Ironworkers District Council Of The Pacific North-West And Local Union No. 29 Of International Association Of Bridge, Structural And Ornamne-Tal Iron Workers

562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ironworkers District Council of the Pacific North- west and Local Union No. 29 of International Association of Bridge, Structural and Ornamne- tal Iron Workers and Hoffman Construction Company of Oregon Ironworkers District Council of the Pacific and Refa Erection, Inc. Cases 36-CC-841, 36-CC-842, and 36-CC-843 January 19, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On September 30, 1987, Administrative Law Judge Michael D. Stevenson issued the attached decision . The Respondents filed exceptions and a supporting brief, and the General Counsel and Charging Party Hoffman Construction Company of Oregon (Hoffman) filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the exceptions in light of the record and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified. The judge found, among other things, that the Respondents violated Section 8(b)(4)(A) of the Act by picketing and otherwise attempting to force Hoffman to enter into a collective-bargaining agreement containing an unlawful subcontracting clause . The judge also found that the Respondents violated Section 8(b)(4)(B) by picketing2 three con- struction sites3 at which Hoffman was a general 1 The Respondents have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. In affirming the judge's finding that the Respondents unlawfully at- tempted to secure a collective-bargaining agreement containing a provi. sion violative of Sec. 8(e), we note that the judge accorded undue prece- dential value to Laborers Local 185 (West-Cal Construction), 255 NLRB 53 (1981), in which the Board pro forma adopted the violations found by the judge. 2 The judge found that the Respondents also engaged in "signal picket. ing." He stated that "[g]roups of men gathered around a sign constitute a `signal' to the employees of secondary and neutral employers." (Footnote omitted.) We agree that this activity acts as a signal to neutrals that sym- pathetic action on their part is desired by the union. Iron Workers Local 433 v. NLRB, 598 F.2d 1154 (9th Cir. 1979). 3 The Respondents have excepted to the judge's granting counsel for the General Counsel permission to amend the complaint at the hearing to include new violations. The Respondents argue that the General Counsel is estopped by the doctrine of res judicata from amending the instant complaint to include the alleged violations at Good Samaritan Hospital and Hoffman's headquarters at Hoffman Columbia Plaza because she failed to include these allegations in the previous district court litigation of Sec. 10(1) and tried unsuccessfully to have them included during the related contempt proceedings that followed. The judge found that the contractor with signs that failed to identify Hoff- man as the primary employer with which they had a dispute and by distributing leaflets at the sites in order to induce employees of neutral employers to cease working. Additionally, he found that the Re- spondents violated Section 8(b)(4)(i)(B) by telling neutral employees that their unions supported the picketing and making other statements calculated to induce the neutral employees to cease work. Further, the judge found that the Respondents vio- lated Section 8(b)(4)(i) and (ii)(B) by falsely con- veying to neutral employees that the picketing was sanctioned by the Columbia Pacific Building and Construction Trades Council and by picketing con- struction site gates reserved for neutral employers, their personnel, visitors, and suppliers at the con- struction sites.4 On the basis of the foregoing, the General Counsel is not estopped from amending the complaint by unre- lated proceedings that served different functions. We agree with the judge's analysis of this issue. In addition, we note that while the Act re- quires the General Counsel to pursue a 10(1) injunction during the pend- ency of 8(b)(4) proceedings, the merits of the unfair labor practices al- leged are decided in Board proceedings. The fact that the General Coun- sel failed to formally amend the district court pleadings is no impediment to inclusion of the allegations in the unfair labor practice complaint when, as here, the Respondents had notice of the General Counsel's desire to put in issue the picketing that occurred at the hospital and at the Charging Party's headquarters, and the hearing was continued at a later date to afford them an opportunity to adequately prepare for the addi- tional allegations. Moreover, the Respondents have not shown that they were prejudiced by the amendment. 4 In arriving at these findings, the judge also found, and we agree, that the evidence does not establish that Charging Party Hoffman and Nelson, a subcontractor that used the neutral gates at the Performing Arts Center and the Hospital, are a single employer and therefore that the neutral gate system at those sites was tainted, as the Respondents allege. In deter- mining whether ostensibly different employers constitute a single employ- er, the Board examines whether there is common ownership, common management, an interrelationship of operations, and centralized control of labor relations. No one factor is controlling. NLRB v. Don Burgess Con- struction Corp., 596 F.2d 378 (9th Cir. 1979). The record discloses that Hoffman Construction Company, a holding company, owns Charging Party Hoffman Construction of Oregon, Hoffman Construction of Wash- ington, and Hoffman Construction of Alaska, as well as an 80-percent share of Nelson. Accordingly, common ownership has been shown to exist. As to common management , while Cecil Drinkward is the chief ex- ecutive officer of Hoffman, the holding company, and Charging Party Hoffman, there is no evidence concerning his relationship to the other companies. Wayne Thomas serves as the labor relations manager for Charging Party Hoffman and Hoffman of Washington. James Hutchison, who previously worked for a Hoffman company or companies and then became a private labor consultant from 1982 to October 1986, is current- ly employed as the labor relations manager of Nelson, Hoffman the hold- ing company, and Hoffman of Alaska. The record reflects that Hutchi- son's consultant services were retained in August 1986 while Thomas was on vacation to attempt to resolve Charging Party Hoffman's problems with the Respondents. Though not specifically stated, Hutchison appar- ently returned to the employ of the named Hoffman companies sometime in or after October 1986. While these facts may reflect a degree of common management among some of the Hoffman affiliates, the evidence does not show common management between Charging Party Hoffman and Nelson. In any event, we find it significant that during the period of the dispute in issue Charging Party Hoffman and Nelson had different labor relations managers. That Hutchison's services were retained while Thomas vacationed is insufficient to establish that the companies are commonly managed. There is no evidence of interrelation of operations or centralized control of labor relations. See Electrical Workers IBEW Local 3 (Telecom Plus), 286 NLRB 235 (1987), enfd. 861 F.2d 44 (2d.Cir. 1988). . 292 NLRB No. 53 IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) judge held that the Respondents exhibited a pro- clivity to violate the Act and engage in egregious misconduct Accordingly, he concluded that a broad remedial order was warranted For the reasons set forth by the judge, we agree that the Respondents violated the Act as indicated above, 5 however, we find that a broad order is in- appropriate In Service Employees Local 77 (Thrust IV), 264 NLRB 628, 629 (1982), the Board found that the union exhibited a "blatant disregard of the Act and a clear willingness, if not eagerness to vio- late it" warranting a broad order when the union unlawfully picketed a jobsite after having been found to have committed a similar unfair labor practice against another employer only 3 months earlier In the instant case, there is no evidence that Respondent Local 29 previously violated the Act We note that while the Respondents engaged in picketing and leafletting at three construction sites in July and August 1986, this conduct neither dem- onstrates recividist tendencies nor widespread unfair labor practices within the meaning of Hick- mott Foods, 242 NLRB 1357 (1979) Furthermore, although we note the Respondents' resumption of picketing in August 1986 following the informal settlement of the unfair labor practice allegations underlying injunction proceedings initiated by the General Counsel,6 we find it significant that the settlement agreement, though breached, contained a nonadmission clause and we do not consider it a basis for concluding that the Respondents have es- tablished a pattern of misconduct or otherwise acted in flagrant disregard of the Act Having found that the Respondents' conduct does not warrant a broad order,7 we shall modify 6 In adopting the judge s finding that the subcontracting clauses soughtby the Respondents were secondary in nature and were sought outside the context of a collective bargaining relationship we note in ad dition to the reasons set forth by the