Iron Workers Local 118, International Association Of Bridge, Structural And Ornamental Iron Workers, Afl-Cio

162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Iron Workers Local 118, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and Diepenbrock, Wulff, Plant & Hannegan (Attorneys for Tutor-Saliba Corp.) and Allen L. Bender, Inc. Cases 20-CC- 2908 and 20-CC-2910 31 July 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 10 November 1986 Administrative Law Judge Timothy D. Nelson issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and Charging Party Allen W. Bender filed a brief in opposition to Respondent's excep- tions. The General Counsel and Charging Party Diepenbrock, Wulff, Plant & Hannegan, filed an- swering briefs. 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, i and conclusions and to adopt the recommended Order, which is modified to reflect the amended remedy.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, Iron Workers Local 118, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Sacramento, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1. "1. Cease and desist from ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence 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 examined the record and find no basis for reversing the findings 2 The Respondent excepts to the judge's recommendation that a broad order be issued to remedy the 8(b)(4) violation Contrary to the judge's conclusion that the Respondent committed secondary boycott violations during two of the last three construction seasons, the Respondent argues that it worked for signatory contractors, not on a seasonal basis, but throughout the years 1984, 1985, and 1986 Further it argues that it did not present this evidence because as the judge notes, the General Counsel did not request a broad order Irrespective of the judge's perhaps unwar- ranted assumption that the Respondent performed seasonal work, we find that the Respondent's commission of two secondary boycott violations within the 2-year period in question does not warrant issuance of a broad order in this case "(a) Threatening to picket or picketing Tutor- Saliba Corporation, Bender Construction, Inc., or any other person engaged in commerce who is neutral to any disputes the Respondent may have with R. D. Sutherland where an object is to force or require those neutral persons to cease doing business with R. D. Sutherland or to cause such neutral persons to put pressure on R. D. Suther- land to recognize or bargain with Iron Workers Local 118, International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO. "(b) Engaging in, or inducing or encouraging any individual employed by Tutor-Saliba Corpora- tion, Bender Construction, Inc., or any other person engaged in commerce or in an industry af- fecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, or commod- ities or to perform any services; or threatening, co- ercing, or restraining Tutor-Saliba Corporation, Bender Construction, Inc., or any other person en- gaged in commerce or in an industry affecting commerce, where in either case an object thereof is forcing or requiring Tutor-Saliba Corporation, Bender Construction, Inc., or any other person, to cease using, selling, handling, transporting, or oth- erwise dealing in the products of R. D. Sutherland or to cease doing business with R. D. Sutherland or forcing or requiring R. D. Sutherland to recog- nize or bargain with a labor organization as the representative of its employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9." 2. 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 threaten to picket or picket Tutor-Saliba Corporation, Bender Construction, Inc., or any other person engaged in commerce who is neutral to any disputes we may have with R. D. Sutherland where an object is to force or re- quire those neutral persons to cease doing business with R. D. Sutherland or to cause such neutral 285 NLRB No. 23 IRON WORKERS LOCAL 118 (TUTOR-SALIBA CORP) 163 persons to put pressure on R D. Sutherland to recognize or bargain with us. WE WILL NOT in any like or related manner engage in, or induce or encourage any individual employed by Tutor-Saliba Corporation, Bender Construction, Inc., or any other 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, trans- port, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or threaten, coerce, or restrain Tutor- Saliba Corporation, Bender Construction, Inc., or any other person engaged in commerce or in an in- dustry affecting commerce where in either case an object thereof is to force or require Tutor-Saliba Corporation, Bender Construction, Inc., or any other person, to cease using, selling, handling, transporting, or otherwise dealing in the products of R. D. Sutherland or to cease doing business with R. D. Sutherland, or to force or require R. D. Sutherland to recognize or bargain with a labor organization as the representative of its em- ployees unless such labor