Operating Engineers Local 12 (Hensel Phelps)

246 OPERATING ENGINEERS LOCAL 12 (HENSEL PHELPS) International Union of Operating Engineers, Local No. 12, AFL-CIO and Hensel Phelps Construc- tion Co. Case 21-CC-2937 16 June 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 17 February 1987 Administrative Law Judge Gerald A. Wacknov issued the attached decision. The Charging Party filed exceptions and a support- ing brief, and the Respondent filed a cross-excep- tion and a brief in support of its cross-exception and in opposition to the Charging Party's excep- tion. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings," and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, International Union of Operating Engi- neers, Local No. 12, AFL-CIO, San Diego, Cali- fornia, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). 1 We correct an inadvertent error made by the judge We note that in his initial statement of the Issues presented in this case, the judge inad- vertently referred to Sec 8(b)(4)(0 and (n)(B) as Sec. "8(6)(0 and (n)(B) " 2 The judge included a broad cease-and-desist provision in his recom- mended Order on the basis of his finding that the Respondent had dem- onstrated a proclivity to violate the Act In so finding, the judge relied on Operating Engineers Local 12 (Associated Engineers), 270 NLRB 1172 (1984), which involved two separate instances of similar and unlawful conduct by the Respondent that occurred in 1981 In our view, however, these instances of misconduct are too remote in time from the instant pro- ceeding to support such a finding See Wolverine World Wide, 243 NLRB 425 (1979). See also Plumbers Local 388 (Daily Heating), 280 NLRB 1260 (1986) We therefore shall substitute a narrow cease-and-desist provision for that in the recommended Order and conform the notice accordingly The Charging Party has excepted to the judge's failure to direct the Respondent to publish the Order or notice at its own expense in a news- paper of general circulation Because posting of a Board notice usually provides adequate notification to all who have been adversely affected by a respondent's illegal conduct, the extraordinary remedy of publication is normally not necessary. See Teamsters Local 705 (Associated Transport), 209 NLRB 292, 308 (1974), enfd 532 F 2d 1169 (7th Or 1976) Under the circumstances of this case, and particularly in light of our finding that a broad order is not warranted, we agree with the judge that publication of the Order or notice would not effectuate the purposes of the Act. Cf Electrical Workers IBEW Local 3 (Northern Telecom), 265 NLRB 213 (1982), enfd 730 F 2d 870 (2d Cu 1984) (publication of notice appropri- ate in light of the union's 20-year history of secondary boycott activity found by the Board and the courts) "(a) Picketing, or 'signal' picketing, including the stationing of business agents at or near entrances to construction jobsites established and reserved for the use of neutral persons, their personnel, visitors, and suppliers, or inducing or encouraging any indi- vidual employed by William J Kirchnavy Con- struction or any person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of his employment, to use, manufacture, process, transport, or other- wise handle or work on any articles, materials, or commodities, or to refuse to perform any other services, or coerce or restrain William J. Kirch- navy Construction, or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require William J. Kirchnavy Construction, or any other person, to cease doing business with Cass Construction." 2. Insert the following as paragraph 1(b). "(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE TO 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 ordered us to post and abide by this notice. WE WILL NOT by picketing, or "signal" picket- ing, including the stationing of business agents at or near entrances to construction jobsites established and reserved for the use of neutral persons, their personnel, visitors, and suppliers, induce or encour- age any individual employed by William J. Kirch- navy Construction or any person engaged in com- merce or in an industry affecting commerce, to engage in a strike or refusal in the course of his employment, to use, manufacture, process, trans- port, or otherwise handle or work on any articles, materials, or commodities, or to refuse to perform any other services, or coerce or restrain William J. Kirchnavy Construction, or any other person en- gaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require William J. Kirchnavy Construc- tion, or any other person, to cease doing business with Cass Construction Inc. 284 NLRB No. 32 OPERATING ENGINEERS LOCAL 12 (HENSEL PHELPS) 247 WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. INTERNATIONAL UNION OF OPERAT- ING ENGINEERS, LOCAL NO. 12, AFL-CIO Robert R. Petering, for the General Counsel. Anthony R. Segall, Esq., of Los Angeles, California, for the Respondent. Mark T Bennett, Esq. (Merrill, Schultz and Wolds, Lim- ited), of San Diego, California, for the Charging Party. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice, a hearing with respect to this matter was held before me in San Diego, California, on 23 Oc- tober 1986. The initial charge was filed on 16 April 1986 by Hensel Phelps Construction Co. (Hensel Phelps). Thereafter, on 1 May 1986, the Regional Director for Region 21 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing alleging a violation by International Union of Operating Engi- neers, Local No. 12, AFL-CIO (Respondent) of Section 8(b)(i) and (ii)(B) of the National Labor Relations Act. The complaint was amended on 14 August 1986. