Martel Construction

921 311 NLRB No. 89 MARTEL CONSTRUCTION 1 On June 28, 1990, the judge issued his original decision. The Re- spondent filed exceptions and a supporting brief and the General Counsel filed a response brief, a clarification of the response brief, and a motion to correct and clarify the judge’s decision. On April 15, 1991, the Board issued a Decision and Order at 302 NLRB 522, remanding the proceeding to the judge to take evidence the Re- spondent had sought to introduce in support of its defense that the Unions had engaged in illegal picketing of its reserved gate and to consider what effect, if any, that defense had on his findings and conclusions that the Respondent unlawfully terminated the alleged discriminatees. The Board at that time did not rule on the Respond- ent’s other exceptions nor on the General Counsel’s motion to cor- rect and clarify the judge’s decision. 2 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 3 In referring to a certain complaint allegation in his initial deci- sion, the judge inadvertently stated that the Respondent had violated Sec. 8(4)(1) and (3) of the Act. That reference should be to Sec. 8(a)(1) and (3). Similarly, the judge’s reference in sec. III of his findings to Sec. 8(b)(1) should be to Sec. 8(a)(1); his reference in item 3 of his conclusions of law and in the remedy section should be to Sec. 8(a)(1) and (3); and his reference in item 5 of his conclu- sions of law should be to Sec. 2(6) and (7) of the Act. Finally, in the judge’s recommended order, the paragraph after 1(a) should be designated paragraph (b) rather then 2(b), and the term ‘‘later orga- nization’’ in that paragraph should be ‘‘labor organization.’’ 4 Consequently, we find it unnecessary to consider whether a pe- riod of 1 week to respond would have been reasonable under the cir- cumstances. We do note, however, that the Respondent did not prof- fer reinstatement until 2 weeks after its unlawful dismissal of Waliser and Williams. The timing of its offer thus casts doubt on the imnmediacy of its need to know whether Waliser or Williams intended to return. Martel Construction, Inc. and Western Montana Area District Council of Carpenters, affiliated with United Brotherhood of Carpenters and Joiners of America and International Union of Operating Engineers Local No. 400, affiliated with International Union of Operating Engi- neers, AFL–CIO. Cases 19–CA–20435 and 19– CA–20436 May 28, 1993 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On March 31, 1992, Administrative Law Judge Bur- ton Litvack issued the attached supplemental decision.1 The Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in support of the judge’s supplemental decision.2 The Board has considered the decision and the record in light of the exceptions and brief and has de- cided to affirm the judge’s rulings, findings,3 and con- clusions and to adopt the recommended Order. 1. In adopting the judge’s decision, supplemental de- cision, and recommended Order, we note in particular that no evidence was introduced that either of the al- leged discriminatees, Robert Williams and Raymund Waliser, who had refrained from entering the jobsite through the primary gate intended for their use, there- after participated in any illegal secondary picketing at the neutral gate. Under these circumstances, we agree with the judge that Williams and Waliser’s with- holding of services from their employers was lawful primary strike activity and that the protected character of their activity was not forfeited solely because, on the second day of picketing, the Unions, without the participation of Williams or Waliser, unlawfully pick- eted the neutral gate in addition to the primary gate. Consequently, we agree that the Respondent’s conten- tion that Williams and Waliser had engaged in unpro- tected activity lacks merit. 2. In examining the Respondent’s exception pertain- ing to the adequacy of its July 28 reinstatement offers to Williams and Waliser, we, unlike our dissenting col- league, find that the wording of those offers amounts to precisely what the Board in Esterline Electronics Corp., 290 NLRB 834 (1988), specified would not suf- fice to toll an employer’s backpay obligations. The dis- sent, in citing Esterline for the proposition that the Board will not find a reinstatement offer invalid mere- ly because the ‘‘specified reporting date is unreason- ably short,’’ ignores the condition precedent that the offer be valid and Esterline’s clear explanation that: [t]he offer will be treated as invalid . . . if the letter on its face makes it clear that reinstatement is dependent on the employee’s returning on the specified date or if the letter otherwise suggests that the offer will lapse if a decision on reinstate- ment is not made by that date. [290 NLRB at 835, emphasis added.] Contrary to our colleague, we do not find that the discriminatees had up to a week to consider the Re- spondent’s offers. The plain language of those offers instructed them ‘‘to immediately report to work no later than twenty-four (24) hours after receipt of this letter, or Friday, August 4, whichever occurs first.’’ (Emphasis added.)4 Clearly the next and concluding sentence in the offer, ‘‘[i]f you do not report by those deadlines, we will assume that you are no longer inter- ested in working for our company,’’ indicates that the offers would lapse if the discriminatees did not report within 24 hours of receiving them or at the latest by August 4. Not only were these offers inadequate by virtue of the lapsing language, but the evidence is also uncontradicted that neither claimant received notice of the Respondent’s offer at a time when it was, by its terms, still outstanding and thus capable of acceptance. In sum, contrary to our dissenting colleague, we find that the Respondent’s offer employed language that would not lead any reasonable person to believe that it survived after August 4. Under Esterline this was not a cognizable offer of reinstatement, at least for any person who, like the discriminatees, did not see it until 922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD after August 4, and they would therefore have no duty of further inquiry. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Martel Construction, Inc., Bozeman, Montana, its officers, agents, successors, and assigns, shall take the action set forth in the Order. MEMBER OVIATT, dissenting in part. I join my colleagues in finding that the Respondent violated Section 8(a)(1) of the Act by threatening em- ployees with discharge and no future employment un- less they ceased their affiliation with any union, and that the Respondent violated Section 8(a)(3) and (1) by discharging Raymond Waliser and Robert Williams be- cause they refused to cross a picket line and report for work. Unlike the majority, however, I find that the Re- spondent’s July 28, 1989 reinstatement offers to Waliser and Williams tolled the Respondent’s backpay obligations. On July 28, 1989, the Respondent sent reemploy- ment offers to Waliser and Williams in identical reg- istered letters. These letters stated, inter alia, that nei- ther union membership or the lack of union member- ship was a condition of employment, but that reporting for work each day as assigned was an employment re- quirement. The reinstatement offers also stated that if Waliser or Williams participated in a strike against the Respondent, they ‘‘will be subject to replacement and subsequent reinstatement only as allowed and required by law.’’ Most significantly, the letters closed by stat- ing that If you choose to accept reemployment, please im- mediately report to work no later than twenty-four (24) hours after receipt of this letter, or Friday, August 4, whichever occurs first. If you do not re- port by those deadlines, we will assume that you are no longer interested in working for our com- pany. Waliser testified that the letter arrived at his home before August 4, but that when it was delivered he was out of the state attempting to find work elsewhere. Waliser stated that he did not learn of the letter’s con- tents until 4 days after his wife received it, and that he did not respond to the offer, because of its reporting requirements. Williams testified that he first saw a copy of the Respondent’s reinstatement offer on Au- gust 12. He stated that it had been correctly addressed, but speculated that his wife had received notice of at- tempted deliveries but had not informed him. The judge found that these two reinstatement offers were invalid under the principles set forth in Esterline Electronics Corp., 290 NLRB 834 (1988), because each letter on its face makes it clear that reinstatement is de- pendent on the employee’s returning on the speci- fied date or the letter otherwise suggests that the offer will lapse if a decision on reinstatement is not made by that date. In the circumstances presented here, I do not agree that the Respondent’s reinstatement offers were inad- equate under Esterline or under any other Board prece- dent. In Esterline at 835, the Board stated that A discriminatee who receives an otherwise valid offer, however, cannot rely on the mere inclusion of an unreasonably short report-back date in the letter to justify a failure to make some response to the employer, if only to ask for more time to consider the offer. A failure to make such a re- sponse within a reasonable time after the offer has been made will toll the running of backpay. [Footnote omitted.] With this in mind, I find that the failure of Waliser and Williams to respond to the Respondent’s reinstate- ment offer tolled the running of the backpay period. The employees’ stated reasons for doing so do not, in my view, justify their failure to fulfill their obligation to respond in a relatively prompt manner to the Re- spondent’s letter. It does not place an undue burden on an employee to require him to inform his employer of his intention regarding reinstatement within a reason- able time after notice. The underlying rationale of Esterline is that both the employer and the employee must deal in good faith with each other over matters of reinstatement offers and their implementation. I believe that the Respondent acted in good faith concerning its reinstatement offers, but that the employees did not demonstrate the dili- gence necessary to continue the backpay period be- yond the suggested reporting dates specified by the Respondent’s letter. The Respondent gave the two em- ployees up to a week to respond to the reinstatement offers, but the employees declined to express any inter- est in continued employment with the Respondent. It is significant with respect to this issue that the Re- spondent is engaged as a general contractor in the con- struction industry. As such, the Respondent had a par- ticular need to know whether Waliser or Williams had any intention of returning to work within a reasonable period of time. This is especially true in the case of Waliser, who was particularly valuable to the Respond- ent because he was able to operate the complicated piece of machinery known as the ‘‘Grove’’ crane. The majority’s adoption of the judge’s recommended rein- statement and backpay remedy unduly penalizes an employer that expressed its willingness to reemploy these employees unconditionally, and rewards two em- ployees who, for all intents and purposes, had aban- doned any interest in future employment with the Re- 923 MARTEL CONSTRUCTION 1 In addition to the issue raised by the Board’s remand, counsel for Respondent sought permission to introduce additional evidence related to its offers of reinstatement to the two discriminatees. Coun- sel for the General Counsel objected to any such evidence on the grounds that such was beyond the subject of the Board’s remand order to me. I received the proffered evidence subject to my ruling herein. 