Iron Workers Local 433 (Chris Crane)

IRON WORKERS LOCAL 433 (CHRIS CRANE) 717 Iron Workers Local 433, a/w the International As- sociation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and Chris Crane Company. Case 31-CC-1887 April 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On July 8, 1987, Administrative Law Judge Roger B. Holmes issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a supporting 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, fmdings, 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) of the Act by picketing for ap- proximately 8 hours on September 9, 1988, 1 at a gate reserved for neutrals at the Quail Air con- struction site. 2 The picketing was in support of an area standards dispute with Chris Crane Company, the primary employer. Picketing at the jobsite began September 2. Ri- beiro established a reserve gate system by the late evening of September 5. Prior to the establishment of the reserve gate system, structural steel and other materials required by Chris Crane for its work were delivered directly to Ribeiro at the worksite. Once these materials were delivered, Ri- beiro employees sometimes helped Chris Crane em- ployees unload Chris Crane supplies using Ribeiro- owned forklifts; and, on occasion, Chris Crane em- ployees borrowed Ribeiro forklifts. During the period September 5 to 10, Chris Crane received no supplies. It is also clear that during this period Chris Crane used only its employees and its equip- ment to unload materials already on the worksite that had been delivered prior to the establishment of the reserve gate system. Thus from September 5 to 10 Chris Crane received no assistance from Ri- , beiro in performing this function. On September 6 Chris Crane employees used their own crane to unload materials. On September 8 three Chris 1 All subsequent dates refer to 1986 unless specified otherwise. 2 Ribeiro Corporation was the genera' contractor of the project to erect airplane hangars. Chris Crane Company was the subcontractor for steel erection. Crane employees worked at the jobsite, each using only the reserve gate. Union Business Agent Price received reports late on September 8 that taint had occurred at the neu- tral gates. Union observers advised Price that a green pickup truck belonging to a Chris Crane em- ployee used the neutral gate and that a workman believed to be a Chris, Crane employee left through a neutral gate in the back of a pickup truck. That evening Price sent Ribeiro a telegram citing the green pickup truck and alleging taint of the reserve gate system. Price then instructed the picketers that picketing at the neutral gate was to begin on Sep- tember 9. Picketing began at the neutral gates on Septem- ber 9 between 7 and 7:30 a.m. Ribeiro's attorney, Kamer, called Price between 7:15 and 7:30 that morning after learning about the telegram and the picketing at the neutral gate. In the course of the telephone conversation, Kamer admitted the neu- tral gates had been tainted. Further, Kamer agreed to confirm in writing that a taint of the neutral gates had occurred in return for Price's agreement that on receipt of this written confirmation Price would have the pickets removed from the neutral gates. That afternoon Kamer sent a telegram admit- ting the taint. On receipt of the telegram, Price re- moved the pickets from the neutral gates. The judge found that the Union's information re- garding taint was incorrect, that no taint occurred, and that Kamer's admission of taint was errone- ous. 3 The judge found that the Union nevertheless was entitled to picket the neutral gates used by Ri- beiro. Citing both Operating Engineers Local 450 (Linbeck Construction), 219 NLRB 997 (1975), affd. 550 F.2d 311 (5th Cir. 1977), and testimony that Ribeiro had received and transmitted structural steel and other materials to Chris Crane prior to September 5, the judge concluded that Ribeiro was a supplier of materials to Chris Crane and thus that the Union was entitled to picket at the gate re- served for Ribeiro. We fmd that the judge misconstrued Linbeek and other cases citing it. In those cases, the critical facts in fmding the general contractor a supplier to the subcontractor was that after the establishment of neutral gates, the general contractors received materials through the neutral gates to which they had title, but which were necessary for the per- formance of work by the primary employer. The taint in those cases was triggered by the movement of materials to be used by the primary employer through the neutral gates. 3 These findings are undisputed. 288 NLR No. 74 718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In this case, the critical period for determining ' Ribeiro's, the general contractor, status as a suppli- er is from the evening of September 5, the time the reserve gate system was established, to September 9, the day the Union placed pickets at the neutral gates. As noted above, there is no evidence that any materials for Chris Crane moved through the neutral gates at any time during this period. The record also demonstrates that after the establish- ment of the reserve gate system, Chris Crane em- ployees used only Chris Crane equipment to per- form their work. Accordingly, we conclude Ri- beiro was not a supplier of materials to Chris Crane.4 The Union's- other defense to the picketing is that it had received information of taint on Septem- ber 8, that Ribeiro's attorney confirmed the taint on September 9, and that the picketing ceased as soon as the Union received written acknowledge- ment of the taint. The Union's information of taint, however, came from its own agents. Relying on er- roneous