lacked "current, direct, or reliable knowl- edge" as to Messer pay rates The Union based its knowledge on a member's report of a conversation with Messer's vice president and general manager The latter, in testifying, confirmed the lower scale paid and the lack of fringe benefits 6 This is not a case where the picketing was continued with full knowledge that the primary would be indefinitely absent from the site See Carpenters' District Council of Milwaukee County & Vicinity of the United Brotherhood of Carpenters & Joiners of America, AFL-CIO (Farmers and Merchants Bank of Menomonee Falls), 196 NLRB 487, 490(1972) DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Administrative Law Judge: In this al- leged illegal secondary boycott proceeding, the job situs is the telephone exchange facility of South Central Bell Tele- phone Company at Gulfport, Mississippi. In early 1974 Bell Telephone contracted with Charging Party Roy An- derson, Jr., Inc.,' a general contractor, for the construction of a partial third floor addition to its Gulfport facility. An- derson commenced work on the addition on June 24, 1974, and substantially completed the project on or about March 15, 1975. Anderson, a union shop contractor, did all the carpenter and cement finishing work on the addition but subcon- tracted out all other work. The electrical work was subcon- tracted to a nonunion shop contractor, Messer Electric i The consolidated complaint and the first and second amendments there- to show the Charging Party's name to be Roy C Anderson, Jr, Inc. Pur- suant to motion by General Counsel , the middle initial "C" has been delet- ed from the Charging Party's name in the caption and elsewhere 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Co., Inc. The Respondent labor organizations 2 admit that they had no labor dispute with Anderson, Inc., or any of its subcontractors except Messer Electric, at any time here material. On October 2, 1974, the Respondent labor organizations, named in the complaint as amended , caused a picket line of some 8 to 10 electricians to be thrown around the entire job situs. The electricians carried signs reading: For the information of the Public Messer Electric Co. Unfair Paying Substandard Wages Under Substandard Conditions No Dispute with any other Contractor on this job We seek no recognition Miss. Gulf Coast Building and Construction Trades Council On the afternoon of the same day, October 2, General Contractor Anderson encircled the unfenced portion of the jobsite with barricade jacks and set up signs showing the gate to be used by Messer's electricians and the gates to be used by all other contractors, their suppliers and employ- ers. On October 8 Anderson replaced the encircling barri- cade jacks with an encircling plywood fence and on the same day changed and redesignated the gate to be used by Messer's electricians. Although the picketing of the common job situs by Re- spondents started on October 2 , 1974, no unlawful picket- ing is alleged in the complaint or claimed for the period October 2 through 7, 1974, as the complaint alleges unlaw- ful picketing only for the period between October 8 and 11, 1974. However, Respondents contend that the events which occurred between the earlier period of October 2 through 8 gave legality to their picketing of the entire job situs during the period October 8 through 11. It is undisputed that on October 8 , 1974, the Respondent labor organizations, using some six to eight electricians as pickets, began picketing the entire jobsite and no longer limited the picketing as theretofore to the gate designated for Messer, the nonunion shop electrical contractor. That picketing, with varying numbers of pickets , continued through October 11, 1974. No picketing took place after October 11, 1974. The record further shows the admitted 2 Attachment A to the consolidated complaint herein lists 19 locals as constituent member co-respondents of the Respondent Council By motion filed on January 30, 1975, Respondents moved for the dismissal of eight such locals as party respondents herein on the ground that they are not members of the Respondent Council. Originally objecting to the said mo- tion, counsel for General Counsel at the trial withdrew his objections there- to Pursuant to Respondent Council's motion as implemented by General Counsel's motion to amend the said Attachment A, the following locals named in Attachment A are hereby dismissed as party respondents herein (])United Brotherhood of Carpenters and Joiners of America, Local No 1233, AFL-CIO, (2) International Brotherhood of Electrical Workers, Lo- cal 1575, AFL-CIO, (3) Construction and General Laborers Local Union No. 973, AFL-CIO, (4) United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No 817; (5) International Brotherhood of Electrical Workers, Local 733, AFL-CIO; (6) Pascagoula Metal Trades Council, (7) United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local No 436, (8) Sheet Metal Workers International Association, Local 407 fact that seven brickmasons and one supervisor who worked for neutral union shop contractors were fined by their respective Respondent labor unions for crossing the picket line and working at their jobs behind the picket line. The Respondents, while admitting that on October 8, 9, 10, and 11, 1974, they did not restrict their picketing to the gate reserved for Messer employees, assert as their defense that the reserved gate system set up by Anderson had been "tainted" or "contaminated" on and prior to October 8, which they contend relieved them of their duty under the Moore Dry Dock case 3 to restrict their picketing to a loca- tion reasonably close to the primary situs of the dispute, namely, the gate reserved for Messer's electrical employees. In support of its "tainted" gate defense, Respondents rely on evidence showing that prior to and on October 8 num- erous employees of employers other than Messer entered and exited the project through the gates designated as Messer's gate and that on a few occasions Messer employ- ees or officers used gates other than the Messer gate. Under the above skeletonized and essentially undisputed facts, the issues under the pleadings are, (1) whether Re- spondents' picketing of the entire Bell Telephone Gulfport construction project between October 8 and 11, 1974, con- stitutes a violation of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act; (2) whether Respondents' threats to fine and the actual fining of its members because they worked for neutral employers while the jobsite was being picketed constitute a violation of Section 8(b)(4)(i) and (ii)(B) of the Act; and (3) whether Respondents' fining of its members because they worked behind the picket lines also constitutes a violation of Section 8(b)(1)(A) of the Act. The parties appear agreed that, if a violation is found under the first above-stated issue, findings of violations un- der the second aforesaid issue must follow automatically, and, conversely, that if it is found that there has not been a violation under the first issue, then it would follow auto- matically that there are no violations under the second is- sue. I agree with these views because of the obvious corre- lations between the above-cited provisions of the Act. The consolidated, complaint herein was issued on Janu- ary 2, 1975, pursuant to a charge filed against the above- named Respondent Council and its constituent member co-respondents on October 10, 1974, in Case 15-CC-604, and pursuant to a charge filed against the above-named Brick Mason Local No. 10 on November 8, 1974, in Case 15-CB-1571, copies of which are duly served upon said Respondents. A first amendment to the consolidated complaint was issued on January 10, 1975. A second amendment to the consolidated complaint was issued on March 4, 1975. The case was heard before me on March 20 and 21, 1975, at Bay St. Louis, Mississippi. Exceptionally well pre- pared briefs were filed by all counsel herein on Arpil 22, 1975. For reasons hereinafter stated, Respondent will be found in violation of the Act as alleged in the complaint .4 3 Sailors' Union of the Pacific, AFL (Moore Dry Dock Co), 92 NLRB 547 (1950). 