Teamsters Local 216, International Brotherhood Of Teamsters, Chauffeurs, Warehousemen & Helpers Of America

802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Teamsters Local 216, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America and Calcon Construction Com- pany. Case 20-CC-2943 15 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 9 October 1986 Administrative Law Judge Timothy D. Nelson issued the attached decision. The General Counsel filed exceptions and a sup- porting brief. 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 brief and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 The judge inadvertently describes Calcon Project Manager Jeffrey Palmer as testifying that neutral subcontractor Consolidated Engineering passed through gate 2 to the building site on 20 June 1986 The testimony is properly attributed to Calcon Consultant Thomas Geist Sally Spencer and Marcia Berman, Esqs., for the General Counsel Duane B. Beeson, Esq. (Beeson, Tayer, Silbert & Bodine), of San Francisco , California, for the Respondent. Roger Mason, Esq. (Thierman, Simpson & Cook), of San Jose, California, for the Charging Party. DECISION STATEMENT OF THE CASE TIMOTHY D NELSON Administrative Law Judge. I heard this case, alleging secondary boycott violations under Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act (Act), in trial proceedings held in San Francisco, California, on 21 August 1986 (all dates below are in 1986). The case stems from an unfair labor prac- tice charge that Charging Party Calcon Construction Company (Calcon) filed against Respondent Teamsters Local 216 (Union) on 23 June. After investigating the charge the Regional Director for Region 20 issued a complaint and notice of hearing against the Union on 2 July. The complaint alleges factually in substance that on 12 and 20 June the Union picketed at a Calcon jobsite, os- tensibly directing its picketing against Harbor Ready Mix (Harbor), but located its pickets at a gate entrance that Harbor was not allowed to use and that was reserved for the exclusive use of persons who were neutral to the Union's primary labor dispute with Harbor. On these al- leged facts the complaint concludes that the Union sought to put economic pressure on persons neutral to its dispute with Harbor, thus violating Section 8(b)(4). At the trial the General Counsel called two witnesses during her case-in-chief; these were Calcon's project manager, Jeffrey Palmer, and Thomas Geist, an agent for a private industrial relations firm that had been engaged by Harbor to "provide security" during Harbor's sched- uled pours for Calcon. (At the rebuttal stage the General Counsel called a third witness, Robert Mann, Harbor's general manager.) The Union called two witnesses, its full-time president and business agent, Raoul (Fitz) Fitz- patrick (who was responsible for the decision to picket the jobsite and for the scheduling and instructing of the pickets about what to do and not to do), and a retired member of the Union, Perry Gast, who shouldered a picket sign during some or all of Harbor's pours in June. On the whole record, including the parties' posttrial briefs, and on my assessments of the witnesses who testi- fied and of the inherent probabilities, I reach these FINDINGS OF FACT 1. BACKGROUND; OVERVIEW Calcon, a California corporation, has been engaged at times that concern us as the general contractor for the construction of a hotel on Gateway Boulevard in South San Francisco, California.' Harbor, a nonunion concrete supplier, made concrete deliveries to Calcon at the hotel jobsite on 30 May, on five dates in June (3, 4, 12, 20, and 27), and later in July 2 The Union started picketing at the hotel jobsite on either 30 May or 4 June, and on at least four more occa- sions, including 12 and 20 June.3 On all such occasions the Union's picket signs carried messages protesting that Harbor was "Unfair to Teamsters Local 216." Everyone agrees that the Union's picketing at the hotel jobsite was confined solely to times when Harbor was also present at the site, making concrete deliveries. Fitzpatrick and Gast harmoniously testified-and I find-that Fitzpatrick in- structed the Union's pickets from the start that they were to "picket Harbor Readymix [at] whatever entrance or exit that they use and only while they're on the project." Crediting Fitzpatrick's testimony further, I find that he was possessed of excellent intelligence about when Harbor was scheduled to make