information, without any genuine attempt at verification prior to neutral gate picketing, is no defense to the picketing. The Union's reliance on Kamer's admission of taint is also misplaced be- cause the record does not support a finding that Kamer called Price prior to the start of neutral gate picketing. Because it is the Respondent's burden to justify its disregard of the reserve gate system, the Board's policy is to resolve such ambi- guities against the Respondent. Operating Engineers Local 12 (McDevitt & Street), 286 NLRB 1203 (1987). In resolving this issue, we assume that the Union's decision, and the effectuation of that deci- sion to picket the neutral gates, was made prior to Price's conversation with Ribeiro's attorney. Thus, the Union could not have relied on Ribeiro's attor- ney's admission as the basis for commencing the picketing. Because we have found no evidence that the Re- spondent commenced its picketing in response to breaches of the neutral gates by Chris Crane sup- pliers or its employees, the Respondent's defenses fail. Accordingly, we find that by commencing picketing at the neutral gates on September 9, the Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act. CONCLUSION OF LAW By commencing picketing at the neutral gates of Quail Air construction site on September 9, 1986, 4 In so concluding, we also note the Union admitted complaint allega- tion 7, which states: "At no time material herein has Respondent been engaged in a labor dispute with Ribeiro, or any other person, except [Chris Crane], at the Quail Air jobsite." The Union did not raise the sup- plier issue until its oral argument at the conclusion of the hearing. with an object of forcing neutral employees to cease doing business with Chris Crane Company, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 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.5 ORDER The National Labor Relations Board orders that the Respondent, Iron Workers Local 433, a/w the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from commencing picketing 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 any person to cease doing busi- ness with Chris Crane Company. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its business office and meeting halls copies of the attached notice marked "Appendix "6 Copies of the notice, on forms provided by the Re- gional Director for Region 31, 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 31 for posting by Ribeiro Corporation and its subcontractors on the Quail Air construction project, should they wish to do so, at all locations where notices to em- ployees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 5 As part of the remedy, the General Counsel seeks an order that will include a visitatorial clause We have concluded that under the circum- stances of this case such a clause is not warranted Cherokee Marine Ter- minal, 287 NLRB 1080 (1988). 6 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 Enforcmg an Order of the National Labor Relations Board" IRON WORKERS LOCAL 433 (CHRIS CRANE) 719 ' 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 commence picketing or threaten, coerce, or restrain any person engaged in com- merce or in an industry affecting commerce when in either case an object thereof is to force or re- quixe any person to cease doing business with Chris Crane Company. HON WORKERS LOCAL 433, A/W THE INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNA- MENTAL IRON WORKERS, AFL—CIO Arthur Yuter, Esq., for the General Counsel. David A. Rosenfeld, Esq. (Van Bourg, Weinberg. Roger & Rosenfeld), of San Francisco, California, for the Re- spondent. DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge. The Charging Party, Chris Crane Company, filed on 9 Sep- tember 1986 the unfair labor practice charge in this case. I usually will refer to the Charging Party in this decision as the Employer. The Regional Director for Region 31 of the National Labor Relations Board, who was acting on behalf of the General Counsel of the Board, issued on 8 October 1986 the complaint and notice of hearing in this proceeding. The General Counsel alleged that the Respondent, Iron Workers Local 433, a/w the International Association of Bridge, Structural and Ornamental Iron Workers, AFL— CIO, had engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. The Respondent filed an answer to the General Counsel's complaint; denied that the Respondent had engaged in the alleged unfair labor practices; and raised -certain af- firmative defenses. Thereafter, the General Counsel's complaint and the Respondent's answer were amended at the hearing in this proceeding. I usually will refer to the Respondent in this decision as the Union. I heard the evidence in this proceeding at the hearing that was held on 4 February 1987 at Las Vegas, Nevada. Both counsel for the General Counsel and the attorney for the Respondent made closing arguments on the record at the hearing. FINDINGS OF FACT I. JURISDICTION The Employer has been at all times material a partner- ship with an office and a principal place of business lo- cated in Las Vegas, Nevada, where the Employer has been engaged in the crane rental business in the building and construction industry. In the course and conduct of its business operations, the Employer annually has pur- chased goods or services valued in excess of $50,000 di- rectly from suppliers located outside the State of Nevada. Based on the pleadings and the evidence presented in this proceeding, I fmd that the Employer has been at all times material an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION Based on the pleadings and the evidence