4 The issuance of this Decision has been regretfully delayed because I have been tied up in the conduct of other trials for some 8 weeks since the closing of the hearing in the present proceeding MISSISSIPPI GULF COAST BUILDING 653 Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Charging Party Roy Anderson, Jr., Inc., a general build- ing and construction contractor, has been at all times here material engaged as the general contractor for the con- struction of an addition to the telephone exchange facility of the South Central Bell Telephone Company located at Gulfport, Mississippi, the only construction site here in- volved. During the past 12 months, a representative period, Anderson, in the course and conduct of its business opera- tions as a general building contractor, purchased and re- ceived goods and materials valued in excess of $50,000 di- rectly from points located outside the State of Mississippi. It is found, as admitted, that Anderson is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The above-named Council and each of its constituent member labor organizations as set forth in Attachment A, as amended, to the consolidated complaint, and the two specifically named Locals in the caption, are labor organi- zations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events at Jobsite from October 2 through October 11, 1974 As heretofore noted, on October 2, 1974, at about 6:30 a.m., while the Charging Party, Anderson, the general con- tractor, was still engaged in constructing the third floor addition to the telephone exchange building of South Cen- tral Bell Telephone Company at the corner of 22nd Ave- nue and 18th Street, in Gulfport, the Respondent Council established a picket line at the jobsite. The picket line con- sisted of approximately 8 to 10 electricians who were mem- bers of electrical Local Union 903, a member of the Re- spondent Council and a co-respondent herein. They picketed the entire jobsite and carried the above-described picket signs, reading: "For the information of the Public" and protesting the wages paid by Messer Electric to its employees as unfair substandard wages but declaring that it had "No dispute with any other Contractor on this Job." The last line of the sign bore the signature of the Respon- dent Council. As a result of the picketing, some 18 or 20 employees, including the employees of General Contractor Anderson and T. R. Evans Masonry Contractor, one of Anderson's subcontractors, refused ;to cross the picket line to work that day. On the afternoon of that same date of October 2, 1974, Anderson's project superintendent, Fred Lassabe, encir- cled the jobsite with sawjack barricades and placed signs on various gates, one of which designated the gate to be used by Messer's nonunion electrical workers and the others, the gates that were to be used by other contractors, their suppliers and employees. The gate located at the northwest corner (facing the alley) of the jobsite was marked as follows: "This gate to be used only by Messer and his suppliers." The other gates, one located on 18th Street and another on 22nd Avenue at a place where a chain link fence enters into the building, were designated as gates, "Not to be used by Messer Electrical Company and his suppliers." On the same afternoon, Bell Telephone placed signs on entrances located at the front of the build- ing (facing 22nd Ave.), and on the southwest corner of the building (facing 17th St.), which stated these gates were to be used by Bell Telephone and Western Electric Telephone employees only. After the above-described designations of the various gates, the Respondent labor organizations limited their picketing on October 3 and 4 to the gates designated as Messer's. The Respondents did not picket on the weekend of October 5 and 6 and not on Monday, October 7, 1974. However, on Tuesday, October 8, using some six to eight pickets, Respondents resumed picketing the entire jobsite and no longer limited the picketing to the gate designated for Messer's use. On the afternoon of that same date, Gen- eral Contractor Anderson's project superintendent Lassabe moved the gate formerly designated as Messer's from the northwest corner facing the alley to a location facing 18th Street and in that connection he also moved the sign on the original Messer gate to the new Messer gate, but all other entrances remained as originally designated on October 2, 1974. On the same day, Lassabe also replaced the sawjack barricades with a solid plywood fence which when com- pleted encircled the entire project, other than those areas of the project already enclosed by a chain link fence. Notwithstanding the gates designated for Messer and the other contractors, the electrical workers pickets continued to picket the entire project from October 8 through 11, 1974, but discontinued all picketing after October 11, 1974. As heretofore noted, no unlawful picketing is alleged from October 2 through 7 or after October 11, 1974. On October 8, 1974, Business Agent Don R. Owens of Respondent Carpenters Local 1518 was informed that two members of his Local, the aforementioned Lassabe and carpenter Herbert Ladner, employees of General Contrac- tor Anderson, were working behind the picket line. After Owens visited the jobsite that same day and talked to both men, charges were brought against them by Local 1518 for working behind the picket lines. As a result of the charges, Local 1518 fined Lassable $49.50 which he has not paid and which has not been forgiven or canceled. Despite the charges against Ladner, no fine was levied against him. On October 10, 1974, Business Agent John Weaver of Respondent Brick Masons Local No. 10 received word that seven members of his Local, employed by Evans Masonry, were working behind the picket line and on the same date Weaver, pursuant to the Union's constitution and bylaws, brought charges against these, individuals charging them with working behind the picket lines as of October 10, 1974. As a result of these charges, the following members of Local 10 were fined $100 each for working behind the picket line: (1) D. Holland, (2) J. L. Miller, (3) B. Kates, 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) A. Moore, (5) L. Shoemaker, (6) D. Sharp, and (7) T. Bellow. At all times of the picketing here involved, subcontractor Evans Masonry was a party to a collective-bargaining agreement with Respondent Council. That contract con- tains a no-strike clause reading: The Union and the Company [Evans] mutually agree that there shall be no strike authorized or otherwise by the Union, nor any lockout by the Company during the life of this agreement. Similarly, at all times of the picketing here involved, General Contractor Anderson was a party to a collective- bargaining agreement with the Respondent Council. That agreement likewise carries a no-strike clause as follows: The Union and the Company [Anderson] mutually agree that there shall be no strike and/or work stop- page authorized or otherwise by the Union nor any lockout by the company during the life of this agree- ment. Respondent labor organizations admit that, at all times here material, they have had no labor dispute with General Contractor Anderson who, as noted, operates under a col- lective-bargaining agreement. The record also shows that Respondents likewise have had no dispute with subcon- tractor Evans Masonry who, as noted, also works under a collective-bargaining agreement. Finally, it is undisputed that Respondents, as their picket signs show, had a labor dispute only with Messer Electric and not with any other contractor on the Bell Telephone jobsite. Under the nomenclature of case law under Section 8(b)(4)(B) of the Act, Messer Electric is the primary em- ployer with whom the Respondents had a dispute and An- derson and Evans Masonry are neutral or secondary em- ployers with whom the Respondents by their own admission, had no labor dispute.; Conversely the absence of the above criteria or condi- tions reflect invalid picketing. As noted by the Supreme Court in Local 761, Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO [General Electric Company] v. N.L.R.B., 366 U.S. 667 (1961), the Board subsequently extended the ap- plication of the Moore Dry Dock standards to cases in which the picketing, as here, took place at the premises occupied by the primary employer as well as by other em- ployers with whom the picketing union had no dispute. In the General Electric case the court generally approved the application of the Moore Dry Dock standards where the work done by secondary employers was "unconnected to the normal operations of the struck employer-usually construction work on his building." 366 U.S. at 680. In such multiple-employer construction situations, the court held that if a union pickets at a gate reserved for a neutral or secondary employer, it has failed to comply with the third Moore Dry Dock standard that picketing be conduct- ed as close as possible to the situs of the primary employer's operation; and the picketing is accordingly un- lawful. 