concrete pours at the hotel jobsite, that when he learned of such scheduled pours he would normally dispatch pickets to the site at the start of the workday, and that as soon thereafter as he could leave his office (itself located only about one- half mile from the jobsite) he would visit the site to 1 In the 12 months before 3 May, Calcon purchased more than $50,000 worth of services used on the Gateway Boulevard project, which were furnished directly from outside California 2 I rely primarily on Geist's testimony for these dates, as partly cor- roborated by Palmer 9 Palmer recalled that the Union's picketing began on 30 May, Fitzpa- trick recalled that it was 4 June 285 NLRB No. 110 TEAMSTERS LOCAL 216,(CALCON CONSTRUCTION) "look the situation over" and, sometimes, to join in the picketing himself. - Practically speaking, the present case- ripened on and after 10 June. On that date Calcon had posted new signs at three different entrances to the hotel jobsite purport- ing' to regulate who could and could not use each en- trance.4 Since 10 June the 'signs at two of those en- trances, including one entrance on Gateway Boulevard and another on Corporate Street, have each been labeled "Gate 1." Since nothing of importance to this case hap- pened at the Corporate Street gate 1, however, all refer- ences hereafter to Gate 1 are to the one on Gateway Boulevard. Since 10 June, gate 1 has borne this legend: STOP-READ GATE 1 THIS GATE MUST BE USED BY PERSONNEL, VISITORS OR SUPPLIERS OF THE CONTRACTORS LISTED BELOW: PUMPCO OF CALIFORNIA CALCON HARBOR READY MIX ALL OTHERS MUST USE GATE 25 Since 10 June, one other entrance on Gateway Boule- vard, located about 120 feet from gate 1 , was posted with a sign that bore this legend: 4 During an earlier period a different system of gate designations had been in effect than the one described below . During that period a Car- penters local and a Laborers local had picketed Calcon at the jobsite, but since Calcon was then using a Teamsters-represented concrete supply firm, the Union was not initially involved in that picketing (indeed the Union had suggested earlier that Calcon clarify its then-outstanding gate designations in order to ensure that picketing by the other trades would not cause disruptions in the delivery of "union" concrete to the jobsite). By sometime around mid-May, however , this picture had, changed be- cause of Calcon's decision to switch to using the nonunion Harbor firm (and, perhaps even earlier, by its decision to switch to using Pumpco, a nonunion firm, to handle the pumping of concrete into forms-a task that Palmer implied, had , been handled previously by a Teamsters-represented pumping operator). And, while the pre-12 June picketing by the Union is not at ' issue here, that picketing apparently caused Calcon to decide on 10 June to redesignate its gates to accommodate new realities . As Palmer admitted, moreover, those new realities included a+t least two pre-12 June instances in which some of Calcon's subcontractors (Pumpco, Consolidat- ed Engineering, and a third , unnamed, entity) had used the wrong gates. Seemingly with all this history in mind, Calcou substantially restructured its gate system on 10 June. And, on 11 June, Calcon- dispatched a tele- gram (actually addressed to the Carpenters , but also received by the Union) setting forth the new gate-designation system described below, closing that message with the demand. "Confine your pickiting [sic] to gates number 1." On brief, the General Counsel sometimes refers to gate 1 as the "pri- mary"gate. This is a potentially' misleading label because Calcon and Pumpco were also designated to use that gate and, at least in the context of the instant dispute between Harbor and the Union, Calcon and Pumpco were presumably neutrals. Despite their presumptive- neutrality, however, it seems clear from the gate 1 designations that Calcon was content to have its own, Pumpco's, and Harbor's "personnel, visitors or suppliers" treated as "primaries"-or at least that Calcon was not con- cerned about the effects on those persons of any gate 1 picketing against Harbor. - STOP-READ GATE 2 THIS GATE MAY NOT BE USED BY PERSONNEL, VISITORS OR SUPPLIERS OF THE CONTRACTORS LISTED BELOW: PUMPCO OF CALIFORNIA CALCON HARBOR READY MIX 803 - ALL OTHERS MUST USE GATE 1 I have attached as Appendix I - a schematic diagram (adapted from Jt. Exh . I and not drawn to scale), that is adequate to demonstrate the site layout, the