Carpenters Local 33, A/W United Brotherhood Of Carpenters And Joiners Of America, Afl-Cio

528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Carpenters Local 33, a/w United Brotherhood of Carpenters and Joiners of America, AFL-CIO and CB Construction Co., Inc. Case 1-CC-2153 June 30, 1988 DECISION AND ORDER By MEMBERS JOHANSEN, BABSON, AND CRACRAFT On September 1, 1987, Administrative Law Judge George F. Mclnerny issued the attached de- cision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an an- swering 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, I and conclusions only to the extent consistent with this Decision and Order. The judge found that the primary gate set aside for the Union under a reserve gate system was ef- fectively hidden from the view of the general public and was so remotely and inconveniently lo- cated as to substantially impair the effectiveness of the Union's picketing, calculated to reach the pri- mary employer's suppliers, visitors, and the general public. The judge concluded that the Respondent Union's picketing at the neutral gate, therefore, was privileged and did not violate Section 8(b)(4)(i) and (ii)(B) of the Act. We disagree. CB Construction Co., Inc., the Charging Party and the primary employer in the Respondent Union's area standards labor dispute, is a nonunion subcontractor performing renovation work at 262- 266 Summer Street, Boston, Massachusetts. The building at 262-266 Summer Street is owned by the 262 Summer Street Realty Trust (Trust). William and Gary Vanderweil, general partners in the Trust, are also the principals of R. G. Vanderweil Engineers, Inc. (RGVE). RGVE moved into the premises at 262-266 Summer Street about March 3, 1987. RGVE and the Trust are secondary or neu- tral employers in this dispute. The Respondent Union picketed the 262-266 Summer Street building from about October 20, 1986, until enjoined by the Federal district court on January 28, 1987, with signs stating: 1 In fn 3 of his decision, the judge stated that the Federal district court injunction in Case 1-CC-2144 was issued on February 28, 1987 The correct date is January 28, 1987 The General Counsel's request for a visitatonal remedy is denied See Cherokee Marine Terminal, 287 NLRB 1080 (1988) R. G. VANDERWEIL The owner of 266 Summer Street IS USING A SCAB Construction Company Carpenters Local No. 33, AFL-CIO On March 12, 1987, Administrative Law Judge Marion C. Ladwig issued his decision and recom- mended Order in Case 1-CC-2144 finding that this picketing, which unlawfully named Vanderweil, the neutral employer, as the object of the Respond- ent's picketing, violated Section 8(b)(4)(i) and (ii)(B) of the Act.2 On February 3, 1987, the Respondent Union re- sumed picketing at 262-266 Summer Street with signs stating: CB CONSTRUCTION IS A SCAB Contractor Who Does Not Conform to Area Standards Established by Carpenters Local No. 33, AFL-CIO This sign is not for organizational or recognitional purposes. On February 12, 1987, the Federal district court clarified its order to permit such lawful picketing at 262-266 Summer Street. On March 4, 1987, RGVE and the Trust estab- lished a reserved gate system at the site. The main entrance to the building at 266 Summer Street was established and reserved for the use of employees and suppliers of all persons except the employees, suppliers, and visitors of the primary employer.3 This entrance was designated "Gate B." A gate was established in the rear of the building for the use of employees, suppliers, and visitors of the pri- mary employer. The rear entrance was designated "Gate A." On March 4, 1987, the Trust notified the Re- spondent of the reserved gate system. On March 5, 2 The Respondent Union's picketing of RGVE officers at 38 Chauncy Street in Boston and the residence of Gary Vanderweil with signs bear- ing similar legends was also the subject of the Federal district court in- junction and Judge Ladwig 's decision in Case 1-CC-2144 No exceptions were filed to Judge Ladwig's decision , and on April 21 , 1987, the Board adopted his decision and recommended Order 8 This entrance is the only entrance on Summer Street that may be used by tenants to gain entry into the office space in the building The other two Summer Street entrances enter into the retail premises of a del- icatessen and a graphic arts equipment store, tenants of the building 289 NLRB No. 67 CARPENTERS LOCAL 33 (CB CONSTRUCTION) 1987, the Respondent advised the Trust, by tele- gram, that it would not honor the reserved gate system. Specifically, the Respondent stated: The gate established for CB Construction is in a back alley entirely out of view of the public. Since we are attempting to inform the public of this area's [sic] standard[s] dispute, it is not a valid dual gate system. After the establishment of the primary gate at the rear of the building, the Respondent continued to picket at the Summer Street entrance. The instant charge was filed and an injunction issued.4 As described in the judge's decision, the building at 262-266 Summer Street, the locus of the dispute, is an eight-story brick loft building, which is one of a row of similar structures extending along Summer Street about 660 feet from Fort Point Channel to an overpass over a street called A Street. This row of buildings is unbroken by any opening or passageway between the