presented in this proceeding, I find that the Union has been at all times material a labor organization within the meaning of Section 2(5) of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES A. Certain Facts Established in the Pleadings The following paragraphs quoted from the General Counsel's complaint were among the allegations that were admitted to be true in the pleadings as amended at the hearing in this proceeding: 3. (a) At all times material herein Ribeiro Corpo- ration, herein called Ribeiro has been a general con- tractor in the building and construction industry. (b) At all times material herein Ribeiro has been engaged in the construction of airplane hangars at a jobsite located from 145 through 185 East Reno, Las Vegas, Nevada, herein called the Quail Air job- site. (c) At all times material Ribeiro subcontracted steel erection business for the Quail Air jobsite to the Employer Chris Crane Company. 4. (b) The Employer and Ribeiro are now and have been at all times material herein persons en- gaged in commerce or an industry affecting com- merce within the meaning of Section 8(b)(4) of the Act. . . . . 6. At all times material herein Respondent has been engaged in a labor dispute with the Employer. 7. At no time material herein has Respondent been engaged in a labor dispute with Ribeiro, or any other person, except the Employer, at the Quail Air jobsite. 8. On about September 5, 1986, Ribeiro estab- lished a reserve-gate system for the three entrances to the Quail Air jobsite as follows: (a) at two of the entrances, herein designated neutral gates, Ribeiro erected signs which read as follows: 720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NEUTRAL GATE STOP READ THIS BEFORE ENTERING This Entryway Reserved For The EXCLUSIVE USE OF ALL Persons Other Than The Employees and Suppliers of CHRIS CRANE COMPANY. CHRIS CRANE COMPANY EMPLOYEES AND SUPPLIERS MUST Only Enter Jobsite Through Reserve Gate Located At The Northeast Corner of Reno Avenue and Haven. (b) at the third entrance, herein designated the primary gate, Ribeiro erected a sign which read as _ follows: RESERVE GATE STOP READ THIS BEFORE ENTERING This Entryway Reserved For the EXCLUSIVE USE Of Employees and Suppliers of CHRIS CRANE COMPANY All Others Must Use NEUTRAL Entryway Located 200 FEET and 400 FEET EAST on Reno Avenue B. Certain Facts Established at the Hearing The fmdings of fact in this section are based on cred- ited portions of the testimony of the eight witnesses who testified at the hearing; on documentary evidence intro- duced by the parties at the hearing; and on stipulations of fact entered into by the parties. In making credibility resolutions, I have considered primarily the demeanor of the witnesses as they testified at the hearing. I also have considered the witnesses' perception, the witnesses' memory, and the witnesses' ability to relate past events accurately. In addition, I have considered the consisten- cy of the witnesses' versions of the events, and the prob- ability of the testimony given by the witnesses. In alphabetical order by their last names, the eight wit- nesses who testified at the hearing were: Raul Acevedo, who is an employee of the Employer; Danny Alverson, who was a picket at the jobsite in question; Grant Cox, who is the senior partner of the Employer; Oscar Cur- nutte, who was a picket captain for the Union at the job- site; Max Price, who is the business agent of the Union; Randy L. Stewart, who is an estimator and project man- ager of the steel erection portion of the Employer's busi- ness; James D. Trubee, who is the construction coordina- tor for the Ribeiro Corporation for the States of Nevada and Arizona; and Glen West, who is an employee of the Employer. Grant Cox has been the senior partner in the Chris Crane Company for the past 10 years. The other partners are Michael Allord, Orlando Langford, and Richard Wood.' Ribeiro Corporation supplied the structural steel and the decking to the Employer for the use of the Employ- er's employees at the Quail Air jobsite. The structural steel and the decking were delivered directly to the Ri- 1 The foregoing findings are based on credited portions of the testimo- ny of Cox. beiro Corporation and not to the Employer. St. George Steel Company fabricated the structural steel that was used at the jobsite. The structural steel and the decking were delivered in two or three vehicles to the jobsite on more than one occasion. Except for some miscellaneous items and the decking, all the structural steel was deliv- ered to the jobsite before Friday, 5 September 1986. Unless the Employer's employees had a crane at the job- site, forklifts were used to unload the structural steel and the decking from the vehicles. Sometimes Ribeiro Cor- poration employees unloaded the steel with forklifts that belonged to the Ribeiro Corporation. Sometimes employ- ees of the Employer borrowed a forklift from the Ri- beiro Corporation to unload those items. Randy Stewart did not believe that the Employer paid the Ribeiro Cor- poration for the use of the forklifts that belonged to the Ribeiro Corporation. Stewart said that the Employer did not pay the Ribeiro Corporation for unloading the steel and decking, which was performed by the employees of the Ribeiro Corporation. The Employer's contract with the Ribeiro Corporation included provisions that the Employer would erect the steel and place the decking on the top of the structural steel, as well as perform miscel- laneous ironwork at the jobsite. On Saturday, 6 September 1986, the Employer had a crane at the jobsite, and the material used by the Em- ployer's employees was unloaded by a crane belonging