arrangement of the two gates on Gateway Boulevard , and the loca- tion of the construction office trailer from which Project Manager Palmer observed some of the events on 12 and 20 June. II. ALLEGED UNFAIR LABOR PRACTICES A. Introduction Both parties-but particularly the General Counsel- have devoted much attention to questions of witness credibility. And if this were truly a "credibility" case, I could point to many , arguable flaws or weaknesses in each party's presentation. Thus, the General Counsel's case could be said to "suffer" from her failure to intro- duce available corroboration for the testimony of Project Manager Palmer, her most important witness to the criti- cal events on 12 and 20 June.6 Similarly, although the Union's witnesses admitted that on at least one occasion pickets had directly located themselves in, front of gate 2, they also testified that they did so only after Harbor's trucks had exited through that gate. But they were ad- mittedly unable to recall the date of that "pollution" in- cident and one might-therefore seize on that inability-as the General Counsel does-to conclude that they were probably talking about some incident that had occurred prior to 11 June-and, therefore, that they had not genu- inely rebutted the more specific proof about their alleged presence at gate 2 on 12 and 20 June. 6 Although Security Agent Geist was admittedly present at the jobsite at all relevant times on 12 and 20 June, the General Counsel did not always question him-or if she did, not thoroughly-about the events that Palmer described . Thus, Geist's testimony is entirely silent about the gate 2 picketing on 12 June that Palmer described , and, regarding events on 20 June, she put to Geist only the vaguest of questions about the loca- tion of pickets in relation to the "neutral " gate (gate 2), the numbers of pickets involved, and the duration of their presence (Q. "At any time on June 20th do you recall seeing a person or persons- carrying Teamsters ,signs in the area of Gate 2?" A: "On June 20th, yes ") This is all that Geist had to say about the 20 June picketing; and I recall here that gate 1, being only about 120 feet distant from gate 2, could also be said to have been "in the area of Gate 2 ." Similarly, although Mann, Harbor's manager, acknowledged in his otherwise insignificant testimony at the re- buttal stage that he had been present at the hotel jobsite "on the morning of June 20th for two or three hours," the General Counsel had not called him during her case-m-chief to corroborate Palmer's testimony about the alleged presence of two pickets that same morning at gate 2 for at least 2 hours. Moreover, none of the photographs taken by Palmer, nor the vid- eotapes taken by Geist, of events on 12 and 20 June, were introduced into evidence. 804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD However, for reasons that I trust will be implicit in my subsequent discussion and findings, I do not regard this as a credibility case; rather, despite some weaknesses or inconsistencies in each party's presentation, I find it possible to harmonize the seemingly candid and sincere testimony of all the witnesses and to find that the Gov- ernment's evidence about the events of 12 and 20 June formed only part of the whole picture, and was relevant- ly supplemented by the evidence given by the Union; to find, in short, that the Union's witnesses, although vague concerning dates, were describing from a different per- spective the same events described by the prosecution's witnesses . Accordingly, neither the General Counsel's failure to corroborate Palmer through available evidence, nor the Union's witnesses' vagueness concerning dates, will have any significant impact on my ultimate findings and conclusions. I thus find that Palmer's and Gast's testimony could each be treated as essentially credible without being in- consistent, especially if one makes allowances _for the limitations imposed on Palmer's ability to perceive. Given the fact that Palmer only observed the pickets at intervals-and then along an extended angle of vision that could distort by foreshortening his ability to judge precisely where the pickets were in relation to gate 2-it may have appeared to him that the pickets were some- times "at" gate 22 but, more probably, his testimony was influenced by the fact that pickets admittedly were at times in their patrols located at points away from gate 1 and approaching gate 2 as a limit, at