International Union Of Operating Engineers, Local No. 12, Afl-Cio

OPERATING ENGINEERS LOCAL 12 (MCDEVI F & STREET) 1203 International Union of Operating Engineers, Local No. 12, AFL-CIO and' McDevitt & Street Company. Case 21-CC-2955 30 November 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 29 April 1987 Administrative Law Judge James S. Jenson issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent Union filed an answering 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 briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge dismissed the complaint and found that the Respondent did not violate Section 8(b)(4)(i) and (ii)(B) by picketing for 5 days near a gate reserved for neutrals at the Charging Party's construction site. The picketing was in support of an area standards dispute with McDevitt & Street Company.' The judge relied on his fording that uses of the neutral gate during the period of the picketing by a sanitation service and by a food service, characterized by the judge as "suppliers" of the primary employer, along with four uses of an unmarked gate by McDevitt & Street employ- ees, together constituted more than a " de minimis" violation of the reserve gate system. The judge thus found the neutral gate was sufficiently com- promised to excuse the Respondent's otherwise un- lawful picketing.2 We disagree and, for the reasons i The picketing took place along the fenced perimeter of the site from the gate reserved for the primary employer , McDevitt & Street, and its "personnel, visitors, and suppliers" on the eastern boundary to the south- west intersection of the main highway on the south and an unimproved dirt road on the west leading to the neutral gate located approximately 120 feet north of the intersection. Because the dirt road provided the sole access to the neutral gate for persons approaching from the main high- way, we agree with the judge 's implicit finding that the third Moore Dry Dock standard was not met, i e., the picketing did not take place reason- ably close to the location of the gate reserved for the primary employer Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950) See Nashville Building Trades Council (H. E Collins Co.), 172 NLRB 1138 (1968). This finding supports our conclusion that the Respondent 's picketing was de- signed to enmesh the employees of the neutrals in the labor dispute. 2 Regarding certain of the Respondent 's claims that the reserve gate system was tainted, the judge found that the neutral gate had not been used by McDevitt & Street's personnel and that the Respondent had failed to show that the neutral gate had been used by applicants for em- ployment with McDevitt & Street or its nonunion subcontractors. Addi- tionally, the judge found that the use , on 4 of the 5 days of picketing, by McDevitt & Street surveyors of a temporary, unauthorized, and un- marked entrance from the main highway did not justify any picketing of set forth below, find that the Respondent violated the Act as alleged. Picketing began on Friday, 27 June 1986, and continued the following week, Monday through Thursday, 30 June through 3 July, from "about 7 a.m. until after the noon hour." In addressing the issue of whether the neutral gate itself had been sufficiently tainted by persons required to use the reserve gate on the east, the judge found that, during the 5 days of picketing, trucks of a sanita- tion service under contract to McDevitt & Street to provide portable toilets for employees of all em- ployers on the jobsite used the neutral gate, either to enter or exit, on 3 of the 5 days (Friday, Monday, and Wednesday). Further, the judge found that a lunch truck used the neutral gate, either to enter or exit, on each of the 5 days. Sig- nificantly, the judge noted that Jonathan Wain- wright, McDevitt & Street's project manager, testi- fied that there was no contractual agreement be- tween the primary employer and the independent lunch truck operator, but that permission had been granted by the Company to enter and sell food to both union and nonunion personnel. The judge distinguished Carpenters Local 1622 (Specialty Building Co.), 262 NLRB 1244 (1982), which found that the once-a-week visit of a sanita- tion service truck was "not a cognizable breach of the (reserve gate) system." Id. at 1245. The judge found that the use of the neutral gate three times by the sanitation truck and five times by the lunch truck during the 5 days of picketing constituted, in this case, more than de minimis violations of the neutral gate. Concerning the sanitation truck, the record does not support the judge's distinction because the Re- spondent failed to meet its burden of showing,that it knew, prior to its picketing at 7 a.m. on 27 June 1986, that the sanitation truck had passed through the neutral gate. Rather, the record shows only that the truck used the neutral gate on dates on which picketing had occurred, and it does not make it clear whether such use of the gate had been observed before the picketing commenced. So far as the evidence shows, the Union may have al- ready set up and maintained a picket line near the neutral gate before it observed what turned out to be an every-other-day pattern of use of the neutral gate by the sanitation truck.3 Inasmuch as it is the the properly designated neutral gate . (There were no exceptions to these findings ) Based on this last finding , the judge should therefore not even have counted these four incidents as part of his rationale for finding that the neutral gate had been compromised. s See Nashville Building Trades Council (H E. Collins Co), supra, 172 NLRB at 1139- 1140. (Illegal picketing cannot be justified by after-the- fact incidents of violation of neutral gate by employees of primary em- ployers.) 