366 U.S. 681. The Board's decision in the Moore Dry Dock case was issued in 1950. Subsequent court cases show that the crite- ria established by the Moore Dry Dock are simply "an evi- dentiary aid for the Board to determine the object of pick- eting, where the other evidence is equivocal." N.L.R.B. v. Northern California District Council of Hod Carriers and Common Laborers of America, AFL-CIO, 389 F.2d 721, 725 (C.A. 9, 1968). See also I.B.E. W., Local 480 AFL-CIO (Gulf Coast Bldg. & Supply Co.) v. N.L.R.B., 413 F.2d 1085, 1088-90 (C.A.D.C., 1969), and cases cited therein. Thus, in addition to the Moore Dry Dock criteria, there may be other or different evidentiary aids for determining the real object or purpose of Respondents' picketing. I have set forth below such other evidentiary aids bearing on Respondents' motive in picketing the entire common con- struction situs in the 4 days herein involved between Octo- ber 8 and 11, 1974. B. Law Applicable to Picketing In a case commonly referred to as the Moore Dry Dock case,6 the Board set forth certain standards for the determi- nation of presumptively valid picketing against primary employers as follows: [I]n the kind of situation that exists in this case, we believe that picketing of the premises of a secondary employer is primary if it meets the following condi- tions: (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) At the same time of the pick- eting the primary employer is engaged in its normal business at the situs; (c) The picketing is limited to the places reasonably close to the location of the situs; and (d) The picketing discloses clearly that the dispute is with the primary employer. 5 The above findings are for the most part admitted, the remaining find- inis below are essentially undisputed and uncontested Moore Dry Dock Co, supra, 549. C. Findings Relating to Respondents' Object in Picketing Other Than the Moore Dry Dock Criteria Of all the Respondent unions here involved, the only union directly affected by General Contractor Anderson's subcontracting of the electrical work to Messer Electric was Local 903 of the International Brotherhood of Electri- cal Workers, whose business agent is Jimmy Russ. Russ' testimony shows that one of the reasons that led to the picketing of the Bell Telephone facility was that all previ- ous electrical work done on the telephone building had been performed by members of his Local. From this I infer and find that the intent of the picketing was to enmesh General Contractor Anderson into the dispute the Local had with Messer Electric because Anderson was responsi- ble for Messer Electric being on the job which in turn caused the members of Russ' local to be deprived of the work which the Local felt belonged to it. Related to the Respondents' pique over the loss of the electrical work on the construction project, the record shows that when the Respondents started their picketing on the common situs, on October 2, 1974, they picketed the MISSISSIPPI GULF COAST BUILDING 655 entire jobsite without advance notice or warning to Gener- al Contractor Anderson and thereby caused a virtual gen- eral work stoppage of all categories of workers at the con- struction site although Respondents had a dispute only with primary employer, Messer Electric. As aforenoted, Anderson, Inc., on the afternoon of that same day erected and designated separate gates for itself, for Messer Elec- tric, and for all other subcontractors on the project in order to contain Respondents' picketing to the area of the Mes- ser gate. I infer and find from the fact that Respondent commenced picketing by picketing the entire jobsite with- out any advance notice to General Contractor Anderson, that they did so in order to cause a total work stoppage on the construction project before Anderson could erect re- served gates, with the object of thereby bringing maximum pressure on Anderson to cease doing business with Messer Electric. The record further shows that Electrical Local 930's business agent, Russ, who had personally applied for and obtained authority from the Respondent Council to picket the telephone addition construction site, had no current, direct, or reliable knowledge of the wages or working con- ditions of Messer Electric's employees on October 2, 1974, when he threw a picket line with picket signs around the entire jobsite informing the general public that Messer was paying, "Unfair . . . Substandard Wages Under Substan- dard Conditions." I find this unverified accusation as ac- companied by the picketing of the entire jobsite to be an- other indication that the real purpose of the picketing was for the object of bringing pressure on General Contractor Anderson to cease doing business with Messer Electric. Further evidence that the intent of the picketing was to enmesh General Contractor Anderson in the Electrical Local's dispute with Messer Electric is reflected in the testi- mony of Business Agent Russ that he made no inquiry or investigation, prior to putting up his picket lines in the 7 days Respondent picketed, to determine whether or not Messer would have any employees on the jobsite on those days. The record shows that Messer did not have any em- ployees at work on the jobsite on October 2, 3, 9, 10, and 11, 1974, but that Respondents nevertheless picketed the project on each of those days.7 Finally, I note a further factor indicating the unlawful object of Respondent's picketing is that Respondents stopped all picketing on October 11, 1974, upon "assur- ances" received by Electrical Local 903's business agent, Russ, "that the two-gate system would be run properly, or had been corrected ..." 8 I infer and find that Respon- 7 Exhibits show that in the 7 days of picketing here involved between October 2 and 11, 1974, inclusive, Messer Electric had employees working on the jobsite on only 2 days, to wit, October 4 and 8 There is testimony by picketers that Messer's vice president and general manager for the past 16 years, Joe Barred, was seen on the jobsite on October 2, 1974, which he disputes, but no evidence that he performed any actual physical work on the jobsite that day. 8 Respondents' defense to its alleged unlawful picketing of the entire con- struction project is that it had been relieved of the duty to confine its picket- ing to the gate designated for Messer Electric because Messer and neutral employers had used gates other than gates reserved for them and thus had "tainted" or "contaminated" all gates on the jobsite and thereby permitted picketing of the entire situs. This defense will be considered separately in another section of this Decision below dents' abandonment of all picketing- on the jobsite after receiving such assurances that Messer would thereafter use only the gate assigned to it is a tacit admission that the picketing of only the Messer gate would be ineffectual in causing pressure to bear on General Contractor Anderson to cease doing business with Messer and that accordingly Respondents gave up all picketing on the jobsite. Conclusions with Respect to Respondents' Object in its Picketing of the Entire Construction Site From the above evidentiary findings I find and con- clude, wholly aside from the Moore Dry Dock criteria, that the object of Respondents' picketing of the entire construc- tion project in the 4 days here involved, between October 8 through 11, 1974, was for the purpose of putting pressure on neutral employer Anderson, the general contractor, to cease doing business with Messer Electric, the primary em- ployer who is the only employer with whom Respondents had a dispute. I find this to be a violation of the provisions of Section 8(b)(4)(1) and (ii)(B) of the Act. Briefly summarized, the above evidentiary findings and conclusions therefrom show the following: (1) One of the Respondents' admitted reasons for picketing, as against the reasons shown on their picket signs, was their anger at neu- tral employer Anderson, the general contractor, for sub- contracting the electrical work on the jobsite to nonunion shop employer Messer, thereby causing union electrical workers to be deprived of work on the telephone exchange building on which they had done all previous electrical work. (2) When Respondents commenced their picketing on the entire project on October 2, 1974, they did so with- out giving any advance notice to General Contractor An- derson in order to deprive Anderson-of any opportunity to put up reserved gates for the various employers and their employees and suppliers on the jobsite. This picketing of the entire jobsite without advance notice to Anderson was done in order to cause an immediate general work stop- page at the jobsite and to thereby put immediate and maxi- mum pressure on Anderson to cease doing business with Messer Electric although Respondents' 'dispute was solely with Messer Electric. (3) Although Respondents had no current, direct, or reliable knowledge of the wages Messer Electric paid to its employees on the telephone construc- tion jobsite or of their working conditions, the Union's picket signs accused Messer Electric of paying unfair sub- standard wages under substandard working conditions. I find the accusations aon the picketsigns were unsubstantiat- ed pretexts for starting a general picketing of the entire project in order to bring pressure on Anderson to cease doing business with Messer. (4) Prior to its picketing on the days here involved Respondents made no efforts to de- termine whether Messer would actually be on the job on those days, contrary to established law that a union may picket against a primary employer only on the days he has employees on the common jobsite.9 Finally, when the Re- spondents came to realize on October 11, 1974, that, their 