all, times roughly parallel to Harbor's trucks lined up inside the perimeter fence. C. The 20 June Picketing B. The 12 June picketing Palmer normally worked in a construction office trail- er that was located no more than 200 feet from gate 1 (virtually in line with gate 1, but substantially to the southeast of gate 2). He could see both gates 1 and 2 from windows in that trailer. Around 8 :30 a.m., says Palmer, he saw pickets carrying the Union 's signs at both gates 1 and 2. He ' did not continuously observe what oc- curred after that, but he noticed Fitzpatrick arrive on the site about 9:45 a.m. He then saw Fitzpatrick speak to the pickets at gate 2, whereon those pickets walked with Fitzpatrick back to gate 1, where all pickets remained until Harbor's pours were completed that day. I deem it more probable than not on this record-and I therefore find-that Gast was referring to the same in- cident when he offered the following supplemental de- scription: On one morning in June , Gast and other pick- ets ' patrolled the sidewalk adjacent to and parallel with the' perimeter fence that connected gates I and 2. He ex- plained that the pickets were patrolling , rather than con- fining themselves to the gate 1 entrance, so that they could remain adjacent to Harbor 's trucks, which were similarly arrayed in a line along the inside of the perime- ter fence while waiting their turn to enter the pour area of the site. He insists, "We wasn't actually picketing Gate 2. We was just walking back and forth on the side- walk." And he acknowledges that Fitzpatrick arrived at the site at some point'in this process and told the pickets to go back to gate 1, which they did. Both Palmer and Geist acknowledged that gate 2 was locked throughout the day on 12 June. Palmer explained that this was because there were then no contractors scheduled for work' who might properly use that "neu- tral" gate and because he wished to avoid the possibility that someone who should be using gate 1 might mistak- enly use gate 2. Indeed, this record contains no indica- tion that anyone other than Calcon and Harbor were on the site during Harbor's pour on 12 June.7 7 Palmer,stated that Pumpco was not on the site that day Presumably this was because (as Palmer and Geist acknowledged), those pours were being accomplished not by pumping from Harbor 's trucks, but rather by means of a "crane-and-bucket" operation in which Harbor would pour directly into a bucket that was then hoisted and dumped by a Calcon- owned crane into the forms. Palmer noticed two pickets appeared at gate 1 around 8:30 a.m.; "shortly after," however, they moved to gate 2, where they stayed until Palmer "lost track" of them about 10:30 a.m, At 11:00 a.m., Palmer saw Fitzpatrick arrive, accompanied by two more pickets. Thereafter, says Palmer, two pickets placed themselves at gate 2 while two more pickets remained at gate 1 . According to Palmer the pickets stayed at the respective gates until 2 p.m. The record does not indicate when Harbor complet- ed its pours that day, nor how many trucks had entered and left the site while the pickets were at gate 2. Gast and Fitzpatrick admittedly picketed at gate 2 on a date that they could not recall . They harmoniously claim that they did so only after a Harbor truck had exited the site through gate 2 . This occurred, as far as they could tell, because a number of yet-to-be-unloaded Harbor trucks were arrayed inside gate 1 in such a way as to block egress from that gate, thus requiring a truck that had completed its pour to find another way, out-in this cage via gate 2 (which Palmer and Geist acknowl- edged was unlocked on 20 June). Gast insists , moreover, that at least one more Harbor truck exited gate 2 for the same reason while he was present there , and that he moved back to gate I only after the truck congestion at gate 1 had sufficiently cleared so that the next empty truck was able once again to exit by that gate. Palmer and Geist testified that they did not observe any Harbor trucks enter or leave the site via gate 2 on 20 June. I do not find that this testimony, even if credible, necessarily rules out the possibility that ' at least, two Harbor trucks did exit via gate 2, as described by the Union's witnesses. Palmer admittedly did not observe the events on 20 June on any continuous basis; Geist admit- tedly tended to focus his videotaping on gate 1, appar- ently more concerned about documenting any disrup- tions at that