Iron Workers Local 378 (N. E. Carlson Construction)

200 302 NLRB No. 31 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 On September 26, 1990, Administrative Law Judge Michael D. Stevenson issued the attached decision. The General Counsel, the Charging Party, and the Respondent filed exceptions, the General Counsel and the Respondent filed supporting briefs, and the General Counsel and the Charging Party filed an- swering briefs. The National Labor Relations Board has delegated its authority in this pro- ceeding to a three-member panel. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evi- dence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex- amined the record and find no basis for reversing the findings. 3 We agree with the judge that the Respondent’s business agent Trujillo vio- lated Sec. 8(b)(4)(B) by August 29, 1989 threats to picket all three construc- tion jobsite gates in order to enmesh neutral employers and their employees and by his September 1, 1989 statements seeking to induce an employee of a neutral employer not to cross a picket line. Contrary to the judge, we find that the Respondent did timely raise Sec. 10(b) as an affirmative defense when the General Counsel moved at the hearing to amend the complaint to add alle- gations pertaining to Trujillo. We find no merit in such a defense, however. The amended complaint allegations are closely related to allegations in the original timely filed charge because they involve the same class of violation, arise from the same factual circumstances or sequence of events, and entail the same or similar defenses. See Redd-I, Inc., 290 NLRB 1115 (1988). We further agree with the judge that picketer Scott violated Sec. 8(b)(4)(B) by threatening, in Trujillo’s presence, to assault the job superintendent of a neutral employer if he attempted to cross a picket line on August 30. In find- ing that Scott acted as the Respondent’s agent, we do not rely on Trujillo’s failure to remove Scott from the picket line immediately. Finally, we find it unnecessary to pass on allegations that the Respondent also violated Sec. 8(b)(4)(B) through individual picketer’s acts of blocking neutral employee Tucker from driving through a jobsite gate, striking and slightly damaging Tucker’s truck, and threatening to assault neutral employee Wisecarver. Any violations found would be cumulative and would not affect our remedy. 4 The judge in McDevitt & Street did not evaluate this statement as an inde- pendent unlawful threat. International Association of Bridge, Structural and Ornamental Iron Workers, AFL–CIO and N. E. Carlson Construction, Inc. Case 32–CC– 1271 March 27, 1991 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH Exceptions filed to the judge’s decision in this case1 present the question, inter alia, whether the Respondent has engaged in unfair labor practices warranting the issuance of broad cease-and-desist remedial order. The Board has considered the exceptions in light of the record and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions as modi- fied,3 and to substitute an Order including broad cease- and-desist language. AMENDED REMEDY Both the General Counsel and the Charging Party have excepted to the judge’s failure to include in his recommended Order cease-and-desist language broadly enjoining the Respondent from engaging in future sec- ondary activity proscribed by Section 8(b)(4)(B) of the Act. In Hickmott Foods, 242 NLRB 1357 (1979), the Board held that a broad remedial ‘‘order is warranted only when a respondent is shown to have a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for . . . fundamental statutory rights.’’ The Board has applied the Hickmott standard in tailoring remedial order language to protect the rights of neutral employees and employers to be free from secondary activity proscribed by Section 8(b)(4)(B). E.g., Iron Workers Pacific Northwest Council (Hoffman Con- struction), 292 NLRB 562 (1989). A determination of the need for a broad order in each case turns on the nature and extent of violations committed by the re- spondent. The Respondent’s unlawful conduct in this case rep- resents the second time in the period of slightly more than a year that it has picketed a construction jobsite in violation of Section 8(b)(4)(i) and (ii)(B). In Iron Workers Local 378 (McDevitt & Street), 298 NLRB 955 (1990), the Board affirmed the judge’s finding that the Respondent unlawfully sought to enmesh neutral employees and employers in a primary dispute by picketing, during a period from August 24 to Septem- ber 23, 1988, at gates reserved for use by neutrals or at times when the primary employer was not present at the jobsite. The business agent who directed the Re- spondent’s picketing in McDevitt & Street was Ray Trujillo. Trujillo’s activity included the statement, in response to a question whether he had received notice that the primary employer would not be at the jobsite on a certain date, that he would picket whether or not the primary was there.4 The present case involves further unlawful conduct at yet another construction site. The result is that even more employers have been subjected to the Respond- ent’s misconduct. In the instant case, Respondent has violated Section 8(b)(4)(i) and (ii)(B) by picketing a neutral gate on September 23–24 and on October 4– 5, 1989. Furthermore, Business Agent Trujillo was again the central figure in directing the Respondent’s picketing. In this instance, his involvement included independent violations of Section 8(b)(4)(B). On Au- gust 29, he threatened to picket all construction site gates pursuant to an express desire to have the greatest impact on the manufacturing operations of neutral em- ployer Bishop-Wisecarver Corporation, which owned the jobsite property and had contracted for the con- struction of a warehouse there. On September 1, he sought to induce Jonathan Erickson, a Bishop- Wisecarver employer and steward for the Steelworkers local which represents that company’s shop employees, to breach a contractual no-strike obligation by refusing to cross the Respondent’s picket line to work for his neutral employer. In sum, about 1 year after engaging in unlawful con- duct, Respondent has repeated its unlawful conduct at 201 IRON WORKERS LOCAL 378 (N. E. CARLSON CONSTRUCTION) 5 See Service Employees Local 77 (Thrust IV), 264 NLRB 628 (1982). 