International Brotherhood of Electrical Workers. Local 323 (Renel Construction, Inc.)

IBEW LOCAL 323 International Brotherhood of Electrical Workers, Local 323 and Renel Construction, Inc. Case 12-CC-1088 September 30, 1983 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed by Renel Construction, Inc., herein called Renel, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued a complaint and notice of hearing on March 11, 1981, against Inter- national Brotherhood of Electrical Workers, Local 323, herein called Respondent. The complaint al- leges that Respondent had engaged in and was en- gaging in certain unfair labor practices affecting commerce within the meaning of Sections 8(b)(4)(i) and (ii)(B) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing were duly served on the parties. Respondent filed an answer to the complaint, denying that it committed any unfair labor practices. Thereafter, the parties entered into a stipulation of facts and jointly petitioned the Board to transfer this proceeding directly to the Board for findings of fact, conclusions of law, and order. The parties stipulated that they waived a hearing before an ad- ministrative law judge, the making of findings of fact and conclusions of law by an administrative law judge, and the issuance of an administrative law judge's decision. The parties also agreed that no oral testimony was necessary or desired by any of the parties, and that the charge, the complaint, the answer, and the stipulation of facts, including the exhibit attached thereto, constituted the entire record in the case. On January 4, 1982, the Board issued its order approving the stipulation and transferring the pro- ceeding to the Board. Thereafter, the General Counsel, Renel, and Respondent filed briefs which have been duly considered by the Board.' 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 entire record herein as well as the briefs filed by the parties, and hereby makes the following: L Renel has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 264 NLRB No. 81 FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Renel Construction, Inc., is a Florida corpora- tion engaged in business as a contractor in the building and construction industry. During the past 12 months, Renel purchased goods and materials valued in excess of $50,000 from suppliers in the State of Florida, who in turn received such goods and materials directly from points located outside the State of Florida. Electron Incorporated of Florida, herein called Electron, is an electrical contractor engaged in the construction business, with offices located in West Palm Beach, Florida. During the past 12 months, Electron has received materials and supplies valued in excess of $50,000, which were shipped to it di- rectly from manufacturers located outside the State of Florida, pursuant to purchase transactions there- for entered into between Electron and suppliers lo- cated within the State of Florida. The parties have stipulated, and we find, that Renel, Electron, CK + W Construction Co., and Atlantic Steel Service Corporation are, and have been at all times material herein, employers en- gaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 1l. THE LABOR ORGANIZATION INVOLVED The parties have stipulated, and we find, that Respondent is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts Renel was engaged as the general contractor for construction of the North Campus of Palm Beach Junior College, and Electron, with whom Re- spondent had a labor dispute, worked as a subcon- tractor for Renel at that construction site. On or about February 23, 1981,2 Respondent received a telegram from Renel which indicated that a re- served gate system was being established and that Electron's employees and suppliers, as well as those of CK + W Construction Co. and Atlantic Steel Service Corporation, would be using the re- served gate, designated as Gate 2. Renel also estab- lished a neutral gate, Gate 1, as the entrance to be used by its own employees, subcontractors, and suppliers, but not by Electron, CK + W Construc- tion Co., or Atlantic Steel Service Corporation. 2 Unless otherwise specified, all dates herein refer to 1981. 