gate, where it was customary for Harbor's trucks to enter and leave . Mann apparently did not see any significant activity at gate 2 on 20 June-not even the picketing there that Palmer had described and that Geist had only vaguely corroborated. I conclude that Fitzpatrick's and Gast's admittedly ex- tended picketing of gate 2 in connection with Harbor's exiting via that - gate was what, Palmer observed on 20 June. I note, moreover, that Palmer's and Geist's recol- TEAMSTERS LOCAL 216 (CALCON CONSTRUCTION) 805 lection that gate 2 was open that day is,, consistent- with the Union's claims (otherwise the Harbor trucks could not have exited via that gate). Perhaps that gate was open for a coincidental reason and Harbor's trucks used it for expediency's sake; thus, Palmer stated that Consoli- dated Engineering also went through gate 2 at some point on 20 June.8 III. ANALYSIS A. Introduction The Board's relatively recent decision in Electrical Workers IBEW Local 302 (ICR Electric), 272 NLRB 920 (1984), contains enough discussion and citation to author- ity to rely on for purposes of this decision. In ICR the Board reviewed the well-established principles that all parties acknowledge will come into play when, as here, different construction businesses are involved in working on a "common situs" that' has been posted with separate gate signs purporting to "limit" the "presence" of named persons to^ a particular gate-and thereby to make it risky under Section 8(b)(4) for a union to picket an entire jobsite's access routes when the person with whom the Union has a "primary dispute" is "present" at only one of those access gates. Briefly, without reiterating the case law, when a union, purportedly in dispute with one person (the "primary"), pickets a common situs gate that has been "reserved" for persons other than the primary disputant (i.e., "neutrals"), such conduct normally implies that the union's true purpose is to impose economic pres- sure on those neutrals in order to cause them (or the general contractor who needs the neutrals' services), to cease doing business with the primary, in violation of Section 8(b)(4). By parity of analysis, when a picketing union hoists signs identifying the primary, confines itself to the gate reserved for the primary, and pickets only at times when that primary is present on the common situs, its purpose cannot normally be deemed to be anything more than what its conduct purports to be, ,a lawful pur- suit of a primary labor dispute. But the Board also reiter- ated in ICR the equally established proposition that such tests are simply "evidentiary aids that are not to be me- chanically applied." 272 NLRB 920 at fn. 2 (citing au- thorities). Rather, the observance or nonobservance of these standards by a picketing union raises only a "pre- sumption" about the Union's true picketing object; and, in either case, "the ultimate question-one of fact-re- mains: does the union's conduct disclose an illegal sec- ondary object?" (Emphasis added.) Ibid. Here, the General Counsel relies solely on the fact of the Union's picketing at or near the "neutral" gate on 12 and 20 June as evidence that the Union was trying to pursue an unlawful secondary boycott. I conclude to the contrary, and would dismiss this complaint. The facts as 8 Palmer did not describe Consolidated Engineering's presence on 20 June, nor its function, with any greater particularity. Nothing in his testi- mony suggests that the picketing at gate 2 coincided with Consolidated's entrance or exit by that gate, indeed, nothing in his testimony directly suggests that Consolidated was even present on the site during the times the Union was picketing at gate 2 And, if other "neutrals" were present on the site at any time on 20 June one would have to find proof of it somewhere other than in this record. I have found them do not make out a secondary boycott case, for nothing in those facts reasonably implies that the Union's picketing on either 12 or 20 June was calcu- lated to bring economic pressure to bear on anyone other than Harbor. The point might be made summarily by ob- serving that the General Counsel has never plausibly suggested whom it might have been, exactly, that the Union had allegedly targeted for "secondary" pressure on either 12 or 20 June. And, as I elaborate in my own attempts below to answer this question, the only "neu- tral" clearly shown to have been physically present on the jobsite during the gate 2 picketing on 