to the Employer. Four of the Employer's employees in- stalled some beams and torqued some bolts for 6 to 6-1/2 hours on Saturday, 6 September 1986. Those employees of the Employer were: Jim Brown, Eddie Phillips, Dave Snedden, and Glen West. No structural steel or decking arrived at the jobsite on Monday, 8 September or Tuesday, 9 September 1986. The next shipment of materials to the jobsite occurred on Wednesday, 10 September 1986. That shipment in- volved some miscellaneous plates and angle iron from the St. George Steel Company.2 According to Danny Alverson, the Union began pick- eting at the jobsite on Tuesday, 2 September 1986. Al- verson picketed for the Union exclusively at the reserve gate for use by the Employer's employees and suppliers until about a week later when he picketed at the neutral gate. During the time that Alverson picketed at the job- site from 2 to 5 September 1986, Alverson saw a person who Alverson believed to be a Mexican man at the job- site every day that week.' Stewart was told that the reserve gate system at the jobsite would be set up by the Ribeiro Corporation by late Friday evening, 5 September 1986. 4 On that same date Stewart assembled the Employer's employees and told them that they would lose their jobs if they used the neutral gate at the jobsite.5 2 The findings m the foregoing paragraphs are based on credited por- tions of the testimony of Stewart. 3 The foregoing findings are based on credited portions of the testimo- ny of Alverson 4, The foregoing is based on a credited portion of the testimony of Stewart. 5 The foregoing is based on a credited portion of the testimony of Ace- vedo. IRON WORKERS LOCAL 433 (CHRIS CRANE) 721 As the construction coordinator for the Ribeiro Cor- poration for the States of Nevada and Arizona, James D. Trubee negotiates contracts for the Ribeiro Corporation, and Trubee executes contracts with subcontractors and with suppliers. In addition, Trubee is responsible for ex- pediting the job for the Ribeiro Corporation to a full completion. During the early part of September 1986, the Ribeiro Corporation had about five to seven subcon- tractors working at the Quail Air jobsite. Those subcon- tractors were: Chris Crane Company, Wells Cargo, Quality Air, Dean Roofing, Burns Concrete, Central Grading, and others who Trubee did not name. The Ri- beiro Corporation has a collective-bargaining agreement with the Carpenters Union, and carpenters were em- ployed by the Ribeiro Corporation at the jobsite. Trubee estimated at the hearing that there were between 24 and 30 employees at the jobsite on 8 and 9 September 1986.6 The employees of the Employer did not wear any- thing that identified them as being employees of the Chris Crane Company. On 8 or 9 September 1986 the Employer had seven employees in the steel erection divi- sion of the Employer. Three of those seven employees were at the jobsite in question. They were Raul Ace- vedo, who is a certified welder; Eddie Sodergren, who is an ironworker; and Glen West, who was an ironworker and who was in training to be a foreman at that time. Other employees of the Employer in the steel erection division of the Employer at that time were: James Brown, who is a certified welder and who also per- formed steel erection work and miscellaneous ironwork; Kevin Palmer, who is an ironworker; Eddie Phillips, who works as an ironworker or as a laborer for steel erection; and David Snedden, who is a general foreman. Some of the Employer's employees on 8 or 9 September 1986 were working at other jobsites. Some of them were at a jobsite of Kidd and Company for Carson Construc- tion. Brown was working at that time at a jobsite for the Desert Springs Hospital for a general contractor, McDe- vitt and Street.7 During the times relevant, Cox drove a 1986 red and light tan Ford pickup truck. That vehicle had a State of Utah registration. The license number was 405 2AA.8 Stewart drove a brown and beige pickup truck at that time. The license number was 242 BTZ,. Stewart also de- scribed various other vehicles driven by employees of the Employer. Fallsgraf drove a white pickup truck at that time. Stewart described it as being an older model International truck with searchlights attached to that ve- hicle. Wood sometimes drove a Blazer vehicle with some brown paint on it. Most of the time, however, Wood was brought to work by his wife. Allord drove a small white Volkswagen Beetle. Stewart said that Allord drove that vehicle to the Employer's yard where Allord obtained a crane and drove the crane to ihe jobsite. Stewart ex- plained that the foregoing was the practice of all the crane drivers of the Company. He said the crane drivers did not drive their own vehicles to a jobsite. Stewart de- 6 The foregoing findings are based on credited portions of the testimo- ny of Trubee 7 The foregoing findings are based on credited portions of the testimo- ny of Stewart. 