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from the General Counsel, counsel for Respondent, and counsel for the Charging Party. On the entire record,' and based on my observation of the witnesses and consideration of the briefs submitted, I make the following FINDINGS OF FACT I. JURISDICTION Hensel Phelps is a wholly owned subsidiary of Phelps, Inc., a Delaware corporation, with its main office and headquarters located in Greeley, Colorado. At all times material, Hensel Phelps has been engaged as a major sub- contractor on the State of California's Richard J. Dono- van Correctional Facility project, also commonly known as the Otay Mesa Prison project, located in the Otay Mesa area of San Diego County, California. In the course and conduct of its business operations, described above, Hensel Phelps is performing services valued in excess of $40 million for the State of Califor- nia, and has purchased and will receive during the course of the Otay Mesa Prison project goods and prod- ucts valued in excess of $50,000 directly from suppliers located outside the State of California. It is admitted, and I find, that Hensel Phelps is now, and has been at all times material, a person engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4)(i) and (ii)(B) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted that the Respondent is, and has been at all times material, a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The principal issue raised by the pleadings is whether the Respondent has violated Section 8(b)(i) and (ii)(B) of the Act by engaging in proscribed picketing at a gate re- served for neutral employers and their employees. B. The Facts The picketing and other conduct alleged to be viola- tive of the Act occurred between 14 and 18 April 1986,2 at the State of California's Richard J. Donovan Correc- tional Facility project (Otay Mesa Prison project) in San Diego County. The Respondent was then involved in a primary labor dispute with one of the major subcontractors on the project, Cass Construction Inc. Hensel Phelps, the Charging Party, also a major subcontractor, established a reserved gate system in order to insulate neutral employ- ers, including William J. Kirchnavy, an earth-moving contractor, from the effects of the Respondent's primary dispute with Cass Construction. The two gates, located 400 to 500 feet apart, were clearly and appropriately designated by large signs advis- ing that "Personnel, Visitors and Suppliers" of Cass Con- struction, Inc., and several other contractors, were to use Gate 1, and that all others must use Gate 2. The Re- spondent was advised of the details of the reserved gate system by a mailgram sent on 11 April, which further advised that: ANY PICKETING BY YOUR UNION OF HENSEL PHELPS CONSTRUCTION COMPANY, PRE-MIXED CON- CRETE, HALL ENGINEERING AND CASS CONSTRUC- TION WHILE THEY'RE WORKING ON THE PROJECT MUST BE LIMITED TO GATE #1. PICKETING AT ANY LOCATION OTHER THAN GATE #1 IS UNLAWFUL SECONDARY ACTIVITY AND ALL APPROPRIATE LEGAL ACTION WILL BE TAKEN THE UNDERSIGNED FIRM REPRESENTS HENSEL PHELPS CONSTRUCTION COMPANY. IF YOUR UNION CLAIMS THAT THE GATE SYSTEM DESCRIBED ABOVE HAS BEEN OR IS CONTAMINATED BY IMPROPER GATE USAGE, PLEASE NOTIFY THE UNDERSIGNED IMMEDI- ATELY AND WE WILL TAKE ALL NECESSARY COR- RECTIVE ACTION. About 6 am on 14 April, prior to the time the signs, which were set up each morning and taken down each evening at the respective gates, had been set in place, 1 Hensel Phelps' unopposed motion to correct transcript is granted. 2 All dates are within 1986 unless otherwise indicated. 248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD there were picketers carrying picket signs at gate 2 read- ing: CASS CONSTR. UNFAIR NO AGREEMENT LOCAL 12 INTERNATIONAL UNION OF OPERATING ENGINEERS SANCTIONED BY THE SAN DIEGO BUILDING TRADE COUNCIL AFL-CIO However, when the reserved gate signs were placed at the gates, all the picketers moved to gate 1, reserved for Cass Construction. On the afternoon of 14 April a truck that had made a delivery to Cass Construction exited from gate 2, con- trary to the specific instruction of the gate guard. Al- though the Respondent did not commence picketing at gate 2, Hensel Phelps caused a second mailgram to be sent and handdelivered a copy to the Respondent that afternoon, advising that the reserved gate system may have been contaminated and "has been reestablished, ef- fective the commencement of business April 15, 1986." The mailgram contained a request identical to the one contained in the mailgram of 11 April that Respondent immediately notify the law firm representing Hensel Phelps if the gate system is contaminated by improper gate usage. On the morning of 15 April, according to the testimo- ny of James Burton, executive director of the San Diego chapter of the engineering general contractor's associa- tion, a white truck with no markings drove up to gate 2, stopped while the driver spoke with the gate guard, and then drove through. Bob Mathews, Respondent's busi- ness agent, who was among a large group of business agents and others, ran up and said, "That guy is rented to Cass, this gate is contaminated." Within a minute or two pickets arrived at gate 2 and commenced picketing. They remained until about 11:30 