286 NLRB No. 114 1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent's burden to justify its disregard of the reserve gate system, we shall resolve this ambiguity against the Respondent.' Regarding the appearances on the jobsite by the lunch truck, we find that the proprietor of the lunch truck was not a "supplier" of the primary. That truck, which was permitted to come onto the worksite to sell food to all employees at the site, is unlike the entities that the Board has generally rec- ognized as "suppliers" for the purpose of construc- tion site picketing. Unlike the gravel supplied to the primary employer in Operating Engineers Local 450 (Linbeck Construction), 219 NLRB 997 (1975), enfd. 550 F.2d 311 (5th Cir. 1977), or the lighting fixtures delivered to the primary (an electrical sub- contractor) in J. F. Hoff Electric Co. v. NLRB, 642 F.2d 1266 (D.C. Cir. 1980), cert. denied 451 U.S. 918 (1981), the food provided by the lunch wagon was neither supplied solely to the employees of the primary nor, since it was not the only possible source of food for the employees, was it "essential" to the primary's operations. Compare J. F Hoff Electric Co. v. NLRB, supra, 642 F.2d at 1275. Because we have found no evidence that the Re- spondent commenced its picketing in response to breaches of the neutral gate by suppliers, the Re- spondent's defense fails. Accordingly, we find that by commencing picketing near the neutral gate on 27 June 1986, the Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act.5 CONCLUSIONS OF LAW 1. McDevitt & Street Company is an employer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) and Section 8(b)(4) of the Act. 2. The Respondent, International Union of Oper- ating Engineers, Local No. 12, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By commencing picketing, the Embassy Suite Hotel project on 27 June 1986, with an object of forcing neutral subcontractors to cease doing busi- ness with McDevitt & Street Company, the Re- spondent has engaged in an unfair labor practice within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 4 Because we rind no evidence of breach prior to the commencement of the Respondent's picketing, we need not decide whether the sanitation truck was a "supplier" of the primary employer 6 Given the basis on which we have decided this case, we have no occasion to pass on the question of how many breaches of the gate by a supplier would constitute a "pattern of destruction " of the reserve gate system. See Plumbers Local 48 (Calvert Contractors), 249 NLRB 1183 fn 2 (1980), and Electrical Workers IBEW Local 76 (KSTW-TV), 268 NLRB 230, 234 (1983), enfd. 742 F 2d 498 (9th Cir 1984). THE REMEDY Having found that the Respondent has engaged in an unfair labor practice, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. 6 ORDER The National Labor Relations Board orders that the Respondent, International Union of Operating Engineers, Local No. 12, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from engaging in, inducing, or encouraging any individual employed by any person engaged in commerce or in any industry af- fecting commerce 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 goods, articles, materials, or commodities, or to perform any services; or threatening , coercing, or restraining any person engaged in commerce or in an industry affecting commerce when in either case an object thereof is to force or require that person to cease doing business with McDevitt & Street Company. 2. Take the following affirmative action necesary to effectuate the policies of the Act. (a) Post at its business office and meeting halls copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Re- gional 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 customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, 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 McDevitt & Street Company and its subcon- tractors on the Embassy Suite Hotel project, should they wish to do so, at all locations where notices to employees are customarily posted. 