organization has been certified as the representative of such employees under the Act. IRON WORKERS LOCAL 118, INTER- NATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS , AFL-CIO Boren Chertkov, Esq, for the General Counsel. Paul Supton, Esq. (Van Bourg, Weinberg, Roger & Rosen- feld), of San Francisco, California, for Respondent Local 118. Steven W. Ray, Esq. (Diepenbrock, Wulff, Plant & Hanne- gan), of Sacramento , California, for Charging Party Tutor-Saliba Corp Leslie Mitchell, Esq. (Thierman, Simpson & Cook), of Sac- ramento, California, for Charging Party Allen L. Bender, Inc DECISION STATEMENT OF THE CASE 20 issued separate complaints against the Union in both cases, respectively, on 7 and 21 March. He consolidated those cases for trial (with others that do not now con- cern us) on 6 August I The complaint2 alleges in substance that the Union en- gaged in two types of "secondary" activity proscribed by Section 8(b)(4) of the Act, all in furtherance of a dis- pute with R D. Sutherland Construction, Inc. (Suther- land) First, the complaint alleges that the Union threat- ened TSC and Bender on 24 February with unrestricted picketing at a common construction project even though a reserved gate system had been establshed at the project, which system, it is alleged, limited Sutherland's presence on the common situs to a particular gate en- trance. Second, the complaint alleges that between 11 and 13 March the Union picketed at places that were not reasonably close to the gate reserved for Sutherland-all for the illegal object of impairing the operations of TSC or Bender (or of other named contractors) in order to cause Sutherland's removal from the project or, alterna- tively, to cause Sutherland to sign a labor agreement with the Union. At the trial the General Counsel called three wit- nesses; these were: TSC's project manager, P. Clay Bald- win; TSC's attorney, Dennis R. Murphy (associated with the Charging Party's Diepenbrock firm); and Bender's construction manager, Michael D P. Koch. The Union called no witnesses on its own behalf and rested its pres- entation on the submission of certain documentary evi- dence. On the entire record, including my assessments of the witnesses as they testified and of the probabilities, and on consideration of the briefs filed by the General Counsel and the Union, I make the following FINDINGS OF FACT I. BACKGROUND-OVERVIEW TSC, a California corporation, is a general contractor and the project manager for a set of major construction additions at the California State Prison at Folsom (the Folsom project). TSC itself employs several hundred persons in various union-represented trades but it em- ploys no ironworkers and has no labor agreement with the Union Bender, also a California corporation doing business as a general contractor, is one of TSC's subcon- TIMOTHY D NELSON, Administrative Law Judge. I heard these consolidated cases, alleging secondary boy- cott violations under Section 8(b)(4)(i) and (n)(B) of the National Labor Relations Act (the Act), in trial proceed- ings held in Sacramento, California, on 19 August 1986 (all dates below are in 1986). The cases arose as follows- Attorneys for Tutor-Saliba Corporation (TSC) filed unfair labor practice charges in Case 20-CC-2908 against Respondent Ironworkers Local 118 (the Union) on 25 February; Allen L Bender, Inc. (Bender) filed separate charges against the Union on 11 March. After investigating those charges the Regional Director of the National Labor Relations Board Region ' The Regional Director's 6 August consolidation order also consoli- dated for trial certain separate complaints issued in Cases 20-CC-2927, 20-CP-925, and, 20-CC-2931-all involving a separate respondent union, subsequently those latter cases were formally severed by the Regional Director's order of 13 August 2 Although two complaints were issued, this seems to be based on the fact that two different contractors-charging parties-filed common charges about a series of related incidents of alleged misconduct by the Union in which both charging parties had a common stake (as did other contractors who did not file charges) The entire case could just as easily have been the subject of a single, integrated, consolidated complaint Ac- cordingly, although there is no need to distinguish in this decision be- tween the conduct of the Union targeted for TSC's charge and the con- duct targeted by Bender's charge, I simply refer here and below to "the complaint " 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tractors on the Folsom project, with principal responsi- bility for the erection of a warehouse.3 Bender has no contract with the Union and does not employ ironworkers. Bender had subcontracted the warehouse steel erection work to Sutherland, which em- ploys ironworkers but does not recognize the Union as their representative. The Union admittedly has sought to be recognized as the representative of Sutherland's iron- workers