9 Local 542, International Union of Operating Engineers AFL-CIO, 209 NLRB 377 (1974); Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Atlas Rear, Inc ), 170 NLRB 584 (1968) 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picketing thereafter would have to be limited under the law to the gate reserved for Messer's employees and suppliers, they gave up picketing the jobsite altogether. I infer and find that Respondent ceased even picketing the gate re- served for Messer Electric after October 11, 1974, because they felt that picketing confined to the Messer gate only would not cause neutral contractor Anderson, the general contractor, to cease doing business with Messer. The above summarized findings of fact and conclusions therefrom clearly indicate an intent to engage in unlawful picketing exclusive of any breach of the Moore Dry Dock standards. Under Board rulings, union picketing which complies with Moore Dry Dock criteria may nevertheless "be found unlawful where there is evidence that an objec- tive of the Union's picketing was to enmesh a neutral in a dispute between the union and another party . . ." as in the present case. Local No. 441, International Brotherhood of Electrical Workers, AFL-CIO (Rollins Communications, Inc.), 208 NLRB 943 (1974). See also Teamsters Local Union No. 5, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, Ind. (Barber Brothers Contracting Co., Inc.), 171 NLRB 30, 31 (1968); San Fran- cisco Local Joint Executive Board of Culinary Workers, Bar- tenders, Hotel, Motel and Club Service Workers, AFL-CIO (McDonald's System of California, Inc.), 203 NLRB 719 (1973). In summary, I find and conclude from the Respondent Union's overall conduct, exclusive of the criteria in Moore Dry Dock, that their real object in picketing the entire work project from October 8 through 11, 1974, was to enmesh neutral Anderson, the general contractor, into their dispute with Messer Electric in order to bring pressure on Ander- son to cease doing business with Messer Electric. I find this to be a violation of Section 8(b)(4)(i) and (ii)(B) of the Act. D. Evidentiary Findings Under the Moore Dry Dock Criteria The Board's holding in the Moore Dry Dock case is re- stated below for convenience as summarized by the Su- preme Court in its General Electric case:10 It [the Board] set out four standards for picketing .. . which would be presumptive of valid primary activity: (1) that the picketing be limited to times when the situs of dispute was located on the secondary premises, (2) that the primary employer be engaged in his normal business at the situs, (3) that the picketing take place reasonably close to the situs, and (4) that the picketing clearly disclose that the dispute was only with the pri- mary employer. Respondents in their brief contend, "From a reading of the testimony, it is undisputed that the [Respondent] has complied with requirements, 1, 2, 4 of the Moore Dry Dock criteria. The dispute arises as to whether or not the [Re- spondent] Council was in compliance with [above] criteria No. 3 on October 8, 9, 10 and 1 L" Contrary to Respondents' contention that there is a dis- 10 Local 761, International Union of Electrical Workers (General Electric) v NL R.B, 366 U S 667, 677 (1961) pute only with respect to their compliance with Moore Dry Dock criteria No. 3, General Counsel contends that there is also a dispute as to Respondents' compliance with Dry Dock criteria No. 1. With respect to criteria No. 1 which reads, "Picketing is strictly limited to times when the situs of the dispute was located in the secondary premises," Respondents take the position that, "The evidence establishes that Messer Elec- tric commenced work on the project in June 1, 1974, and continued working thereon until April, 1975, although not on a daily basis. There is no factual dispute that picketing was limited to times when Messer was engaged in work at the project." (Emphasis supplied.) The difficulty with Respondents' above position is the assumption that the picketing of Messer Electric was per- missible and lawful even on days when Messer Electric was not actually engaged in work on the common job situs. This position, as shown in General Counsel's brief, is an erroneous interpretation of the applicable law to Moore Dry Dock criteria No. 1. Under well-established Board holdings, the picketing of a primary employer on a com- mon job situs must be limited to the days on which the primary employer is actually engaged in work on the prem- ises. Thus, in one of the cases cited by General Counsel, the Board held, We view the Union as obligated on June 12 to ascer- tain whether Paddock was actually on the premises. The mere fact that a separate gate was to be available as of that date did not entitle the Union to assume that Paddock would work that day inasmuch as the work for constructing swimming pools contemplated lapses between phases. (Emphasis supplied). Operating Engineers Local 542, supra, 209 NLRB No. 59 at p. 3. See also Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Atlas Reid, Inc.), supra, 170 NLRB 584. Respondents admit that, while Messer Electric com- menced work on the project and didn't finish its work until April 1975, the work done by Messer on the premises was "not on a daily basis." The record shows that between Oc- tober 2 and 11, 1974, Respondents picketed 7 full days but that during these 7 days Messer employees were on the job on only two occasions, to wit, October 4 and 8, 1974. Thus, the record further shows that on 5 of the 7 days of picket- ing Respondents picketed the premises when Messer had no employees at work at all on the common work situs. I find that this failure by Respondents to comply with the No. I criteria of the Moore Dry Docks case is a strong indication of an intent to bring pressure on neutral em- ployer Anderson, the general contractor, to cease doing business with Messer Electric. However, the main thrust of Respondents' defense re- lates to the No. 3 criteria of the Moore Dry Dock case which reads as aforenoted, "that the picketing take place reasonably close to the situs." In effect Respondents' de- fense to its alleged unlawful picketing of the entire project on October 8, 9, 10, and 11, 1974, is that Respondents had been relieved of the duty to confine its picketing to the gate designated and reserved for Messer Electric because, prior to and on October 8, Messer as the primary employer and MISSISSIPPI GULF COAST BUILDING 657 other admitted neutral employers had used gates other than the gates reserved for them and had thus "tainted" or "contaminated" all gates and thereby opened up for Re- spondents the alleged right to picket the entire situs. It is also part of Respondents' defense that Business Agent Russ "upon being assured [on October 11, the last day of Respondents' picketing] of the corrections of the violations, picketing [by Respondents] was immediately withdrawn." 11 -By this Respondents appear to state that it received assurances from all the employers on the project on October 11, 1974, that they would thereafter use only the gates assigned and reserved for them and that upon the receipt of such assurances Respondent abandoned all pick- eting at the jobsite including the picketing of Messer Electric's reserved gate. As it is difficult to see what useful purpose the reserved gate system on the jobsite would serve after Respondents' abandonment of even the picketing of the Messer Electric's reserved gate, I infer and find that Respondents abandoned all efforts to picket Messer's re- served gate because they had no expectation that picketing limited only to the Messer gate would bring effective pres- sure on General Contractor Anderson to cease doing busi- ness with Messer. I have summarized above the gist of Respondents' "tainted" gate defense. In Respondents' brief that defense is explained in their own words as follows: "Picketing was confined to the gate reserved for the primary employer [Messer] until such time as the numerous violations [al- leged tainting] of that gate removed it from protection," obviously meaning the release from the requirement of criteria No. 3 of the Moore Dry Dock case, "that the picket- ing takes place reasonably close to the situs," in order to be considered presumptively valid. For its "tainted" gate defense, Respondents rely (a) in part on uncontradicted testimony showing that on numer- ous occasions between October 2 and 11, 1974, employees of neutral employers on the project were seen using Messer Electric's reserved gate and other gates instead of the gates assigned and reserved for them and (b) in part on testimo- ny showing that in isolated incidents between October 2 and 8, 1974, employees of primary employer Messer Elec- tric were seen using gates other than the gate assigned and reserved for them. It is well established that the evidence adduced under (a) above is immaterial and irrelevant for the reasons stated in Janesville Typographical Union No. 197 (Gazette