structures. At the channel end there is a wooden walkway ex- tending along the channel to a 25-foot-wide pas- sageway at the rear of the row of buildings. The structure adjacent to 262-266 Summer Street, 268- 272 Summer Street, juts out 40 feet beyond the rear entrance of the locus forming a jog in the pas- sageway. This jog in the passageway extends from the locus to a 30-foot-wide road designated as "Sleeper Street" on one of the plans submitted into evidence. Sleeper Street extends from the rear pas- sageway to a public thoroughfare called Congress Street. Congress Street and the rear passageway run parallel to one another and Sleeper Street con- nects them. A building backs up to the passageway in the rear of the 262-266 Summer Street structure on one side of Sleeper Street. Across from this building, on the opposite side of Sleeper Street, is a short-term public parking lot used by people who work in the Summer Street buildings, their custom- ers, and other members of the public. The judge credited William Vanderweil's testi- mony that the elevator serving the Summer Street entrance to the building is small and unsuitable for the conveyance of construction materials needed for renovation of the upper floors of the building. The judge further credited Vanderweil's testimony that there is only one rear entrance to the premises at the level of the passageway, which is used by Vanderweil's employees, other building tenants, the Charging Party's employees, and others making de- 4 The record indicates that an injunction was issued by the Honorable William G Young, United States district judge for the district of Massa- chusetts on March 25, 1987, barring picketing by the Union other than at the gate reserved for the exclusive use of CB Construction Co, Inc, its employees, suppliers, and visitors 529 liveries or performing work inside the premises. The rear entrance provides access to a freight ele- vator that is substantially larger than the elevator at the Summer Street entrance. The record indi- cates that the entrance designated as the primary reserved gate has always been used by CB Con- struction, its employees, and suppliers since the in- ception of its work at 262-266 Summer Street be- cause the entrance provides easier access for trucks and workmen carrying supplies. Tradesmen are no- tified by a sign posted at the Summer Street en- trance that all deliveries are to be made at the rear of the building. The judge concluded that the primary reserved gate is so well hidden from the view of the general public and is so remotely located that restriction of the Respondent Union's picket patrol to the pri- mary gate would substantially impair any lawful picketing's effectiveness. Based on photographs of the situs submitted by both parties, the judge deter- mined that the primary gate sign is scarcely visible to the general public because of its location behind iron window bars and parked cars in a shadowed alley. The judge further determined that members of the public would not be likely to see any pickets patrolling the primary gate entrance or be able to read or comprehend the message on the picket signs. It is well established that although picketing at locations other than a properly marked primary gate in common situs disputes may indicate non- compliance with Moore Dry Dock standards, s this is not so where observance of the separate entrances established would substantially impair the effective- ness of the picketing in reaching the primary em- ployees and suppliers. The General Counsel ex- cepts, inter alia, to the judge's factual determina- tion that the primary gate location substantially im- pairs the Union's ability effectively to convey its message to all within the legitimate direct appeal of its picket signs and asserts that by picketing the neutral reserved gate the Union engaged in unlaw- ful secondary activity. We find merit to the Gener- al Counsel's exceptions. In recommending dismissal of the complaint, the judge relied on the Board's decisions in Electrical Workers IBEW Local 453 (Southern Sun), 237 NLRB 829 (1978); Carpenters Local 354 (Sharp & Tatro), 268 NLRB 382 (1983); and Electrical Work- ers IBEW Local 501 (C. W. Pond Electric), 269 NLRB 274 (1984). Southern Sun is factually distinguishable from the present case. In Southern Sun the Board found that the union's picketing of the neutral gate did not 5 Sailors Union (Moore Dry Dock), 92 NLRB 547, 549 (1950) 530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD violate Section 8(b)(4)(i) and (ii)(B) of the Act be- cause the reserved gates were improperly estab- lished and restriction of picketing to the entrance reserved for the primary employer would unjustly impair the effectiveness of the union's lawful pick- eting to convey its message to Southern Sun per- sonnel, suppliers, visitors, and the general public. The Board's conclusion was based on the following circumstances: the gate sign for neutrals was placed approximately halfway between two entrances to the construction site; the reserve gate sign for the primary was located near a third entrance on a pri- vate alley that, although owned by the general contractor, could not be distinguished visually from the private parking lot of the adjacent store building; the reserved gate sign was barely visible from a public right-of-way; and the primary em- ployer