and to obtain a labor agreement from Suther- land covering them. At all times that concern us through 14 March, two entrances to the Folsom project had been posted with signs. One of them, on Bug Camp Road (gate I or the primary gate), had been reserved for nonunion contrac- tors whose presence on the project, it was feared, would create picketing by unions representing various trades employed by those nonunion contractors. Although pri- mary contractors' names were added to the gate 1 sign from time to time, the essential legend at all times was: STOP READ-GATE 1 THIS GATE IS RESERVED FOR PERSONNEL VISITORS & SUPPLIERS OF THE CONTRACTORS LISTED BELOW ALL OTHERS MUST USE GATE 2 Crediting Baldwin's recollection, I find that from a point in mid-January through 14 March the primary gate sign contained the names of two contractors in the space shown by asterisks above (that is, above the "ALL OTHERS" legend) and, below the "ALL OTHERS" legend, four additional contractors' names had been added, including that of Sutherland.4 The "main" entrance to the Folsom project is on East Natoma Road, which intersects diagonally with Bug Camp Road. This "main" entrance (gate 2 or the neutral gate) was located some 1200-1500 feet south of the pri- mary gate. It contained this basic legend: STOP READ-GATE 2 THIS GATE MAY NOT BE USED BY THE PERSONNEL VISITORS OR SUPPLIERS OF THE CONTRACTORS LISTED BELOW Crediting Baldwin's recollection, I find that from mid- January through 14 March the neutral gate' sign has con- tained below its basic legend the same listing of non- 3 In the year before the complaint issued in Case 20-CC-2908, TSC purchased and received at the Folsom project goods and materials worth more than $50,000 directly from points outside California In the year before the complaint issued in Case 20-CC-2910, Bender performed serv- ices for the State of California worth more than $50,000 4 Union counsel argues that Baldwin 's testimony fails to establish what legends-and what contractors' names-were on gate 1 (and on gate 2, as described below) as of 24 February, when the first alleged violation oc- curred I find that Baldwin unmistakably testified overall that the lan- guage on both signs remained as I have found above and below from a point in mid-January through 14 March (see Tr 66 14-22; 68 13-22; 69 1- 3), and that after 14 March the gates and signs were substantially rear- ranged Any confusion in Baldwin's testimony regarding what the signs looked like as of 24 February stemmed from artless or confusing ques- tioning put to him by counsel for the General Counsel or counsel for the Union union contractors, including Sutherland, that appeared on the primary gate sign . And, adjacent to the neutral gate sign, a separate "Gate 1" directional sign had been posted, using an arrow to indicate the location of the pri- mary gate on Bug Camp Road. A third gate (gate 2-A) was erected on 12 March, in the midst of picketing described below, and was located about 75-100 feet north of the primary gate . From Bald- win's testimony it appears that gate 2-A was -likewise in- tended to function as a "neutral" gate, but the text of that gate sign was not made a matter of record . Because discussion of events at that gate would be cumulative and would not affect the result, I do not find it necessary hereafter to deal with any transactions involving gate 2- A. II. ALLEGED 8 (B) (4) (II ) THREATS ON 24 FEBRUARY On the morning of 24 February, Baldwin met in his construction office trailer with an agent of the Union, Assistant Business Agent A. R. (Mickey) Mynsted. By then Baldwin had been told that ironworkers represented by the Union and employed by another subcontractor (Al Crane and Rigging) had walked off the job a few days earlier when Sutherland had made a steel delivery to the project.5 I credit Baldwin's uncontradicted testi- mony to find as follows: Mynsted told Baldwin that he had "come out to try to talk his men into going back to work, and that he realized that it was a fruitless effort, that his men were very upset, and that . . . there was nothing he could do, and he had called the hall for pick- ets." Baldwin complained that this would be a "punitive gesture," which would only hurt TSC, "a union contrac- tor." Baldwin went on to urge Mynsted that he should be "very careful in establishing a picket line." Mynsted replied that "he would do what he had to do to accom- plish his goal, and that if need be he would set up a picket line from gate to gate." The conversation then ended. Baldwin then took steps to alert other subcontractors about the possibility of picketing, suggesting that they try to cancel any deliveries scheduled for that afternoon. He also called Attorney Murphy and advised him of his conversation with Mynsted. I credit Murphy's uncontradicted testimony about what happened next, also on the morning of 24 Febru- ary: Murphy telephoned the Union's business manager, Max Sturgis, saying he "understood that the Ironworkers were going to picket the Folsom Prison project." Sturgis replied that Murphy's understanding was "correct." Murphy went on to say that the Union "shouldn't picket Tutor-Saliba, that Tutor-Saliba is union, top to bottom, and that they should contain their picketing to the gate 5 Union counsel objected to Baldwin's testimony about the ironwork- ers' walkout as hearsay I did not formally rule on this objection in the light of the General Counsel 's disclaimer that this plain hearsay was in- tended for "background " It was never proved by anyone with first-hand knowledge that the ironworkers had, indeed, walked out I nevertheless find that there had been such a walkout because (a) Union Agent Mynst- ed made an adoptive admission on this point in the conversation that Baldwin described next, and (b) union counsel (despite his preliminary objection) likewise adopted the "walkout" hearsay in his cross-examina- tion of Baldwin and in his posttnal brief IRON WORKERS LOCAL 118 (TUTOR-SALIBA CORP) that Sutherland has " Sturgis then said it was his "under- standing that there was only one gate on the job"- which Murphy contradicted, asserting that there were two gates . Sturgis then claimed that the "main" or "Tutor-Saliba" gate had been "contaminated," claiming that he had "pictures to show that it was contaminated " Murphy offered to come to Sturgis' office to view the alleged "pictures", Sturgis said that he did not have them because they were "on the jobsite"; Murphy offered to go with Sturgis to the jobsite to view the alleged pic- tures and Sturgis declined, saying he was "too busy . . cleaning up from [a] recent flood." Murphy again ex- pressed doubt about any "contamination," saying that there were "state guards" on the gates whose job was to ensure that only those who were "supposed to" use each entrance did so. Finally Murphy said that he intended to "re-establish the gates in 15 minutes and . . . would send [Sturgis] a telegram." Sturgis said he "had to do what he had to do because these people like Sutherland were pecking away at the work of the Union and he couldn't let that occur." The conversation then closed with Stur- gis advising Murphy that any further conversation should be with the Union's attorney. Later the same day Murphy dispatched a telegram to Sturgis, which, in substance, spelled out the gate system as previously described, specifically insisting that any picketing against the listed primaries , including Suther- land, be conducted at gate 1, denying that gate 2 had ever been "contaminated," advising that TSC was "taking all reasonable steps" to prevent any contamina- tion of gate 2, and threatening to pursue the matter with the Board if any picketing were to occur at gate 2. The Union indirectly suggests on brief that its agents were not aware of the existence of the two-gate system as of 24 February I find that the gate signs themselves were adequate notice on that point and that Mynsted ad- mittedly had recently visited the site and must be pre- sumed to have seen the posted gate signs Moreover, it is implicit in what Mynsted said to Baldwin and in what Sturgis said to Murphy on 24 February that those agents were already then aware that the two separate gates ex- isted And Sturgis' insistence to Murphy that the "main" or "Tutor-Saliba" gate had been "contaminated" leaves no room for doubt that the Union was on actual notice not only of the existence of two gates, but, as well, of the usage restrictions indicated on the respective gate signs.6 Union counsel also suggests on brief that the Union reasonably believed that gate 2 had been contaminated and suggests further that it was the General Counsel's burden to show otherwise This reflects a confusion of e The General Counsel states on brief that "Bender notified the Union of the existance [sic] of the gate-system," citing Koch's testimony on cross-examination at Tr 224 This is true as far as it goes , but irrelevant, because Koch was there referring to correspondence (later introduced by the Union) that postdated all events that are the subject of the complaint Accordingly, that evidence does not genuinely aid in deciding whether the Union's 24 February picketing threats were made with knowledge that the Folsom project had already been posted with a reserved gate system Elsewhere, in summary argument, the General Counsel claims that "In January, Bender informed the various unions of the Gate system " I can find no record support for this claim, and the General Counsel cites none 165 burdens Suffice it to observe that no evidence was intro- duced to show that anyone had used gate 2 in a manner inconsistent with its posted restrictions or that any objec- tive facts otherwise existed that might cause the Union to believe that there was contamination Thus, if the Union deemed it important to its defense to have me find that there was contamination, it should have proved the same. III. PICKETING