623 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gate 1 was established on PGA Boulevard, a main thoroughfare, at a distance of approximately 190 yards from one of the buildings where Elec- tron's employees were performing work. Gate 2 was located on Campus Drive, which is not a main road, and was approximately three-fourths of a mile from the above building, which could be reached from Gate 2 by means of a winding dirt road through stands of tall, thick trees. The con- struction area was bordered on the north by PGA Boulevard and on the west by Campus Drive. None of the construction areas in which Electron's employees were performing work could be seen from Gate 2. The parties further stipulated that, as of Febru- ary 25, the reserved gate system was "properly es- tablished and implemented." On February 25, 26, and 27 and on March 2, 3, and 4, Respondent en- gaged in picketing with signs that read: "NOTICE TO PUBLIC: ELECTRON, INC. OF FLORIDA LOWERS LOCAL UNION 323 IBEW STAND- ARDS." The picketing was conducted at the re- served gate on Campus Drive, and in an area of patrol on PGA Boulevard on an east-to-west line, with the westernmost end of the patrol coming no closer than 100 feet from the neutral gate. From February 25 to March 4, Electron's employees and suppliers did not use Gate 1, and certain employees whose employers were designated as users of Gate I did not report for work. Respondent's area of patrol on PGA Boulevard was approximately 190 yards, on a direct line from north to south, from the construction area where Electron's employees were performing work. Its area of patrol was also the closest point on public property to that construction area, and one of the buildings3 where Electron's employees worked was visible, through trees and shrubs, from the area of patrol. On March 5, Respondent discontinued its picketing, and employees of Renel and other neu- trals reported to work through Gate 1. At no time did a representative of Respondent contact Elec- tron, or any other employer or supplier or their employees, for the purpose of verbalizing Respond- ent's dispute with Electron. Aside from the picket- ing, Respondent engaged in no other secondary conduct. B. Contentions of the Parties The General Counsel contends that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by picketing on PGA Boulevard up to a point 100 feet from the neutral gate with the object of enmeshing 3 This building is the same building which was noted above as being approximately 190 yards from Gate 1. The stipulation notes that the building is approximately 190 yards from Respondent's area patrol. neutral employers and employees in its dispute with Electron. Respondent contends that it acted lawfully because, by picketing at the point on public property closest to the work area of Elec- tron's employees, it picketed at a location which was reasonably close to the situs of the dispute. Re- spondent additionally contends that the reserved gate was improperly established in a remote loca- tion. C. Conclusions The Board utilizes the well-established guidelines of Moore Dry Dock4 to determine whether a union's picketing at a common situs has the unlaw- ful object of enmeshing neutral employers and em- ployees in a union's dispute with a primary em- ployer. The Board consistently has emphasized that the guidelines are not to be mechanically applied, and that a union may reveal an unlawful object by other conduct even where it has complied with the guidelines.5 In the instant case, the dispute centers on whether the Union's picketing was limited to places reasonably close to the location of the situs, in accordance with Moore Dry Dock's third condi- tion. We reject Respondent's contention that its pick- eting was lawful because it was conducted at the closest point, on public property, to the work loca- tion of Electron's employees. We note that the Board has long recognized the right of an employ- er on a common situs to establish a reserved gate system, the purpose of which is to ensure that "picketing be so conducted as to minimize its impact on neutral employees insofar as this can be done without substantial impairment of the effec- tiveness of the picketing in reaching the primary employees."6 Where a reserved gate system has been properly established, the Board's analysis with respect to Moore Dry Dock's third condition focuses on the proximity of the picketing to the reserved gate rather than to the primary employees' work location. 7 Thus, the Board has observed that a Sailors' Union of the Pacific. AFL (Moore Dry Dock Company), 92 NLRB 547, 549 (1950), wherein the Board stated that picketing at a common situs is presumptively lawful if: (a) the picketing is strictly limit- ed to times when the situs of dispute is located on the secondary employ- er's premises, (b) at the time of the picketing the primary employer is en- gaged 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. 6 See, e.g., National Association of Broadcast Employees and Technicians. AFL-CIO, Local 31 (CBS Inc.), 237 NLRB 1370, 1375 (1978); Internation- al Brotherhood of Electrical Workers. Local Union 861 (Plauche Electric. Inc.), 135 NLRB 250, 255 (1962). e International Brotherhood of Electrical Workers. Local 640, AFL-CIO (Timber Buildings. Inc), 176 NLRB 150, 151 (1969); Retail Fruit & Vege- table Clerks' Union. Local 1017, etc., Retail Clerks International Associ- ation, AFL-CIO (Crystal Palace Market), 116 NLRB 856, 859 (1956). 