a.m. Unrebutted testimonial and photographic evidence pre- sented by the General Counsel demonstrates that from 14 to 18 April, at all times material, Respondent's business agents, identified as Art Lujan, Bob Mathews, Butch Thomas, and Jim Crabbe, together with various business agents from other unions and other unidentified individ- uals, remained in close proximity to gate 2, standing near their automobiles that were parked along the side of the road near the gate in groups of three or four individuals. One photo shows approximately 17 individuals at this lo- cation. No witnesses were presented by the Respondent to explain the purpose of this congregation of individ- uals. On 14 April none of the 12 employees of William J. Kirchnavy Construction, the earth-moving contractor, showed up for work, although they had been scheduled to work that day. A few Kirchnavy employees, approxi- mately six or less, showed up to work on 15, 16, and 17 April, and on 18 April there were apparently 11 employ- ees at work, close to a full crew. Burton testified that on 15 April, when the pickets ar- rived at gate 2, a Kirchnavy employee came up to Bill Kirchnavy, the employer, and said that with the pickets on the gate there was absolutely no way he could go to work. He asked if there was some other project he could be assigned to. Kirchnavy said no, and told the employee to check with him in the morning. The employee depart- ed. C. Analysis and Conclusion The Respondent has offered no explanation for the as- semblage of its four business agents, together with busi- ness agents of various other unions and still other un- identified individuals, at the gate reserved for secondary or neutral employers and their employees, including Wil- liam J. Kirchnavy Construction, during the early morn- ing hours when employees would customarily be report- ing to work. Respondent, in its brief, implied that no "signal picket- ing"3 can be inferred from such an assemblage. I dis- agree. To the contrary, it would appear that, particularly absent any explanation for Respondent's conduct, no pur- pose other than an obvious attempt to enmesh neutral employers and their employees in the dispute may be in- ferred from the Respondent's conduct. As the Ninth Cir- cuit stated in Iron Workers Local 433, supra; Before turning to the facts of this case, we em- phasize the delicate nature of common situs picket- ing. While a union has a right to express itself; that expression must be restricted so as to affect only primary employees. In this regard, the Fifth Circuit has adopted "a requirement that the picketing union do everything that is reasonably necessary to insure that secondary employees are not misled or coerced into observing the picket line." Ramey Constr. Co. v. Local 544, Painters, 472 F.2d 1127, 1131 (5th Cir. 1973). "[This requirement places a heavy burden on the picketing union to convince the trier of fact that the picketing was conducted in a manner least likely to encourage secondary effects." Id. We, too, have stated that unions have a "duty to picket with restraint." Carpenters Local 470 v. NLRB, supra, 564 F.2d at 1363; accord, Local 98, United Ass'n of Jour- neymen v. NLRB, 497 F.2d 60, 65 (6th Cir. 1974). We think that this principle is also applicable to other conduct of members and officials of a union engaged in a labor dispute at a common situs job project. The Union here had a duty to act with re- straint. In this case, the Union does not seriously dispute the underlying facts, as found by the Board. The only question centers on the inference of signal picketing which the. Board then drew from these facts. Superintendent Page sent for business manag- er Ward on the morning of May 19. After the two of them talked in the construction office, Page ob- served Ward at the office gate between 6:30 a.m. and 7 a.m. Page testified that Ward was still stand- ing there sometime between 830 a.m. and 9 a.m. Ward testified that he waited for a Board remesent- ative for one and a half to two hours. Page testified 3 "Signal picketing" is the term used to describe activity short of a true picket line that acts as a signal to neutrals that sympathetic action on their part is desired by the union Iron Workers Local 433 (R F Erectors) v NLRB, 598 F 2d 1154 (9th Or 1979) OPERATING ENGINEERS LOCAL 12 (HENSEL PHELPS) 249 that he saw Ward "carrying on some conversation with various trades, plumbers, fitters, and ironwork- ers, too." There was, however, no testimony as to what Ward may have said to the various persons to whom he talked near the gate during that time. Assistant superintendent Braverman observed Union shop steward Larken at the project at the main gate about 6:30 a.m. to 6:45 a.m. Braverman testified that there were "close to 100" people standing outside the main gate. He saw Larken standing around the coffee wagon and talking to several persons. Finally, as was the case the day before, no em- ployees worked on the project on May 19. On the basis of this evidence, the Board conclud- ed that the Union had engaged in signal picketing which had a secondary object in violation of the Act. We find there is substantial evidence to sustain this finding. See also Lumber & Sawmill Workers Local 2797 (Stoltze Land & Lumber), 156 NLRB 388, 394 (1965); Teamsters Local 282 (GCA of NY), 262 NLRB 528 (1982); Team- sters Local 688 (Levitz Furniture), 205 NLRB 1131 (1973). The Respondent maintains that gate 2 had admittedly been tainted on 14 April and