Printing Company), 173 NLRB 917, 921 (1968), that, " ... under the theory that the reserved gate is in effect a convenience to allow secondary employers and employees an area where they would not have to cross a picket line to enter the premises, they [secondary employees] are still free to cross the picket line and enter the premises at other locations .... The reservation is that the primary employer's employ- ees and suppliers not use that reserved gate to escape the pick- et line." (Emphasis supplied.) See also United Association of Journeymen and Apprentices of the Plumbing and Pipe Fit- ting Industry of the United States and Canada, Local Union No. 60, AFL-CIO (Circle, Inc.), 202 NLRB 99, 106 (1973); Local Union No. 519 Plumbers (L & M Electric Company), 145 NLRB 215, 221, footnote 17 (1963). It accordingly follows that Respondents' "tainted" gate defense must be judged solely on evidence reflected in (b) above showing that Messer's electrician employees were seen using gates other than the gate set aside and designat- ed for their use. The record shows several such entrances and exits on picketing days by Messer's electric employees from gates other than the one designated for their use. These took place only on October 2, 4, and 8, 1974, constituting 3 of the 7 days of picketing that occurred between October 2 and 11, 1974. In some instances, there were only exits from unauthorized gates after entries through the authorized gate; in other instances Messer employees used gates other than their own for both entering and exiting.12 In all there were four such individual instances of the use of unauthorized gates by Messer employees. The first of these occurred on October 2, 1974. On that date the cred- ited testimony of Business Agent Russ of the picketing electrical Union shows that although he saw Messer's vice president and general manager, Joe Harrod, enter the job- site through Messer's reserved gate, he saw him exit through a gate in a preexisting chain fence on the south side of the Bell building facing 17th Street reserved for the use of South Central Bell and Western Electric employees only. Harrod admits using that unauthorized gate for an exit but denies that it took place on October 2 and claims that it took place a day or two later. I do not credit Harrod's testimony that the incident of his exit from the unauthorized exit took place subsequent to October 2 be- cause, in addition to Russ' testimony that Harrod was on the premises on October 2, I credit the testimony of picket- er Norwood that he also saw Harrod properly enter the premises on October 2 and shortly thereafter saw him out- side the jobsite although he had not observed what exit Harrod had used in leaving the premises. From all the tes- timony of record I reiterate my finding that Harrod en- tered the jobsite in the afternoon of October 2 through Messer's gate and shortly thereafter exited from an unau- thorized gate. The second instance of use by Messer's employees of unauthorized gates occurred on October 4, 1974. The cred- ited and undisputed testimony of picketers Phillip Conn and John Puche 13 show that, on October 4 about 7:35 a.m., they saw two Messer electricians enter the jobsite at the gate reserved for South Central Bell and Western Elec- tric employees located on the west side of the Bell building near 18th Street and reached through an alley. Similarly their credited and undisputed testimony shows that later that morning they saw the same two electricians leave the jobsite through a different gate, namely, the heretofore mentioned gate in the preexisting chain fence on 17th Street which was likewise reserved for the use of South Central Bell Telephone and Western Electric employees only. The final incident of the use of the unauthorized gate by 12 Diagrams of the construction site and gate system are depicted in Resp Exh 2 and G C Exh. 2 13 Puche, who did not testify, is deemed by stipulation to have given it The record does not show who gave Russ the indicated assurance testimony substantially the same as Conn's 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a Messer employee occurred in the early morning of Octo- ber 8, 1974. The credited and undisputed testimony of picketers James Kidd and Byrd 14 and of Business, Agent Russ shows that on the morning they saw a Messer electri- cian exit from the aforenoted southwest gate facing 17th Street reserved for employees of South Central Bell Tele- phone and Western Electric employees.15 Although in their brief Respondents contend that "the so-called reserved gate system [in the instant case] was not properly established nor maintained," the record shows and I find that General Contractor Anderson took all rea- sonable steps and exercised all the necessary precautions to comply with the reserve system requirements on the job- site. As heretofore noted Respondents started picketing the entire jobsite in the early morning of October 2, 1974. It is undisputed that Anderson's job superintendent, Lassabe, in the afternoon of that same day established a gate for Messer Electric, designated by a sign reading, This gate to be used only by Messer and his suppliers." It is similarly undisputed that he established separate gates for all other employers on the construction project marked with appro- priate signs showing, them to be intended for such employ- ers and their employees and suppliers. Furthermore, Lassabe's credited and undisputed testimony shows that on the very next day, October 3, he instructed all employees on the jobsite, including Messer employees, that only Mes- ser people were to use the Messer gate. Accordingly I find without merit Respondents' contention that Anderson did not properly establish and maintain the gate system, now commonly called the reserved gate system, and reiterate my finding that Anderson took all reasonable steps and exercised all the necessary precautions to meet the separate gate system requirements. Discussion and Conclusions The two principal issues under the above findings are whether Respondents at the times here material have been in compliance with criteria 1 and 3 of the Moore Dry Dock case which states four criteria indicative of lawful picketing under the Act. All other incidental factual issues , including credibility issues, have been discussed and determined above and do not, in my opinion, require further discussion here. As heretofore noted, criteria I of the Moore Dry Dock case reads, "that the picketing be limited to times when the situs of dispute was located on the secondary premises." The above findings show that Respondent did not in fact limit its picketing to such times or days when there were Messer employees actually on the jobsite but on the con- trary picketed the jobsite on days when in fact there were no Messer employees or suppliers on the jobsite. Under applicable Board decisions cited above , these facts require the ultimate finding and determination , here made, that i4 Byrd, who did not testify, is deemed by stipulation to have given testi- mony substantially the same as Kidd's. 15 By apparent inadvertent error, counsel for Respondents in his brief erroneously states that Kidd observed the Messer employee "entering" the southern gate whereas Kidd's testimony shows that he saw the employee in question "exit" from that gate. Respondents have not been in compliance with criteria 1 of the Moore Dry Dock case. Respondents do not dispute the fact that their pickets were not in literal compliance at the times here material with criteria 3 of the Moore Dry Dock case which as an indication of valid picketing requires, "that the picketing take place reasonably close to the situs" because on the picketing days here challenged of October. 