8 The foregoing is based on a credited portion of the testimony of Cox scribed Langford's vehicle as being a small yellow and brown sedan. Stewart believed it was a Chevette. Calen Nelson is a secretary of the Employer. Stewart said that she drove a red Nissan, but that Nelson did not go to the Employer's jobsites. Stewart said that Brown drove a small sedan automobile. He said that Snedden drove a red and silver pickup truck. Stewart believed that Sned- den's truck was registered in Nevada. Acevedo drove a yellow 1972 Toyota car. Phillips and Sodergren rode motorcycles. Stewart did not believe that Palmer had a vehicle at that time. Stewart believed that Palmer usually came to work with Snedden. West had a green GMC pickup truck at that time. It had a Nevada license number 078 BTZ.6 On Monday, 8 September 1986, three employees of the Employer were working on the jobsite. They were Raul Acevedo, Eddie Sodergren, and Glen West.10 Glen West drove his green GMC pickup truck to work on Monday, 8 September 1986. West arrived at the jobsite at approximately 6:15 a.m. He entered the jobsite through the reserve gate. West did not leave the jobsite that day until approximately 3:45 p.m. He left the jobsite at that time through the reserve gate. Within West's knowledge, no one else used his vehicle that day." Tom Fitz acted as an observer for the Union at the neutral gate nearest the office at the jobsite. As part of his duties as a union observer that day, Fitz made a report to Picket Captain Curnutte of what Fitz had ob- served. According to Curnutte, Fitz reported that a green truck had entered the jobsite through the neutral gate near the office. Curnutte acknowledged at the hear- ing that he personally had not observed the green truck either go in or out of the neutral gate on Monday, 8 Sep- tember 1986. Curnutte testified, however, that he did see a green truck leave the reserve gate that afternoon. As a result, Curnutte reported to Max Price, the business agent of the Union, that a green truck had entered the jobsite through the neutral office gate, and that the green truck had left the jobsite through the reserve gate." 9 The foregoing findings are based on credited portions of the testimo- ny of Stewart, Acevedo, and West. " Supra, fn. 9. 11 The foregoing findings are based on credited portions of the testi- mony of West. Oscar Curnutte, who was the Union's picket captain at the jobsite on Monday, 8 September 1986, stated that he observed a green GMC or Chevy truck leave the jobsite through the reserve gate sometime between 3 30 and 4 .30 p.m. Danny Alverson, who was picket- ing at the reserve gate on Monday, 8 September 1986, stated that he saw a green GMC or Chevy pickup truck leave the jobsite through the re- serve gate, but Alverson asserted that the vehicle left the jobsite during the morning either between 8 .30 and 9 a.rn or between 10 and 10:30 a.m. Alverson said that he did not see the vehicle return to the jobsite that day Based on the credibility criteria previously referred to, I have cred- ited West's version rather than the different account given by Alverson 12 The foregoing is based on credited portions of the testimony of Cur- nutte. Tom Fitz did not testify at the hearing in this proceeding The written report, winch he gave to Curnutte was not produced at the hear- ing. I reserved ruling on the General Counsel's motion to strike a portion of Curnutte's testimony on the basis that such testimony was hearsay (see Tr. 142-144). Curnutte acknowledged that he personally did not observe the green truck enter the project through the neutral gate on 8 Septem- ber 1986 Instead, Curnutte relied on the report given to him that after- noon by union observer Fitz. In these circumstances, I have decided to Continued 722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Raul Acevedo drove his yellow 1972 Toyota automo- bile to the jobsite on Monday, 8 September 1986. Ace- vedo arrived at the jobsite about 6:45 a.m., and he en- tered the jobsite through the gate reserved for the Em- ployer. Acevedo did not leave the jobsite that day until about 3:30 or 3:35 p.m., when he left the jobsite in his car through the reserve gate. There were no passengers in his car either when he entered the jobsite that day, or when he left the jobsite that day. Acevedo denied that on 8 September 1986 he went in or out of either one of the neutral gates at the jobsite. Acevedo said that he was from El Salvador. Acevedo also said that he was the only Latin person who was working for the Employer at that time. Acevedo did not remember riding in or out of the jobsite in the back of an El Camino or El Rancho type of vehicle at anytime at the jobsite." Late Monday afternoon on, 8 September 1986, Busi- ness Agent Max Price had a conversation at the union hall with some of the persons who had been at the job- site earlier that day. Those persons included Curnutte, Tom Fitz, Danny Alverson, and Jim Taylor. Price said that he received information from them that the neutral gate at the jobsite had been tainted that day. As a result of the foregoing, Price sent a Western Union mailgram to the Ribeiro Company. Respondent's Exhibit 2 is a copy of the mailgram that Price sent on 8 September 1986. The text of the mailgram stated: Please be advised neutral gate was Nainted at 1:12 p.m. Monday, Sept. 8th 1986 by light green Chevy pickup license #BL4436 remained on job until 4:35 p.m. at which time vehicle exited neutral gate. All vendors and suppliers of Chris Crane are to enter and exit through primary gate established by Ribeiro Construction. Price instructed the picket captain and the two or three other persons who were in the union office that Monday evening to begin picketing the neutral gates at the jobsite on Tuesday morning. Price testified that the reason he told the men to picket the neutral gates on Tuesday was because Price believed that there had been receive that portion of Curnutte's testimony not for the truth of the matter asserted by the out-of-court declarant, Fitz. (See Fed.R Evid. 801.) Thus, that portion of Curnutte's testimony would not be hearsay. Nevertheless, that portion of his testimony is still admissible even though it does not establish the truth of the matter asserted by Fitz. The reason is that portion of Curnutte's testimony explains Curnutte's subsequent action that day in making Curnutte's report to Business Agent Price. In view of