6 If 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 Rela- tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ yet another site and involving still more employer tar- gets. In these circumstances we find that a narrow order, confined to the instant employers, would not sufficiently deter further misconduct. We further find that the Respondent’s violations in this case, consid- ered against the background of similar events in McDevitt & Street and giving particular emphasis to the behavior of the Respondent’s business agent Tru- jillo, are so egregious as to manifest a general dis- regard for the rights of neutral employees and employ- ers. This unlawful conduct convinces us that, without proper restraint, the Respondent is likely to engage in similar conduct in the future against employers other than those involved here.5 Accordingly, a broad reme- dial order is appropriate. ORDER The Respondent, Iron Workers Union Local No. 378, International Association of Bridge, Structural, and Ornamental Iron Workers, AFL–CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) In any manner inducing or encouraging employ- ees of Bishop-Wisecarver Corporation, N. E. Carlson Construction, Inc., or any other person engaged in commerce or in an industry affecting commerce, to refuse in the course of their employment to perform any services where an object thereof is to force or re- quire Bishop-Wisecarver Corporation, N. E. Carlson Construction, Inc., or any other person to cease doing business with R & S Erection of Mountain View, Cali- fornia, with each other, or with any other person. (b) In any manner threatening, coercing, or restrain- ing Bishop-Wisecarver Corporation, N. E. Carlson Construction, Inc., or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Bishop- Wisecarver Corporation, N. E. Carlson Construction, Inc., or any other person to cease doing business with R & S Erection of Mountain View, California, with each other, or with any other person. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its business offices and all meeting halls located in the State of California copies of the attached notice marked ‘‘Appendix.’’6 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent im- mediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to en- sure that the notices are not altered, defaced, or cov- ered by any other material. (b) Furnish the Regional Director with a sufficient number of signed copies of the notice for posting by Bishop-Wisecarver Corporation and N. E. Carlson Construction, Inc., provided those employers are will- ing, at all places where notices to employees are cus- tomarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT in any manner induce or encourage employees of Bishop-Wisecarver Corporation, N. E. Carlson Construction, Inc., or any other person en- gaged in commerce or in an industry affecting com- merce, to refuse in the course of their employment to perform any services where an object thereof is to force or require Bishop-Wisecarver Corporation, N. E. Carlson Construction, Inc., or any other person to cease doing business with R & S Erection of Mountain View, California, with each other, or with any other person. WE WILL NOT in any manner threaten, coerce, or re- strain Bishop-Wisecarver Corporation, N. E. Carlson Construction, Inc., or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Bishop- Wisecarver Corporation, N. E. Carlson Construction, Inc., or any other person to cease doing business with R & S Erection of Mountain View, California, with each other, or with any other person. IRON WORKERS UNION LOCAL NO. 378, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, AND ORNAMEN- TAL IRON WORKERS, AFL–CIO Sharon Chabon and Charles Pernal, for the General Coun- sel. Sandra Rae Benson and Paul Supton (Van Bourg, Weinberg, Roger & Rosenfeld), of San Francisco, California, for the Respondent. David Sirias and Mark Thierman (Thierman, Cook, Brown & Prager), of San Francisco, California, for the Charging Party. 202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 All dates herein refer to 1989 unless otherwise indicated. 2 During the hearing, the General Counsel amended the complaint adding certain allegations as pars. 9(c)(4) and (5) of the complaint; the General Coun- sel also deleted par. 9(a) of the complaint (G.C. Exh. 2; Tr. 425). DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. This case was tried before me at Oakland, California, on April 2, 3, and 10, 1990,1 pursuant to an amended complaint issued by the Regional Director for the National Labor Relations Board for Region 32 on January 12, 1990, and which is based on a charge filed by N. E. Carlson Construction, Inc. (Carlson or the Charging Party) on August 31. The complaint alleges that Iron Workers Union Local No. 378, International Association of Bridge, Structural and Ornamental Iron Work- ers, AFL–CIO (Respondent) has engaged in certain violations of Section 8(b)(4)(i) and/or (ii)(B) of the National Labor Re- lations Act (the Act). Issues2 Whether on one or more days, Respondent, while engaged in a labor dispute with R & S Erection, a subcontractor working on a jobsite in Pittsburg, California, picketed a properly marked gate at the jobsite, specifically designated for neutrals to the labor dispute, and whether Respondent di- rected threats and inducements to employees of the neutral employers for the purpose of enmeshing the neutrals in its dispute with R & S Erection, the primary employer. All parties were given full opportunity to participate, to in- troduce relevant evidence, to examine and cross-examine wit- nesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the Gen- eral Counsel, the Charging Party, and Respondent. On the entire record of the case, and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. THE EMPLOYER’S BUSINESS I find that R & S Erection of Mountain View, California, is a California corporation which operates a business as a supplier and erector of metal buildings and has an office and place of business located in Mountain View, California. Re- spondent admits that during the past year, in the course and conduct of R & S Erection’s business operations, R & S Erection performed services valued in excess of $50,000 for customers or business enterprises located within the State of California, which customers or business enterprises them- selves meet one of the Board’s jurisdictional standards, other than indirect inflow or outflow standards (Tr. 28). Accord- ingly, I find that R & S Erection is engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that it is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background (prepicketing) At all times material to this case, Bishop-Wisecarver Corp. (B-W) owned and/or operated a facility located in Pittsburg, California. In April, B-W entered into an agreement with N. E. Carlson Construction, Inc., for Carlson to act as gen- eral contractor in the construction of a warehouse on a parcel of land adjoining the existing facility. A diagram of the en- tire site is contained in the record and is reproduced as fol- lows: 203 IRON WORKERS LOCAL 378 (N. E. CARLSON CONSTRUCTION) SPACING FOR A ONE-PAGE DIAGRAM 204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 The General Counsel’s unopposed motion to correct the spelling of Mittan’s name is granted. A fence surrounds the entire site. Built approximately 12 years before the new facility was begun, the fence contains three gates, the usage of which will be explained below. Be- fore the construction project was completed in December, a controversy developed over picketing of these gates by rep- resentatives of Respondent. One of the subcontractors retained to perform work on the site was R & S Erection of Mountain View, Inc. (R & S). On or about August 22, R & S began its work installing the building’s steel frame and siding. About five or six R & S employees were supervised by Foreman Paul Simpson, a wit- ness for the General Counsel. The first person to arrive at the site both before and after the picketing began was usually William Mittan,3 field super- intendent for Carlson and witness for the General Counsel. Arriving generally about 6 a.m., Mittan unlocked the gate now marked as gate 3 on the diagram. Before picketing began, gate 3 was marked only with a sign reading ‘‘EXIT.’’ It measured 16 feet in width. The gate now marked as gate 2 was located approximately 230 feet north of gate 3 and before picketing began, it was marked with a sign reading ‘‘ENTRANCE.’’ It measured 24 feet wide. This gate was opened with an electronic device similar to a garage door opener, which Mittan did not pos- sess. Accordingly, construction employees who arrived be- fore 6:45 to 7 a.m. when gate 2 was usually opened, used gate 3. The B-W shop employees also used gate 3, while the B-W clerical employees used gate 2. The gate now marked gate 1 was at the northern most cor- ner of the site and was not used on a regular basis. It meas- ured 16 feet wide, and was about 120 feet from gate 2. About a week before picketing began on August 29, the jobsite was visited by Respondent’s business agent, Ray Tru- jillo. It is part of Trujillo’s job responsibilities to visit var- ious jobsites in the bay area, to identify any subcontractors performing ironworkers’ work, and finally, to ascertain the subcontractor’s status as either union or nonunion. Trujillo followed this procedure in the instant case, and on discover- ing that R & S, a nonunion subcontractor, was performing ironwork on the jobsite, Trujillo arranged for a sanctioned picket line to be established at the jobsite. By ‘‘sanctioned’’ is meant, Trujillo merely notifies the Contra Costa County Building Trade Council of the picket line’s location and other relevant information. The picketers are members of Re- spondent recruited from its hiring hall. Three persons were initially assigned to picket; later in October, a different group picketed. One picket from the second group testified at hear- ing as Respondent’s witness. Trujillo testified he instructed his picketers to behave themselves, to avoid verbal and phys- ical confrontations, to distribute Trujillo’s business card to anyone asking for an explanation of the picket line, to tell such persons only that the picket line was ‘‘sanctioned,’’ to refrain from blocking vehicles, to be careful of their own safety, and to picket any gate used by R & S employees. 2. Background (picketing) On August 29, about 6:30 a.m., Mittan was unlocking gate 3 when he was approached by Trujillo who asked what gate the construction workers normally use. Mittan stated that those who came to work early, i.e., before 7 a.m. used gate 3. A short time later Mittan observed pickets at gate 3 with signs reading, ‘‘R & S Erection wages and conditions are below standards established by the iron workers.’’ Shortly after observing the pickets, Mittan phoned Howard Patterson, a senior estimator and project manager for Carlson and wit- ness for the General Counsel, and informed Patterson of the pickets. Patterson told Mittan that he would notify other Carlson officials of these developments, obtain signs which had previously been prepared, and arrive shortly at the job- site to establish a ‘‘dual gate’’ system. About 10 a.m., Patterson arrived at the jobsite with the signs which he immediately posted. On gate 1, was posted a sign reading: STOP READ GATE 1. THIS GATE IS RESERVED FOR PERSONNEL, VISITORS, AND SUPPLIERS OF THE CONTRACTORS LISTED BELOW: R & S ERECTION ABC ASSOCIATED BUILDERS & CONTRACTORS, INC. ALL OTHERS MUST USE GATE 2. The sign measured 4 feet wide by 3 feet high. On a white background, the top letters are in red, that is, all except R & S Erection, which was printed by hand (Tr. 67–68). The same legend appears on the front and back of the sign. The second sign of the same general description as above (except with printing only on the side facing the street) reads: STOP READ GATE 2. THIS GATE MAY NOT BE USED BY PERSONNEL, VISITORS OR SUPPLIERS OF THE CONTRACTORS LISTED BELOW: R & S ERECTION ABC [Logo] ALL OTHERS must USE THIS GATE Gate 3 was not posted with any sign but continued to have the preexisting ‘‘EXIT’’ sign visible. Once the signs were posted, Patterson then addressed the pickets in front of gate 2 and asked them to picket the proper gate. They made no reply nor did they move. Also on August 29, Jonathan Erickson reported for work at the B-W original facility, where he was employed as a machine shop specialist. Testifying for the General Counsel, Erickson stated that he was concerned by the pickets at gates 2 and 3 because he knew the B-W production employees were represented by the United Steel Workers, Local 1440. In fact, he was that union’s shop steward at the factory. At Patterson’s request, Erickson first contacted Trujillo to ex- plain the potential problem for B-W union employees who would be faced with a difficult choice of deciding whether to cross Respondent’s picket line. Trujillo was noncommittal regarding any solution, but did agree to come to the site in the early afternoon. Then Erickson called Glenn Nielsen, an International staff representative for the Steel Workers. After Erickson explained the situation, Nielsen also agreed to come to the jobsite in early afternoon to meet with and to speak to Trujillo. Arriving about 1:30 or 2 p.m., Nielsen observed two pick- ets at gate 2. Although Nielsen testified he observed no sign 205 IRON WORKERS LOCAL 378 (N. E. CARLSON CONSTRUCTION) 4 Mittan described the picket who made the statement as a tall white man with blonde hair. This description was erroneous. Scott is a 185–200 pound, 5-foot 10-inch black man with a beard, who was removed from the picket line by Trujillo after this incident and a second incident with a B-W employee named Tucker to be described below. on gate 2, and Trujillo gave similar testimony, I find that the gate was in fact posted as described above. Nielsen asked the pickets to move to gate 1, but they refused. A short time later, Trujillo arrived and the two union officials had a pri- vate conversation. During the conversation, Trujillo also re- fused to move the pickets saying he wanted the pickets where they had the most impact. Trujillo added that the im- pact he desired was to be disruptive to operations of the manufacturing facility. According to Erickson, Trujillo added that he intended to picket all three gates. This was not cor- roborated by Nielsen, but I credit Erickson on this point. Other witnesses testified that Trujillo made a similar state- ment to them on other occasions. Moreover, I find Erickson to be a credible witness because as a union member and shop steward, he was testifying against union solidarity and his own self-interest, in testifying against Trujillo. About 3:42 