8, 9, 10, and 11, 1974, Respondent picketed the entire jobsite instead of confining their picketing to the gate reserved for Messer Electric's employees and suppliers on the job situs. Howev- er, Respondents defend their literal breach of criteria 3 of the Moore Dry Dock case on the ground that the conduct of the Messer employees on October 2, 4, and 8 in using gates other than their own gate for entrance and exit pur- poses tainted the reserved gate system installed by General Contractor Anderson, and thereby relieved the Respon- dent Unions from compliance with Dry Dock criteria 3. As aforenoted the three literal transgressions of the des- ignated gate took place on October 2, 4, -and 8, 1975. Tak- ing up first the incident of October 8, the above findings show that on that day a Messer electrician exited, not from the Messer reserved gate, but from a gate reserved for em- ployees of South Central Bell Telephone and Western Electric employees, located southwest of the building proj- ect facing 17th Street. The findings also show that on that same date of October 8 the Respondents encircled the en- tirejobsite with six to eight pickets. I find that the Messer infringement of the reserve gate system on October 8 can- not be regarded as a continuation of Messer's earlier Octo- ber 2 and 4 infringements or alledged "taints" of the sys- tem as termed by Respondents. I reach this conclusion because Respondents by their own act of encircling the entire jobsite with pickets on October 8 had the effect of destroying the very purpose of the reserve gate system to confine picketing to the primary employer and to protect neutral employers from picketing. Under, these circum- stances, I find that there was no reason under the rationale of the reserve gate system for the Messer employees to have limited their jobsite ingresses and egresses on October 8 through their designated gate. Accordingly I find and conclude that the exit from the jobsite on October 8 of a Messer employee from a gate other than the designated Messer gate is immaterial and irrelevant and accordingly did not constitute a violation of the Act. There thus remains for consideration ,only the question of whether Messer's infringements of the reserved gate sys- tem as of October 2, and 4, 1974, justified or legitimized Respondents' picketing of the entire jobsite on October 8, 9, 10, and 11, 1974. As aforenoted the first instance of an infringement by a Messer employer took place on October 2, 1974, when Harrod, Messer's vice president and general manager, after properly entering the jobsite through the Messer gate, exit- ed through the southwest gate on 17th Street reserved for South Central Bell and Western Electric employees. The second infringement took place 2 days later on October 4 when two Messer electricians entered the premises through the unauthorized alley gate on the west side of the building near 18th Street, reserved for South Central Bell and West- ern Electric employees, and also exited from the unauthor- MISSISSIPPI GULF COAST BUILDING ized southwest gate facing 17th Street, which was also re- served for South Central Bell and Western Electric em- ployees. Thus out of the five gates at the jobsite there were in- fringements of only two gates, namely, the southwest gate on 17th Street (by Harrod on October 2 and the two elec- tricians on October 4) and the alley gate on the west side of the,building (by the two electricians on October 4.) Not- withstanding the fact that there were infringements at only two of the neutral gates, the Respondents picketed the en- tire project, including the three neutral gates which the Messer employees did not trespass, with the result that Re- spondents' picketing enmeshed the neutral employers at these three neutral gates in Respondents' quarrel with Mes- ser Electric. I find and conclude under Board decisions that Respondents by their picketing of the entire jobsite instead of limiting their picketing at most to the Messer gate and the two transgressed neutral gates violated Sec- tion 8(b)(4)(i) and (ii)(B) of the Act. Nashville Building & Construction Trades Council, I.B.E. W. Local 429, etc., 172 NLRB 1138, 1140 (1968); Local 519 (L & M Electric Com- pany, supra; Teamsters "General" Local Union No. 200 (Reilly Cartage Inc.), 183 NLRB 305, 325 (1970). I further find and conclude Messer's isolated infractures of the re- served gate system to be de minimis and accordingly insuf- ficient to give legality to Respondents' picketing of the en- tire building project. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 60, AFL-CIO (Cir- cle Inc.), 202 NLRB 99, 107 (1973). Especially indicative of the pretextual nature of Respon- dents' seizure of Messer's early infractions of October,2 and 4 of the reserve gate system as an excuse for throwing pickets around the entire jobsite and thereby enmeshing neutral general contractor Anderson in its dispute with Messer Electric is the fact that Respondents did not start their encircling picketing right after the October 2 or Octo- ber 4 incidents but waited until October 8 to do so, long after Messer's use of unauthorized gates had stopped and there was no longer any offending conduct by Messer. Finally, it is noted that there is nothing in the conduct of General Contractor Anderson that would disqualify An- derson-from the relief sought in this proceeding against secondary boycotting because the record shows that An- derson took all reasonable steps and exercised all the nec- essary precautions in attempting to arrange the jobsite in a fashion to comply with the separate gate criteria. Those steps included the placement of barricades, around the en- tire jobsite, the establishment of gates in the barricades with identifying signs for the various contractor-employers, including a separate gate for Messer Electric, and instruc- tions to all employees on the jobsite, including Messer em- ployees, that only Messer employees and suppliers were to use the Messer gate. In summary from all the evidence of record, including the breaches of two'of the Moore Dry Dock criteria and all other evidentiary aids in-the case, I find and conclude that Respondents' object in picketing the entire Bell Telephone building jobsite on October 8, 9, 10, and 11, 1974, was to enmesh neutral employer Anderson, the general contrac- tor, into Respondents' dispute with Messer Electric in or- 659 der to bring pressure on Anderson to cease doing business with Messer Electric, which object I find to be in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. E. Union Fines and Threats of Fines The findings of fact with respect to the union fines threatened and/or imposed by two of the Respondent Lo- cal Unions here involved upon their members for crossing and working behind the picket lines on the Bell Telephone building project between October 8- and 11, 1974, have been fully set forth above under the heading "Sequence of Events." For convenience these findings are summarized below prior to the consideration of the legality of the fines and threatened fines. Two of General Contractor Anderson's employees on the jobsite were the subjects of such fines and/or threats of fines. They are the aforementioned jobsite superintendent, Lassabe, and Hebert Ladner, a carpenter; both are mem- bers of Respondent Local 1518, a carpenters union. The Local brought charges against Lassabe and Ladner for working behind the picket line on October 8, 1974, under which the Local imposed a fine of $49.50 against Lassabe, but did not impose a fine on Ladner. Lassabe's fine has not been paid or canceled. Similarly, seven of the employees of Evans Masonry, a union shop subcontractor on the jobsite, were made the subject of such fines and/or threats of fines by their union, Respondent Local 10, Local 10 brought charges against these seven union employees of Evans Masonry for work- ing behind the picket lines at the project. Pursuant to the charges, Local 10 imposed a fine of $100 against each of these heretofore named employees for working behind the picket lines, which fines have not been paid in full. Neither Lassabe nor the seven brick masons took ap- peals from their respective fines under established union internal appeal procedures. Both Anderson and Evans Ma- sonry have collective-bargaining agreements with the Re- spondent Council. Each of these agreements have no-strike and no-lockout clauses as set forth ' above in full in the "Sequence of Events." Discussion and Conclusions In the previous section of this Decision I found, based on all the evidence of record herein, that Respondents' picketing of October 8, 9, 10, and 11, 1974, of the entire Bell Telephone jobsite was in violation of Section 8(b)(4)(i) and (ii)(B) of the Act because the object of the picketing was to enmesh neutral employer Anderson, the general contractor, in Respondents' dispute with primary employer Messer Electric for the .purpose of bringing pressure on Anderson to cease doing business with Messer Electric. Similarly, from the record as a whole I find and con- clude that the fines threatened 16 and/or imposed by Re- spondent Local 1115 and Respondent Local 10 on their 16 I find that the written notifications per se sent by Local 1518 and Local 10 to their involved members advising them to prepare to defend themselves against charges filed against them for having worked behind the picket lines constitute threats of union fines for having crossed picket lines. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above-identified union members were made to augment and intensify Respondents' original object to bring pres- sure on neutral employer Anderson to cease doing business with primary employer Messer Electric. I find this to be a separate and additional violation of Section 8(b)(4)(i) and (ii)(B) of the Act. In other words, from the record as a whole I find that the two locals utilized the fines and the threats of fines to persuade, induce, and compel the in- volved union employees to refuse to perform services for neutral employers Anderson and Evans Masonry with the object of thereby bringing further pressure on Anderson to cease doing business with Messer Electric. Such conduct is clearly proscribed and in violation of the Act. Carpenters and Joiners of America, Local 1620, 208 NLRB 94 (1974). At the hearing counsel for Respondents agreed "that the legality of fines are . . . connected with the first issue as to the legality of picketing" and that if the Respondents' pick- eting were found legal, the fines and threats of fines would also be legal and, conversely, if the picketing were found illegal, the fines and threats of fines would also be illegal. Similarly, this was also the position of counsel for General Counsel. Thus, it having been found that Respondents' picketing of the entire jobsite on October 8, 9, 10, and 11, 1974, was in violation of Section 8(b)(4)(i) and (ii)(B), it follows and I so find and conclude that the fines and threats of fines for working behind the illegal picket lines are also in violation of the same provisions of the Act. The only remaining issue for decision is whether the same fines and threats of fines for working behind the picket lines are also violations of Section 8(b)(1)(A) of the Act, the text of which reads: Sec. 8(b). It shall be an unfair labor practice for a labor organization or its agents-(1) to restrain or coerce (A) employees in the exercise of the rights guar- anteed in Section 7;, Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein ... . Thus the guarantees of Section 7 of the Act are tied in with the provisions of Section 8(b)(1)(A) and there can be no violation of the latter unless there has been an infringe- ment of the rights guaranteed employees under Section 7. As Section 7 guarantees employees "the right to refrain from" any or all union activities, it is obvious that Respon- dent Local 1518' and Respondent Local 10 by their threats of fines and fining of their involved members for working behind the picket lines of October 8 and 10, 1974, inter- fered with, the, rights of such employees to refrain from honoring the picket lines and thereby came in violation of Section 8(b)(1)(A) of the Act unless the actions taken by the two Locals come within the proviso of that section of the Act. Respondent relies on the provisio as a defense for the union fines imposed on the workers who crossed the picket line under a long line of cases which hold that, "A union is generally not in violation of Section 8(b)(1)(A) if its sanc- tions are internal in character (in the form of fine, suspen- sion or expulsion) and are not directed against the member's employment status or tinged with violence." See Local 12419, International Union of District 50, United Mine Workers of America (National Grinding Wheel Company, Inc.), 176 NLRB 628, 629 (1969), and the authorities cited therein. That defense is stated by Respondents in their brief as follows: 1. That the members fined have failed to exhaust their internal union remedies . . . although an appeal procedure had been established in the constitution and by-law of both the brick masons and carpenters. However, it has long been established that the proviso defense that a union member must first exhaust the inter- nal union appeal procedures before resorting to the law is inapplicable to situations where the union discipline is to enforce an illegal object, such as has been found above to be the case herein. Dealing with such a situation, the Board in Communication Workers of America, AFL-CIO, Local 1170, 194 NLRB 872, 873, following precedent, held: ... we find that the Union's action also constituted restraint and coercion not sanctioned by the proviso to Section 8(b)(1)(A) of the Act because the charges against her did not stem from violations of a lawful union rule dealing with purely internal union matters, but, to the contrary, sought to enforce conduct found violative of Section 8(d) and 8(b)(3) of the Act. Similarly, I find that the fines of the two Respondent Locals on their indicated members also constituted re- straint and coercion not sanctioned by the proviso to Sec- tion 8(b)(1)(A) of the Act because the charges against the involved union members did not stem from violations of lawful union rules dealing with purely internal matters, but, on the contrary, sought to enforce picketing which as found above was violative of Section 8(b)(4)(i) and (ii)(B) of the Act. Although Respondents by their stipulations have admit- ted that fines were levied by the two involved Respondent Locals upon their members for working behind the picket lines which were found above to be violative of Section 8(b)(1)(A) of the Act as alleged in the complaint, they con- tend that no preliminary threats of such fines as alleged were also made and that consequently the complaint inso- far as it alleges a further violation of Section 8(b)(1)(A) by reason of such alleged threats of fines should be dismissed for failure of proof. In other words, Respondents contend such evidence as General Counsel has adduced in proof of the allegations that threats of fines were made do not sup- port a conclusion that such threats were made. Although a contrary conclusion was reached above, further consider- ation is given to Respondents' position as reflected in their brief wherein as a second defense to the charge that they are in violation of Section 8(b)(1)(A), Respondents assert: 2. The General Counsel has stated he relies solely upon the letters . . . sent the members to establish a case under Section 8(b)(1)(A) and from the most liber- al reading of the wording of these letters, no one can interpret a threat therefrom. One of the respresentative letter's Respondents have ref- erence to in the above quotation from their brief is the November 5, 1974, letter sent by Carpenters Union to Las- MISSISSIPPI GULF COAST BUILDING sabe, Anderson's jobsite superintendent, notifying him that he was to appear before the Respondent's Council on No- vember 21, 1974, to answer charges brought against him by the Business Agent of Local 1518 for having worked be- hind the picket lines. The letter enclosed a copy of the charges which accused Lassabe of "working behind" the duly authorized picket line. The charges also state that the Business Agent Owen had spoken to both Lassabe and car- penter Ladner about their violation of the picket line but without effect. The other representative letter Respondents have refer- ence to is the October 10, 1974, letter sent by the Brick Masons Local 10 to member John L. Miller notifying him to appear before the Local on October 18, 1974, to defend himself against filed charges that he had been found "crossing and working behind picket lines" at the Bell Telephone jobsite. Contrary to Respondents' contention that "no one can interpret a threat" from these letters, upon the basis of the above undisputed facts I reiterate the finding in footnote 16 above that "the written notifications per se sent by Local 1518 and Local 10 to their involved members advising them to prepare to defend themselves against charges filed against them for having worked behind the picket lines constitute threats of union dues for having crossed picket lines." I find this to be self-evident from the letters them- selves and in the case of Lassabe and Ladner from both the letters and their prior oral warnings that they would be charged with infractions of union rules unless they ceased their working behind the picket lines. The fact that union fines were subsequently actually imposed upon all of the involved union members, except Ladner, is a further indi- cation and confirmation of the threatening nature of the letters that preceded the actual imposition of the fines. I, therefore, find that Respondents' second defense that General Counsel has failed to prove that Respondents made threats of fines to their members for working behind the picket line is contrary to the evidence of record. Having found that Respondents made such threats of fines, I find them to be in violation of Section 8(b)(1)(A) of the Act. Finally, it is noted that, even if the picket lines here in- volved stemmed from violations of a lawful union rule dealing with purely internal matters, the fines imposed by the Respondent Unions on their members for not'honoring the picket lines would nonetheless be in violation of Sec- tion 8(b)(1)(A) because they were imposed in the face of a no-strike clause that Respondents had agreed to in their collective-bargaining agreements with employers Anderson and Evans Masonry. It is well established that where there is a valid, unambiguous, no-strike clause between a union and an employer, such as the Respondents have here, it is a violation of Section 8(b)(1)(A) of the Act for the union to fine members for not participating in a work stoppage. Lo- cal 12419„ International Union of District 50, United Mine Workers of America (National Grinding -Wheel Company, Inc.), 176 NLRB 628 (1969); Glaziers Local Union No. 1162 etc. (Tusco Glass, Inc.), 177 NLRB 393 (1969); Local 1197, Communication Workers of America, AFL-CIO (Western Electric Company), 202 NLRB 229 (1973). 