judge the statement of Local 29 Business Manager Daniel Kealy to Hoffman s employee relations manag er Wayne Thomas on June 23 1986 Look I don t care if Hoffman ever hires any ironworkers or not I just want to tie Hoffman to the sub contract clause 6 On July 17 1986 the U S District Court of Oregon adopted the rec ommendations of its magistrate and issued an order enjoining the Re spondents from picketing Thereafter the General Counsel the Charging Parties and the Respondents settled the unfair labor practice charges un derlying the injunction proceedings and on August 11 1986 the Region al Director for Region 36 approved the settlement Following the Re spondents resumption of picketing from August 18 to 21 the Regional Director initiated contempt proceedings On February 13 1987 the dis tnct court issued an Order of Purgation of Civil Contempt of Injunction Granted under 29 U S C § 160(1) ' In this connection despite our finding that the Respondents did not flagrantly violate the Act we find that the judge properly denied the Re spondents posthearing motion for approval of its proposed settlement We note that the Respondents breached an earlier settlement agreement and that here as in Teamsters Local 115 (Gross Metal Products) 275 NLRB 1547 (1985) the Respondents proposed the settlement-over the General Counsel s and the Charging Party s objections-following the close of the hearing at which they presented no witnesses and limited their defense to cross examination Additionally as in Gross Metal Prod ucts the proposed settlement admits no wrongdoing 563 the recommended Order and conform the notice accordingly ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, Ironworkers District Council of the Pa cific Northwest and Local Union No 29 of Inter national Association of Bridge, Structural and Or- namental Iron Workers, their officers, agents, and representatives, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1(c) "(c) Picketing or signal picketing, distributing pamphlets, making oral statements to employees of neutral employers, or falsely telling neutral em- ployees that a strike was sanctioned, at construc tion site gates reserved for use of neutral employ ers, their personnel, visitors, and suppliers at the Performing Arts Center, One Financial Center, and Good Samaritan Hospital, or threatening, coercing or restraining Hoffman Construction Company of Oregon, any of its subcontractors, or any other person engaged in commerce or in an industry of fecting commerce, at the above-named construction sites, where an object thereof is to force or require those employers, or any other person, to cease doing business with each other, or any other person " 2 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT, by picketing or signal picketing at or near entrances to construction jobsites, at tempt to coerce Hoffman Construction Company of Oregon into agreeing to a labor agreement con taming a clause violating Section 8(e) of the Act WE WILL NOT picket or signal picket at or near entrances to construction jobsites with signs failing to disclose the names of Hoffman Construction Company of Oregon as a primary with whom we are engaged in a labor dispute WE WILL NOT picket or signal picket, distribute pamphlets, make oral statements to employees of neutral employers, or falsely tell neutral employees 564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that a strike was sanctioned, at construction site gates reserved for the use of neutral employers, their personnel, visitors, and suppliers, at the Per- forming Arts Center, One Financial Center, and Good Samaritan Hospital, or threaten, coerce, or restrain Hoffman Construction Company of Oregon, any of its subcontractors or any other person engaged in commerce or in an industry af- fecting commerce, at the aforenamed construction sites, where an object thereof is to force or require those employers, or any other person to cease doing business with each other, or any other person. IRONWORKERS DISTRICT COUNCIL OF THE PACIFIC NORTHWEST LOCAL UNION NO. 29 OF THE INTER- NATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS Catherine M. Roth, Esq., for the General Counsel. Paul Supton, Esq. (Van Bourg, Weinberg, Roger & Rosen- feld), of San Francisco, California, for the Respondent. Lewis K Scott, Esq. (Spears, Lubei sky, Campbell, Bledsoe, Anderson & Young), of Portland, Oregon, for Charging Party Hoffman Construction. Richard S. Pope, Esq. (Newcomb, Sabin, Schwartz, & Landsverk), of Portland, Oregon, for Charging Party REFA Erection. I DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge This case was heard before me in Portland, Oregon, on 13-14 November and 19-22 May 1987,2 pursuant to a second order consolidating cases, reissued and amended complaint and notice of hearing issued by the Regional Director for the National Labor Relations Board for Region 19 on 26 August and which is based on charges filed by Hoffman Construction Company of Oregon and by REFA Erection, Inc. (Charging Parties) on 2 July and amended on 9 July and on 3 July. The complaint al- leges that Ironworkers District Council of the Pacific Northwest and Local Union No. 29 of International As- sociation of Bridge, Structural and Ornamental Iron Workers (Respondents) have engaged in certain viola- tions of Section 8(b)(4)(i)(ii)(A) and (B) of the National Labor Relations Act (the Act).' ' REFA Erection, Inc. did not file a brief, nor participate in the case after the first 2 days. Because REFA did not see fit to explain first hand its absence from the case (see R. pp. 429-30), its status is unclear. 2 All dates refer to 1986 unless otherwise indicated. 3 After 2 hearing days in November, this case was continued by agree- ment of the parties because Respondent's counsel was scheduled to un- dergo major surgery. In addition, Respondent's counsel needed additional time to prepare, after the General Counsel amended the complaint on the first day of hearing. Principal Issues 1. Whether a settlement proposal objected to by both the General Counsel and Charging Party can be and/or should be approved by the administrative law judge. 2. Whether Respondents during certain days in July and during certain additional days in August picketed three construction sites in Portland, Oregon, with the object of forcing and requiring the general contractor to enter into a collective-bargaining agreement that contains provisions prohibited by Section 8(e) of the Act. 3. Whether during the same times and at the same lo- cations indicated above, Respondents picketed the pri- mary and neutral gates of three Portland construction projects with the object of forcing and requiring neutral employers, working on the construction projects, to cease doing business with the general contractor, and whether Respondents succeeded in closing down the sites, all in violation of the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of Respondents, and Charging Party Hoffman Construction Company of Oregon.4 On the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. THE EMPLOYERS' BUSINESS Respondents admit that both Hoffman Construction Company of Oregon and REFA Erection, Inc. are Oregon corporations operating as a general contractor and as a structural steel contractor respectively in Port- land, Oregon, and further admit that during the past 12 months, which period is representative of all times mate- rial during the course and conduct of their business oper- ations, these Employers' gross sales of goods and serv- ices exceeded $500,000. Respondents also admit that during the same period these Employers purchased and caused to be transferred and delivered to their facilities within the State of Oregon goods and materials valued in excess of $50,000 which originated from sources outside the State of Oregon or from suppliers within the State which in turn obtained these goods and materials directly from sources outside the State of Oregon. Accordingly, Respondents admit, and I find, that during all times ma- terial both Hoffman Construction Company of Oregon and REFA Erection, Inc. are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. " After a 2 week extension of the original due date , briefs in this case were due on 21 August. The General Counsel's motion to accept late- filed briefs, filed on 25 August and requesting permission for the General Counsel to file her brief not later than 27 August, was denied. On 27 August Respondents filed a motion to dismiss complaint on the grounds that Respondents' right to due process and other rights were violated, be- cause the General Counsel did not file a brief. Respondents' motion is denied. IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) 565 II THE LABOR ORGANIZATIONS INVOLVED Respondent Union Local No 29, International Asso ciation of Bridge, Structural and Ornamental Iron Work ers admits, and I find, that it is a labor organization within the meaning of Section 2(5) of the Act Respondent Ironworkers District Council of the Pacif is Northwest first denied, but later admitted during hear mg (R p 434) that it is a labor organization within the meaning of Section 2(5) of the Act, accordingly I find that Respondent District Council is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Should a Settlement Agreement be