the foregoing, I deny the General Counsel's motion to strike. ii The foregoing findings are based on credited portions of the testi- mony of Acevedo. Based on the credibility criteria previously mentioned, I have accepted Acevedo's account as set forth above I have considered the different testimony given by picket Danny Alverson. In Alverson's version, Alverson saw what he thought was a young Mexican man who worked for the Employer, and who was lying in the back of a yellow El Camino or El Rancho pickup truck. Alverson's version was that that ve- hicle left the jobsite around 3:30 or 4 p m on Monday, 8 September 1986 through a neutral gate at the jobsite hi Alverson's version, Alverson probably told picket captain Curnutte: "I observed a young Mexican man leaving in an El Camino, and I think it may have been the guy that works for Chris Crane." As indicated above, I have credited Acevedo's version, and I find that the person whom Alverson saw was not Ace- vedo. taint of the neutral gate sometime on Monday, 8 Septem- ber 1986." On Tuesday, 9 September 1986, the Union began pick- eting at the two neutral gates at the jobsite. General Counsel's Exhibits 2(a), (b), and (c) are photographs that depict the Union's picketing at the main neutral gate at the jobsite. General Coirisel's Exhibits 3(a) and (b) are photographs that depict the Union's picketing at the neu- tral gate nearest the Ribeiro office at the jobsite. Re- spondent's Exhibit 1 is another photograph of what was referred to at the hearing as the office neutral gate. The neutral gates were about 300 feet apart." Early Tuesday morning, 9 September 1986, Construc- tion Coordinator Trubee telephoned Attorney Greg Kamer, who is the attorney for the Ribeiro Corporation in labor relations matters. Trubee telephoned Attorney Kamer because Trubee had observed union pickets at the neutral gates at the jobsite. Trubee also had received that morning the mailgram from Union Business Agent Price. On the basis of that mailgram, Trubee formed a belief that there had been a taint of the neutral gate the previ- ous day." About 7:15 or 7:30 a.m. on Tuesday, 9 September 1986, Business Agent Price received a telephone call from Attorney Kamer. Price was in his office at the union hall at the time the telephone call was received. At the hearing Price said that it was his understanding that Attorney Kamer was at Kamer's residence, but Price did not know for sure. Price also stated that it was his under- standing that Attorney Kamer was going to visit the job- site, and that within Price's knowledge, Attorney Kamer had not been to the jobsite that morning at the time of their telephone conversation. During their telephone conversation that morning, At- torney Kamer told Price that he had received a telegram from Price regarding the tainting of the neutral gate. Price then told Attorney Kamer that the Union was put- ting up a picket line on the neutral gate because of the taint that had occurred on Monday. Attorney Kamer ac- knowledged to Price that there had been a tainting of the neutral gate on Monday. Attorney Kamer told Price that he wanted to know how he could get the picket line off. Price told Attorney Kamer that, if the Union received something that confirmed that there had been a tainting of the gate, the Union would remove the picket line. At- torney Kamer then told Price that he would put that in writing.17 Grant Cox contacted Randy Stewart on the radio in Stewart's vehicle on Tuesday morning, 9 September 1986. Cox told Stewart that Ribeiro had informed Cox that there had been some taint at the jobsite. Cox in- structed Stewart to go to the jobsite. Stewart arrived at the jobsite sometime between 7 and 7:30 a.m. Stewart i4 The findings in the foregoing paragraphs are based on the credited portions of the testimony of Price and documentary evidence. 16 The foregoing findings are based on stipulations by the parties and on documentary evidence. 16 The foregoing findings are based on credited portions of the testi- mony of Trubee. 17 The foregoing findings are based on credited portions of the testi- mony of Price. Attorney Kamer did not testify at the hearing in this pro- ceeding IRON WORKERS LOCAL 433 (CHRIS CRANE) , result, Price removed the Union's pickets from the neu- tral gates at the jobsite." observed that picketing was taking place at the neutral gate at that time. Stewart also observed union pickets at the reserve gate. Stewart spoke with the Union's picket captain who instructed Stewart to speak to one of the pickets. Stewart did so. The picket told Stewart that a green Chevrolet pickup truck with a certain license plate number had gone through the neutral gate. Stewart wrote down the license number, but he did not state what the number was at the hearing. The unidentified picket also told Stewart that there was another vehicle in question. The picket told Stewart that someone else had told the picket that one of the Employer's employees had been in the back of an El Camino that had crossed the neutral gate. Stewart then informed Cox either over the radio or by telephone that one of the pickets had claimed that a green Chevy pickup truck had gone through a neutral gate. On Tuesday, 9 September 1986, the Employer had three employees at the jobsite until approximately 9 a.m., when an additional three employees came to work at the jobsite. Stewart said that there was some erection of steel on Tuesday, 9 September 1986, and that a crane was re- quired for that work. One of the Employer's crane driv- ers drove a crane to the jobsite for that purpose. No decking was laid that day at the jobsite. The last time that Stewart observed any