BETWEEN 11 AND 14 MARCH I believe Baldwin's, Murphy's, and Koch's uncontra- dicted descriptions of the picketing activity that they ob- served between 10 and 14 March. I detail here only what those witnesses described about picketing conducted at gate 2, finding it unnecessary to the outcome or to my recommended remedial order to consider additional pick- eting conduct at other places in the general vicinity of the Folsom project. I note also in this regard that there is no evidence that picketing ever took place at the gate reserved for Sutherland, that is, at gate 1. Baldwin says he saw "pickets" (as many as 10 of them) "at Gate 2" on the morning of either 10 or 11 March, and on "at least two, possibly three" other days between the 11 and 14 March.7 On 12 March about 6.15 a m, Koch approached gate 2 and saw two pickets standing on one side-and one more standing on the other side-of the gate 2 entrance. (All pickets described by Koch carried signs with the mes- sage, as Koch recalled it, "R.D. Sutherland Unfair to the Ironworkers Union)." At 10:30 a.m., he looked out from an office trailer window within the site and saw seven pickets "at" gate 2. Later, around noon , returning through gate 2, Koch observed that "pickets were still at gate 2 " Murphy saw pickets standing immediately adjacent to gate 2 on the morning of 14 March He photographed what he saw (G.C. Exh 8) The photograph (as clarified by a stipulation about the picket sign legend) shows- and I find-that two pickets stood directly in front of the gate 2 sign , itself only about 20 feet north of the gate en- trance, both carrying signs with the legend. T The General Counsel tried to ask Baldwin what language was on the picket signs, but, faced with a "best evidence" objection from the Union, and an inquiry from the bench, the General Counsel elected not to pursue the point, implying that he had better proof from other witnesses The circumstantial evidence mentioned next makes it probable-and I therefore find-that the picket signs at gate 2 which Baldwin was testify- ing about were the same signs being carried by pickets at gate 2 as shown on a photograph taken by Murphy (G C Exh 8) on 14 March (discussed further below), plainly identifying Sutherland and the "Ironworkers" as the disputing parties In addition, as discussed below, Koch credibly testi- fied that he saw many pickets at gate 2 on 12 March, all carrying signs bearing substantially the same messages as shown on G C Exh 8 I note moreover in this regard that no other picketing in the name of any other unions was shown to have occurred in the period 11-14 March (Bald- win's testimony at Tr 88 16-24, and 89 1-4 clearly reveals that any other disputes with other unions involving picketing had concluded by no later than 10 March), nor was any other union shown to have been involved in any dispute against Sutherland at any time , much less in the period 11- 14 March 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD RD Sutherland Unfair Ironworkers Union IV. ANALYSIS-CONCLUSIONS OF LAW A. Introduction Section 8(b)(4) of the Act makes it an unfair labor practice , for a union or its agents: (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in com- merce 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 handle or work on any goods, articles, materials or commodities or to perform any serv- ices; or (ii) to threaten, coerce, or restrain any person en- gaged in commerce or in an industry affecting com- merce, where in either case an object thereof is: (B) forcing or requiring any person . . . to cease using, selling, handling, transporting or otherwise dealing in the products of any other producer, proc- essor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees. A decent general understanding of the application of Section 8(b)(4) to picketing at a common construction situs where a reserved gate system has been established may be gleaned by reviewing Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950); NLRB v. Denver Building Trades Council, 341 U.S. 675 (1951); Electrical Workers IUE Local 761 v. NLRB, 366 U.S. 667 (1961); and New Orleans Building Trades Council (Markwell & Hartz), 155 NLRB 319 (1965), affd. 387 F.2d 79, 81 (5th Cir. 1967). See also Electrical Workers IBEW Local 302 (ICR Elec- tric), 272 NLRB 920 fn. 2 (1984). B. Picketing Threats on 24 February The Board's recent decision in Iron Workers Local 433 (United Steel), 280 NLRB 1325 (1986), contains enough authority to dispose of the counts in the complaint ad- dressed to Mynsted's threats to Baldwin and Sturgis' threats to Murphy. In United Steel, the Board found in substance that where the union (which had made an un- qualified threat to a neutral general contractor to picket a jobsite where an offending primary employer would be working) had reason to believe when it made the picket- ing threat that persons other than the primary would be at work at the jobsite, the Union "had an affirmative