Approved in this Case over Objections of the General Counsel and the Charging Party5 Before turning to the substantive facts of this case, I note a threshold issue regarding Respondents motion asking me to approve a settlement agreement even though the General Counsel and the Charging Party object By separate order dated 1 July 1987 (ALJ Exh 7),6 I have denied Respondents motion Immediately below, I provide relevant background and rationale for this discussion When the hearing adjourned on 22 May, the General Counsel had certain additional documents that she wished to offer, preferably by stipulation Although Re spondents counsel had not reviewed the documents yet I directed that he inform the General Counsel and the Charging Party prior to the resumption date of 11 June as to whether Respondents would stipulate to the docu ments or would require the General Counsel to call a witness to establish the foundation for admission of the documents into evidence In addition , there was some question as to the length of time Respondents would re quire to present their evidence (R pp 1091-1095) Subsequently the parties and I were advised by tele phone that Respondents agreed to stipulate to the docu ments in question In addition Respondents decided to rest without offering any evidence in their case in chief Finally, I was advised of a dispute between the parties relating to a proposed settlement agreement Respond ents agreed in principle to a settlement offer drafted by the General Counsel and approved by the Charging Party except Respondents desired a nonadmission clause as part of this agreement and the other two parties ob jected To resolve this issue, I directed that Respondents submit to me a motion for approval of settlement agree ment On 8 June 1987 , Respondents complied (ALJ Exh 1) Appended to the Motion were copies of the proposed settlement agreements (Exhs A and B) Contained within the body of the Motion was Respondents non ad mission clause which they contended I should incorpo rate into the attached Settlement Agreements and then approve over the objections of the General Counsel and the Charging Party On 11 June 1987 I issued a Rule to show cause why Respondents motion should not be granted (ALJ Exh 2) In addition, I admitted into evidence the documents which the General Counsel had deferred offering on 22 May and which by then Respondents had agreed not to oppose Finally, I found that Respondents had rested and canceled the resumption of the hearing scheduled for 11 June 1987 On 17 June 1987 the General Counsel submitted a re sponse to the rule to show cause (ALJ Exh 3) On 24 June 1987 Respondents replied to the General Counsel and included an Alternative Motion to Reopen the Record (ALJ Exh 4) On 23 June 1987, Charging Party submitted its re sponse to the rule to show cause (ALJ Exh 5) and on 26 June 1987, Respondents replied to the Charging Party (ALJ Exh 6) As noted above, on 1 July I denied both Respondents motion for approval of settlement agreement and Re spondents alternative motion to reopen the record (ALJ Exh 7) Contrary to the General Counsels apparent concession (ALJ Exh 3 p 1), I find that when both the General Counsel and Charging Party object to a settlement agreement, an administrative law judge has no authority to approve same In making her argument the General Counsel characterizes the settlement agreement here as a unilateral settlement (ALJ Exh 3, p 1) However, where both the General Counsel and Charging Party object to a proposed settlement, it is not a unilateral set tlement A unilateral settlement is one accepted over the objec tion of the Charging Party for good and sufficient reason 7 The Charging Party contends that I have no au thority to approve the settlement agreement over its and the General Counsels objections I agree with and adopt the argument of Charging Party (ALJ Exh 5 p 5) that I lack the authority at issue in this case Alternatively even if I had the disputed authority to approve the settlement agreement over the objections of both the General Counsel and the Charging Party I am convinced that I should not exercise my discretion to do so in this case As a general rule, the Board instructs that inclusion in the settlement of a non admission clause is not a valid basis for objection where the settlement effec tuates the policies of the Act Mine Workers (James Bros Coal) 191 NLRB 209, 210 (1971) (only charging party objected to settlement agreement), Cf Independent Shoe Workers of Cincinnati Ohio (United States Shoe Corp) 203 NLRB 783 (1973) (only the General Counsel objected to settlement agreement) Cf Community Medi cal Services 236 NLRB 853 (1978) (only the General Counsel objected to settlement agreement) 5 Unless otherwise indicated the term Charging Party will refer to Hoffman Construction Company of Oregon 5I have listed all documents relevant to this discussion (ALJ Exhs I- 7) in appendix I [omitted from publication] I While the Board makes every effort to negotiate bilateral settlement agreements unilateral agreements (i e without the charging party) are acceptable where the respondent agrees to take all actions necessary to remedy the alleged unfair labor practices McGuiness and Norris How to Take A Case Before the NLRB p 330 (5th Ed 1986) 566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In Teamsters Local 115 (Gross Metal), 275 NLRB 1547 (1985), the respondent and the General Counsel agreed to a settlement agreement, but the charging party object- ed. The settlement agreement contained a nonadmission clause and was submitted after the hearing was closed (respondent presented no witnesses and limited its de- fense to cross-examination of two witnesses and a chal- lenge to witnesses' use of notes). In affirming the judge's rejection of the 11th hour settlement agreement, the Board agreed with the judge's statement that approval of a posthearing settlement containing a nonadmission clause in the face of virtually uncontested findings of se- rious, widespread, and "violent . . . misconduct would make a mockery of law enforcement." The Board's de- scription of the case in Teamsters Local 115 is directly applicable to the instant case as is the Board's final con- clusion. However, Respondents correctly cite fn. 6 of the deci- sion in which the Board recognized the principle that a settlement agreement should not be rejected simply be- cause it contains a nonadmission clause and is submitted after the hearing is closed. In the instant case as in Team- sters Local 115, supra, these are but two of several fac- tors which must be considered. For example, the failure of the General Counsel and the Charging Party to agree means that. an essential element is lacking.8 In addition, if future violations occur, the General Counsel may be prejudiced because the instant conduct may not be con- sidered by the Board regarding whether a broad order should then ensue.9 Finally, the facts of this case to which I now turn suggest a pattern of serious, wide- spread, and repeated labor law violations, for which a nonadmission clause would not effectuate the policies of the Act. 10 B. Summary of Court Proceedings Coinciding with Instant Administrative Proceeding 1. The Regional Director submits petition for tempo- rary injunction pursuant to Section 10 of the Act (to enjoin certain allegedly unlawful picketing by Respond- ents at construction sites in of Portland, Oregon). 2. On 17 July a hearing before the U.S. magistrate for the District of Oregon was held in the absence of Re- spondents' counsel who elected not to be present. Among other conclusions reached, the magistrate found that he had reasonable grounds to believe that Respond- ents were then engaging in unfair labor practices and recommended that Respondents should be enjoined and restrained from continuing their unlawful activities (G.C. Exh. 32). 3. On the same date, 17 July, the magistrate's findings, conclusions, and recommendations were approved by the 8 At fn. 5 of Teamsters Local 115, supra, the Board stated that "a settle- ment offer is not insulated from rejection simply because the General Counsel's representative finds it to be adequate." Conversely, when the General Counsel finds a settlement offer to be inadequate, I find this to be strong evidence, if not dispositive, that the agreement should not be approved. 8 See NLRB v. Chemical Workers, 476 F.2d 1031, 1037 (1st Cir. 1973). 10 Sec. 10130.6 of the NLRB Casehandling Manual, Unfair Labor Practice Proceedings, provides: "Non-admission of liability by the re- spondent should not be routinely incorporated in settlement agreements." Honorable Owen M. Panner, U.S. District Judge (G.C. Exh. 33). 4. Respondents and both Charging Parties in this case entered into an informal settlement agreement, settling unfair labor practice charges which were the subject of 10 injunction referred to above; the agreement contains a nonadmission clause and is approved by the Regional Di- rector on 11 August. 5. About 18 August Respondents resumed alleged unfair labor practices. 6. Regional Director petitions Judge Panner for find- ing of contempt and on 6 January 1987, Judge Panner finds that [Respondents] violated the court order of 17 July 1986: "I find Respondents in contempt. A, hearing will be held to determine appropriate sanctions" (G.C. Exh. 37). 