7 See, e.g., Millwrights Local 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (A.CO. Inc.), 258 NLRB 1356, 1359 Continued 624 IBEW LOCAL 323 properly established system of separate gates re- quires a union to confine its picketing to the re- served gate,8 and that picketing which is conduct- ed away from the reserved gate may indicate non- compliance with Moore Dry Dock.9 In view of the above principles, we find that Re- spondent's reliance on J. F. Hoff Electric Co.'0 is misplaced. In that case, the union picketed away from the reserved gate and at a point on the perim- eter of the construction site which was closest to the work location of the primary employees. Al- though the Board found that the picketing com- plied with Moore Dry Dock, it did so in the context of its additional finding that the neutrality of the gate designated for secondary employers had been breached. Once the neutral gate was breached, the situs of the dispute no longer was restricted to the reserved gate,'' and the union was free to picket at other locations. 12 In the instant case, unlike the sit- uation in J. F. Hoff Electric Co., it is undisputed that the reserved gate system was "properly estab- lished and maintained" and that the neutrality of Gate I was not impaired. The situs of the dispute was thereby restricted to Gate 2, and Respondent was obliged to conduct its picketing accordingly. Moreover, not only did Respondent fail to confine its picketing to the reserved gate, but it engaged in picketing a mere 100 feet from the neutral gate. We therefore find that Respondent's picketing did not comply with Moore Dry Dock and was not con- ducted so as to minimize its impact on neutral em- (1981); International Brotherhood of Electrical Workers, .FL-CIO, Local Union 903, and its agent Jimmy G. Russ (Hinton Commercial Contractors. Inc.), 230 NLRB 1017, 1019-20 (1977). As Members Fanning and Jenkins noted in A.CO., Inc., supra at 1356, fn 2, they adhere to their dissents in Building and Construction Trades Council of New Orleans. AFL.-CIO (Markwell and Hartz. Inc.). 155 NLRB 319 (1965), and Carpenters Local Union No. 470, United Brotherhood of Carpenters and Joiners of .merica. AFL-CIO (Mueller-Anderson, Inc). 224 NLRB 315 (1976) In those cases the union's dispute was with a general contractor rather than, as here, a subcontractor. a Local 32B-32J. Service Employees International Union. AFL-CIO (The New York Association for the Blind), 250 NLRB 240, 245 (1980); Local Union 323. International Brotherhood of Electrical Workers (J F 11off Electric Co.), 241 NLRB 694, 698 (1979); National Association of Broadcast Employees and Technicians AFL-CIO. Local 31 (CBS Inc.), supra at 1375. 9 Local 453. International Brotherhood of Electrical Workers. AFL-CIO (Southern Sun Electric Corp.), 237 NLRB 829, 830 (1978); International Brotherhood of Electrical Workers, Local 640, AFL-CIO (Timber Buildings, Inc.), 176 NLRB 150, 151 (1969); International Brotherhood of Electrical Workers Local 441. AFL-CIO (Suburban Development Co., O'Brien Elec- tric Ca), 158 NLRB 549, 551 (1966). i' See fn. 8, supra. II Cf. Suburban Development Co., O'Brien Electric Co., supra at 552, where the Board found that, because of an improperly marked reserved gate system, "the situs of the dispute was not thereby restricted to the (reserved] entrance." 12 The union's picketing still had to comply with Moore Dry Dock, but after the breach of the neutral gate such compliance was measured by the proximity of the picketing to the work location of the primary employ- ees. ployees.'3 In view of the foregoing, we conclude that Respondent's object was to enmesh neutral employers and employees in its dispute with Elec- tron. Respondent additionally contends that the re- served gate was so remote as to impair the effec- tiveness of its picketing in bringing its message to primary employees and the public. In raising this issue, however, Respondent necessarily argues that the reserved gate system was improperly estab- lished at the outset. ' We reject Respondent's con- tention because it directly contradicts the stipula- tion, in which Respondent agreed that the system was "properly established and implemented" as of February 25. Moreover, we cannot say that the limited record herein establishes that the reserved gate system impaired Respondent's ability to com- municate its message. Although the stipulation indi- cates that Campus Drive, where the primary gate was located, is not a main road, it does not indicate that the public's use of the road is restricted in any way or that Respondent could not communicate to the public at that location. We note that in Hinton Commercial Contractors, Inc.,' 5 the Board conclud- ed that the union should have confined its picket- ing to the reserved gate, even though that gate was less accessible to the public than the road where the union unlawfully picketed. We further note that the cases relied on by Respondent are distin- guishable.' 