that when the white un- marked truck entered the site through gate 2 on the morning of 15 April, Respondent "not only perceived a taint, but a pattern of contamination." Thus, according to the Respondent, the Respondent's good-faith belief in this pattern of contamination demonstrates that the ensu- ing picketing at gate 2 was for a lawful purpose. The record evidence clearly demonstrates that Hensel Phelps attempted to scrupulously prevent any ingress or egress violative of the established reserved gate system. Indeed, it voluntarily notified the Respondent regarding the 14 April gate contamination incident. Moreover, there is no record evidence that on 15 April the white truck in question was in any way connected with Cass Construction or that Business Agent Mathews, who ap- parently ordered that the gate be picketed, had any rea- sonable belief that the gate had been tainted. Nor did Mathews or any other business agent ever contact Hensel Phelps about the matter, as Respondent had been repeatedly requested to do. In short, the reasonableness of Respondent's conduct in picketing gate 2 on 15 April has not been established, and such conduct, coupled with the simultaneous unlawful "signal picketing" at the same gate, mandates the conclusion that the Respondent's ob- jective was not a legitimate one. On the basis of the foregoing, I find that the Respond- ent has violated Section 8(b)(4)(i) and (ii)(B) of the Act, as alleged. NLRB v. Denver Building Trades Council, 341 U.S. 675, 692 (1951); NLRB v. Operating Engineers Local 825 (Burns & Roe), 400 U.S. 297, 303-304 (1971); Nation- al Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 620-627 (1967); Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950). CONCLUSIONS OF LAW 1. Hensel Phelps Construction Co. is a person engaged in commerce and is an industry affecting commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4) of the Act. 2. The Respondent, International Union of Operating Engineers, Local No. 12, AFL-CIO, has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of 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. The General Counsel and Counsel for the Charging Party maintain that Respondent's conduct warrants the imposition of a broad order rather than an order limited only to the employers and situs involved herein. I agree. Thus, it has been found that the Respondent has previ- ously engaged in similar violation of the Act. See Operat- ing Engineers Local 12 (Associated Engineers), 270 NLRB 1172 (1984), enf. denied in part mem. 772 F.2d 912 (9th Cir. 1985). I thus find that Respondent's proclivity to violate the Act has been demonstrated, and that there- fore the requested remedy is clearly warranted. See Se- quoia District Council of Carpenters (Lattanzi° Enter- prises), 206 NLRB 67 (1973), enfd. 499 F.2d 129 (9th Cir. 1974); Teamsters Local 945 (Newark Disposal), 232 NLRB 1 (1977), enfd. mem. 586 F.2d 835 (3d Cir. 1978). The Charging Party's request that the Respondent be required to publish the Board's Order, or the notice herein, at its own expense in an appropriate newspaper of general circulation does not appear to be necessary to effectuate the purposes of the Act. The request is denied. For the same reason, the General Counsel's request that the remedy include a visitatorial provision authorizing the Board to engage in discovery, if necessary, to moni- tor compliance with the Board's Order is denied. See 0. L. Willis, Inc., 278 NLRB 203 (1986). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, International Union of Operating En- gineers, Local No. 12, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Picketing, or "signal" picketing, including the sta- tioning of business agents, at or near entrances to con- struction jobsites established and reserved for the use of neutral persons, their personnel, visitors, and suppliers, or in any other manner, or by any other means, inducing 4 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses. 250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or encouraging any individual employed by any person engaged in commerce or in an industry affecting com- merce, to engage in a strike or refusal in the course of his employment, to use, manufacture, process, transport, or otherwise handle or work on any articles, materials, or commodities, or to refuse to perform any other serv- ices, or coerce or restrain William J. Kirclmavy or Hensel Phelps Construction, or any other person en- gaged in commerce or in an industry affecting com- merce, where in either case an object thereof is to force or require William J. Kirchnavy, or any other person, to cease doing business with Hensel Phelps, or any other person, or to force or require the State of California to cease doing business with Cass Construction, or any other person. 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) Post in conspicuous places at its business office, meeting halls, or hiring halls within its geographical juri- sidction, copies of the attached notice marked "Appen- dix."5 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (b) Sign and mail sufficient copies of the notice to the Regional Director for Region 21 for posting by William J. Kirchnavy and Hensel Phelps, if these companies are willing, at all locations where notices to employees are customarily 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. 5 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the, National Labor Relations Board."