7. On 13 February 1987, Judge Panner issues "`order of Purgation of Civil Contempt of Injunction Granted Under 29 U.S.C Section 160(1)." In this order, Judge Panner awarded to the Board "reasonable attorneys' fees and costs" and further ordered that for each and every future violation by either Respondent of the court's order of 17 July 1986 or of this purgation order, the Re- spondent shall be assessed a civil compliance fine of $5000 and an additional fine of $1000 for each day on which this contumacious conduct occurs (G.C. Exh. 38).11 C. The Facts 1. General background Between 1 July 1983 and 30 June, the Oregon-Colum- bia Chapter, Associated General Contractors of America, Inc., an employer's group of general contractors, and Respondent Local 29, affiliated with Respondent Iron- workers Northwest District Council (District Council) were parties to a collective-bargaining agreement (G.C. Exh. 3). On 1 May 1985 the Charging Party and Local 29 entered into a compliance agreement by which the Charging Party agreed to be bound by most terms and conditions of the collective-bargaining agreement re- ferred to above (G.C. Exh. 2). The parties did not agree to be bound by provisions relating to settlement of dis- putes nor to those relating to strikes and lockouts. The Charging Party is one of three entities owned by Hoffman Construction, a holding company. The chief ex- ecutive officer of Hoffman Construction is Cecil Drink- ward, a witness at hearing. Drinkward is also president and chief executive officer of Charging Party Hoffman Construction Company of Oregon. It is unclear whether Drinkward has any relationship to related business enti- ties, Hoffman Construction Company of Washington and Hoffman Construction Company of Alaska. These two companies are not directly involved in the present case. In mid-1985, Drinkward decided that Charging Party would no longer employ ironworkers and other skilled tradesmen directly; rather Drinkward decided that Charging Party, while continuing as a general contrac- 11 Respondents have appealed both the 10 injunction and the contempt to the U.S. Court of Appeals for the Ninth Circuit. As of this writing, I am unaware of any decision from the court. IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) tor would become a construction manager and subcon tract to other entities various jobs including iron work which for the most part in the past Charging Party s own employees had performed In actual practice, this seemingly simple change in policy became somewhat confusing For example one of the subcontractors work ing on the three projects in this case was Nelson Con struction Co A substantial majority owner of Nelson Construction was Hoffman Construction Company This fact will be further considered below Wayne Thomas was a major witness at hearing Man ager of employee relations for the Charging Party for 3- 1/2 years, and with additional experience in employee relations for general contractors since 1964, Thomas was thoroughly conversant with the issues in the case from an employers point of view He represented the Charg ing Party during the negotiations leading to the comph ance agreement referred to above If the decision of Drinkward described above is the logical starting point of this case , the next major event is an exchange of let tern between Thomas and LeRoy Worley, president of Respondent District Council The first letter, from Thomas to Local 29 reads as follows February 24 1986 Iron Workers Local No 29 6701 SE Foster Road Portland Oregon 97206 Gentlemen Notice is hereby given of our desire to terminate our labor agreement Any agreement we may have with you will therefore terminate no later than June 30 1986 Notice is also hereby given that we hereby with draw from any multi employer unit to which we may have belonged in connection with any negotia tions we may have had with you We intend to sep arately negotiate with you concerning any future labor agreements This letter shall also constitute our written notice of the termination of our obligation to make any further contributions to the Health and Welfare, Re tirement Apprenticeship and Vacation Funds and any obligation we have to make any such contribu tions will extend no longer than through June 30, 1986 Sincerely /s/ W E Thomas W E Thomas Employee Relations Manager [G C Exh 4] Worley apparently replying on behalf of Local 29 as well as the Distract Council, wrote back as follows Mr Wayne Thomas Hoffman Construction Co 1300 S W Sixth Avenue Portland Oregon 97207 February 25 1986 Dear Sir 567 As required by Article 3 Duration and Termina Lion you are hereby notified of the termination of your collective bargaining agreement with Local Unions 14 29, 86 114 and 505 The short form agreement which is in effect at this time will be null and void effective midnight, June 30, 1986 I will be contacting you in the near future to schedule meetings for a proposed future agreement With kind regards ' Sincerely, /s/ LeRoy E Worley LeRoy E Worley, President [G C Exh 5] To make Charging Party s intention perfectly clear on 2 April Thomas sent another letter to Local 29 It reads as follows Iron Workers Local 29 6701 S E Foster Road Portland, OR 97206 April 2 1986 Gentlemen As you know any labor agreement we may have with you terminates by July 1, 1986 It is our present intention and our proposal that after July 1 1986 we no longer employ any em ployees performing work of the kind covered by our labor contract with you We also propose that effective July 1 1986, we no longer have any restraints concerning those to whom we subcontract work It is our strong belief that we must be able to subcontract on a compett tive basis without regard to whether a subcontrac tor has an agreement with you If you have any questions concerning these mat ters or wish to discuss them in any manner I would be pleased to meet with you Under our pro posal it would appear to be inappropriate to have any agreement with you after July 1 1986 since we do not intend to be employing your members after that date, in other words it is proposed that by July 1 1986 we will have no employees and there will be no employees in the future However we are in terested in any ideas or proposals you may have with respect to these matters and would welcome your full input before any final decisions are made Very truly yours /s/ W E Thomas W E Thomas Employee Relations Manager [G C Exh 6] In early June Worley called Thomas to arrange a meeting to discuss a new agreement with the Charging Party Thomas agreed to a meeting on 9 June and Worley promised to bring Danny along This was a reference to Daniel W Kealey, business manager of Local 29 Before the parties gathered for the meeting Worley sent by mail to Thomas certain documents re 568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ceived about 6 June. The first document consisted of a background statement and application for membership in the Northwest Iron Workers Employers Association, Inc. The documents read as follows: Approved by Association: (Date) BACKGROUND The Association was formed in August, 1985 to handle members' labor relations with the Iron Workers Union. We currently have 10 members in Portland, Seattle, and Bellingham and expect to have more soon. The dues for 1986 are $400.00. The Association has recently negotiated a new labor agreement with the Iron Workers, covering Oregon, Washington, Idaho, and Montana. In each of the next three years we will be negotiating with the Iron Workers District Council regarding the contract's economic package. We would like your support and involvement. The Association may in the future also become involved in other areas of common concern to our members, such as OSHA, etc. If you have any questions, please call Jim Watts, (503) 228-3387, or any of our officers or di- rectors. President: Rex Smith, REFA Erection, Inc., (503) 684-1158 Vice President: Adam Jones, The Erection Compa- ny, (206) 821-2777 Directors: Don Cooney, DBM Contractors, Inc., (206) 623- 5016 W.J. Guillory, Atlas Erection Company, (503) 255-9634 Dale Joebgen, Wright Schuchart Harbor, (206) 447-7611 Joe Lamberton, Action Steel Erectors, (503) 775- 6669 Paul Reising, Pacific: Erectors, Inc., (206) 838- 1444 NORTHWEST IRON WORKERS EMPLOYERS ASSOCIATION, INC. 3434 S.W. Water Avenue, Portland, Oregon 97201 PHONE (503) 228-3387 APPLICATION FOR MEMBERSHIP Date: (Firm Name) (Firm Address) (Phone No.) hereby applies for membership in the NORTH- WEST IRON WORKERS EMPLOYERS ASSO- CIATION, INC., and encloses a check for $400.00 in payment of its 1986 clues. Signed:- (Title) Recommended by: [G.C. Exh. 7(a)] Affixed to the first page of the document was a hand- written note on yellow paper which reads: Wayne, This is for your information. See you next week. LeRoy Worley The above handwritten note apparently referred to a second document received by Thomas from Worley, as well as the ones described above. This document was a copy of the current labor agreement between the North- west Iron Workers Employers Association, Inc. and the District Council (G.C. Exh. 7(b)). Included in this labor agreement, page 21, was a segment entitled, "Section 12, Subcontractors." It reads as follows: SECTION 12 Subcontractors If an Employer, bound by this