had ignored the reserved gate. On these facts the Board determined that neither the primary nor neutral area was delineated in a manner to pro- vide reasonable assurances to the union that its message would be carried to all within the legiti- mate, direct appeal of its picket sign. In the present case, contrary to the discussion in footnotes 5 and 6 of the judge's decision, the evi- dence does not support a finding that the reserved gate system was breached by the primary employ- er's employees. Frank Donovan, the project man- ager for CB, testified on cross-examination in rele- vant part: Q. Isn't it true that your employees take their coffee break in the New York Deli? A. Occasionally in the beginning, yes. JUDGE MCINERNY: How about during the winter? THE WITNESS: During the winter-at a cer- tain point there were coffee machines made available to my employees inside the building. By Respondent's Attorney: Q. But even after the machines were made available, did they have occasion to go to the New York Deli for their coffee? A. I would say so. I'm not there all the time. Q. When they went to the New York Deli they would exit through the front door, isn't that correct? A. I have no immediate knowledge of that but I would say that's probably correct. Q. And they would go in the front of the door of the New York Deli on Summer Street? A. Yes. Q. They did this in the last month of March and April as well, isn't that true? A. No, I would say probably not. Q. Is your testimony none of your employ- ees went to New York Deli? A. No it isn't. Q. After March 1st. A. I don't know for a fact but I do know they for the most part were having coffee inside the building. Q. But on the occasions since March 4, when they went to the New York Deli for coffee, they went out the front door and in the front door of New York Deli? THE WITNESS: My employees were instruct- ed not to use the front door after the gate system was set up. JUDGE MCINERNY: But you don't know all the time- THE WITNESS: I can't say because I'm not there all the time. JUDGE MCINERNY: You don't know wheth- er they would have preferred to go to the New York Deli for a cup of coffee instead of buying it out of some machine. THE WITNESS: Some of the guys would more than likely rather get it free than pay for it.6 This testimony, which was the only testimony on the issue, does not establish that the reserved gate system was tainted. Also, in contrast to Southern Sun, the gates in the present case were clearly de- lineated. There is no evidence that the reserved gate signs were ambiguously phrased or lacked clarity such that the primary employer's workmen, suppliers, and visitors or those doing business with neutrals were confused or left without guidance.' The record discloses, rather, that the gates were clearly marked and there was strict compliance with the reserved gate system.8 In Pond, supra, the Board rejected the union's contention that the primary reserved gate was es- tablished improperly because it was located at the end of a dead end public road that was rarely used by the general public.9 The Board determined that 6 The reference to free coffee is to the coffee machines set up inside the building for CB employees 7 See Sharp & Tatra, 268 NLRB at 388 9 The Respondent Union contends that the pnmary gate sign was not "clearly marked" because it was not visible to members of the general public The visibility of the gate sign to the general public, however, is not relevant for purposes of determining whether the gate system was clearly delineated and maintained with respect to those utilizing the gate system ' The Board in Pond specifically rejected the contention that Southern Sun holds that a primary reserved gate on a public road is established improperly simply because there is little traffic by the general public at the primary reserved gate CARPENTERS LOCAL 33 (CB CONSTRUCTION) 531 the primary gate was clearly marked and main- tained, and thus the union was able to convey its message directly to the primary employer and its employees, visitors, suppliers, and the general public. On review before the U.S. Court of Ap- peals for the District of Columbia , the case was re- manded to the Board to determine whether the union could practically have placed its pickets at a location near the jobsite both reasonably exposed to public view and reasonably separated from the neutral gate.' 0 The court ruled that, when a gener- al contractor has established a reserved primary gate virtually hidden from public view, the Board cannot presume unlawful secondary intent from neutral gate picketing without considering whether the union had access to a reasonable alternative public location. Significant to the court's ruling was the fact that the parties had stipulated that the reserved primary gate was virtually hidden from all public view." In the present case, by contrast, the extent of public access to the primary reserved gate is the issue being disputed by the parties. In Sharp & Tatro, supra, the neutral reserved gate was located on open frontage of the construc- tion jobsite facing onto a city street. The primary reserved gate was located on a more remote corner of the jobsite and could be reached by traversing approximately 455 feet of a cul-de-sac driveway or public access road that merged into a public thor- oughfare designated "Welbum Avenue." The union had stationed picket patrols at both gates and near the junction of the public access road and Welbum Avenue. The union contended that its picketing of the neutral gate was privileged be- cause restriction of its patrols to either of the other locations would substantially impair the effective- ness of its lawful picketing . The union conceded that patrols stationed at either the primary gate or close to the intersection of the public access road and Welburn Avenue could effectively reach the primary employer's employees, direct suppliers, and visitors. The judge held there, with Board approval, that the record did not support the union's assertion that restriction of the picket patrols to either loca- tion would preclude meaningful communication of the picket line message to members of the general public. The judge determined that the primary gate was not so well hidden or so remotely located that restriction of the picket patrol to the gate's immedi- ate vicinity would substantially impair any lawful picketing's effectiveness. In so finding, he stated 10 Electrical Workers IBEW Local 501 v. NLRB, 756 F 2d 888 (D C. Cu 1985). that the fact that the pickets could reach only a limited public composed of tenants of nearby apart- ments, their visitors, and prospective customers or business callers who might park their cars on the public access road was not grounds for invalidating the gate system. Further, the fact that members of the general public might fail to notice or be unable to read the primary gate sign was found by the judge to be without significance. The judge stated that the union's argument that a labor organization cannot "effectively" picket a reserved primary gate at some con- struction jobsite unless members of the public can, without difficulty, discern a connection between that organization's picket sign mes- sages and some nearby, readily visible, project designated as the proclaimed dispute's particu- lar situs-lacks persuasive precedential sup- port.' 2 Consistent with Board precedent we find that the restriction of picketing in the instant case to the primary reserved gate's immediate vicinity would not substantially impair the effectiveness of the Re- spondent Union's lawful picketing. The intent of the law of common situs picketing is to balance the right of a labor organization to reach its intended audience with the right of neutral employers to be free of labor disputes that are not their own. The determination of where to locate the primary gate was limited in the subject case to two choices-the Summer Street entrance and the rear passageway entrance. Space limitations regarding the Summer Street entrance and front lobby elevator made use of that entrance by CB employees performing ren- ovation work infeasible . In addition, the rear en- trance had been utilized by the primary employer's employees prior to the establishment of the re- served gate system . Thus, the designation of the rear entrance reflects a choice that cannot be char- acterized as reflecting a calculated "bad faith" ploy specifically designed to render ineffective the Union's picketing.' 3 The evidence clearly demonstrates sufficient public use of the rear of the 250-268 Summer Street building to justify the designation of the pri- mary gate as an appropriate reserved gate. The record indicates the following public uses : pedestri- an traffic through the rear passageway from Con- gress Street to the boardwalk abutting the channel on through to Summer Street; pedestrian traffic from the public parking lot to the rear entrance of a restaurant located approximately 60 feet from the 11 See discussion at 756 F.2d at 896. We note that Pond was settled 12 268 NLRB at 390. prior to the Board's consideration on remand 13 Ibid. 532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD primary reserved gate; use of the rear entrance and public parking lot by employees14 and visitors of tenants of the building and by the primary employ- er, its employees, suppliers, and visitors; and use of the public parking lot by members of the general public. Tradesmen were instructed by a sign posted at the Summer Street entrance that all deliveries to building tenants were to be made at the rear en- trance. One of the building's tenants, CCSI, chose to locate its main customer entrance on the rear passageway. CCSI's door is located approximately 25 feet to the left of the primary gate. The gate sign is located between the primary gate entrance and CCSI's entrance. Thus, the primary reserved gate provided the Union with some access to the public and full access to the primary employer, its employees, suppliers, and visitors. We find without significance any contention that members of the general public might fail to notice or be unable to read the primary gate sign because of its location.15 We disagree with the judge's find- ing that members of the public would not be likely to see pickets moving around the rear entrance or be able to read the picket sign message because of shadows or obstructions in the alley. Photographs of the rear passageway illustrate that vehicular congestion and light conditions varied. Based on the evidence of public use of the passageway, in particular, the "limited public" composed of ten- ants, visitors, prospective customers, or business callers utilizing the