661 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Roy Anderson, Jr., Inc., and T. R. Evans Masonry Contractor are persons engaged in commerce within the meaning of the Act. 2. The Respondents, Mississippi Gulf Coast Building and Construction Trades Council and its constituent mem- bers, Brick Masons & Plasterers International Union of America, Local No. 10, AFL-CIO, and United Brother- hood of Carpenters and Joiners of America, Local Union 1518, AFL-CIO, are labor organizations within the mean- ing of Section 2(5) of the Act. 3. By picketing at gates other than the gates reserved for employees of Messer Electric Company and thereby induc- ing and encouraging employees of Roy Anderson, Jr., Inc., and T. R. Evans Masonry Contractor to engage in strikes or refusals in the course of their employment to perform services, with an object of forcing said employers and per- sons to cease doing business with Messer Electric Compa- ny, Respondents have engaged in, and are engaging in, unfair labor practices affecting commerce within the mean- ing of Section 8(b)(4)(i)(B) and Section 2(6) and (7) of the Act. 4. By threatening, coercing, and restraining Roy Ander- son, Jr., Inc., and its contractors and suppliers with an ob- ject of requiring them to cease doing business with Messer Electric Company, Respondents have engaged in, and are engaging in, unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act. 5. By threatening to fine and fining employees of Roy Anderson, Jr., Inc., and T. R. Evans Masonry Contractor for working behind the illegal picket line, Respondents Brick Masons & Plasterers International Union of Ameri- ca, Local No. 10, AFL-CIO, and United Brotherhood of Carpenters and Joiners of America, Local Union No. 1518, AFL-CIO, have engaged in unfair labor practices in viola- tion of Section 8(b)(1)(A) of the Act. REMEDY Having found that Respondents engaged in certain un- fair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action of the type which is conventionally ordered in such cases as pro- vided in the recommended Order below, which I find nec- essary to remedy and to remove the effects of the unfair labor practices and to effecutate the policies of the Act. Because of the character and scope' of the unfair labor practices found, I 'shall recommend a broad cease-and-de- sist order." 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: n N L R B v Express Publishing Company, 312 U.S- 426 (1941), N L R B v. Entwistle Mfg Co, 120 F 2d 532 (C A 4, 1941), Consolidated Industries, Inc., 108 NLRB 60 (1954), and cases cited therein 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 18 Respondents Mississippi Gulf Coast Building and Con- struction Trades Council and its constituent members; Brick Masons and Plasterers International Union of Amer- ica, Local No. 10, AFL-CIO; and United Brotherhood of Carpenters and Joiners of America, Local Union 1518, AFL-CIO, Gulfport, Mississippi, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Engaging in or inducing or encouraging any individ- ual employed by Roy Anderson, Jr., Inc., or T. R. Evans Masonry Contractor, or by any other person engaged in commerce or in any industry affecting commerce, to en- gage in a strike or refusal in the course of his employment, to use, manufacture, process, transport, or otherwise han- dle or work on any goods, articles, materials or commodi- ties, or to refuse to perform any other services where an object thereof is to force or require Roy Anderson, Jr., Inc., or any other person, to cease using, handling, or otherwise dealing in the products or services of any other producer, processor, or manufacturer, or to cease doing business with Messer Electric Company. (b) Threatening, coercing, or restraining Roy Anderson, Jr., Inc., or T. R. Evans Masonry Contractor, or any other employer or person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require said employers or persons to cease doing business with Messer Electric Company. (c) Restraining or coercing employees of Roy Anderson, Jr., Inc., or T. R. Evans Masonry Contractor in the exer- cise of their rights guaranteed by Section 7 of the Act, by threatening to fine and fming or otherwise disciplining or threatening to discipline said employees for working be- hind an illegal picket authorized by the Respondent. (d) In any other manner restraining or coercing their members in their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Rescind and refund the fines levied against Ricky Lassabe, D. Holland, J. L. Miller, B. Kates, A. Moore, L. Shoemaker, D. Sharp, and T. Bellew. (b) Correct all pertinent records relating to the aforesaid fines by expunging all references thereto from Respon- dents' records; advise the International Union of Carpen- ters and the International Union of Brickmasons of the aforestated action. (c) Notify the aforementioned individuals against whom fines were levied, in writing, that the fines against them have been rescinded and that all entries, including any communications to the International Unions, have been expunged from the records of the Union. (d) Post at their respective offices and meeting halls, in- cluding the meeting hall or office of all constituent mem- bers of the Mississippi Gulf Coast Building and Construc- tion Trades Council as named in the complaint herein, as amended, copies of the attached notice marked "Appen- dix." 19 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative of each of the Respondents herein, shall be posted by each Respondent immediately upon receipt thereof and be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by each of the Respon- dents herein that said notices are not altered, defaced, or covered by any other materials. Mail signed copies of said notice to the Regional Director for Region 15 for posting by Roy Anderson, Jr., Inc., if said employer is willing, at all locations where notices to its employees are customarily posted. (e) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. is In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 19In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To all Members of: Mississippi Gulf Coast Building and Construction Trades Council and Its Constituent Members and To all Members of: Brickmasons and Plasterers Interna- tional Union of America, Local No. 10, AFL-CIO and To all Members of: United Brotherhood of Carpenters and Joiners of America Local Union 1518, AFL-CIO and To all Employees of Roy Anderson, Jr., Inc. Following a hearing during which all parties were given an opportunity to present evidence and argument it has been determined that Mississippi Gulf Coast Building and Construction Trades Council and Its Constituent Members and Brickmasons and Plasterers International Union of America, Local No. 10, AFL-CIO, and United Brother- hood of Carpenters and Joiners of America, Local Union 1518, AFL-CIO, violated the National Labor Relations Act by committing certain unfair labor practices. In order to remedy such conduct we are required to post this notice. We intend to comply with this requirement and to abide by the following: WE WILL NOT threaten to fine and fine employees of Roy Anderson, Jr., Inc., and T. R. Evans Masonry MISSISSIPPI GULF COAST BUILDING 663 because they persist in their desire to render services with the above-mentioned companies, employers with whom we have no labor dispute. WE WILL rescind and refund the fines assessed upon the following members of Brickmasons Local No. 10: D. Holland, J. L. Miller, B. Kates, A. Moore, L. Shoe- maker, D. Sharp, and T. Bellow; and the fine assessed against Ricky Lassabe, member of Carpenter Local 1518, for having crossed the picket line established by the Mississippi Gulf Coast Building and Trades Coun- cil at the South Central Bell Building in Gulfport, Mis- sissippi, on October 8 through October 11, 1974. WE WILL NOT in any other-manner prohibited by Sec- tion 8(b)(4)(i) or (ii)(B) of the National Labor Rela- tions Act threaten, coerce, or restrain Roy Anderson, Jr., 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 Anderson, or any other person to cease using, handling, or other- wise dealing, in the product or service of, or to cease doing business with Messer Electric Company. WE WILL NOT, in any manner prohibited by Section 8(b)(4)(i) or (ii)(B) of the National Labor Relations Act, induce or encourage any individual employed by Anderson, 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 em- ployment, to use, manufacture, process, transport or otherwise handle or work on any goods, articles, mate- rials, or commodities, or to refuse to perform any other service, where an object thereof is to force or require Anderson or any other person, to cease using, handling, or otherwise dealing in the products or serv- ices or cease doing business with Messer Electric Company. Mississippi GULF COAST BUILDING AND CONSTRUCTION TRADES COUNCIL AND ITS CONSTITUENT MEMBERS BRICK MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, LOCAL No. 10, AFL-CIO UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION 1518, AFL-CIO