Agreement, con- tracts or subcontracts, any work covered by this Agreement to be done at the jobsite of the con- struction, alteration or repair of a building, struc- ture, or other work to any person or proprietor who is not signatory to this Agreement, the Em- ployer shall require such subcontractor to be bound to all the provisions of this Agreement for the dura- tion of the project, or such Employer shall maintain daily records of the subcontractors employees job- site hours, and be liable for payment for only these subcontractor employees for wages and travel; and for health-welfare and dental, pension, annuity, va- cation and Apprenticeship contributions to the trusts in accordance with this Agreement. The Union agrees to notify the Employer, person or proprietor within thirty (30) calendar days of any delinquent payment for wages, travel, health-wel- fare and dental, pension, annuity, vacation and Ap- prenticeship contributions owed by the subcontrac- tor, and to further issue a certificate to the Employ- er when these payments have been made. No work will be let by piecework, contract or lump sum direct with a journeyman or apprentice for labor services. [G.C. Exh. 7(b)] As would be made clear in a letter from Kealey to be recited below, the Northwest Iron Workers Association apparently replaced the Associated General Contractors for purposes of agreeing to a master labor agreement with the District Council and its member locals. In any event, on 9 June, Thomas and Worley, without Kealey, met at a local restaurant. Worley stated that "we want you to get on board." But Thomas explained that Charg- ing Party had not employed ironworkers for many months and didn't intend to employ any in the future. To this, Worley replied that "we can't have large general IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) contractors like Hoffman sub non union Worley added that he was prepared to take this all the way The meeting concluded by Thomas asking for time to review Worley s proposals with management Worley agreed but noted that time was drawing close to 1 July On 19 June Kealey wrote a letter to Thomas, which reads as follows Hoffman Construction Co PO Box 1300 Portland OR 97207 June 19, 1986 Dear Sir The current Agreement to which you are signa tory expires on June 30 1986 As you may have heard, an Agreement negotiated with the North west Iron Workers Employers Association will act as the Iron Workers Master Labor Agreement For your information I have enclosed a copy of this Agreement along with a copy of the Iron Workers Independent Agreement, which is the new short form Agreement with the Iron Workers District Council and Affiliated Local Unions After having the opportunity to review this Agreement, please sign and return to our office the executed Independent Agreement prior to June 30, 1986 As encompassed within the word language of this Agreement the Ironworkers look forward to a working relationship with your firm in the future In an attempt to provide continuity of employ ment after June 30th we would appreciate your prompt attention to this matter Should you have any questions or wish to discuss anything, feel free to contact me at our office Sincerely /s/ Daniel W Kealey Daniel W Kealey FST/Business Manager [G C Exh 8(a)] Thomas received the letter and the two enclosed docu ments (G C Exhs 8(b) and 8(c)) referred to in the body of the letter on or about June 20 The independent agree ment contains a clause which reads as follows If the undersigned individual employer contracts or subcontracts any work covered by the Iron Work ers Master Agreement to any person or proprietor who is not signatory to said Master Agreement the undersigned individual employer shall require such subcontractor to be bound to all provisions of the Iron Workers Master Agreement and this Independ ent Agreement [G C Exh 8(b)] On 23 June Kealey met with Thomas in the latter s office Again Kealey invited Hoffman to get aboard Again Thomas explained the present and future plans of the Company regarding direct employment of ironwork ers To this Kealey responded, Look I don t care if 569 Hoffman ever hires any ironworkers or not I just want to tie Hoffman to the sub contract clause Kealey contin ued that he saw the industry changing and that he, as a union official was just a person selling workers to indus try After the proposed 4 year agreement expired both sides could review matters again Thomas promised to consult with company officials and respond to Kealey's requests The following day Thomas made his reply in a letter which reads as follows June 24, 1986 Mr LeRoy Worley, Vice President International Association of Bridge Structural and Ornamental Iron Workers 2417 NE 51st Portland Oregon 97213 Dear LeRoy This will confirm our discussion on June 9, 1986 We have not employed any Iron Workers in Oregon since September 1985 and none in Wash ington since March of 1984 and in Alaska since June of 1985 We no longer intend to employ any employees performing work of the kind covered by our expiring labor contract with you As we had mentioned in our letter of April 2 and reiterated on June 9, we must be able to sub contract work on a competitive basis I recall your response was in effect that you couldn t have a large general contractor like Hoffman go out and subcontract non union Further Mr Daniel Kealey Iron Workers Local #29 Business Manager met with me yesterday morning and I reviewed our discussion with him Mr Kealey stated that he wanted Hoffman Con struction Company of Oregon to get aboard by signing the agreement When I mentioned that we hadn t employed Iron Workers in Oregon since September of 1985 Mr Kealey stated that he didn t care whether we employed Iron Workers or not he wanted to tie us to the subcontracting clause of the new Iron Worker Agreement He further stated that the Iron Workers were not prepared to give up the subcontract clause You must know that any concerted activity by your union to force Hoffman Construction Compa ny of Oregon, Washington and Alaska to be bound to a subcontracting clause which would require that Hoffman subcontract only to contractors that had a union agreement with your union is illegal If such activity occurs you can expect an appropriate legal response by Hoffman I trust neither action will be necessary and would be pleased to meet with you again to further discuss this issue Cordially WE Thomas Employee Relations Manager [G C Exh 9] On 27 June Kealey wrote still another letter to Thomas with an enclosure It reads as follows 570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD June 27, 1986 Mr. Wayne Thomas Hoffman Construction Co. P.O. Box 1300 Portland, OR 97207 Dear Wayne: As per the discussions of our meeting of June 23, 1986, I am enclosing an additional copy of the Agreement. The copy of the signed Agreement still hasn't ar- rived in the mail. If I haven't received it by Monday, June 30, 1986, I'll drop another Agree- ment by your office. Thanks again for the opportunity to work with you, I'm sure time will bear out that our continued working relationship will prove as rewarding as we anticipate. We are looking forward to working with you the next four years. Very truly yours, /s/ Daniel W. Kealey Daniel W. Kealey FST/Business Representative [G.C. Exh. 27(a)] While the various meetings and exchanges of corre- spondence were occurring, the Charging Party contin- ued work as general contractor on three major construc- tion projects within the Portland, Oregon. Two of these ///A/J/fOi3 T sic c,tS were located in the downtown area of the city-.(1) Port- land Theater for the Performing Arts (Performing Arts Center), and (2) One Financial Center. The third project was the Good Samaritan Hospital (Hospital) located in northwest Portland. Certain events in this case occurred at still a fourth location which could not be character- ized as a construction project. Known as Hoffman Co- lumbia Project, this location was a downtown office building, complete and functioning as such, and contain- ing among other offices, the headquarters and other ad- ministrative offices of the Charging Party.12 Before turning to describe what happened at each of the four locations, I note certain common features in the evidence. First, Thomas visited each of the sites in issue, and at hearing, described what he saw and identified rel- evant photographs where necessary. Second, each of the construction sites had a project superintendent, who was called as a witnesss by the General Counsel. ]Finally, I note that the General Counsel's evidence remained unre- butted as Respondents called no witnesses and offered no evidence. 