6 As part of the remedy, the General Counsel seeks an order that will include a visitatonal clause authorizing the Board , for compliance pur- poses, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Order We have concluded that under the circum- stances of this case such a clause is not warranted 7 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 " OPERATING ENGINEERS LOCAL 12 (MCDEVITT & STREET) (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT engage in or induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in a strike or a refusall in the course of his employment to use, manufacture, process, trans- port, or otherwise handle or work on any articles, materials, commodities, or perform any services; and WE WILL NOT threaten, coerce, or, restrain any person engaged in commerce or in an industry af- fecting commerce when in either case an object thereof is to force or require that person to cease doing business with McDevitt & Street Company. INTERNATIONAL UNION OF OPERAT- ING ENGINEERS, LOCAL No. 12, AFL-CIO Robert J. Petering, for the General Counsel. Alexander B. Cvitan, Esq. (Reich, Adell & Crost), of Los Angeles, California, for the Respondent. Anthony J. Oncidi, Esq. (Sheppard, Mullin, Richter & Hampton), of Los Angeles, California, for the Charg- ing Party. DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge. I heard this case in San Diego, California, on 6 January 1987 pursuant to a consolidated complaint that was issued on 25 July 1986.1 The consolidated complaint alleges, in substance, that Respondent Local No. 12 violated Sec- tion 8(b)(4)(i) and (ii)(B) of the Act by picketing near a gate reserved for neutrals at the Charging Party's Em- bassy Suite La Jolla project. In addition to a broad cease-and-desist order, the General Counsel requests a vi- sitatorial provision. The Respondent admits it has been engaged in a labor dispute with McDevitt & Street, but ' pn 21 October 1986 the Regional Director issued an order severing cases, approval of unilateral settlement agreement, and withdrawal of consolidated complaint dnd notice of hearing in Case 2l-CC-2954, in- volvmg 8(b)(4Xi) and (ii)(B) allegations against International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 229, AFL-CIO, filed by the instant Charging Party All dates are in 1986 unless stated to the contrary 1205 denies the commission of any unfair labor practices on the ground the gate system maintained at the Embassy Suite project was not a valid reserve gate system. All parties were afforded full opportunity to appear, to intro- duce evidence, to examine and cross-examine witnesses, and to file briefs. The General Counsel and Respondent filed briefs, which have been carefully considered. On the entire record in the case, including the demean- or of the witnesses, and having considered the posthear- ing briefs, I make the following FINDINGS OF FACT I. JURISDICTION McDevitt & Street is a general contractor in the build- ing construction industry and since March 1986 has been engaged in the construction of the Embassy Suite Hotel project in San Diego, California. During the past year, the Company purchased and received doors, frames, and hardware valued in excess of $100,000 at its San Diego construction site, which were shipped and received in California directly from a supplier located in the State of Arkansas. It is found that McDevitt & Street is an em- ployer engaged in commerce and in an industry affecting commerce within the meaning of Sections 2(2), (6), and (7) and 8(b)(4) of the Act. II. LABOR ORGANIZATION It is admitted and found that International Union of Operating Engineers, Local No. 12, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Sequence of Events The construction site involved in this proceeding is rectangular in shape and is bounded on the east by Towne Centre Drive, on the south by La Jolla Village Drive, on the west by an unimproved dirt street to be dedicated and known as Executive Way, and on the north by a residential complex and vacant lots. Work started on the project in March, and in mid-April a chain link fence was erected around the premises and two gates were established. Gate 1 was located on the east side of the project on Towne Centre Drive near McDe- vitt & Street offices and was marked with a sign that read STOP-READ-GATE 1 This Gate is Reserved for Personnel, Visitors & Suppliers of the Contractors Listed Below: McDevitt & Street Padre Triple A Cone. West Coast Iron Merit Resteel Felix Thompson V.S.L. Corp. Mission Pools 1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ALL OTHERS MUST USE GATE 2 Gate 2, the neutral gate, was located on the west side of the project on Executive Way and was marked with a sign that read STOP-READ-GATE 2 This Gate May Not Be Used By Personnel, Visitors or Suppliers of the Contractors Listed Below: McDevitt & Street Padre Triple A Conc. West Coast Iron Merit Resteel Felix Thompson V.S.L. Corp. Mission Pools ALL OTHERS MUST USE THIS GATE Project Manager Jonathan Wainwright testified that all employees on the project were informed of the Compa- ny's open-shop philosophy and which gate they could and could not use. On Friday, 27 June, approximately 28 pickets from Iron Workers Local 229, and 5 from Respondent Local 12 commenced picketing from the vicinity of gate 1 on Towne Centre Drive, along La Jolla Village Drive to the intersection of that street and Executive Way. Re- spondent Union's picket signs stated McDEVITT & STREET UNFAIR LOCAL 12 INTERNATIONAL UNION OF OPERATING ENGINEERS Picketing lasted from about 7 a.m. until after the noon hour. A