picketing at the neutral gates was between 12 noon and 1 p.m. The parties stipulated that the Union's pickets with the Union's picket signs were at the neutral gates at the job- site when Stewart saw them between 12 noon and 1 Respondent's Exhibit 3 is a copy of a Western Union telegram from Attorney Kamer to Business Agent Price. The telegram is dated 9 September 1986, and indicates that it was transmitted at 3:12 p.m. Eastern Standard Time. The text of the telegram stated: Please be advised that on 9--9--86 some taint of the dual gate system inadvertently occurred. This is to advise that the suppliers and employees involved have been notified and cautioned that Ribeiro will not tolerate such conduct. Your cooperation is appreciated in this matter. Please advise the undersigned immediately if any further violations occur. The foregoing findings are based on documentary evi- dence. I find that the reference in the text of the tele- gram to the taint as having occurred on 9 September 1986 to be an inadvertent error in the telegram. The ear- lier telephone conversation between Price and Attorney Kamer makes it clear that both of them were referring to the previous day. Price received the telegram from Attorney Kamer, re- ferred to above, that same Tuesday afternoon. As a 13 The findings in the foregomg paragraphs are based on credited por- tions of the testimony of Stewart and Cox as well as the stipulation indi- cated. Cox said that he was at the jobsite on several occasions that day, and he believed the last time that he saw the pickets at the neutral gates was sometime between 1 and 2-30 p.m. Based on the credibility critena mentioned previously, I have accepted Stewart's version and the parties' stipulation as being more accurate 723 C. Conclusions Based on the findings of fact set forth above, I con- clude that the evidence shows that there was, in fact, no taint of the neutral gates at the jobsite on Monday, 8 September 1986, by the events that occurred on that day. I further conclude that the evidence shows that Union Business Agent Price acted under the mistaken belief that the neutral gates had been tainted when he made the decision to have the Union picket those neutral gates commencing on Tuesday, 9 September 1986. The evi- dence shows that Price's mistaken belief resulted from in- accurate reports from the Union's observers and pickets at the jobsite. Nevertheless, although I have found that no taint actually occurred on 8 September 1986, Attor- ney Kamer acknowledged to Price early Tuesday morn- ing, 9 September 1986, in their telephone conversation, that some taint had occurred the previous day. Thus, I conclude that Price's mistaken belief that the neutral gates had been tainted was reinforced by the admission to him by Attorney Kamer. After Price received a tele- gram to that effect from Attorney Kamer that afternoon, Price had the picketing stopped. Thus, I conclude that the evidence shows that the picketing lasted for less than one working day, and that the picketing ended on the Union's receipt of the written acknowledgment of the taint and the assurance that Ribeiro Corporation would not tolerate such tainting at the jobsite. The Respondent urges that, even without determining the foregoing matters, the Union was, in fact, privileged to picket the neutral gates on 9 September 1986 because Ribeiro Corporation was the supplier of structural steel and decking to Chris Crane Company at the jobsite. The Respondent points to the undisputed testimony of Esti- mator and Project Manager Stewart to that effect. The evidence shows that such materials had been delivered to the jobsite prior to 9 September 1986. In addition, the evidence shows that sometimes Ribeiro Corporation em- ployees performed some of the unloading of steel and decking for employees of Chris Crane Company, and that sometimes employees of Chris Crane Company bor- rowed forklifts that belonged to Ribeiro Corporation in order to perform those tasks. In its decision in Operating Engineers Local 450 (Lin- beck Construction), 219 NLRB 997 (1975), the Board held: We agree with the Administrative Law Judge that Respondent's picketing near the Linbeck gate from June 24 through June 26, 1974, did not violate Section 8(b)(4)(i) and (ii)(B) of the Act inasmuch as there was evidence that Linbeck was bringing in materials through the Linbeck gate for Luckie's use during this period. In our view, it makes no differ- ence that Linbeck was the legal owner of these ma- terials. What is important is that, in bringing in such '9 The foregomg findings are based on credited portions of the testi- mony of Price. 724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD materials, Linbeck was acting as a supplier of Luckie and was therefore required to use the same reserve gate as any other supplier of Luckie—that which had been set aside and reserved for Luckie. By failing to do so and by delivering the materials instead through the Linbeck gate, Linbeck subject- ed itself to the same pressures by the Union that the Union could use against any supplier of the pri- mary. In agreeing with the Board's decision, the Fifth Circuit held in its opinion in Linbeck Construction Corp. v. NLRB, 550 F.2d 311, 317-318 (5th Cir. 1977): The question in this case is whether legal ownership by a neutral employer of the materials to be used by the primary employer in its normal course of busi- ness removes the delivery of these materials from its traditional role as an activity subject to picketing by those who so demonstrate against the primary em- ployer. We agree with the Administrative Law Judge and the Board that the controlling question is not who