13 2. Performing Arts Center The Performing Arts Center occupied approximately three-quarters of one square block bounded by Park Avenue and Broadway, by Madison and Main Streets. A rough diagram of the site was admitted into evidence: 12 Allegations regarding Good Samaritan Hospital and Hoffman Co- 's This is not to ignore Respondents' extensive and often effective lumbia Project were added to this case on 14 November by the General cross-examination of the witnesses which has been carefully considered. Counsel's successful motion to amend, granted over Respondents' objec- In the final analysis, however, such cross-examination has made little or tion. no difference in the outcome of this case due to the overwhelming nature of the General Counsel's evidence. IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) Valued at around $17 million the building is owned by the city of Portland As of 30 June the structure of the building had been fully erected, but it had not been roofed and the doorways were not closed The Charging Party had four employees onsite Robert Grant project superintendent, and three other employees an office manager, a project engineer, and a field engineer Only Grant was called as a witness As of 30 June, several subcontractors worked on the project including Nelson Construction Co, Ace Electric Cascade Acoustical Otis Elevator and others The iron worker subcontractor was REFA Erection Inc In this project and the two others described below all subcon tractors were signatories to labor agreements with vari ous unions for the crafts in which the subcontractors worked Because Charging Party officials heard rumors of a possible labor dispute coinciding with the expiration of the labor agreement with the ironworkers referred to above, it was decided to sign two gates at the Perform ing Arts Center, after the day shift finished work on 30 June Accordingly, as indicated in the site sketch above, about midway on Madison Street roughly between Broadway and Park Avenue, a sign was established at a gate there It read, THIS GATE IS RESERVED FOR EXCLUSIVE USE OF HOFFMAN CONSTRUC TION CO OF OREGON, THEIR EMPLOYEES & SUPPLIERS (G C Exh 11(a)) The second sign posted at a gate on the corner of Park Street and Main Street read, THIS GATE RESERVED FOR EXCLUSIVE USE OF REFA ERECTORS & ALL OTHER SUB CONTRACTORS, THEIR EMPLOYEES AND SUP PLIERS HOFFMAN EMPLOYEES USE GATE LO CATED SW MADISON (G C Exh 11(b)) (The two gates thus described will be referred to as the Hoff man (or primary) gate and the neutral gate respectively ) Later on or about 7 July a second so called neutral gate was established at the corner of Broadway and Main Street by the posting of a sign identical to that in General Counsel s Exhibit 1 I(b) One of Grant s duties and responsibilities was to ap prove the project job diaries Actually prepared by a subordinate on the job the daily job diary is submitted to Grant the following morning If Grant finds the job diary to be accurate and complete for the preceding day he signifies approval by signing his name The original of the job diary is then sent to the main office and a copy remains on the job Between 1 July and 21 July the job diaries reflected with occasional minor variance in prose No work due to ironworkers strike On 21 July the job minutes reflect that the pickets left the Hoffman gate at 9 30 a in Most crafts then worked all or most of their entire shift (G C Exh 10) In more detail than reflected in the job diaries, Grant testified to what happened Work schedules, prepared long in advance of a given date, indicated that as of 1 July, about 60 employees of various subcontractors were expected to perform work About 6 30 am, Grant ob served pickets at the Hoffman gate and 10-15 ironwork ers standing directly across from the neutral gate Appar ently the sidewalk location was the closest the pickets 571 could get to the neutral gates without blocking traffic or being in danger from traffic The picket signs carried in front of the Hoffman gate read Unfair Labor Practice On Strike Ironworkers (G C Exh 15) These signs continued in varying num bers until picketing ceased on 21 July Meanwhile, on or about 11 July, Grant observed a group of ironworkers congregating around a picket sign leaning against a vehi cle across from the Park and Main Streets neutral gate This sign read, Sanctioned by Columbia Pacific Build ing & Construction Trades Council (G C Exh 43) Grant identified a foreman from Otis Elevator and sev era] REFA ironworkers but only one or two employed on the project Another photo taken about 7 30 a in on 11 July shows a picket carrying a sign with the same in scription as on G C Exh 43 (G C Exh 44) Several REFA ironworkers from the project are in the immedi ate vicinity of the picket who was not identified with certainty Again, this was immediately across from the first neutral gate Still a third view of the same area was taken at the same time as General Counsel Exhibits 43 and 44 (G C Exh 45) This large photograph shows the picket leaning against the car and the inscription clearly visible ( Sanc tioned Columbia etc) Grant identified by name several REFA ironworkers from project gathered around the sign during the time they had been scheduled to work On 11 July Grant observed ironworkers and other un identified men passing out leaflets to employees of the sub contractors near the neutral gate One of the leaflets reads as follows A good union member is extremely careful when confronted with a picket line situation WHEN A PICKET LINE IS ESTABLISHED on a job where he is working 1 He LEAVES He DOES NOT TALK-JUST LEAVES 2 He READS the PICKET SIGN as he leaves 3 He DOES NOT hang around near the job 4 He knows that ONCE A PICKET LINE IS ESTABLISHED his Business Agents and other union officials are legally gagged and handcuffed from giving advice pertaining to THAT JOB They can only tell him if the Picket Line is AUTHOR IZED by the Building Trades 5 He does NOT ALLOW HIMSELF to be drawn into conversations with ANYONE on the job site A GOOD UNION MEMBER KNOWS HIS RIGHTS A He has the right NOT to work behind ANY Picket Line B He has the right to decide for himself whether to walk off a job being picketed C He understands that his trade may be under attack next D He knows that a two gate system means a PICKET LINE and he has the RIGHT NOT TO 572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WORK, no matter how many gates the employer sets up. [G.C. Exh. 46] On 14 July a photo was taken from an upper floor of the Performing Arts Center. It showed a picket carrying the sign described above across from the Park and Main neutral gate and several men congregating within a few feet of the picket (G.C. Exh. 47). At the same time, about five pickets, two with signs and three others, were at the Hoffman gate. Grant testified that on or about 8 July, some of the crafts employees other than ironworkers, desired to return to work. He permitted some to use telephones inside the project to call their business agents. However, no employees returned to work until 21 July.' 4 On 11 August the parties to this case entered into an informal settlement agreement (G.C. Exh. 48). In it, Re- spondents promised not to violate the labor law in the manner in which they are now charged by the amended complaint. Grant caused a copy of the settlement agree- ment to be posted at the Hoffman and neutral gates at the Performing Arts Center. Notwithstanding the posted settlement agreement and the district court order of 17 July, picketing resumed on 18 August. On 18 August Grant observed two to five pickets with signs at the Hoffman gate. The signs, read "Hoffman Unfair Labor Practice on Strike We Seek No Contract In Violation of Law Ironworkers Local 29." He recog- nized one or two as REFA ironworkers, identifying one by name. On that day 6 or 7 subcontractors with about 20-25 employees had been scheduled to work, but did not. Job diaries for 18-21 August indicate that an iron- worker strike was in progress, but some small amount of other crafts work was completed (G.C. Exh. 51). On the same day, Grant also observed 10-15 REFA ironworkers standing around near the neutral gate at Park and Main Streets. Craft employees generally parked directly east of this neutral gate and had to walk through the area where the ironworkers were standing to enter the project. About 6:30 a.m. on 18 August, Grant talked to some of the pickets at the Hoffman gate and indicated surprise to see them picketing in light of the injunction. The pick- ets indicated uncertainty about why they were there. In midmorning of the same day, Grant talked by telephone to Dan Kealey. Earlier on 18 August, Grant had seen Kealey drop off picket signs to ironworkers at the Hoff- man gate. Grant asked him why the Union was picket- ing. Kealey said nothing in particular had ocurred to cause the resumption; rather it had to do with Hoffman generally. That is, Kealey desired a collective-bargaining agreement with Hoffman. Then Grant asked him about the settlement agreement. Kealey answered that it didnot mean anything, that we are back to stop one. At 9 a.m. Monday, 25 August, the pickets were pulled away and some of the crafts employees scheduled to work, did work. 3. One Financial Center This project was a high rise office complex located be- tween First and Second Avenues and Alder and Morri- son Streets. A rough diagram of the site was received into evidence: S.N. Mo,,lson 6t'eet OIIR TINANCIIU. CDIfER CATS LOCATIONS I SIGr1AOC PRIOR TO DCCDIRLR S. IRIS 14 I note that none of this is reflected in Grant's job diary for 8 July (G.C. Exh. 10). However, I credit his testimony here because it was not effectively rebutted. IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) Owned by Prendergast Associates, it is valued at ap proximately $6 million As of 30 June, 5-6 floors of poured concrete rather than structural steel had been built, out of a projected 15 