6 In those cases, and in similar cases,' 7 the Board found that the Union would not be able adequately to communicate its message because of confusion caused by the improper marking of the separate gates. There is no evidence of such confu- sion in the instant case. Accordingly, we find that Respondent violated Section 8(b)(4)(i) and (ii)(B) by engaging in the picketing on PGA Boulevard. 18 "a See Millwrights Local Union No. 1102. United Brotherhood of Carpen- ters and Joiners of America. AFL-CIO (Dobson Heavy Haul. Inc.), 155 NLRB 1305, 1309-10 (1966). 4" See, generally, Southern Sun Electric Corp.. supra at 829-830. i See fn. 7, supra. " See, e.g., Timber Buildings. Inc., supra Suburban Development C., O'Brien Electric Co.. supra. t7 See, e.g., Bricklayers-Stone A Marble Masons Union, Local 1i AFL- CIO (Don Salisbury Bricklaying Company. et at.), 191 NLRB 52 (1971). 18 In concurring with this conclusion, Member Fanning specifically relies on the fact that Respondent stipulated that the reserved gate system herein was "properly established and implemented." But for that stipula- tion, he would find that Respondent, whose work area was located 190 yards from the neutral gate and three-quarters of a mile from the re- served gate, did not have a proscribed secondary objective when it en- gaged in picketing in an area that was closest to the workplace of its members. 625 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. On the basis of the foregoing findings of fact and on the entire record in this case, we make the fol- lowing: CONCLUSIONS OF LAW 1. Renel Construction, Inc., and Electron Incor- porated of Florida are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing on PGA Boulevard to within 100 feet of the neutral gate on February 25, 26, and 27 and on March 2, 3, and 4, 1981, in furtherance of its dispute with Electron, Respondent violated Sec- tion 8(b)(4)(i) and (ii)(B) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices in viola- tion of Section 8(b)(4)(i) and (ii)(B) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectu- ate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, International Brotherhood of Electrical Workers, Local 323, West Palm Beach, Florida, its officers, agents, and representatives, shall: 1. Cease and desist from engaging in, or inducing or encouraging individuals employed by Renel Construction, Inc., or any other person engaged in commerce or in an industry affecting commerce, to engage in, a strike or refusal in the course of their employment to use, manufacture, process, trans- port, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services; and from threatening, coercing, or re- straining any person engaged in commerce or an industry affecting commerce, where an object thereof is to force or require any person to cease using, selling, handling, transporting, or otherwise dealing in the products of, or to cease doing busi- ness with, Electron Incorporated of Florida. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix."' 9 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's authorized representative, shall be posted by 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 Re- spondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Deliver to the Regional Director for Region 12 signed copies of said notice sufficient in number for posting by Renel Construction, Inc., that Com- pany being willing, at all locations where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. '9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in, or induce or en- courage individuals employed by Renel Con- struction, Inc., or any other person engaged in commerce or in an industry affecting com- merce, to engage in, a strike or refusal in the course of their employment to use, manufac- 626 IBEW LOCAL 323 ture, process, transport, or otherwise handle or work on any goods, articles, materials, or com- modities, or to perform any services; and WE WILL NOT threaten, coerce, or restrain any person engaged in commerce or an industry affecting commerce, where an object thereof is to force or require any person to cease using, selling, handling, transporting, or otherwise dealing in the products of, or to cease doing business with, Electron Incorporated of Flor- ida. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 323 627