p.m., Patterson sent a telegram to Respondent which reads as follows: STEELWORKERS #378 ATTN RAY TRAJIO [SIC] 1734 CAMPBELL OAKLAND CA 94607 REFERENCE N E CARLSON CONSTRUCTION INCOR- PORATED BISHOP - WISECARVER, PITTSBURG CALIFORNIA DEAR SIR: N E CARLSON CONSTRUCTION INCORPORATED HAS ESTABLISHED A TWO GATE SYSTEM AT OUR PROJECT REFERENCED ABOVE, WHICH IS LOCATED AT 2104 MAR- TIN WAY PITTSBURG CALIFORNIA IN COMPLIANCE WITH THE REQUIREMENTS OF THE NLRB. THIS TWO GATE SYS- TEM IS EFFECTIVE 7AM WEDNESDAY AUGUST 30, 1989. GATE NUMBER ONE WHICH IS LOCATED AT THE NORTH END OF THE CONSTRUCTION PROJECT IS FOR THE EXCLUSIVE USE OF R. AND S. ERECTION INCORPORATED, ITS EMPLOYEES, AND SUPPLIERS AND VISITORS. GATE NUMBER TWO IS FOR THE EXCLUSIVE USE OF THE EM- PLOYEES, SUPPLIERS AND VISITORS OF ALL OTHER CON- TRACTORS. WHENEVER YOU, YOUR MEMBERS, EMPLOYEES OF ANY SUBCONTRACTORS OR SUPPLIERS OF CONTRACTORS OTHER THAN R. AND S. ERECTION INCORPORATED VISIT THE SITE FOR ANY REASON, GATE NUMBER TWO WHICH IS LOCATED AT THE VERY CENTER OF THE PROJECT MUST BE USED. USE OF OTHER GATE IS EXPRESSLY FOR- BIDDEN. PLEASE CIRCULATE THIS DEMAND TO ANY OF YOUR MEMBERS WHO MIGHT BE INVOLVED. VERY TRULY YOURS, N E CARLSON CONSTRUCTION INCORPORATED HOWARD PATTERSON PROJECT MANAGER 550 SALLY RIDE DR CONCORD CA 94520 [G.C. Exh. 4.] On August 30, Mittan made his usual early morning arriv- al only to find the dual gate system signs missing. Mittan left the jobsite to notify Carlson and the police of the apparent theft. On returning to the jobsite about 6:45 a.m., he found three pickets and Trujillo at gate 3. Trujillo asked Mittan if he intended to cross the picket line. Mittan replied that gate 3 was a clean gate and the pickets should be at gate 1. Tru- jillo recommended 24-hour security for the jobsite because it was a high risk area. As Mittan persisted in his intent to cross the line, a picket apparently named Scott4 told Mittan they could drag him out of his pickup truck and ‘‘beat the hell’’ out of him, if they wanted to. After a long pause, Tru- jillo ordered the pickets to let Mittan through and the pickets did without further incident. About 7:40 a.m. on August 30, a B-W employee named Lloyd Tucker, who testified for the General Counsel, at- tempted to drive to his job through gate 3. Because two pick- ets stood in front of that gate, Tucker drove in his 1964 El Camino to gate 2 where Scott and another picket were present. Apparently believing that Tucker approached the gate recklessly, Scott shouted, ‘‘You trying to run over me, mother-fucker!’’ Scott then took his picket sign and slammed it down on the hood of Tucker’s vehicle causing minor dam- age. At this point, Tucker, who was alone, stopped his vehi- cle, grabbed a 2 foot long 2 by 4 from the open back end of his vehicle, and threatened to work Scott over, if Scott hit Tucker’s vehicle a second time. Before any blows were struck, Shop Steward Erickson and another B-W employee arrived on the scene and broke up the confrontation. Later that morning, Patterson arranged for duplicate signs to be posted of a size and type as previously described. On August 30, Patterson caused a second telegram to be sent to Respondent. It reads as follows: IRON WORKERS UNION 378 ATTN RAY TRAJIO [SIC] 1734 CAMPBELL OAKLAND CA 94607 RE: N.E. CARLSON CONSTRUCTION INC BISHOP-WISE CARVER, PITTSBURGH [SIC], CA DEAR SIR: YOU WERE PREVIOUSLY ADVISED THAT, EFFECTIVE 8– 29–89 DUAL GATE SYSTEM WAS ESTABLISHED, N.E. CARLSON CONSTRUCTION HAS ESTABLISHED A TWO GATE SYSTEM AT ITS CONSTRUCTION PROJECT REF- ERENCED ABOVE, WHICH IS LOCATED AT 2104 MARTIN WAY, PITTSBURGH [SIC], CALIFORNIA. GATE NO. 1 WHICH IS LOCATED AT THE NORTHEAST CORNER OF THE PROJECT IS RESERVED FOR THE EXCLUSIVE USE OF THE EMPLOYEES SUPPLIERS AND VISITORS OF R.S. [SIC] ERECTION INCORPORATED GATE NO. 2 WHICH IS LO- CATED AT THE CENTER OF THE PROJECT IS RESERVED FOR THE EMPLOYEES, SUPPLIERS AND VISITORS OF ALL OTHER CONTRACTORS. YOUR UNION IS CURRENTLY PICKETING GATE NO. 2 IN VIOLATION OF THE LAW. THIS PICKETING IS ILLEGAL. ALL PICKETING ACTIVITY AGAINST R.S. [SIC] ERECTION INCORPORATED MUST BE LIMITED AND CONFINED TO GATE NO. 1. WE DEMAND THAT THE PICKETS IN FRONT OF GATE NO. 2 BE RE- MOVED IMMEDIATELY. SHOULD THIS PICKETING NOT BE LIMITED TO THE PRIMARY GATE, NO. 1, N.E. CARLSON INCORPORATED WILL PURSUE ITS LEGAL RIGHTS TO THE FULLEST EXTENT PERMITTED BY LAW THROUGH THE 206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 There is evidence in the record that on September 6, still a third copy of the TRO was served on pickets at the jobsite by a Pittsburg police officer (Tr. 653). 6 Trujillo at first identified the police officer to whom he spoke as Lt. Freguson or Fitzgerald (Tr. 486). Later Trujillo agreed that he spoke by phone only with Lt. Hendricks (Tr. 503). NATIONAL LABOR RELATIONS BOARD AND OR THE COURTS. IF YOU CLAIM ANY LEGAL JUSTIFICATION FOR YOUR ACTIONS PLEASE ADVISE BY RETURN WIRE IMME- DIATELY. VERY TRULY YOURS, N.E. CARLSON CONSTRUCTION INC. HOWARD PATTERSON, PROJECT MANAGER 550 SALLY RIDE DR CONCORD CA 94520 [G.C. Exh. 6.] On August 31, the Charging Party obtained a Temporary Restraining Order (TRO) from a Superior Court judge of Contra Costa County (R. Exh. 8). Among other stipulations, this court order limited Respondent to two pickets at each point of ingress and egress to the jobsite. Contrary to Tru- jillo’s testimony, I find that the TRO was served on Trujillo on September 6. According to Dyson DeMara, a process server who testified, as a General Counsel rebuttal witness, he served Trujillo at his home. A second copy had been left at union headquarters on or about September 1.5 Because DeMara is a neutral witness, I credit his testimony. On September 1, Erickson had a conversation with Tru- jillo. About 7:40 a.m., outside of gate 3, Trujillo asked Erickson if he was the grievance man for B-W. When Erickson answered he was, Trujillo asked him, ‘‘Why are you guys crossing the picket line?’’ Erickson replied, ‘‘Be- cause Nielsen had explained that under the labor agreement between B-W and the Steelworkers, unit employees must cross the picket line, or breach the contract.’’ Then according to Erickson, Trujillo stated, ‘‘If they asked you to suck my dick, would you do it.’’ Trujillo admitted the gist of the con- versation, but denied making the final remark. Instead, Tru- jillo testified he asked Erickson if he did everything his boss told him to do. Trujillo added that in light of Erickson’s size, he would not speak to him in the manner alleged (Tr. 477). It is true that Erickson was bigger, heavier, and younger than Trujillo. However, I find that Trujillo was undaunted by these factors, perhaps because pickets were nearby, and did make the comment described by Erickson. I find that Erickson was more credible on this point. Also on September 1, a second event material to this case occurred. Robert Wisecarver, a foreman at B-W and son of the owner, testified for the General Counsel that he had a conversation with an unidentified white picket described as standing about 6 feet tall, weighing about 200 pounds, and wearing jeans, no shirt, cowboy boots, and sunglasses. The picket asked Wisecarver where the injunction was. Wisecarver assured the picket that the injunction was on its way. To this, the picket replied, ‘‘You must be a lying sack of shit because we’re still here. You don’t look like you’re sweating much, you must not have much to do.’’ Wisecarver answered, ‘‘I have more than you.’’ The conversation heated up as the picket said, ‘‘Hey little fucker, do you live around here?’’ After Wisecarver made no answer, the picket added, ‘‘We’ll find out where you live and we’ll come beat your ass.’’ As Wisecarver began walking away, the picket said, ‘‘You look a little nervous. I’d be nervous to, if I was going to get my ass beat.’’ The parties stipulated that on September 8, gate 3 was posted for the first time with a sign that read, ‘‘No construc- tion workers or materials for this gate’’ (Tr. 122). In mid-September the Union stopped picketing because ac- cording to Trujillo, pickets were being harassed by Pittsburg police and B-W employees. On or about September 21, pick- eting resumed after Trujillo claimed to have observed R & S employees leaving the jobsite at lunchtime through gate 3. More specifically, Trujillo testified that on September 20 around lunchtime he was conducting surveillance of the job- site from a distance of about 1-1/2 blocks away. While using binoculars, he allegedly observed a black Pontiac Trans Am or Firebird exiting the jobsite with R & S employees inside. Hence when the picketing resumed, Trujillo ordered that gate 3 be picketed, as well as gates 1 and 2. This picketing con- tinued through September 22. In rebuttal, the General Counsel called a former R & S employee named Baltazar Yepez, who had worked on the Pittsburg jobsite. Yepez owned two vehicles, a white Chevy truck and a black Pontiac Trans Am. After driving to work in the black Trans Am during the first week on the job, i.e., in August, Yepez testified that he switched to the white truck as he had insurance on the latter, but not the former. Further- more, Yepez testified he was told on more than one occasion by Simpson, his foreman, to use only the gate nearest the building being constructed (gate 1), and this is what he did. Yepez is no longer employed by R & S and I found him to be more credible than Trujillo, who prior to this time had proven by word and deed his intention to picket gates 2 and 3. Accordingly, I do not credit Trujillo’s testimony regarding what he supposedly saw on September 20. Also called as a General Counsel rebuttal witness was Lt. William Hendricks, operations commander of the Pittsburg police. Although Hendricks never met Trujillo in person, and never went to the jobsite, he spoke over the phone to Trujillo several times regarding picketing at the jobsite. At first there was confusion regarding contents of the TRO as a copy had not been immediately furnished to Hendricks. Trujillo testi- fied that on or about September 1, Hendricks had informed him by telephone that pickets could only picket gate 2 under threat of arrest6 (Tr. 486–487, 503). Hendricks categorically denied ever giving Trujillo any such order. On or about Sep- tember 11, Hendricks did tell Trujillo that Hendricks under- stood the TRO to permit picketing at gates 1 and 2 with two pickets at each gate, but no pickets at gate 3 where the em- ployees went in and out of the office (Tr. 621). I credit Hen- dricks, finding him to be completely neutral to the con- troversy here and professional in his demeanor. I once again do not believe Trujillo. Moreover, I find that police instruc- tions played little or no role in Trujillo’s decision where to assign his pickets. I do not believe that Trujillo moved his pickets from gate 3 to gate 2 to comply with police orders as Trujillo testified (Tr. 527). The evidence shows that at all times material to this case Trujillo picketed both gates 2 and 3. Furthermore by his own admission, when Trujillo resumed picketing on September 21, Trujillo disregarded the alleged order of Lt. Hendricks—which I have found was nonexist- ent—and resumed picketing at all three gates. The alleged reason for this cavalier disregard of a police order was be- 207 IRON WORKERS LOCAL 378 (N. E. CARLSON CONSTRUCTION) 7 The parties stipulated that the TRO expired on September 18 (Tr. 533). However, that fact was not the reason that Trujillo gave at hearing for the re- sumption of picketing of all three gates, and he admitted he did not even know the status of the TRO when he resumed picketing on September 21 (Tr. 530). 8 In fact, Trujillo played a major role in Judge Robbins’ case as he does in this case. cause Trujillo allegedly observed employees of R & S using gate 3 (Tr. 530), a justification I found above to be false.7 In sum much of Trujillo’s testimony appears to be contradic- tory and a total fabrication. On October 4 and 5, Respondent pickets again appeared at gates 1 and 3. This time Respondent Business Agent Ger- ald Balmer who testified for Respondent arranged for the pickets. Like Trujillo, Balmer selected three pickets from Re- spondent’s hiring hall. They were Wesley Bruer, another Re- spondent witness, and two others. Balmer told them to picket whatever gates R & S was using. According to Bruer, sometime shortly after gate 3 was opened about 6:30 or 6:45 a.m. on October 4, while he and the other pickets were in a vacant lot across from gate 3, he observed a red truck with an R & S logo on the side, drive through gate 3, at a time when the other two gates were still locked. Inside the red truck were two men. The driver parked the truck just inside gate 3 and walked into the building, while the passenger stayed in the truck. Bruer did not know ‘‘if the passenger was using the restroom or what, he had no idea’’ (Tr. 576). About 30 minutes later, the passenger re- turned and drove the truck out of gate 3 and down to gate 1, where it parked just outside gate 1 for the rest of the day. When Balmer arrived at the jobsite on October 4, he too observed the red truck parked just inside gate 3. Based on what he saw and was told by Bruer, Balmer permitted pick- ets to remain at gate 3 and posted other pickets at gate 1. The following day Balmer arrived about 6:30 a.m. and again positioned pickets both at gates 1 and 3. Balmer testified that in his opinion, gate 3 had been polluted based on what he had seen and heard the prior day. This was the first and ap- parently only instance of pollution of which Balmer was aware. On both days, pickets carried signs with legends pre- viously described in these facts. On October 4, about 2:13 p.m., Carlson sent to Respond- ent a telegram restating the existence of a dual gate system and noting that as of September 8, gate 3 had also been post- ed as previously described in these facts. Carlson demanded that pickets be removed from gate 3. The telegram concluded by stating ‘‘Without admitting any pollution of the gates has occurred, the dual gate system is hereby reestablished. . . . Gate 3 