story structure There were no door, window, or other enclosures, that is it was a wide open project The Charging Party s employees on this job consisted of a project superintendent two engineers, and a part time secretary The superintendent was Melvin Childers, a witness at hearing Among his duties and responsibil ities was the approval of the daily job dairies for the project These diaries for the period of 30 June through 18 July were admitted into evidence (G C Exh 12) Be ginning on 1 July through 10 July, the entries reflect that the entire job was shut down due to ironworkers strike' Beginning on 11 July, the entry reflects that the pickets were present at the Hoffman and neutral gates, but that by 10 a in, all crafts except for ironworkers, had crossed the picket line and done some work Thereafter between 14-18 July there is no further reference to work lost or delayed due to strike or picketing As of 30 June three subcontractors were performing ironwork on the project, H & L Corp, Ormega Steel, and REFA Steel Prior to the labor dispute, these sub contractors and those for other crafts were working double shifts l am -3 30 p m and 6 p m -1 30 a m At the close of the day shift on 30 June, the Charging Party established two separate gates at the project, one for Hoffman and Ormega Steel and one for all other sub contractors Ormega s name was included on the sign for the primary gate based on information from an official of that company that it was not prepared to sign a new labor agreement with the ironworkers 15 The Hoffman Ormega gate was located off First Avenue while the neutral gate was located near the corner of First and Morrison (G C Exhs 13(a) and (b)) Approximately 2000 feet seperated the two gates On arriving for work on 1 July Childers learned not only of the picketing then in progress, but that the second shift of the night before had not finished its work A Hoffman engineer told Childers that at midnight on 30 June someone put a picket sign out and a foreman came into the office trailer to announce That s it we re going home Then all subcontractor employees left the project about 90 minutes early Two picket signs outside of the Hoffman Ormega gate read Unfair Labor Practice On Strike Ironworkers (G C Exhs 14 (a) (b) and (c)) Two similar signs were carried outside the neutral gate (G C Exhs 21(a) and (b)) One of the men holding a sign dressed in a white shirt was ironworker Tom Worley brother of LeRoy Worley (G C Exhs 14(b) and (c)) The latter two photo 15 A few days later Ormega Steel signed a new labor agreement with Respondent Local 29 and its name was removed from the Hoffman gate Also a few days later as reflected on C P Exh 6 a second neutral gate was signed near Alder and Second Avenues (G C Exhs 17(a) (b) (c) and 18) 573 graphs reflect the Hoffman office trailer and the unusual entry constituting the Hoffman gate Due to the topogra phy, it was necessary to climb several stairs to enter the project at this point Obviously no vehicles could enter the project through this gate Childers told his staff of three to use only the Hoffman gate Childers identified certain photographs received into evidence One shows a group of craft employees includ ing ironworkers, near the neutral gate at First and Morri son (G C Exh 20(a)) Another shows a picture of Childers walking near the same location and a man hold ing a picket as a man named Jensen and ironworker for Ormega Steel A closeup picture of Jensen, holding his picket sign, with a security guard next to him was also received The sign reads, in part, Sanctioned by Colum bia Pacific Building & Construction Trades Council (G C Exh 59) Uncertain of the exact date taken Childers believes the photographs were taken in early July During the work stoppage, Childers found in July or August on his desk and all over his office, copies of a message which reads as follows Brother & Sister Thank you for your support on our most recent endeavor We all know it has been to [sic] long since the Crafts have held together The 2 days of solidarity prompted more positive action from the contractor than the weeks only partial support We hope this successful action was the first step back to a unification of the Trades We believe in a United Building Trades Surely this unity will di rectly benefit each and everyone of us Again thank your [G C Exh 60] Except for one occasion when he received a copy from an Ormega iron worker foreman, Childers did not know who distributed these documents During the work stoppage still another leaflet was dis tributed subcontractor employees near the first neutral gate It reads as follows HI WE RE IRONWORKERS AND USUALLY FOUND 10 TO 20 STORIES ABOVE THE SIDEWALKS ERECTING THE STEEL FRAMES FOR OUR SKYLINES BEAUTIFUL BUILDINGS WE BELIEVE THAT ANY EFFORT TO DESTROY THE WORKING STANDARDS OF ANY WORKER CAN SPREAD OVER THE COMMUNITY AND CONSUME THE SECURITY OF ALL WORKERS WE ARE ATTEMPTING TO REACH AN AGREEMENT WITH HOFFMAN CONSTRUCTION COMPANY HOPE OUR INFORMATIONAL PICKETING DOES NOT INCONVENIENCE YOU YOUR COMMENTS WOULD BE APPRECIATED STOP AND TALK TO US THE IRONWORKERS 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Childers observed a man narned Cusma, then president of Respondent Local 29 and another man distributing these documents. Cusma appeared outside the Hoffman and neutral gates almost daily and usually stayed for about an hour, talking to employees of the subcontrac- tors. Publication of the labor dispute was not limited to leaflets and picket signs. In a publication entitled Labor Press, dated 18 July, a photograph appears of two men carrying picket signs reading "Unfair Labor Practice On Strike Ironworkers." The photograph and caption under the photograph are as follows (G.C. Exh. 22): Iron Workers picket job sites Jim Mickel (left) and Gene Yukich, mem- bers of Iron Workers Local 29, picket the construction site of the One Financial Center Building on the Portland block bounded by :Southwest First and Second Avenues and Alder and Morrison Streets . Two other current work projects of a Portland firm, Hoffman Construction, which have Iron Workers on the job, also were picketed the first part of the month. They were the City of Portland's Per- forming Arts Center on Broadway be- tween Southwest Main and Madison Streets and the Good Samaritan Hospital cancer -care facility at Northwest Mar- shall Street and Twenty- Second Avenue. Union officials said the picketing stemmed from a desire by Local 29 to continue a long history of vyork agree- ments with the general contractor. IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) 575 Childers identified both men in the photograph as Ormega Steel ironworkers who had worked on the project In fact, Yukich had operated a video recorder during the picketing to record all persons who entered or left the neutral gate at First and Morrison Streets On 18 August picketing resumed and lasted for about a week The relevant job diaries were received into evi dence and reflect that the picketing of the Hoffman gate had varying success ranging from only ironworkers off the job to a complete shutdown with ali union labor off the job (G C Exh 62) When Childers arrived at work the morning of 18 August, he observed ironworker pickets toward the top of the stairs leading to the Hoffman gate Kealey, Busi ness Agent for Respondent Local 29, was present with this group pickets A photograph taken on 21 August, during the August picketing, shows Kealey at the top of the stairs (on the right holding a newspaper) leading to the Hoffman gate A picket sign wedged into the wall clearly visible to anyone seeking to climb the stairs reads, Hoffman Unfair Labor Practice On Strike We Seek No Contract In Violation of Law Ironworkers Local 29' (G C Exh 63) The other men in the photo graph are ironworkers from the project employed by REFA A view of the stairs leading to the Hoffman gate from a higher angle across the street is presented by NEW SIDEWALK PQOPEg ( U N E L -N2M G C Exh 64 As Kealy was getting ready to enter his car on 18 August, Childers heard one of the subcontrac tor employees from the project ask him if this were a sanctioned strike Kealey answered it was The scene on 18 August at the first neutral gate was somewhat different A crowd of men was milling about in the general location of First and Morrison Directly in front of the gate were two men wearing Local 29 insig ma hats and union buttons Childers observed this scene for a few minutes and saw those men talking to craft em ployees approaching the gate Thereafter the craft em ployees turned around and left the area of the gate On 18 August Childers posted the settlement agree ment at the Hoffman gate and asked the ironworker pickets nearby if they were aware of it One picket named Willard said they were but that it did not mean a thing 4 Good Samaritan Hospital This project located in the northwest area of the city consisted of three buildings all connected A four story garage, a four story office complex, and a six story medi cal facility Located between 21st and 22d Streets and Northrop and Marshall Streets, the project occupies an entire block A rough diagram of the site was received into evidence ^-reN ORAR f c^NS'i_NCE7 ION (ea\ ^NEUA AL NORTHPUP ,1STREET - V 3 Z N Q 8 ZYl U1 6 I MAR SHALL STREET