duty to qualify its threat by clearly indicating that the picketing would conform with the Moore Dry Dock guidelines." Id. at fn. 1; see also Judge Myatt's discussion and citations of authorities adopted by the Board regard- ing the violative character under Section 8(b)(4)(ii)(B) of "unqualified threats" to picket a common situs because such threats contain no "assurance that the picketing would be within the limitations established by Board law." Here there can be no question that the Union' s agents who made the picketing threats on 24 February were aware that persons other than Sutherland would be at the Folsom project where the threatened picketing was to take place (both Baldwin and Murphy stressed this point in their respective conversations with Mynsted and Sturgis); indeed, the Union was then on notice that re- served gates had already been established and each union agent nevertheless stated in different terms that the threatened picketing would take place without regard to the reserved gate system. In the circumstances the threats to picket constituted threats directed at TSC, a neutral employer, that the operations of TSC (and of other neutrals) would be disrupted by unrestricted pick- eting if Sutherland were to remain on the job without signing a union contract.8 - C. Picketing Between 11 and 14 March The Union argues that it was not shown to have been responsible for the picketing activity done in its name be- tween the 11 and 14 March. I find to the contrary, rely- ing on the background involving threats to picket made by the Union's admitted agents Mynsted and Sturgis only about 3 weeks earlier. It is also plain by reference solely to the presence of the Union's pickets at gate 2 on several occasions in that period that the Union had as its picketing object forcing or requiring the neutral employers for whom that gate was reserved to pressure Sutherland to sign a union con- tract, or to cause Sutherland's removal from the project. It is true that the presence of the pickets at gate 2, vio- lative of Moore Dry Dock standards,9 created only a pre- sumption that the Union's object was unlawfully second- ary.1 ° But where, as here, the Union has offered no ex- planation for its location of pickets not only at places that were not "reasonably close" to the primary gate en- trance, but indeed at entrances expressly reserved for neutral employers, I conclude that its purpose was sec- ondary. Inasmuch as that secondary purpose was clearly manifested by the Union's location of pickets at the neu- tral gate, I do not find it necessary to determine whether other picketing conducted by the Union away from the primary gate at other points near the jobsite was inde- pendently violative of Section 8(b)(4)(i) and (ii)(B). 8 Umon counsel indirectly suggests on brief that no violation occurs if the Union's object was not necessarily to cause neutrals to "cease doing business" with Sutherland , but only to cause them to influence Suther- land to sign a union contract But Sec. 8(b)(4)(B ) literally precludes sec- ondary pressure not only in furtherance of a "cease doing business" object, but also in furtherance of a recognitional or bargaining object. Indeed, Sec 8(b)(4)(B) has been routinely interpreted to include any object which encompasses a change in the way the offending primary employer traditionally operates See, e.g , NLRB v Operating Engineers Local 825, 400 U.S 297, 304-305 (1971) Accordingly, it is enough to es- tablish an 8(b)(4) violation here if, as I find, the Union used proscribed secondary pressure in an effort to obtain a labor agreement from Suther- land. 9 In this case, the one requiring that picketing be done at places "rea- sonably close to the location of the [primary] situs", 92 NLRB at 549 10 See, e g, ICR Electric, supra at fn 2 ("[t]he Moore Dry Dock criteria are evidentiary aids that are not to be mechanically applied" ), citing au- thorities IRON WORKERS LOCAL 118 (TUTOR-SALIBA CORP) 167 CONCLUSIONS OF LAW 1. TSC and Bender are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Union's threats to picket and its picketing at the main entrance, gate 2, to the Folsom project that was re- served for the use of such contractors as TSC and Bender implicates interstate commerce. 