2 Respondent hired both union and nonunion employees to work for it on the project and utilized subcontractors, who were signatory to collective-bargaining agreements with labor organizations, and subcontractors, which were operating on a nonunion basis. 3 At the time of the commencement of the picketing allegations that Respondent had engaged in conduct violative of Sec. 8(a)(1) and (5) of the Act, by failing to execute successor collective-bargaining agreements with the three labor organizations, were pending before Administrative Law Judge Jay Pollack, and, I credited discriminatee Waliser, that, when he arrived at the jobsite at approximately 8 o’clock that morning, he was told by business agents of the Oper- ating Engineers that the picketing was to protest unfair labor prac- tices of Respondent. Subsequently, Judge Pollack dismissed the above allegations. As I noted in my decision, that the Unions’ picketing began on this date does not appear to have been happenstance. Thus, accord- ing to William Martel, Respondent’s president, concrete pours were scheduled to begin at that time. I have previously concluded that the two discriminatees, Waliser and Williams, arrived at the jobsite that morning at their normal times; that each observed the picketing and decided not to cross the picket line and report for work; and that, after remaining for a short time, each left and returned home. There is no record evidence that either Waliser or Williams participated in the picketing on July 13. 4 At the southeast corner of the jobsite were Respondent’s office trailer, an architect’s office and lunch trailer, and a tool van. The entrance was between the tool van and the lunch trailer. spondent by failing to respond to the letters offering reinstatement. Accordingly, I dissent from my col- leagues’ adoption of the judge’s recommended rein- statement and backpay order. Michael S. Hurtado, Esq., for the General Counsel. Donald C. Robinson, Esq. (Poore, Roth & Robinson, P.C.), of Butte, Montana, appearing on behalf of the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge. On June 28, 1990, I issued my decision in the above-captioned matter, finding that Martel Construction, Inc. (Respondent), termi- nated two employees, Robert Williams and Raymond Waliser, in violation of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act (the Act), and recommending that Respondent be ordered to reinstate said employees to their former positions of employment or, if said positions no longer exist, to substantially equivalent positions and to make each whole for any wages lost, with interest. Subsequently, on April 13, 1991, the National Labor Relations Board (the Board), issued a Decision and Order, remanding the case to me to reopen the hearing and to ‘‘take evidence related to the Respondent’s defense concerning the Union’s alleged il- legal secondary picketing and, thereafter, consider the effect, if any, of that defense on his findings that the Respondent engaged in unlawful conduct.’’ Pursuant to the order of the Board, the hearing, in the above-captioned matter, was re- opened by me in Bozeman, Montana, on September 24, 1991, and, at said reopened hearing, all parties were afforded the opportunity to examine and cross-examine witnesses, to offer any relevant evidence, and to argue their legal positions orally on the issues, as framed by the Board’s order.1 Addi- tionally, having been afforded the opportunity, both counsel for the General Counsel and counsel for Respondent filed posthearing briefs, which have been carefully considered. Accordingly, on the entire record of the reopened hearing, in- cluding the posthearing briefs and my observation of the tes- timonial demeanor of the several witnesses, I make the fol- lowing FINDINGS OF FACT I. THE ALLEGEDLY UNLAWFUL SECONDARY PICKETING A. The Facts Respondent is engaged in business as a general contractor in the building and construction industry in the State of Mon- tana, and, in April 1989, commenced work on a multimillion dollar project, a Federal reserve bank building, in Helena, Montana. The record establishes that the jobsite was bor- dered on the south by Neill Avenue, on the east by Front Street, and on the west by Getchell Avenue; that to the north was a 10-acre vacant lot which was not separated by any nat- ural demarcation from the jobsite; and that the jobsite was completely enclosed by a fence except along the northern end where the fence stopped at a dirt road which cut through the vacant lot to the jobsite. The record further establishes that the jobsite was located on a steep hill, with the northern end at the base of the hill; that the main entrance to the job- site was on front Street near the corner of Neill Avenue and Front Street; that a second entrance to the project was lo- cated on Front Street 330 feet to the north of the main en- trance; and that, given the steep hill and the difficult turn into the main entrance, drivers of large delivery trucks would often utilize the dirt road, which cut through the vacant lot to the north of the jobsite, to deliver their loads to the project.2 Early in the morning of Thursday, July l3, l989, business agents of the Western Montana Area District Council of Car- penters, affiliated with United Brotherhood of Carpenters and Joiners of America (Carpenters), the International Union of Operating Engineers Local No. 400, affiliated with Inter- national Union of Operating Engineers, AFL–CIO (Operating Engineers), and Laborers Local 254, affiliated with Laborers’ International Union of North America, AFL–CIO (Laborers), commenced picketing at the jobsite with placards which read, ‘‘On strike due to unfair labor practices against Martel Con- struction.’’3 Clarence (Clancy) Gaworski, Respondent’s project superintendent, testified that at least 10 individuals congregated on the sidewalk and in the street next to the jobsite’s main entrance, which is a driveway 18 to 20 feet wide,4 and that none of the pickets were at the other Front Street entrance to the jobsite, Gaworski also testified that he spoke to Lars Erickson, a representative of the Carpenters who was carrying a picket sign, on the sidewalk near the main entrance, and ‘‘I kind of asked him what they were doing there, and he said that they were picketing the jobsite against Martel.’’ Gaworski mentioned that there were two 924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 During cross-examination, Gaworski stated that there was an opening in the jobsite fence on Neill Avenue and in front of the Martel office trailer and that employees would enter and exit the job- site through said opening. He added that said opening, which was three feet wide, was ‘‘probably’’ used by jobsite workers on July 13. 6 One of the men depicted in this photograph is also seen in R. Exh. 4(b). 7 The message on the placards was the same as on the placards carried the day before by pickets at the jobsite. 8 According to Gaworski, this photograph was taken at approxi- mately 8 a.m. by a representative of the Federal reserve bank. Gaworski added that the picture was taken after work had com- menced on the project that morning inasmuch as the entrance gate is shown to be open. entrances to the jobsite, but Erickson said they were ‘‘illegal gates’’ because no signs were posted.5 After speaking to Erickson, at approximately 8:30 or 9 a.m., Gaworski tele- phoned William Martel at Respondent’s office in Bozeman and told him that the jobsite was being picketed. Martel re- sponded that they would go to a two-gate system, and Gaworski, recalling what Erickson told him, said they would need posted signs. At approximately 11 a.m., Martel ‘‘faxed’’ the ‘‘legal language’’ for the gate designation signs to Gaworski, and Gaworski contacted a sign painter in Hel- ena with instructions to have the completed gate signs ready early the next morning. That afternoon, according to Gaworski, anticipating that the three unions would continue their picketing the next day, he dug holes by the two en- trances off of Front Street for the placement of the gate signs, placed wire across the opening in the fence in front of the office trailer, informed the workers on the jobsite that gate designation signs would be posted by the entrances the next morning, and instructed them as to which entrances were to be used by Respondent’s employees and the employ- ees of the various subcontractors. Also, on July 13, on becoming aware of the above pick- eting at the Federal reserve bank building jobsite in Helena, Respondent mailed and ‘‘faxed’’ the following letter to the picketing labor organizations: You are hereby notified that Martel Construction, Inc. has erected separate reserved gates as follows: Gate 1 Location: On Front Street at North Entrance across from Job Service Building. Language on sign: This sign reserved for the exclu- sive use of employees, suppliers, and visitors of Martel Construction, Inc. . . . Gate 2 Location: On corner of Neill and Front Street near Job Office. Language on sign: This gate reserved for the exclusive use of employees, suppliers, and visitors of: Metalworks of Montana, Yellowstone Electric, Big Sky Fire Protection, Missoula Sheet Metal, Shipman Brothers Masonry, Structural Steel, Helena Sand & Gravel, and Lagerquist Elevators. If your Union engages in picketing activities, Martel Construction, Inc. expects the officers, agents and mem- bers of the Union to confine your activities to Gate 1. Picketing at any other location will constitute an illegal secondary boycott. According to Clancy Gaworski, on Friday, July 14, the sign painter delivered the completed gate designation signs at approximately 5 a.m.; each sign was approximately 4 feet square; and he proceeded to place the signs by the proper en- trances. Thus, by the main entrance to the jobsite, near the corner of Neill Avenue and Front Street, he posted the fol- lowing sign: ‘‘GATE 2; THIS GATE RESERVED FOR THE EXCLUSIVE USE OF EMPLOYEES, SUPPLIERS & VISITORS OF: Big Sky Fire Protection, Structural Steel, Yellowstone Electric, Missoula Sheetmetal, Helena Sand & Gravel, Metalworks of Montana, Shipman Bros. Masonry; NO OTHER PERSON MAY USE THIS GATE,’’ and, by the other entrance on Front Street, located 330 feet north of the main entrance, he posted the following sign: ‘‘GATE 1; THIS GATE RESERVED FOR THE EXCLUSIVE USE OF EMPLOYEES, SUPPLIERS & VISITORS OF: MARTEL CONSTRUCTION . . .; NO OTHER PERSON MAY USE THIS GATE!’’ After completing the posting of the gate des- ignation signs, Gaworski went inside the office trailer and, shortly thereafter, exited the trailer in order to return to his home. At this point, according to Gaworski, he observed an individual picketing at Gate 2, the main entrance. Gaworski walked over to the picket and said he should not be carrying his sign at that entrance, and the picket, whom Gaworski could not identify, replied, ‘‘We can picket wherever we want.’’ The project superintendent then left the jobsite, re- turning at approximately 6:45 a.m. By the time work was scheduled to commence, and continuing for the remainder of the morning, according to Gaworski, the striking labor orga- nizations had individuals, with placards, stationed at Gates 1 and 2 and had pickets walking between the entrances on Front Street and along the southern end of the jobsite on Neill Avenue. In support of Gaworski’s testimony, Respond- ent offered into evidence a photograph of the scene at Gate 2, which photograph, Gaworski testified, was taken by him. Said photograph, Respondent’s Exhibit 4(b), shows two men, carrying placards, standing at the corner of Neill Avenue and Front Street and a few feet from the entrance designated as Gate 2; three placards, placed against the jobsite fence, be- tween the pickets and the entrance driveway; and the en- trance gate, which is shut across the driveway. While there is no date stamp on this exhibit to corroborate Gaworski’s testimony that the photograph was taken at 6:45 a.m. on June 14, 1989, corroboration for the fact that the gate designation signs were erected on July 14 does exist. Thus, Respondent’s Exhibit 2(d) is a photograph bearing the date stamp ‘‘14–7– 89’’ and showing two individuals,6 who are carrying plac- ards7 and standing in the driveway of the main jobsite en- trance, which is designated by the posted sign as Gate 2.8 Finally, according to uncontroverted testimony of William Martel, the picketing at the main entrance, designated Gate 2, on July 14 resulted in the refusal of employees of Yellow- stone Electric, Respondent’s electrical subcontractor, whose employees were required to enter the jobsite through Gate 2, to enter the jobsite and work. There is no dispute that picketing occurred at both en- trances to the jobsite on the morning of July 14; however, what is in dispute is whether the gate designation signs had been posted that day. Thus, discriminatee Raymond Waliser testified that he arrived at the jobsite at 7:50 a.m., that, just 925 MARTEL CONSTRUCTION 9 Discriminatee Robert Williams also drove to the jobsite on July 14, observed that the pickets had returned, and, after a few minutes, went home. There is no record evidence that either discriminatee en- gaged in picketing on this day. 10 Federson testified that the picketing, on July 13 and continuing thereafter, resulted from the Unions’ belief ‘‘that the Martel Com- pany had committed an unfair labor practice,’’ involving an agreed- upon collective-bargaining agreement. 11 Asked to explain the plain meaning of the words of his reply letter to Martel, Federson stated that the letter was merely a reply to what Martel had written and that ‘‘I knew there was no gates’’ on the jobsite at the time. 12 Federson testified that most of the subcontractors had their job shacks just inside the fenced-in area but that the employees parked ‘‘outside of the fence’’ where Respondent and the subcontractors had placed much of their materials. Consequently, according to Federson, on several occasions, he observed forklifts being driven out of the jobsite for materials. 13 Federson’s testimony suggests that he was present at the jobsite until approximately 12:30 in the afternoon. However, he originally testified that he remained at the jobsite only until ‘‘late morning.’’ Then, Federson changed his testimony, saying that, on Friday, July 14, ‘‘I was probably there until . . . at least one’’ o’clock in the afternoon. Finally, asked again what time he left the jobsite that day, the witness testified, ‘‘I think I left at what I call late morning, prob- ably 10:30, and then came back numerous times during the day.’’ 14 Contrary to counsel for the General Counsel, I believe that, at all times, Gaworski was referring to the employees of Structural Sys- tems as entering through the northern area of the jobsite. In this re- gard, the record evidence is that employees of Structural Systems should have utilized the main entrance, Gate 2 for entry and exit on July 14. 15 Apparently, on July 18, a jobsite delivery to Respondent was made through Gate 2. Eugene Federson wrote a letter, dated July 18, to Respondent, noting two such neutral gate violations by Respond- ent’s concrete supplier on that date. William Martel wrote back that such neutral gate violation was inadvertent and against explicit in- structions. 16 Gaworski testified that he observed individuals, who had en- gaged in picketing at Gate 2 before it was relocated, sitting in a car next to the entrance, and that said individuals would speak to work- ers as they walked onto the jobsite. as the day before, picketing was occurring at both entrances on Front Street, and that he stood at the corner of Front Street and Neill Avenue for 15 minutes and observed what was occurring before leaving and returning to his house.9 As to whether the entrances were designated as Gates 1 and 2 at the time he was at the jobsite that morning, Waliser testi- fied, ‘‘The gates were not up. These particular signs were not up the morning of the 14th.’’ Not quite corroborating the tes- timony of Waliser, Eugene Federson, the business manager of the Montana District Council of Laborers,10 testified that he arrived at the jobsite at 7 a.m. on July 14, that he re- mained there most of the morning, and that he could not re- call seeing the gate designation signs posted that morning. Casting doubt on the veracity of Federson’s asserted lack of recollection and, also, on Waliser’s testimony is the former’s admission that he received William Martel’s letter, informed the picketing labor organizations of the establishment of the reserved gate system at the Federal reserve bank building jobsite, later that morning and immediately replied with a let- ter, dated July 14, reading: ‘‘This is to inform you that we believe that the two gate system which you have established on the Federal Reserve Bank in Helena, has not been prop- erly established. We therefore will continue to picket all gates as needed until such time as they are properly estab- lished.’’ (Emphasis added.)11 In addition to insisting that there were no posted gate des- ignation signs at the jobsite entrances on July 14, Federson asserted that, on that day, ingress to and egress from the job- site was nothing less than ‘‘a three ring circus.’’ Elaborating, Federson testified that the jobsite was ‘‘very confusing’’ with numerous people and trucks entering and leaving the jobsite through the two Front Street entrances, the open area at the northern end of the project, and the hole in the fence, in front of the office trailer on the Neill Avenue side of the project. With regard to the northern area at the point where the dirt road enters the project, according to Federson, ‘‘I saw numerous people and vehicles coming out through this area,’’ including electricians, plumbers, employees of Re- spondent, and suppliers.12 As to the opening in the fence on Neill Avenue, Federson assertedly observed two individuals, whom he identified as carpenters employed by Respondent, leaving the jobsite ‘‘at the lunch period’’ between 12:25 and 12:35 p.m.13 Later, Federson said that what he observed was people going into the jobsite through the opening in the fence ‘‘after the noon break.’’ While the testimony of Clancy Gaworski was definite as to closure of the opening in the fence on Neill Avenue on July 13 so that such could not have been utilized for ingress or egress on July 14, his testimony as to usage of the unfenced northern end of the jobsite for entry and exit on July 14 was far less certain. Thus, at the outset, Gaworski conceded that the northern boundary fence ‘‘wasn’t all the way across’’ the project on July 13 and 14 and that the unfenced area was the point at which the dirt road entered the jobsite. As stated above, because jobsite entry was dif- ficult, if not impossible, through the main entrance for large truck deliveries, such were routinely made through the rear dirt entryway. Gaworski could not recall if any such deliv- eries were made through the rear entry area on July 13 and, when asked if any rear entry deliveries were made on the next day, initially said ‘‘Not to my recollection’’ and then said ‘‘I sure don’t think so.’’ As to individuals entering or exiting the jobsite through the rear entryway, Gaworski testi- fied that a subcontractor, Structural Systems, had a job trailer located on the north end of the jobsite and that the sub- contractor’s employees, members of the Ironworkers Union, were working on the project on July 13 and 14. He added that said individuals habitually parked their cars on the va- cant lot beyond the northern boundary of the jobsite and en- tered the jobsite along the back dirt road and that ‘‘some em- ployees did’’ enter and exit the project in this manner on July 14.14 No picketing occurred on Monday, July 17, but such re- sumed on July 18 at both Gates 1 and 2.15 Some time after July 18, for safety-related reasons, Respondent moved its Gate 2 designation sign to the dirt road entrance at the north- ern end of the jobsite and continued the Gate 1 entrance at the same location. After this, picketing continued at the Gate 1 entrance, that which was established for Respondent and other contractors, but, according to Gaworski, no further picketing occurred at the Gate 2 entrance.16 The picketing of 926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 17 Besides picketing, handbills were distributed on July 24, and videotaping of jobsite activities occurred on July 25. 18 While I continue to believe that Raymond Waliser was a truthful witness, I believe he was mistaken in his recollection that no two gate system had been yet posted at the jobsite when he was present there on the morning of July 14. I think he was more concerned with the fact that the picketing continued than with the existence of gate designation signs. 19 Apparently, on July 13, Respondent gave notice by mail and by fax of the reserve gate system. There is no evidence as to the receipt of the fax transmissions and the mail was not received until the next day. the jobsite ended until Thursday, August 10, after having continued for a total of 25 days.17 B. Analysis At the outset, in analyzing Respondent’s defense, that the picketing by the labor organizations herein constituted an un- lawful secondary boycott; that, by honoring the picket line, Waliser and Williams each engaged in an illegal strike; and that, accordingly, neither was engaged in protected activity at the time of his termination, it is important to recall that the undersigned has previously found that Robert Williams was terminated on July 14 and that Raymond Waliser was termi- nated on July 17. Inasmuch as there is no contention that the picketing on July 13 was illegal, if this aspect of Respond- ent’s defense has any validity, it must be found that the pick- eting on July 14 was secondary in scope. Given the Board’s injunction that I make a finding on this point, I conclude that the labor organization’s picketing on that date was probably unlawfully secondary in nature; however, I also conclude that, if unlawful, such does not constitute a valid defense to the conclusion that the terminations of Waliser and Williams were violative of Section 8(a)(1) and (3) of the Act. Initially, in determining whether the picketing on July 14 was unlawfully secondary in scope, I have relied on the testi- mony of Clancy Gaworski as to what occurred on July 13 and July 14. At least with regard to this aspect of the instant matter, he appeared to be testifying in a candid and straight- forward manner, obviously attempting to honestly recount events to the best of his recollection. Moreover, I agree with Respondent’s counsel that his testimony most logically com- ports with the record evidence, particularly as to the posting of the reserve gate system on July 14. Thus, given William Martel’s July 13 letter to the picketing labor organizations and the July 14 date stamp on the photograph, received as Respondent’s Exhibit 2(d), as corroboration for his testi- mony, there appears to be no reason not to credit Gaworski as to when and how the gate system was established. In con- trast, I was not impressed by the testimony of Eugene Federson, who appeared to be an utterly mendacious and un- reliable witness, on two particular points. First, noting his July 14 letter to Respondent, regarding his claim that the two gate system at the jobsite was not properly established, I be- lieve his asserted lack of recall as to the existence of a re- serve gate system at the