rear passageway or adjacent public parking lot, we conclude that pickets sta- tioned in the immediate vicinity of the primary re- served gate could have effectively communicated their message. Although the primary gate location may not have been ideal, we note that Board precedent does not require primary reserved gate placements calculated to maximize a picket's chances to reach members of the public.16 Accordingly, under the circumstances of this case, we conclude that the Respondent Union's le- gitimate picket line objectives were effectively served without substantial impairment by the estab- lished primary reserved gate and we infer unlawful secondary intent from the Union's neutral gate picketing in violation of the secondary boycott provisions of the Act. 14 In addition to employees working in adjacent buildings, the rear en- trance to 262-266 Summer Street is used by some employees of RGVE, 20th Century Press, and Normon Harrow, Inc, which employ a total of approximately 140-150 employees ' 268 NLRB at 390 16 Ibid. CONCLUSIONS OF LAW 1. CB Construction Co., Inc. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) and Section 8(b)(4) of the Act. 2. Carpenters Local 33, a/w United Brotherhood of Carpenters and Joiners of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging individuals em- ployed by R. G. Vanderweil Engineers, Inc., 262 Summer Street Realty Trust, or by other persons engaged in commerce or in an industry affecting commerce to engage in a strike or refusal in the course of their employment to perform services, and by threatening, coercing, and restraining the above-named Employers, or other persons engaged in commerce or business operations affecting com- merce with an object of forcing or requiring the above-named persons to cease doing business with CB Construction Co., Inc., Carpenters Local 33, a/w United Brotherhood of Carpenters and Joiners of America, AFL-CIO has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent , Carpenters Local 33, a/w United Brotherhood of Carpenters and Joiners of America, AFL-CIO, has violated Section 8(b)(4)(i) and (ii)(B) of the Act, we shall order it to cease and desist and to take certain af- firmative action designed to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent, Carpenters Local 33, a/w United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Boston, Massachusetts, its officers, agents, and representatives, shall 1. Cease and desist from (a) Inducing or encouraging any individual em- ployed by R. G. Vanderweil Engineers , Inc., 262 Summer Street Realty Trust, or other persons en- gaged in commerce or in an industry affecting commerce to engage in a strike or refusal in the course of employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to per- form any services, where an object thereof is to force or require the above-named Employers, or any person engaged in commerce or in an industry affecting commerce, to cease using, selling, han- dling, transporting, or otherwise dealing in the CARPENTERS LOCAL 33 (CB CONSTRUCTION) products of, or to cease doing business with, CB Construction Co., Inc. (b) In any manner threatening, coercing, or re- straining R. G. Vanderweil Engineers, Inc., 262 Summer Street Realty Trust, or any other persons engaged in commerce or in an industry affecting commerce, where an object is to force or require the above-named Employers, or any other persons engaged in commerce to cease using, selling, han- dling, transporting, or otherwise dealing in the products of, or cease doing business with, CB Con- struction Co., Inc. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its office and meeting halls copies of the attached notice marked "Appendix." 17 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspic- uous 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) Deliver to the Regional Director for Region I signed copies of the notice in sufficient number for posting by the Employers, if willing, at all places where notices to employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. i7 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 " 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, nor will our officers, business representatives, business agents, or anyone acting for us, whatever his title may be, engage in or induce or encourage any individual employed by R. G. Vanderweil Engineers, Inc., 262 Summer Street Realty Trust, or any other person engaged 533 in commerce or in an industry affecting commerce to engage in a strike or a refusal in the course of employment to use, manufacture, process, trans- port, or otherwise, handle, or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require the above-named Employers, or any other person engaged in commerce or in an industry af- fecting commerce, to cease using, selling, handling, transporting, or otherwise dealing in the products of, or cease doing business with, CB Construction Co., Inc. WE WILL NOT threaten, coerce, or restrain R. G. Vanderweil Engineers, Inc., 262 Summer Street Realty Trust, or any other persons engaged in commerce or in an industry affecting commerce, when an object is to force or require the above- named Employers or any other persons engaged in commerce to cease using, selling , handling, trans- porting, or otherwise dealing in the products of, or cease doing business with, CB Construction