12 and 20 June was Calcon-an entity that had chosen to define its "presence" at gate 1 and that had most emphatically sought to avoid using gate 2, thereby making it an un- likely target of the Union's allegedly secondary picketing at gate 2. Regarding 12 June, I find it especially difficult to iden- tify in the body of evidence presented by the General Counsel even a prima facie case for the proposition that the Union's behavior was secondary in purpose. At best Palmer's testimony showed that some pickets were posted at gate 2. But even if so, the General Counsel's evidence also showed that gate 2 was locked that day, and that no one other than Harbor and Calcon was present nor scheduled to be present on the site that day. In a very real sense then, "gate 2" was not truly then a "gate" where the Union might expect to encounter neu- trals even if that had been its object. Rather, in its locked state, it was merely a continuation of the chainlink pe- rimeter fence. In those circumstances, therefore, only the most "mechanistic" of reasoning could lead to the con- clusion that the Union was somehow trying to reach per- sons other than Harbor by placing themselves for a time that morning at gate 2, until Fitzpatrick withdrew them to gate 1. Neither does the fact that Fitzpatrick ordered the pickets back to gate 1 prove that there was illegality in their initial behavior. In, the circumstances, Fitzpa- trick's behavior may be seen as an act of prudence and as a demonstration that the Union's institutional purpose- as opposed to that which might be inferred solely from the acts of its pickets-was to strictly honor Calcon's gate designations. And particularly when one supplements Palmer's evi- dence with Gast's, the Union's picketing presence "near" gate 2 is clearly more readily explainable in terms of the picket's own desires to deliver their picketing message to the Harbor truckdrivers who were lined up along the inside of the perimeter fence spanning the two gates. Seen this way, even if the pickets' motives were imputa- ble to the Union, the Union could not be charged with a secondary purpose. Regarding 20 June, the General Counsel came closer to an arguable prima facie case; Palmer's testimony showed that gate 2 was unlocked during at least some of that day, thereby plausibly inviting the Union (if it was disposed to use secondary pressure) to visit that gate in hopes of finding some neutral on whom it might exert unlawful pressure. But even that inference is strained by the appearance that, once again, only Calcon and Harbor were present on site at the time the pickets were at gate 806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Perhaps, however, Palmer's testimony that Consolidat- ed had used gate 2 that day might have been enough to keep an inference of secondary motive afloat; but if it was Consolidated that the General Counsel would now have me find that the Union was trying to pressure, I would have expected her to elicit from Palmer some ad- ditional details. As it is, Palmer's testimony fails to show when Consolidated was present, what it was doing, and how long it was there. Thus, by its vagueness, Palmer's account invites the inference that Consolidated's pres- ence did not play any motivating role in that picketing. Setting aside the question whether the General Coun sel made out a prima facie case of secondary motive re- garding the gate 2 picketing on 20 June, I would still find that any such presumption was adequately rebutted by the fact (as I have found by harmonizing the evi- dence) that the pickets only placed themselves there be- cause one or more Harbor trucks had used that gate to exit the jobsite. In those, circumstances the Union has adequately shown that its motive in picketing gate 2 was once again purely a primary one. Based on the foregoing I reach these CONCLUSIONS OF LAW - - 1. Calcon is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and the Union's picketing of Calcon's jobsite thus implicates interstate commerce. 2. The Union is a labor organization within the mean- ing of the Act. 3. The Union's picketing at or near gate 2 of the Calcon project, on 12 and 20 June 1986 did not violate Section 8(b)(4)(i) or (ii)(B) of the Act, as alleged in the complaint.On these findings of fact and conclusions of law and on the entire record, I issue the following rec- ommended9 ORDER The complaint is-dismissed in its entirety, 9 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