jobsite that day was nothing but fab- rication.18 Further, noting Federson’s letter, dated July 18, in which he wrote about a violation of the neutral gate, Gate 2, by the concrete supplier of Respondent, inasmuch as he failed to mention anything, in writing, about the ‘‘three ring circus,’’ which assertedly existed on July 14, I believe his testimony as to violations of the reserve gate system that day likewise was a mere canard. It is well established that the provisions of Section 8(b)(4)(i) and (ii)(B) of the Act reflect the dual objectives of Congress of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from controversies not their own. Denver Building Trades Council v. NLRB, 341 U.S. 675, 692 (1951). In com- mon situs construction project situations, such as herein in- volved, where two or more employers are engaged in their normal business operations, the Board has long relied on cer- tain evidentiary guidelines to determine the true object of picketing, with one being that the picketing must be ‘‘limited to places reasonably close to the location of the situs’’ of the dispute. Sailors Union of the Pacific (Moore Dry Dock), 92 NLRB 547, 549 (1950). In accord with this standard, the Board and the courts have recognized the right of employers at a common situs to designate a gate reserved for the exclu- sive use of the employer, with whom labor organizations have a labor dispute, and a gate for the use of those employ- ers which are neutral in the labor dispute. When such gates are properly designated and maintained, labor organizations must confine any picketing to the date reserved for the pri- mary employer. Electrical Workers Local 761 IBEW v. NLRB, 366 U.S. 667 (1961); Iron Workers Local 433 (Chris Crane), 294 NLRB 182 (1989); Operating Engineers (Linbeck Construction), 219 NLRB 997 (1975). Picketing not confined to some area reasonably close to the gate, which is reserved for the primary disputant, and, thus, the location of the situs of the dispute, is considered to constitute evidence of an unlawful secondary objective, one designed to enmesh neutrals in a labor dispute not their own. Electrical Workers, supra; Carpenters Local 470 (Mueller-Anderson, Inc.), 224 NLRB 315 (1977). Herein, based on my aforementioned credibility resolu- tions, I find that, early in the morning on July 14 and prior to the start of the picketing that day, Respondent’s project superintendent, Gaworski, established a reserve gate system at the jobsite, posting gate designation signs at both en- trances on Front Street. Further, while it is unclear whether the three labor organizations received notice, on July 13, of the reserve gate system,19 one may argue that, given the ear- lier erection of the gate designation signs, when representa- tives of the picketing labor organizations arrived at the job- site at approximately 6:45 a.m. on July 14, they undoubtedly had sufficient notice of the reserve gate system so as to man- date that they confine their picketing to the gate, which had been reserved for Respondent. Inasmuch as the picketing continued that day at the jobsite’s main entrance, which clearly was designated as the entrance for neutral employers and through which Respondent was prohibited from entering, the labor organizations’ conduct may be considered as being unlawfully secondary. Iron Workers Local 433, supra; Iron- workers District Council (Hoffman Construction), 292 NLRB 562 (1989). Disputing such a conclusion, counsel for the General Counsel argues that the two gate system, at the job- site, was defective. In this regard, he argues that an entryway was created where there existed a hole in the jobsite fence on Neill Avenue in front of the office trailer. However, I credit Gaworski that, on July 13, not only did he instruct job- 927 MARTEL CONSTRUCTION 20 In my original decision, I cited to Crystal Princeton Refining Co., 222 NLRB 1068 (1976), as support for this conclusion and reit- erate my reliance on that decision of the Board for the legal conclu- sion that nominal unfair labor practice strikers are transformed, in status, to economic strikers, and entitled to the protection of the Act, if, in fact, no unfair labor practices were committed. Contrary to Re- spondent’s counsel, the fact that the strikers therein made an uncon- ditional offer to return has nothing to do with the fact that the nomi- nal unfair labor practice strikers retained their privileged status, under the Act, as economic strikers when the reason for their strike was found not to have been unlawful. 21 Respondent’s counsel, in his posthearing brief, argues that the motivation for the strike, which commenced on July 13 could not, as the record evidence indicates, have been Respondent’s alleged un- fair labor practices. While counsel’s argument is plausible, the only record evidence is that the picketing was to protest the pending un- fair labor practice allegations. The fact that the picketing unions chose to protest at the time that Respondent was to commence a concrete pour at the Federal reserve bank jobsite does not detract from the foregoing finding. While Respondent also argues that the picketing had a recognitional object, such seems merely speculative, and, even if true, such would not make the picketing unlawful. In this regard, I note that the duration of such was less than 30 days. site workers to no longer use this hole in the fence as an entry and exit point but also he wired the hole shut, and I do not credit the uncorroborated testimony of Federson that he observed anyone using that location as an entryway on July 14. Counsel next points to the northern end of the project as an open area through which Respondent’s employ- ees entered and exited the jobsite on July 14. Contrary to counsel, while employees of a neutral subcontractor, Struc- tural Systems, may have entered and exited the jobsite via the dirt road, which intersected