Co., Inc. CARPENTERS LOCAL No. 33, A/W UNITED BROTHERHOOD OF CARPEN- TERS AND JOINERS OF AMERICA, AFL-CIO Carol Sax, Esq., for the General Counsel. Aaron Krakow, Esq. (Fienberg and Feld), of Boston, Mas- sachusetts, for the Respondent. DECISION GEORGE F. MCINERNY, Administrative Law Judge. Based on a charge filed on 9 March 1987 by CB Con- struction Co., Inc. (Charging Party), the Acting Region- al Director for Region 1 of the National Labor Relations Board (Regional Director and the Board) issued a com- plaint on 27 March 1987 alleging that Carpenters Local 33, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Respondent) had violated Section 8(b)(4)(i) and (ii)(B) of the National Re- lations Act (the Act). The Respondent Union filed a timely answer to the complaint, in which it denied the commission of any unfair labor practices. Pursuant to notice issued by the Regional Director, to- gether with the complaint, a hearing was held before me at Boston, Massachusetts, on 7 and 19 May 1987, at which hearing the General Counsel and Respondent were represented by counsel, and all parties had the op- portunity to present testimony and documentary evi- dence, to examine and cross-examine witnesses, and to argue orally. After the close of the hearing the General Counsel and Respondent filed briefs, which have been carefully reviewed. Based on the entire record in this case, including my observation of the witnesses and their demeanor, I make the following 534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION The parties stipulated that: (1) the charges were filed by the Charging Party on 9 March 1987, and that a copy was served on the Respondent; (2) at all times material, the Charging Party was a corporation with an office and place of business in West Roxbury, Massachusetts, where it is engaged in the construction business as a general contractor; (3) that during the calendar year ending 31 December 1986, the Charging Party purchased and re- ceived at its Massachusetts locations goods and materials valued at over $50,000 directly from points outside the Commonwealth of Massachusetts; and (4) that at all times material the Charging Party has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and I find, that the Respondent, Carpenters Local 33, a/w United Brotherhood of Car- penters and Joiners of America, AFL-CIO is a labor or- ganization within the meaning of Section 2(5) of the Act, that Robert M. Marshall is an organizer for the Union, and that Robert D. Marshall, the father of Robert M. Marshall, is a business agent for the Union. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Stipulated Facts The parties stipulated: (1) That 262 Summer Street Realty Trust has owned and operated an office building located at 262-266 Summer Street, Boston, Massachusetts, at all times mate- rial. (2) That the Charging Party has had a contract with 262 Summer Street Realty Trust to perform renovation work at 262-266 Summer Street at all times material. (3) That at all times material, the Respondent Union has been engaged in a labor dispute with the Charging Party, pursuant to which the Union commenced picket- ing about 3 February 1987 at 262-266 Summer Street, bearing signs stating C.B. Construction is SCAB CONTRACTOR Who does not conform to area standards established by Carpenters This sign is not for recognition or organizational purposes (4) That on or about 4 March 1987 a dual-gate system was established at the building. The entrance at 262-266 Summer Street was established and reserved for the use of employees and suppliers of all other persons except the employees, suppliers, and visitors of the Charging Party. A gate was established in the back of the building for the use of employees and suppliers of the Charging Party. (5) After the establishment of the dual-gate system on 4 March 1987, the Respondent continued to picket at the front of the building at the Summer Street entrance. B. The Locus of the Dispute The matters at issue here arise out of remodeling work being performed at an eight-story brick loft building lo- cated at 262-266 Summer Street in the city of Boston. The building is one of a row of similar structures located on a main street located just across a disused waterway called Fort Point Channel' from the downtown business district. This row is a solid line of buildings, extending along Summer Street about 660 feet from the channel to an overpass over a street called A Street unbroken by any opening or passageway between the structures. At the channel end there is a covered wooden walkway 5- 1/2 feet wide extending along the channel to an alley or passageway at the rear of the row of buildings. This latter passageway is 25 or 26 feet wide and extends the length of the block, terminating at the aforementioned A Street. Directly in back of 262-266 Summer Street there is a jog in the passageway, and there is another way, de- scribed on one of the plans submitted in evidence as being 30 feet wide, and on another as having the name Sleeper Street, extending from this locus to a thorough- fare called Congress Street. On one side of Sleeper Street there is a building that backs up to the passageway in the rear of our Locus. The other side is occupied by a parking lot used, according to the testimony of William Vanderwill, the managing partner of the 262-266 Summer Street