crane operator employed by Cal Crane refused to enter the jobsite, making it impossible for other crafts to perform scheduled work. Cal Crane's operator was a member of Respondent Local 12. There is no evidence to indicate anyone encouraged him not to work. On the same date, Wainwright sent both a letter and mailgram to Respondent Local 12, notifying it of the establishment of the reserve gate system. The letter included a request that the Union notify the Company if it had any informa- tion that supplies were not being delivered in accordance with the reserve gate system so that corrective action could be taken. Wainwright credibly testified that similar picketing occurred again on Monday, 30 June, and con- tinued through 3 July. On 1 July, the Company informed Cal Crane that it would go "bare rental" because its crane operator would not cross an "illegal picket line." On 2 July McDevitt & Street had another operator working the crane and other craft work resumed. Picket- ing after 3 July was confined to gate 1. 1. Positions of the parties The General Counsel argues that the Company estab- lished a valid reserve gate system and that the Respond- ent Union violated the Act by picketing at or near neu- tral gate 2, thereby enmeshing neutral employers in a dis- pute not their own. Any alleged misuse of the reserve gate system, it is argued, was de minimis or isolated and "insufficient to overcome the strong presumption that a union has an unlawful secondary object of enmeshing neutral persons when it pickets at an otherwise properly established neutral gate." The Respondent Union contends it commenced picket- ing on 27 June because McDevitt & Street was not paying its employees the area standard wage . It is further contended that McDevitt & Street personnel used neutral gate 2 and an unmarked entrance in the chain link fence surrounding the project on La Jolla Village Drive; that sanitation trucks and lunch trucks that serviced all em- ployees on the job premises used both gates; and that ap- plicants for employment with McDevitt & Street also used the gate reserved for neutrals. In light of these facts, it is argued, "a valid reserve gate system was never established or maintained," and that the picketing of gate 1 and along La Jolla Village Drive to the entrance of Executive Way was not unlawful. The legality of picketing at a common situs in the con- struction industry, including picketing at or near gates reserved exclusively for neutral contractors at the project, is determined under the Moore Dry Dock stand- ards.2 The issue in this case revolves around the third Moore Dry Dock standard: whether the picketing took place reasonably close to the location of the primary dis- putant, McDevitt & Street. So long as the Moore Dry Dock limitations are met, a union may legitimately picket at a common work situs in such a way that all employ- ees, suppliers, and customers of the primary are reached by the pickets. 2. Discussion The General Counsel and Respondent each called two witnesses who contradicted the testimony of the wit- nesses for the other side. Thus, credibility becomes a ma- terial issue. Respondent's witnesses testified that both Project Manager Wainwright and Project Superintendent Oldfield used gate 2 on 27 June, thereby violating its neutrality. Wainwright and Oldfield denied they ever used gate 2. Respondent's witnesses both testified that surveyors employed by McDevitt & Street went through an unmarked opening in the chain link fence along La Jolla Village Drive on 27 June and succeeding days, and identified the purported fence opening in a photographic exhibit taken a month earlier. The Company's witnesses denied there was an opening on La Jolla Village Drive at the time of the picketing. Both sides introduced photo- graphs into evidence to support their respective posi- tions. In making my credibility findings, I have given consideration to the demeanor of the witnesses while they were on the stand, the positions occupied by the witnesses and their possible interest in the outcome of the litigation, whether other witnesses could have been, but were not, called to corroborate evidence, and the in- herent probabilities in the accounts that they gave in light of the photographic exhibits. To the extent that I 2 Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950). OPERATING ENGINEERS LOCAL 12 (MCDEVITT & STREET) credit a witness only in part , I do so on the evidentiary rule that it is not uncommon "to believe some and not all of the witness's testimony." NL.RB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950). B. The Unmarked Entrance Fritz Umscheid, a business representative for Iron Workers Local 229,3 testified the chain link fence on La Jolla Village Drive had been cut and the fence pulled back creating an opening, approximately 16 feet wide, about 100 to 120 feet from the corner of Executive Way, and that dirt had been piled up to the curb so vehicular traffic could enter and exit. A photograph (R. Exh. 1), which indicates on its back that it was taken in "May 86," shows what appears to be an opening with one fence post removed near that