the jobsite at its northern end, there is no evidence that Respondent’s employees entered or exited through any entrance but Gate 1, the entrance reserved for Respondent. Iron Workers Local 433 (Barry-Wehmiller Co.), 303 NLRB 287 (1991). Further, inasmuch as I cannot credit Federson, there is no evidence of any sort of ‘‘three ring circus’’ usage of the northern boundary as an entry and exit area. Accordingly, based on the foregoing, and the record as a whole, it may reasonably be concluded that the July 14 picketing by the three labor organizations constituted unlawful secondary conduct. Having so concluded, the issue is, of course, the effect, if any, of such on my conclusion that both Williams and Waliser were terminated illegally. At the outset, there is no question that sympathy strikers, who honor a secondary pick- et line, are engaged in unprotected activity and may lawfully be disciplined by their employer. Chevron U.S.A., Inc., 244 NLRB 1081 (1979). However, contrary to Respondent’s counsel, such is not the situation herein. Thus, commencing on July 13, three labor organizations, the Carpenters, the Op- erating Engineers, and the Laborers, commenced picketing against Respondent, at its Federal reserve bank building con- struction project in Helena, to protest alleged unfair labor practices involving Respondent’s failure and refusal to exe- cute a collective-bargaining agreement. Two of Respondent’s employees, Raymond Waliser, a member of the Operating Engineers, and Robert Williams, a member of the Carpenters, on July 13 and 14 refused to cross their own labor organiza- tion’s picket line and perform work for Respondent on the jobsite. Accordingly, each employee was engaged in a pri- mary strike against his employer, striking in order to protest alleged unfair labor practices. Subsequently, when Adminis- trative Law Judge Jay Pollack dismissed the unfair labor practice allegations, their strike was converted to an eco- nomic strike, and, as economic strikers, each remained enti- tled to the protection of the Act.20 Furthermore, notwithstanding that, given the establishment of the reserve gate system at the jobsite on July 14 and the continued picketing at the Gate 2 entrance thereafter, said conduct became illegally secondary in scope, the conclusion remains warranted that Waliser’s and Williams’ respective conduct continued to be protected within the meaning of Sec- tion 7 of the Act. Thus, the central fact herein is that, while both discriminatees engaged in the strike against Respondent, there is no evidence that either engaged in the picketing on July 14. This is of crucial significance; for, while there is, indeed, warrant for finding the picketing on July 14 illegal, there is no record evidence that the strike was for an unlaw- ful objective21 or that the discriminatees’ participation there- in was unprotected. Put another way, a distinction must be drawn between mere participation in the protected strike and engaging in the unprotected, illegal picketing, and, while Waliser and Williams may have lost their protected status if either had engaged in the unlawful picketing, neither did. Rapid Armoured Truck Corp., 281 NLRB 371, 382 (1986); Local 707 Motor Freight Drivers (Claremont Polychemical Corp.), 196 NLRB 613, 614–615 (1972). Thus, in my view, the fact that the picketing labor organizations engaged in un- lawful secondary activity had no effect on the discriminatees’ status as employees entitled to the continued protection of Section 7 of the Act. Accordingly, based on the foregoing, the undersigned adheres to his original findings that Re- spondent terminated employees Raymond Waliser and Robert L. Williams in violation of Section 8(a)(1) and (3) of the Act. II. EVIDENCE REGARDING THE OFFERS OF REINSTATEMENT In the original decision herein, I concluded that Respond- ent’s July 28, 1989 offers of reinstatement to Waliser and Williams were inadequate to stop Respondent’s backpay ob- ligations to either. At the instant remand hearing, Respondent offered evidence that the letters, offering reinstatement to the discriminatees, were drafted with input from a field exam- iner, employed by the Board’s Region 19, and changed to satisfy her requirements. Inasmuch as the remand order of the Board was quite specific as to what evidence and issues should be addressed at the remand hearing and in the remand decision and as evidence pertaining to reinstatement and backpay was not mentioned by the Board, the conclusion is mandated that the proffered evidence should not be consid- ered. However, in the interest of due process and fairness, I have considered the foregoing and find it insufficient to change the prior conclusions as to the inadequacy of the of- fers of reinstatement. Thus, Board law is fundamental that it is not bound by advice given to respondents by Board agents, ‘‘especially where employee rights are violated pur- suant to that advice.’’ Capitol Temptrol Corporation, 243 NLRB 575, 589 fn. 59 (1979). Such is the case herein, and Respondent acted at its peril in accepting the advice of the Board agent. 928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. CONCLUSIONS OF LAW 1. The picketing by the Carpenters, the Operating Engi- neers, and the Laborers on July 14 was unlawfully sec- ondary. 2. Inasmuch as Respondent’s employees Raymond Waliser and Robert Williams were engaged in an economic strike against Respondent on July 13 and 14 and as neither engaged in the aforementioned unlawful picketing on July 14, each was engaged in protected concerted activities when termi- nated by Respondent. Based on these findings of fact and conclusions of law and on the entire record, I issue the following recommended22 ORDER That Respondent, Martel Construction, Inc., Bozeman, Montana, its officers, agents, successors, and assigns, shall abide by the terms of the Order, issued by me on June 28, 1990.