4. When, on 24 February 1986, the Union' s assistant business agent, Mynsted, and its business manager, Stur- gis, separately and unqualifiedly threatened representa- tives of TSC that the Union would picket at the Folsom project in furtherance of a dispute against Sutherland, the Union, by each of those acts, threatened, coerced, and restrained TSC with an ultimate object of causing TSC to effect either the removal of Sutherland from the Folsom project or the imposition of a labor agreement on Sutherland, thereby violating Section 8(b)(4)(ii)(B) of the Act. 5 When, on several occasions between 11 and 14 March 1986, the Union picketed ostensibly against Suth- erland but located its pickets at the gate 2 entrance where only persons and employees of persons neutral to the Union's dispute with Sutherland, such as TSC and Bender, were to be found entering and leaving the site, the Union was seeking by each of those acts to induce or encourage individuals employed by TSC or Bender, among others, to engage in a strike or a refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, ar- ticles, materials, or commodities or to perform any serv- ices, and also threatened, restrained, and coerced TSC and Bender, among others, all for the same unlawful pur- poses as were involved when it threatened TSC's agents on 24 February; and by each of those picketing acts the Union violated Section 8(b)(4)(i) and (n)(B) of the Act. THE REMEDY Counsel for the General Counsel has not requested any particular remedy for the violations found herein, but he noted on the trial record-and again on brief- that the Union was found guilty in 1984 of similar unlaw- ful acts in an unreported case, styled, Iron Workers Local 118 (B & A Electric), Case 20-CC-2751. There, Adminis- trative Law Judge Burton Litvack found after full litiga- tion' i that the Union had conducted picketing in May 1984, in violation of Section 8(b)(4)(i) and (ii)(B) at a neutral gate and at places near a common construction situs other than the gate reserved for the person with whom the Union then had a primary labor dispute. When the Union did not take exceptions to Judge Lit- vack's findings and conclusions, nor to his recommended Order, the Board adopted them pro forma in an Order dated 16 January 1985 In Operating Engineers Local 12 (Associated Engineers), 270 NLRB 1172 (1984), the Board held that an adminis- trative law judge's decision to which no exceptions are 11 JD(SF)-221-84 taken may be relied on to establish a respondent's pro- clivity to violate the Act and, in turn, to justify the im- position of a "broad" remedial order. I cannot account for the General Counsel's failure to squarely address the question what type of remedial order might be appropriate here, but that default does not make it any less incumbent on me to consider the possibility of a broad one In doing so I note that the violations committed by the Union in May 1984, as found by Administrative Law Judge Litvack, included the same violations (picketing at a neutral gate) that I have found herein. Those core violations in each case are strong indications that the Union views with indiffer- ence-if not disdain-established interpretations of Sec- tion 8(b)(4), as applied to common construction projects that have been posted with a valid reserved gate system.12 The conclusion is inescapable that in both B & A and in this case the Union intentionally targeted neutrals with picketing with an ultimate goal of causing the removal of a nonunion subcontractor from the site (or, as an implicit alternative-but one that does not avoid implicating Sec 8(b)(4)-of causing that nonunion subcontractor to sign a labor agreement with the Union). And, to add to the sense of deja vu, it was the Union's agent, Mynsted, who, in B & A, as herein, made unquali- fied threats to a vulnerable neutral that the Union planned immediately to picket the respective projects to protest the presence of a nonunion subcontractor (even though, in each case, some modest hiatus actually inter- vened before pickets actually arrived, thus providing a slim pretext for union counsel to argue, as he did in each case, that the Union could not be held "responsible" for the ensuing picketing done by individuals other than its admitted agents. 13 Accordingly, there can be no question that the Union has shown a cynical proclivity to target neutrals with threats to picket and with picketing in order to affect the status of other persons with whom it has primary labor disputes. And I do not regard it as particularly mitigating that 2 years have passed since the Board last found that the Union engaged in such unlawful acts In the seasonal construction industry in Northern California the 2-year interval signifies, practically speaking, that the Union has chosen to commit such unlawful acts in two of the last three construction seasons Seen that way, I cannot but find that the Union's proclivity to violate Section 8(b)(4) 12 Although Sec 8(b)(4) is among the more prolix and complicated of the statutory provisions that we must interpret and apply, its application in common situs-reserved gate situations is by now mostly straightfor- ward, uncomplicated, and well known to building trades unions and to their attorneys It is not an oversimplification to summarize whole vol- umes of law in this area with the statement that to avoid running afoul of Sec 8(b)(4) a picketing union must at least stay away from gates posted for and used by persons other than the person with whom it has a pri- mary labor dispute, unless it can show that it has a factually grounded belief that the primary disputant is likewise using the ostensibly