location.' Also shown in the picture are two Iron Workers' pickets. Umscheid tes- tified the opening was still in the fence at that location through 3 July and that it was not posted as reserved for either the primary or neutral employers. He testified that on Monday, 30 June, and on 1, 2, and 3 July, he ob- served two McDevitt & Street surveyors exit the project through that fence opening and reenter through either that opening or through gate 1 . Harris testified he ob- served McDevitt & Street surveyors pass through the opening in the fence on 27 and 30 June. Wainwright at first denied there was ever either an entrance or opening through the chain link fence. He contended the sitework contractor, Paul Hanson, had been passing pipe from onsite to offsite and that the fence had been pushed down at one point, and that Hanson was put on notice "that they could not pass or enter through that area and that it was remedied right away." He estimated the open- ing was there for 2 days and that Hanson had created the opening without authorization. He contended the opening was no more than 2 feet, but later testified "it was more than a couple of feet but not 20 feet." Wain- wright identified an aerial photograph taken 17 June (G. C. Exh. 15), showing an opening "where [Paul Hanson's] workers were going through," but claims it was "totally repaired" at the time of the picketing for security rea- sons. According to Wainwright, General Counsel's Ex- hjbit 16, a photograph of an area about five or six fence posts to the east of the fence opening shown in General Counsel's Exhibit 15, shows the point at which Hanson's employees pushed the fence down while passing pipe off the job premises. Thus, it is seen that Hanson's employ- ees passed pipe over the fence at the place shown in General Counsel's Exhibit 16, and had an opening in the fence to the west of that spot as shown in General Coun- sel's Exhibit 15. While acknowledging that McDevitt & 3 As previously noted, the instant case was initially consolidated with Case 21-CC-2954, alleging Iron Workers Local 229 violated Section 8(bX4)(1) and (a)(B) by picketing gate 2 on the same and additional dates as Respondent Local 12. On 21 October, following approval of a unilat- eral settlement agreement in that case, the Iwo cases were severed Ums- cheid admitted he was in charge of the pickets located at the entrance to Executive Way on 27 June. Thus, he was not a "disinterested" witness as counsel for Respondent claims. * Ronald Hams, business agent for the Respondent, first testified the photograph was taken on 27 June. With prompting from counsel, he testi- fied it was taken in May, but that the condition of the gate was the same on 27 June 1207 Street employed two surveyors and that each of two other employers employed two surveyors throughout the picketing period, Wainwright testified that he had no knowledge of them having gone through the fence open- ing on La Jolla Village Drive, but that all employees had been instructed to use only gate 1. The issue of the open- ing in the fence from 27 June through 3 July could have been cleared up definitively had one of the McDevitt & Street surveyors been called to testify. None was, nor was any explanation given for the failure to call one of them. An inference adverse to the party who fails to call witnesses otherwise available to it, or neglects to explain the failure to call such witnesses, has been established law since the early days of the Board. Freuhauf Trailer Co., 1 NLRB 68 (1935), reversed 85 F.2d 39 (6th Cir. 1936), reversing circuit and enforcing the Board 301 U.S. 49 (1937). Martin Luther King, Sr., Nursing Center, 231 NLRB 15 fn. 1 (1977). Accordingly, I conclude there was an unmarked opening in the fence along La Jolla Village Drive approximately 125 feet to the east of Exec- utive Way during the period 27 June through 3 July and that it was utilized by McDevitt & Street surveyors. Contrary to the position of the Respondent Union that use of the fence opening along La Jolla Village Drive automatically invalidated the entire reserve gate system, the Board has consistently held that while the entry or exit from a jobsite through an unauthorized and un- marked point might well justify picketing of that area, it would not justify the picketing of the gate reserved for neutrals unless there is evidence that its neutrality has been compromised. Nashville Building Trades Council (H. E. Collins Co.), 172 NLRB 1138 (1968). A union may picket only at the gates utilized by the employer with whom it has a dispute and not at the neutral gate unless the neutral gate's immunity from picketing has been destroyed by its utilization by the primary employ- er's employees or suppliers, which brings us to the ques- tion of the use of gate 2. C. The Neutral Gate 1. Wainwright and Oldfield Umscheid testified he observed Wainwright exit through gate 2 about 8 a.m. on 27 June and return 15 or 20 minutes later followed by a semitractor/trailer loaded with oil pipe; that Wainwright reentered gate 2, parked, and walked back outside and instructed the semitruck driver to stay there pending unloading