has title to the goods, but is for whose use are they intended. Thus, any gate used to deliver materials essential to the primary employer's normal operations is subject to lawful picketing. If we were to adopt Linbeck's reasoning, general contractors throughout the construction industry could stop a "traditional goal of primary pressure"—halting the operations of the primary employer through the in- fluence of a picket line on those suppliers who con- tribute thereto—by the simple expedient of retaining legal title to all materials to be used by the subcon- tractors. In its decision in Electrical Workers IBEW Local 323 (J. E Hoff Electric), 241 NLRB 694 fn. 1 (1979), the Board held: In finding that the neutrality of the reserved neu- tral gate had been breached and hence that Re- spondent Union could lawfully picket that gate, the Administrative Law Judge relied on our decision in International Union of Operating Engineers, Local Union No. 450, AFL-CIO (Linbeck Construction' Corporation), 219 NLRB 997 (1975). There, the Board held that a general contractor who acted as a supplier of a struck subcontractor was required to use the same reserved gate as any other supplier of the struck employer even though the general con- tractor held title to the supplies so delivered. The general contractor's failure in Linbeck to do so and its bringing materials in through the supposedly neutral gate tainted that gate and allowed the pick- eting there. Our dissenting colleague's effort to dis- tinguish Linbeck from the instant case, predicated on the contention that the supplies delivered in Lin- beck through the neutral gate (crushed stone) were "raw material," but the material moved through the neutral gate here (electrical fixtures) is a fmished product and, according to our colleague, not "mate- rials used" by Hoff in its work, is patently unsuc- cessful. As the court of appeals pointed out in en- forcing the Board's order in Linbeck, "any gate used to deliver materials essential to the primary employer's normal operations is subject to lawful picketing." [Emphasis added.] 550 F.2d 311, 318 (5th Cir. 1977). The contention that delivery of electrical fixtures is not "essential" to the operations of an electrical contractor charged, as here, with in- stallation of an electrical system for a general con- tractor is a contention that falls of its own weight, and the rationale of the Board's decision in Linbeck is fully applicable here in dismissing the instant complaint. The D.C. Circuit affirmed the Board's dismissal of the unfair labor practice complaint. J. F. Hoff Electric Co. v. NLRB, 642 F.2d 1266 (D.C. Cir. 1980). The Board adopted the recommendation of the admin- istrative law judge to dismiss the complaint in Electrical Workers IBEW Local 211 (Atlantic County Authority), 277 NLRB 1041, 1044 (1985). In part, the administrative law judge held: As long as the Moore Drydock limitations are met, a union may legitimately picket at a common situs in such a way that all employees, suppliers, and cus- tomers of the primary employer are reached by the pickets; neutral employers may insulate themselves from the picketing only if the reserved gate practice is faithfully observed. J. F. Hoff Electric Co. v. NLRB, supra. An analysis of the relationship of Jaden to the standby generator must be made to de- termine whether or not the provider of the genera- tor is a "supplier" to whom union pickets may le- gitimately appeal. Legal title to the generator at this juncture is not determinative of this issue. Operating Engineers Local 450 (Lin beck Construction), 219 NLRB 997 (1975). The issue is resolved by inquir- ing whether the generator was essential to the pri- mary employer's normal operations. If that is re- solved in the affirmative, the delivery of such an item through a neutral gate is a violation of the neu- trality of that gate and makes the locale subject to lawful picketing by the Union. After considering the rationale and the holdings in the foregoing cases, I conclude that those decisions are ap- plicable to the instant case. The testimony of Stewart on this point, as summarized above, is undisputed. Further, I conclude that the structural steel and decking materials were essential to the performance of work at the jobsite by the Chris Crane Company employees. The General Counsel correctly points out that the reason given for the picketing as stated in the Union's mailgram did not mention anything about Ribeiro being a supplier of Chris Crane Company. The General Counsel further urges that Price was unaware on 8 and 9 September 1986 of the foregoing matter. Nevertheless, I conclude that Ribeiro Corporation was, in fact, the supplier of structural steel and decking to Chris Crane Company prior to the time of the Union's picketing, and thus the Union was privi- leged, on 9 September 1986 to picket the neutral gates used by Ribeiro Corporation. In view of the foregoing, I IRON WORKERS LOCAL 433 (CHRIS CRANE) 725 conclude that the Union's picketing on 9 September 1986 at the jobsite did not violate Section 8(b)(4)(i) and (ii)(B) of the Act. CONCLUSIONS OF LAW 1. The Employer has been at all times material an em- ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Employer and Ribeiro Corporation have been at all times material persons engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4) of the Act. 3. The Union has been at all times material a labor or- ganization within the meaning of Section 2(5) of the Act. 4. The Union has not engaged in the unfair labor prac- tices alleged in the General Counsel's complaint in this proceeding. [Recommended Order for dismissal omitted from pub- lication.]