neutral gate There can be exceptional situations, of course, but the Union has not presented any evidence on which to claim that they existed here Thus here, as in B & A, the Union ignored a fundamental, bright-line rule, without furnishing any colorable evidence that it expected somehow to find the primary disputant using the neutral gates where it had located its pickets 13 In this regard see Judge Litvack's findings 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD warrants the imposition of a broad cease-and-desist order, which I have therefore prescribed. I shall also prescribe, as is customary in these cases, that Respondent post appropriate notices in its business office and meeting hall, and that it shall furnish addition- al signed copies of that notice to the Regional Director for Region 20 who shall transmit the same to TSC, Bender, and, at the Regional Director's discretion, to any other neutral employers on the Folsom Project that may wish to post the same for the edification of their own employees, subcontractors, and other persons who may wish to learn of the restraints that this Order imposes on the Union.14 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edis ORDER The Respondent, Iron Workers Local 118 , Internation- al Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Sacramento, California, and its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by Tutor-Saliba Corporation, Bender Construction, Inc., or any other 14 On this record TSC and Bender are obviously affected neutrals whose names I have therefore specifically set forth in the Order Al Crane and Rigging, which employs ironworkers represented by the Union, is another potential neutral affected by the Union 's conduct, but because it was not shown to have been in operation "in commerce or af- fecting commerce" within the meaning of Sec 8(b)(4), I have not specifi- cally named that business entity in the Order Indeed, because the record is otherwise vague about which other neutral Folsom Project contractors may have been "in commerce"-or necessarily implicated in the Union's campaign of secondary pressure-I have made no special mention of any additional contractors' names in the Order For the same reason I find it somewhat arbitrary that the General Counsel has named certain other contractors as having been implicated by the Union's unlawful behavior, particularly where those other persons identified by the General Counsel (Teichert Construction and Pacific Ready-Mix) were no more obvious targets of the secondary campaign than were other gate 2 users whom the General Counsel has not chosen to identify I note further in this regard that the neutral gate never identified by name which contractors should use the neutral gate-only which should not do so, thus creating an indefinite class of potential targets of the secondary picketing cam- paign Is 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 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, trans- port, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or threatening, coercing, or restraining Tutor-Saliba Corpo- ration, Bender Construction, Inc., or any other person engaged in commerce or in an industry affecting com- merce, where in either case an object thereof is forcing or requiring Tutor-Saliba Corporation, Bender Construc- tion, Inc., or any other person, to cease using, selling, handling, transporting, or otherwise dealing in the prod- ucts of R. D. Sutherland or any other producer, proces- sor, or manufacturer, or to cease doing business with R. D. Sutherland or any other person, or forcing or re- quiring R. D. Sutherland or any other employer to rec- ognize or bargain with a labor organization as the repre- sentative of his employees unless such labor organization has been certified as the representative of such employ- ees under the provisions of Section 9 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its business office and meeting hall copies' of the attached notice marked "Appendix."16 Copies of that notice, on forms approved by the Regional Director for Region 20, after being signed by Respondent's represent- ative, shall be immediately posted by the Union in con- spicuous places, including in all places where notices to members and employees are customarily posted and maintained for 60 consecutive days. The Union shall take reasonable steps to ensure that the notices are not al- tered, defaced, nor covered by any other material. (b) Immediately on receipt return sufficient signed copies of the notice to the Regional Director, who shall transmit copies of the same to Tutor-Saliba Corporation, Bender Construction, Inc., and at his discretion to any other persons involved in the Folsom Project, so that if any of those persons wish to do so, they may be posted by those persons at their own business locations. (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. 1e 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 "