arrangements. Umscheid contended he was standing on La Jolla Vil- lage Drive about 20 or 25 feet from the corner of that street and Executive Way when Wainwright left and at the corner of those two streets when he returned. Ums- cheid was not carrying a picket sign but was in charge of the picketers. Gate 2 appears to be located a substantial distance north of the intersection of La Jolla Village Drive and Executive Way.5 Umscheid testified that a pile of pipe shown outside gate 2 in General Counsel's Exhibit 4 was the pipe involved in the above-described b The back of R Exhs. 2 and 3 indicate gate 2 is 600 feet north of La Jolla Village Drive 1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD incident. He testified that about 15 minutes later Oldfield appeared, walked out through gate 2 followed by a fork- lift, and that Oldfield instructed the forklift, driver where to unload the pipe. He contended he then went to gate 2 where the pipe was being unloaded and told Oldfield he wanted to talk to Wainwright and inform him that he and Oldfield had "tainted the gate." He claimed Oldfield referred him to Wainwright, whom he tried to call, but that his calls were not returned. Harris testified on direct examination that he took a photograph of Oldfield "as the truck's coming up," and that he walked "outside there with a forklift and every- thing and tells where to unload that pipe." The photo- graph (R. Exh. 2), indicating on the back it was taken "June 86," shows Oldfield standing at the gate entrance. On cross-examination Harris testified that when he saw Wainwright leave through gate 2, he left the intersection of La Jolla Village Drive and Executive Way where he had been picketing, walked to his car some distance away where he procured his camera, and walked up to gate 2." That took approximately 15 minutes, he testified, and when he arrived at gate 2, Wainwright had already reentered and Oldfield came out and told the driver where to unload. Thus, it is seen that while he testified on direct examination that he took the photograph (R. Exh. 2), as the truck was arriving , on cross-examination, he claimed Wainwright had already reentered gate 2, and had "supposedly" already given instructions where to unload, indicating the truck was already there when he arrived. Both Wainwright and Oldfield stated unequivocally that they had never passed through gate 2, Wainwright insisting the pipe identified by Respondent's witnesses did not arrive at the premises until 12 July. Oldfield testi- fied also that he was not hired until 23 June and that he did not see much of the jobsite the first week of employ- ment because he was "basically in the trailer." He stated that he was not aware that Respondent's Exhibit 2 had been taken, that any time he did go to the gate he "went right to the limit that I know the gate to be," and that the photo shows his feet to be within the jobsite. He identified the pipe as having been delivered to the jobsite to West Coast Air during the second week of July and was offloaded by West Coast Air equipment and opera- tors. Having considered the demeanor of the witnesses as they testified, and the inherent probabilities in the ac- counts they gave, I am convinced that the Respondent's witnesses' testimony about Wainwright and Oldfield using gate 2 on 27 June was fabricated. First, I have a great deal of doubt about the truthfulness regarding when the Respondent's photographic exhibits were taken in that none of them provides a numerical date and the first one was taken in May. Respondent's Exhibit 2 does not, in my view, show Oldfield as having passed through gate 2. Had Harris, as he testified, gone to the effort to procure his camera to record evidence of the gate viola- tions the Respondent claims, he could have recorded a better example, if it existed, of Oldfield having violated the integrity of the gate, and because of its importance, I believe he would have recorded the specific date on the exhibit. The most significant fact Respondent's Exhibits 2 and 3 disclose is that, according to Harris, gate 2 is lo- cated 600 feet north of La Jolla Village Drive. La Jolla Village Drive appears to be a heavily traveled thorough- fare. The time was about 8 a.m. on a Monday and the corner of La Jolla Village Drive and Executive Way was, according to Respondent's exhibits, 600 feet from gate 2.6 Under these conditions, it would have been im- possible for Umscheid to have overheard a conversation taking place between Wainwright and the driver of a truck, or between Oldfield and a forklift driver at gate 2 as he testified. Further, had a gate violation occurred as Respondent's witnesses claim, there is no doubt in my mind but that Harris, who claims to have had a camera in his possession, would have indeed photographed Old- field outside the gate as the truck was being unloaded. I further have little doubt that picketing would have im- mediately commenced at that location. In short, I do not credit the testimony of Umscheid and Harris, but credit Wainwright and Oldfield and find that neither violated the integrity of gate 2. 