building, as parking for people who work in the Summer Street buildings, their customers, and other members of the public. No one was able to state whether Sleeper Street or the rear passageway just described were public or private ways. However, a portion of Sleeper Street on the side adjacent to a building, and opposite the parking lot, ap- parently is reserved for parking for tenants of that build- ing, and photographs of the rear passageway show "no parking" signs at the rear of buildings abutting on that way. There are also dumpsters sitting in the passageway, apparently for the use of owners or tenants of the abut- ting buildings. The question of public or private owner- ship is not really an issue here, but I would assume that these passageways are privately owned, with permitted access by the public through from the walkway along the channel through to A Street, and along Sleeper Street to Congress Street. The plans submitted in evidence here indicate, and the photographs taken under the direction of the General Counsel and the Respondent show, that the portion of the rear passageway immediately adjacent to the rear en- trance of the locus is a dark, unpaved, area cluttered by dumpsters, delivery trucks, and service vehicles. One Described in the record as "four point" channel, or "4 point" chan- nel CARPENTERS LOCAL 33 (CB CONSTRUCTION) 535 building stands directly opposite the rear entrance, of the locus, and another, the adjacent structure at 268-272 Summer Street, jots out 40 feet beyond our locus and forms a jog in the rear passageway. The location of these neighboring buildings with the fact that the rear of the locus faces almost directly north, means that the rear en- trance would be almost always in shadow. Indeed the photographs2 indicate a dark, canyon-like aspect to the passageway directly in the rear of 262-266 Summer Street. C. The Building at 262-266 Summer Street As I have noted, this building, the locus of the dispute here, is an eight-story, brick loft building, similar to the seven or eight others in the row between Fort Point Channel and the A Street overpass. Its dimensions are about 97 feet on Summer Street, narrowing to 87 feet at the rear passageway, and 93 feet on the sidelines. It almost entirely covers the 6198 square foot lot on which it is situated. On the Summer Street side, the street level of the locus has three entrances, a delicatessen at the northerly end, a graphic arts equipment store in the middle, and the entrace to the building lobby, and elevator, upper floors and offices at the south end. There was testimony, which I credit, that the elevator serving this entrance is small, about 2 by 4 feet, and unsuitable for the convey- ance of construction materials to the upper floors, which were undergoing rehabilitation during times material. At the rear, Vanderweil's testimony stated that there is only one entrance to the premises, at the level of the above-described passageway, which is used by Vander- weil's employees, other building tenants, the Charging Party's employees, and others making deliveries or per- forming work inside the premises. At this level there is a freight elevator, substantially larger than the elevator at the Summer Street entrance, which serves to carry equipment and supplies as well as people to the upper floors. There is a passage, by means of corridors and stairs, from this rear entrance to the first entrance, but there is no indication in the record that any of the people involved in this case were or are in the habit of using this passage. D. Background and Current Factual Situation A previous matter concerning these same parties was the subject matter of a charge filed on 29 December 1986 in Case 1-CC-2144. A complaint was issued in that case on 4 February 1987 by the Regional Director, and a hearing was held on 9 March 1987, before my colleague Administrative Law Judge Marion C . Ladwig.3 Judge Ladwig's decision isued on 12 March 1987 and found that the Union had violated Section 8(b)(4)(i) and (ii)(B) of the Act. No exceptions were filed to this decision, and on 21 April 1987 the findings, conclusions, and recom- mended Order of Judge Ladwig's decision were adopted by the Board. So far as can be determined by the record in this case, the Union has complied with the Board's decision in Case 1-CC-2144. The picketing at the offices of Vander- weil Engineering, and at the home of one of the general trustees of the 262 Summer Street Realty Trust ceased, and the language on the picket signs was changed. From 3 February to 4 March, when the reserved gate was established, picketing went on at the Summer Street entrance to the building. After the establishment of the reserved gate at the rear of the building, the Union con- tinued to picket at the front. The instant charge was then filed and a second injunction was issued by Judge Young. The picketing ceased and, so far as can be deter- mined from the record, has not resumed either at the front or back of the building. There has been no commu- nication between the Realty Trust, Vanderweil Engi- neering, and the Union, and the only communications be- tween the Charging Party, CB Construction, and the Union was an exchange of mailgrams; one from CB to the Union dated 4 March informing the Union of the re- served gate, and a reply dated 5 March from the Union stating that the