is not for the use of any construction workers or ma- terials’’ (G.C. Exh. 7). B. Analysis and Conclusions 1. General legal principles I begin with two recent Board decisions affirming the de- cisions of Administrative Law Judge Earldean V. S. Rob- bins, who found violations in cases similar to the instant case. These cases are helpful not only because they are re- cent, decided in March and June 1990, but also because one of the cases involves the same Respondent as that here.8 In San Francisco Building Trades Council (Gould Electric), 297 NLRB 1050 (1990); and Iron Workers Local 378 (McDevitt & Street), 298 NLRB 955 (1990), Judge Robbins begins her analysis in both cases by first setting forth the applicable legal principles. I will do the same. Section 8(b)(4)(i) and (ii), subparagraph (B) of the Act, as amended, provides, in relevant part: Section 8(b) It shall be an unfair labor practice for a labor organization or its agents— . . . . (4)(i) to engage in, or to induce or encourage any in- dividual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise han- dle or work on any goods, articles, materials, or com- modities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— . . . . (B) forcing or requiring any person . . . to cease doing business with any other person . . . . However, a proviso to Section 8(b)(4)(B) exempts from its ambit primary picketing and a further proviso makes an ex- emption for ‘‘publicity, other than picketing,’’ if the public- ity is for the purpose of truthfully advising the public, in- cluding consumers and members of a labor organization, that the picketed person distributes products obtained from an employer with whom the labor organization has a primary labor dispute. There are essentially two elements to an 8(b)(4)(i) and (ii)(B) violation. One, there must be conduct which engages in, induces, or encourages individuals to engage in, a strike or refusal to perform their employment duties or which threatens, coerces, or restrains any person. Two, the object of that conduct must be to force or require any person to cease dealing with or doing business with any other person. However, it is clear that a violation of Section 8(b)(4) cannot be based on the desire or hope of a labor organization that its picketing will influence individuals to withhold their serv- ices nor on the effect that picketing has had in that regard. Electrical Workers Local 761 (General Electric) v. NLRB, 366 U.S. 667, 673–674 (1961). A determination as to a secondary object is particularly difficult where a primary employer shares a common situs with neutral employers. In such situations ‘‘picketing must be conducted so as to minimize its impact on neutral em- ployers insofar as this can be done without substantial im- pairment of the effectiveness of the picketing in reaching the employees of the primary employer.’’ Nashville Building Trades Council (H. E. Collins Contracting), 172 NLRB 1138, 1140, enfd. 425 F.2d 385 (6th Cir. 1970). It is well settled that the legality of picketing at a common situs, as in the construction industry, must be determined under the Moore Dry Dock standards. Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950); Sacramento Area District Council of Carpenters (Malek Construction), 244 NLRB 890 (1979); Nashville Building Trades Council (Markwell & Hartz, Inc.), 164 NLRB 280 (1967), enfd. 387 F.2d 79 (5th Cir. 1967). In Moore Dry Dock, the Board held that, in disputes in- volving a common situs, neither the right of the union to picket nor the right of the neutral employer to be free from 208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD picketing is absolute. In such situations, the picketing is pri- mary and, therefore, legal, if the following criteria are met: (1) The picketing is strictly limited to times when the situs of the dispute is located on the secondary employer’s prem- ises. (2) At the time of the picketing the primary employer is engaged in its normal business at the situs. (3) The picketing is limited to places reasonably close to the location of the situs. (4) The picketing discloses clearly that the dispute is with the primary employer. However, the Moore Dry Dock standards are only guide- lines not to be mechanically applied. Rather, the Board has indicated they are to be applied with common sense and with a view to ‘‘the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on primary employers and of shielding secondary employers and others from pressures in controversies not their own.’’ NLRB v. Denver Building Trades Council (Gould & Precision), 341 U.S. 675, 692 (1951); Operating Engineers Local 450 (Linbeck Construction), 219 NLRB 997, 998 (1975), affd. 550 F.2d 311 (5th Cir. 1977). Therefore, while compliance might give rise to a rebuttal inference of primary picketing, the totality of the evidence may reveal an underlying second- ary objective and overcome the presumption. 2. Did Respondent on September 21 and 22, and on October 4 and 5, in furtherance of its labor dispute with R & S unlawfully picket at gate 3 with the picket signs described in the facts portion of this decision At page 6 of its brief, Respondent commendably concedes that on the 4 days in question, it did picket at gate 3; to this, I add my findings that Respondent’s pickets carried signs with the legend as described in the facts portion of this deci- sion. However, Respondent denies that it violated the Act and gives various reasons which it contends support its position. Before considering these, I am constrained to find that the General Counsel has established a prima facie case. First, be- cause Respondent picketed gate 3, not just on the days said picketing is alleged to have violated the Act, but on every day the Union picketed, there is a failure to conform with the third criteria of Moore Dry Dock. That is, the pickets were not reasonably close to the primary gate (gate 1) en- trance. Accordingly, there is a presumption that the Union’s object was unlawfully secondary. Iron Workers Local 118 (Allen L. Bender, Inc.), 285 NLRB 162, 166 (1987). In this case, Respondent had a primary labor dispute with R & S. There is an abundance of evidence to show that Re- spondent sought to enmesh in this dispute secondary employ- ers B-W, itself bound by contract to the Steelworkers union and Carlson, with an objective of causing B-W and Carlson to cease doing business with R & S. See Laborers Local 389 (Calcon Construction), 287 NLRB 570, 574 (1987). I turn now to ascertain whether Respondent has demonstrated any unusual circumstances to constitute a valid defense to the al- legations. In its brief, page 6, Respondent lists several con- tentions for me to consider. a. Gate 3 was never established as a gate for neutral employees In making this argument, Respondent misapplies the focus of the Board’s dual gate system cases. The central question is always whether a gate is specially reserved for the exclu- sive use of the primary employer, his employees, and suppli- ers and whether other gates are established for use by neutral employers, employees, and others having business relation- ships with the neutral employers. Where, separate gates are thus designated and legitimately maintained, as they were here, the Union must confine its picketing activities to the primary gate. Iron Workers Pacific Northwest Council (Hoff- man Construction), 292 NLRB 562 (1989). Respondent cites no cases allowing a union to picket a gate other than the pri- mary gate at a common situs construction site. As noted above, gate 3 was posted on or about September 8 with a sign that read ‘‘No construction workers or materials for this gate.’’ However, it is not necessary to decide whether gate 3 was thus functionally equivalent to gate 2. It need only be decided that gate 3 was not functionally equivalent to gate 1. Therefore, Respondent was not privileged to picket gate 3. b. Mittan told Trujillo that construction workers used gate 3 The facts show that on August 29, Mittan did indeed tell Trujillo that those construction workers who came to work early, before 7 a.m., used gate 3. Again, it is not necessary to determine how many R & S employees used gate 3 as of August 29. Subsequent to the establishment of the dual gate system later in the morning of August 29, as I will find below, neither gates 2 or 3 were substantially tainted. Ac- cordingly, this defense must fail. c. R & S employees used gate 3 for ingress and egress to the jobsite The record shows two alleged instances of pollution of gate 3. With respect to Trujillo’s alleged observation of the black Pontiac Trans Am, I credited R & S employee Yepez who stated as of the time in question, he was not driving his black Trans Am to the jobsite. With respect to the red R & S truck using gate 3 on October 4, I found that this did occur. For three reasons, I reject Respondent’s argument that gate 3 was polluted. First, the evidence shows that Respondent, at least through the September picketing, was bound and de- termined to picket gate 3 because it felt this was the best way to pressure R & S. There simply was no reliance on al- leged taint to justify its action, except after the fact. Next, I find the alleged taint, by the black Trans Am— even if it did occur—and by the red R & S truck, were mere isolated occurrences which did not establish a pattern of de- struction of the reserve gate system sufficient to justify re- sumption of picketing at gate 3. See Iron Workers Local 378, supra; Teamsters Local 677 (J. H. Hogan), 299 NLRB 499 (1990). Finally, I find that as to the red R & S truck, even if gate 3 was tainted—and I find it was not, Carlson effectively re- established the reserve gate system with proper notice to Re- spondent (G.C. Exh. 7). Yet, Respondent picketed gate 3 on October 5, notwithstanding the notice. 209 IRON WORKERS LOCAL 378 (N. E. CARLSON CONSTRUCTION) 9 Sec. 10(l) of the Act provides district courts with the power to temporarily enjoin unfair labor practices that impinge on the public interest in the free flow of commerce (i.e., strikes and boycotts). Aguayo v. Tomco Carburetor Co., 853 F.2d 744 fn. 2 (9th Cir. 1988). 10 Respondent identifies the offending picket as someone name Strubbe. So far as I can ascertain the picket’s identity, his name is Scott. d. Respondent’s alleged compliance with police orders to justify picketing This issue is presented in two parts: the defense itself and a claim of estoppel based on the General Counsel’s action in apparently dismissing a petition for a 10(l) petition9 before a U.S. district judge (R. Exh. 4). Both segments of the argument like the other defenses considered above are without merit. It is unnecessary to re- peat my findings with respect to the testimony of Lt. Hen- dricks. It suffices to say that Hendricks never told Trujillo or anyone else from Respondent they were required to picket at gate 2; only that under the terms of the TRO that they could picket at gates 1 and 2, but not at gate 3. To the extent that Hendricks’ instructions may have been at variance with Board law, I still see no defense to picketing gate 3. Prior to hearing, Respondent’s counsel sought permission from the General Counsel to call Board Attorney Raoul Thorbourne as Respondent’s witness (R. Exhs. 1, 2). Said permission was denied (R. Exh. 9). Thereafter the affidavit of a Respondent Attorney Victor Van Bourg was received into evidence (R. Exh. 3). Another Respondent Attorney San- dra Rae Benson testified at hearing. She testified that Thorbourne told her that after investigating the representa- tions contained within the Van Bourg affidavit, he concluded the petition for 10(l) relief should be dismissed. Now Re- spondent argues that just as Thorbourne allegedly relied on the Van Bourg affidavit to dismiss the 10(l) petition, I should somehow be bound to do the same. I decline to do so. The Board has held that judicial opinions in collateral pro- ceedings under Section 10(j) (or Section 10(l)) of the Act do not control the Board’s dispositions of unfair labor practice charges. Advertiser’s Mfg. Co., 280 NLRB 1185, 1186 fn. 3 (1986). Accordingly, it must follow that the General Coun- sel’s dismissal of the petition for 10(l) has no effect at all on the present case. This is so even if the contents of the dismissed petition are coextensive with the amended com- plaint now pending, a question which the instant record does not resolve with any degree of certainity. In sum, I find no judicial or collateral estoppel or any ef- fect at all on this case as a result of the dismissal of the peti- tion for 10(l) relief. See Teledyne Industries v. NLRB, 938 F.2d 627 (6th Cir. 1990). In light of the above discussion, I conclude that Respond- ent violated Section 8(b)(4)(i) and (ii)(B) of the Act on Sep- tember 21 and 22 and on October 4 and 5 as alleged in the complaint. 3. Did Respondent threaten and/or unlawfully induce employees and a representative of neutrals In paragraphs 9(c)(1), (2), and (3) of the amended com- plaint and in paragraphs 9(c)(4) and (5) of the amendment to the complaint (G.C. Exh. 2), the General Counsel alleges Respondent engaged in certain conduct in violation of the Act. I turn to consider the allegations. a. Paragraph 9(c)(1) Threat of physical assault by picket Scott against Mittan if Mittan crossed the picket line to enter the jobsite. This incident occurred on August 30 and is recited in de- tail in the facts. At page 9 of its brief, Respondent concedes the incident occurred,10 but then argues the incident was not the responsibility of the Union, as Scott acted contrary to the express instructions of Trujillo as to how to behave on the picket line. In Avis Rent-A-Car Systems, 280 NLRB 580 fn. 3 (1986), the Board stated, ‘‘When a union authorizes a pick- et line, ‘it is required to retain control over the picketing. If a union is unwilling or unable to take the necessary steps to control its pickets, it must bear the responsibility for their misconduct.’’’ See also Electrical Workers Local 6, 286 NLRB 680, 685 fn. 3 (1987). I note that Scott apparently was not removed from the picket line until after a second incident with Tucker on the following day. Even if Respondent could present a convinc- ing argument that Scott had acted outside the scope of his agency as defined by Trujillo, when Trujillo failed to take immediate action to remove Scott from the picket line after the threat to Mittan, Respondent effectively condoned Scott’s behavior. This constitutes still another reason why Respond- ent is responsible for Scott’s threat. Having found that Respondent was responsible for Scott’s threat or inducement to Mittan, to cease working for Carlson, a neutral employer which in turn would cause Carlson to cease doing business with R & S, see Carpenters Local 316 (Thornhill Construction), 283 NLRB 81 (1987), I conclude that Respondent has violated Section 8(b)(4)(i)(B) of the Act as alleged. b. Paragraph 9(c)(2)—Blocking of Tucker’s truck at gate 3 and Scott striking Tucker’s vehicle on August 30 Again Respondent first admits this incident occurred. Then Respondent argues that because Tucker was at least partially responsible for the incident and because Scott acted in viola- tion of his instructions, Respondent is not responsible. I reject Respondent’s argument for the same rationale given in section 3(a) above. Furthermore, I find no evidence that Tucker was partially responsible for the incident—Scott never testified and Trujillo was not present at the time—and even if he were partially responsible, no cases are cited to show that this would constitute a legal defense. I find that Respondent violated Section 8(b)(4)(i)(B) as al- leged, both in blocking Tucker’s vehicle and in damaging it. See Electrical Workers Local Union 211 (U.S. Capital Tele- communications), 279 NLRB 874, 875 (1986). c. Paragraph 9(c)(3)—Threat on September 1 to assault Robert Wisecarver Respondent does not deny this incident, but makes the cu- rious statement that the incident was never related to the Union, and the Union was not present when it occurred. To the contrary, Respondent was present when its agents com- mitted the act in question. See Iron Workers Local 377 (M.S.B., Inc.), 299 NLRB 680 (1990). For the same reasons 210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD specified above, I find that Respondent violated Section 8(b)(4)(i)(B). d. Paragraph 9(c)(4) Statements of Trujillo on August 29 to Erickson, Nielsen, and Patterson that Trujillo intended to picket wherever he felt like it, and including all three gates. If the pickets are agents of Respondent as the cited Board cases hold, so too is Trujillo, Respondent’s business agent with plenary responsibilities as admitted during hearing (Tr. 29). Respondent complains that the two final allegations are barred by the doctrine of collateral estoppel and by Section 10(b) of the Act. The former argument has been disposed of elsewhere in this decision and the latter argument, an affirm- ative defense, does not appear to have been raised before. Respondent cannot raise an affirmative defense for the first time in its brief and therefore I decline to consider it. See Petoskey Geriatric Village, 295 NLRB 800, 802 fn. 8 (1989). On the merits of the allegation, Respondent states (Br. 11) that when Trujillo spoke to Mittan the gates had not been properly posted. However, the incident in question occurred in the early afternoon of August 29 after the gates had been posted and I have found in the facts that Trujillo did make the statements in question. I agree with the General Counsel that Trujillo’s threats to picket all three gates violated Section 8(b)(4)(i) and (ii)(B) of the Act and I so find. Iron Workers Local 118 (Allen L. Bender, Inc.), supra, 285 NLRB at 166. e. Paragraph 9(c)(5)—Trujillo’s remark to Erickson on September 1 asking him why he was crossing the picket line In the facts, I have related the exchange between Erickson and Trujillo ending in a vulgarity which need not be repeated here. The General Counsel contends (Br. 20) that this remark to Erickson could reasonably be understood by the employ- ees as a signal or request to engage in a work stoppage against their own employer. I agree. In Los Angeles Building Trades Council (Sierra South De- velopment), 215 NLRB 288 (1974), the Board discussed the concept of unlawful inducement or encouragement as found in Section 8(b)(4)(i)(B). At page 290 of its decision, the Board cited Electrical Workers Local 501 (Samuel Langer) v. NLRB, 341 U.S. 694 (1951), for the proposition that The words ‘‘induce or encourage’’ are broad enough to include in them every form of influence and persuasion. The Board went on to state that it has repeatedly found un- lawful any statements of union agents made directly to em- ployees of secondary employers if such statements would reasonably be understood by the employees as a signal or re- quest to engage in a work stoppage against their own em- ployer (ib.). By this standard, I find that Trujillo’s statement to Erickson either as I found was made, or as Trujillo testified, violated Section 8(b)(4)(i)(B) in that Erickson was an em- ployee of a neutral and Trujillo’s statement was indeed a sig- nal or request to Erickson to engage in a work stoppage against B-W. CONCLUSIONS OF LAW 1. R & S Erection of Mountain View, California, is an employer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(1), (2), (6), and (7) and Section 8(b)(4)(i) and (ii)(B) of the Act. 2. N. E. Carlson Construction, Inc., is an employer en- gaged in commerce or in an industry affecting commerce within the meaning of Section 2(1), (6), and (7) and Section 8(b)(4)(i) and (ii)(B) of the Act. 3. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 4. By picketing at gates reserved for neutrals at the Pitts- burg, California construction jobsite, Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the Act. 5. By picketing a gate at the Pittsburg, California jobsite which was not reasonably close to the primary gate, Re- spondent has violated Section 8(b)(4)(i) and (ii)(B) of the Act. 6. Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by engaging in the following conduct: (a) By threatening an employee of a neutral employer with physical violence if he crossed the picket line at a neutral gate. (b) By blocking the vehicle of an employee of a neutral employer and striking and damaging said employee’s vehicle as he attempted to enter the jobsite through a neutral gate. (c) By threatening to assault an employee of a neutral em- ployer for the purpose of encouraging him to discontinue working for the neutral employer. (d) By threatening and stating to employees of neutral em- ployers that Respondent would picket all gates to the jobsite including gates reserved for secondary employers. (e) By signalling or requesting employees of secondary employers to engage in a work stoppage against their em- ployer. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the Act, I shall recommend that it be ordered to cease and desist therefrom and that it take such affirmative action as will effectuate the purposes of the Act. [Recommended Order omitted from publication.]