2. Sanitation trucks, lunch trucks, and applicants for employment Both Umscheid and Harris testified they observed sani- tation trucks and lunch trucks enter through one and exit through the other gate on a daily basis. They also testi- fied that some applicants for employment were parking on Executive Way and entering through gate 2. They apparently surmised from the fact those individuals asked who the general contractor was that they intended to apply for employment with McDevitt & Street. It is equally valid to surmise that the applicants could read the gate 2 warning, and being satisfied that applicants for employment with all other employers could use the gate, entered and applied for jobs with the neutral employers. In any event, the record fails to show any of those enter- ing through gate 2 actually applied for employment with anyone. In these circumstances I conclude that the Re- spondent Union has failed to establish that the integrity of the gate system was violated by applicants for em- ployment entering through gate 2. It is argued by Respondent that since the lunch trucks and sanitation trucks that supplied goods and services to all employers and employees on the project used both gates, the integrity of the gate system was breached. Wainwright testified that McDevitt & Street had con- tracted with a firm to s'zpply sanitation services to the jobsite and that it was responsible for cleaning the "porta-potties" every other day. He claimed the contrac- tor had been instructed by the former assistant superin- tendent to use gate 1. Oldfield did not know if the sanita- tion truck had ever entered through gate 2, but did not believe it had in light of directions not to. Wainwright further testified that there was no contractual arrange- 6 As the site plan, G C Exh. 3, and aerial photographs, G C Exhs 4 and 15 show, the distance from the corner of La Jolla Village Drive and Executive Way to Gate 2 is not five times the distance from the un- marked opening on La Jolla Village Drive to the intersection of Execu- tive Way, which Umscheid testified was no more than 120 feet. I view Harris' estimate of 600 feet as an attempt, albeit unsuccessful, to distance the picketing from gate 2 OPERATING ENGINEERS LOCAL 12 (MCDEVITT & STREET) ment with the lunch truck operator. At one time two lunch trucks serviced the project, one through each of the two gates. Permission to enter the premises was granted by McDevitt & Street to, service both union and nonunion personnel. Again it is noted that neither the sanitation nor lunch truck operators were called to testi- fy. In Carpenters Local 1622 (Specialty Building Co.), 262 NLRB 1244 (1982), cited by the General Counsel to sup- port his argument that use of gate 2 by the lunch and sanitation trucks did not violate the neutral gate system, the primary employer had arranged and paid for a person to service the portable toilets that were for the use of everyone on the project. He entered through the neutral gate once a week in the early morning hours, before the day's project work began. The administrative law judge, who was affirmed by the Board, found the once-a-week visit "not to be a cognizable breach of the [reserve gate] system," citing Operating Engineers Local 18 (Dodge-Ireland), 236 NLRB 199 (1978), which is also cited by the General Counsel here for the proposition that "de minimis or isolated misuse of a neutral gate is insufficient to overcome the strong presumption that a union has an unlawful secondary object of enmeshing neutral persons when it pickets at an otherwise properly established neutral gate." In Dodge-Ireland, it was noted that the evidence "as to actual misuse of the gates" was slight. The Board found that four instances of misuse of a neutral gate by suppliers of the primary employer, which had taken place over a period of several weeks, were not sufficient to justify picketing at a neutral gate. 1209 In the instant case, the picketing took place on only 5 days, and the record shows the lunch trucks used both gates on each of those days, as did the sanitation trucks on 27 and 30 June and on 2 July.7 The record also shows, as earlier set forth, that McDevitt & Street sur- veyors used an unmarked gate on La Jolla Village Drive on 4 of the 5 days. As is seen, there were approximately 12 violations of the reserve gate system over a period of 5 days. I do not view that as minimis. I conclude and find that the neutrality of gate 2 was compromised and that the Respondent Union did not violate the Act by picketing at or near gate 2 as alleged in the complaint, and therefore recommend it be dismissed. CONCLUSIONS OF LAW 1. McDevitt & Street Company is an employer en- gaged in commerce and in an industry affecting com- merce within the meaning of Sections 2(2), (6), and (7) and 8(b)(4) of the Act. 2. Respondent Local 12 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Local 12 has not engaged in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] ' This case is distinguishable from Iron Workers Local 433 (Oltmans Construction), 272 NLRB 1182 (1984), in which the supplier of the porta- ble toilets and the mobile lunch wagons used only the neutral gate