reserved gate "is in a back alley entirely out of view of the public. Since we are attempting to inform the public of this area's [sic] standard dispute, it is not a valid-dual gate system." The evidence here, based on the generally credible tes- timony of William Vanderweil and Frank Donovan, the project manager for CB, shows that the sign for the re- served gate, gate "A," was at least until the time of the hearing in this case partially obscured because it was lo- cated in a window, adjacent to the entrance it described, behind iron bars that cover the window. After the first day of this hearing, the sign was moved above the bars. There is some pedestrian traffic at the rear of the building. Vanderweil testified that his employees use the rear door to come in and out of the building, that his tenants and those servicing his offices and those of the tenants found it more convenient to use the parking lot and the rear entrance, rather than Summer Street with its parking meters and heavy traffic. Vanderweil also testi- fied about other people using the rear passageway and Sleeper Street to patronize a restaurant4 in the next building.5 The testimony of Robert M. Marshall, which I also found generally credible, indicated that at times when he observed the rear entrance, not only was the reserved gate sign partially obscured by the barred window, but 2 Both those submitted by the Union and by the General Counsel. 3 The General Counsel in the instant case stated on the record that in Case 1-CC-2144 an injunction was issued by the Honorable William G. Young, U.S district judge for the district of Massachusetts, on 28 Febru- ary 1987, barring unlawful picketing by the Union Counsel also stated that 4 or 5 days later picketing resumed at 262-266 Summer Street by the Union, with signs bearing the legend set out in item 3 of the stipulation, supra * Not the same as the delicatessen in 262-266 Summer Street. s Donovan also testified that he was aware that CB employee, who ordinarily came and went through the reserved entrance also used the front door, gate "B" reserved for all others except employees of CB, to leave the building proper to patronize the delicatessen at 262 Summer Street. All of this may raise some question about the integrity of the re- served gate system, but in view of my disposition of the issues , I do not feel it is necessary for me to face that question. See Electrical Workers IBEW Local 441 (Suburban Development), 158 NLRB 549 (1966). 536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the signs and the passageways themselves were blocked by vehicles as well as wooden pallets, old concrete posts, other debris, and dumpsters, and was marred by puddles and potholes. E. Conclusion The photographs submitted by both parties here show, as I have indicated, that the passageway to the rear of the locus here was shadowed, cluttered, in poor repair, and unlikely to be used by anyone except people with business in the buildings abutting. Pedestrians wanting to travel between Summer and Congress Street use an at- tractive, covered walkway along Fort Point Channel. Otherwise, they would have to walk through the row of buildings that includes 262-266 Summer Street. If there are people who do use Sleeper Street, the passageway to patronize a restaurant is about 60 feet east of the locus. The reserved gate sign was scarcely visible even from that part of the parking lot or Sleeper Street closest to the locus.6 Members of the public, even if they were passing up Sleeper Street toward the locus in order to go to the next-door restaurant would, in my opinion, have to search for the sign in order to see it. Nor would mem- bers of the public be likely to see any pickets moving around that rear entrance between and among puddles, pallets, and pickups, let alone be able to read or compre- " As the Union points out in its brief, the fact that the reserved gate sign was obscured by iron bars, trucks, and cars afforded no assurance that the appropriate persons would use the gate . Donovan's testimony shows that CB employees, in fact, used the other gate , in the front, from time to time. He did not know how often, or how many people used the wrong gate. hend the message on picket signs moving about in the shadows. The evidence thus seems clear that the gate here set aside for the Union to picket is effectively hidden from the view of the general public, and is so remotely and inconveniently located as to substantially impair the ef- fectiveness of the Union's picketing, calculated to reach the primary employer's employees, suppliers, visitors, and the general public. Electrical Workers IBEW Local 453 (Southern Sun), 237 NLRB 829 (1978); Carpenters Local 354 (Sharp & Tatro), 268 NLRB 382 (1983); Elec- trical Workers IBEW Local 501 (C. W. Pond), 269 NLRB 274 (1984). There are no issues in this case on the other standards in Moore Dry Dock.7 I find, therefore, that the Respondent Union has not violated Section 8(b)(4)(i) and (ii)(B) of the Act. CONCLUSIONS OF LAW 1. The Charging Party, CB Construction, is an em- ployer within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union, Carpenters Local 33, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent Union has not violated the Nation- al Labor Relations Act. [Recommended Order for dismissal omitted from pub- lication.] 92 NLRB 547 (1950).