OP W B W E H LJ HOFFMAN N OB QSS 2 2 C IC 009, CO STRUCTION COMPANY . c« a no eo ....n a '^' r cc yc o I = o-O GOOO SAMARITAN HMPfl•L 5 01 I I- I T-86 CONSTRUGTI0IN SITE 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The buildings are owned by the hospital As was true in the other projects Hoffman employed no hourly employees It did employ four salaried em ployees a project superintendent named Leon Stinnette who testified at the hearing a project engineer a field engineer, and an office manager The ironworker subcon tractors included Atlas , Ormega and H & L Late in the day on 30 June, two seperate gates were established for Hoffman employees and for neutrals The signs designating these gates read as indicated for the other projects (G C Exhs 28(a) and (b)) As indicated on the diagram above, the Hoffman gate was at the corner of 22d Street and Marshall the neutral gate was in the middle of Northrop between 21st and 22d Streets On 8 July a second neutral gate was established on the corner of Northrop and 22d Street adjacent to a manlift (G C Exhs 29(a) and (b)) On 8 July Thomas observed pickets across from the first neutral gate and an ironworker named Bill passing out leaflets to subcontractor employees (G C Exh 30) All or most of them refused to cross the picket line and work A photo taken at the Hoffman gate shows a picket holding his sign, in a position to have it photographed It reads Unfair Labor Practice on Strike , Ironworker (G C Exh 54) On the fourth day of picketing an addi tional sign appeared at the first neutral gate Sanctioned by Columbia Building and Construction Trades Council (G C Exh 55) Stinnette recognized some of the pickets as ironworkers who previously worked on the project On 19 August picketing resumed and continued for 4 additional days Gates were still marked as indicated in the diagram (G C Exh 41) Stinnette observed two iron workers picketing at the Hoffman gate During the course of the day, the number of pickets varied between two to seven At least one picket sign was always present with the amended wording noted for other projects Hoffman Unfair Labor Practice On Strike We Seek No Contract In Violation of Law Ironworkers Local 29 (G C Exh 57) Job diaries approved by Stin nette for the period of 19-22 August reflect that various subcontractors failed to work due to picketing by the ironworkers However on 21 August the pickets permit ted the roofers to work covering roofing materials sub ject to rain/weather damage On 22 August no crafts worked due to the picketing (G C Exh 56) This total shutdown was due to information being circulated that the strike had been sanctioned by the Columbia Building and Construction Trades Council On other days some craft employees worked and some did not due to the ironworker pickets Stinnette testified to a conversation which he over heard on 19 or 20 August He heard a person who had been picketing the Hoffman gate but then moved to the first neutral gate tell a group of craft employees If any of you guys would like to talk to our business agent, he s at the corner now In the area referred to by the speak er Stinnette saw Kealy The evidence presented by Thomas and Stinnette re garding the Hospital project was supplemented by wit ness Eddy Jeannis an apprentice electrician employed by Ace Electric Co on the Hospital site between January and August On the first day of picketing he was report ing to work and observed pickets near the first neutral gate The witness recognized two or three of them as having been ironworkers on the project The pickets told the witness that they were on strike and that their union supported his union They handed him a document enti tied Picket Line Notice (G C Exh 19) which was similar to that described by Grant and recited above (G C Exh 46) Notwithstanding the pickets, Jeannis crossed the line and worked about 4 hours While on the jobsite, Jeannis heard some pickets outside the project but near the Hoffman trailer yell through the fence to him and other apprentices, asking why were they working when they knew that a strike was going on Later Jeannis was in the Ace Electric trailer completing a telephone call when two ironworkers who had been picketing entered the trailer They asked Jeannis if he knew that the elec tricians union agreed with their union in support of the strike The witness referred the men to his supervisor Another witness named Rick Wilson was called by the General Counsel Also employed on the Hospital project as a general foreman for the steamfitters Wilson knew Jeannis and was present in the trailer in July on the 1st day of picketing when Jeannis was approached by two men Wilson also identified the men as ironwork ers who had worked on the project installing window brackets Wilson corroborated Jeannis in describing what occured in the trailer Later in the day, one of Wilson s subordinates named Hawks told him that he had learned from the pickets that the strike had been sanctioned Ac cordingly Hawks said he was going home and he left the project Wilson observed pickets at the neutral gate on 2 or 3 July They had signs reading unfair Labor Practice Ironworkers Local 29 5 Hoffman Columbia Plaza In this downtown highrise building Charging Party maintained its headquarters and related administrative of fices The building occupies one square block bounded by 5th and 6th Streets and Columbia and Jefferson in Portland The building is owned by Columbia Financial Services and two individuals named Eric Hoffman and Cecil Drinkward who testified in this case On the ground floor of this building were several stores and businesses unrelated to Charging Party The ground floor businesses include a parking garage a bank a stock brokerage, a travel agency and a restaurant On 1 July Thomas observed 9 to 12 persons picketing around the block bordering the building and sitting on a ledge at the front entrance to the building These scenes have been preserved by photographs taken by Thomas in late morning or early afternoon of 1 July (G C Exhs 16(a) and (b)) A closeup view of the picket signs showed the usual legend Unfair Labor Practice On Strike Ironworkers (G C Exhs 16(c) and (d)) In ob serving the men doing the picketing Thomas noted that several had been at the Performing Arts Center earlier on 1 July IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) Picketing continued in and around this building for 7 to 9 days Notwithstanding the wording on the picket signs, no unfair labor practice charges were ever filed with the Board by Respondents against Charging Party at any time relevant to this case 6 Concluding facts On 2 July 1 day after the picketing began, Thomas at tempted to convey in writing, Charging Party s view of the picketing He wrote separate letters to both Respond ents which read as follows July 2 1986 Iron Workers District Council 2317 N E 51st Portland, Oregon 97213 Gentlemen Your organization is illegally picketing our con struction projects at S W Broadway and Madison (Performing Arts project), and S W First and Mor rison (One Financial Center project), and our main office at 1300 S W Sixth Your picketing is illegal for a number of reasons It does not identify the employer you are picketing It is not confined to the gate reserved for the only employer with which you have had a primary dis pute (Ormega Industries, Inc on the One Financial Center project) Your picketing of Hoffman Con struction Company of Oregon is illegal for the addi tional reason that you seek to restrict our right to do business with subcontractors doing ironworkers work when we do not employ any ironworkers and will not employ them in the future Unless you immediately cease you illegal picket ing we will have no alternative but to commence legal action against you Very truly yours, /s/ W E Thomas Wayne E Thomas Employee Rela tions Manager [G C Exhs 24(a) and (b) ] These letters were returned as undeliverable After other methods of delivering the letters also failed Thomas fi nally was advised that delivery of a mailgram was con firmed Between 18 August and 2 September, Thomas was on vacation somewhere outside the Portland area In part for this reason James Hutchison was retained by Charg ing Party in August to represent it in labor relations mat ters Up to August of 1983 Hutchison had performed these duties as an employee of Charging Party for about 14 years Then after 3 1/2 years in private practice he returned to Charging Party as a consultant and as of Oc tober he is back with them as an employee, as manager of labor relations On 20 August Hutchison talked by telephone to Worley and explained that he had been retained by Hoff man to attempt to resolve the problem of illegal pickets on three projects Worley replied that the only way to 577 resolve the matter was for Hoffman to sign the labor agreement referred to above (G C Exh 7(b)) Worley added that he also desired Hoffman to join the North west Iron Workers Employers Association (G C Exh 7(d)) Hutchison answered that Hoffman would never do that Worley said first things first We have to get the labor agreement signed Hutchison requested a copy of the labor agreement which Worley agreed to send, adding that no changes would be permitted as other gen eral contractors had already signed as is With respect to the subcontracting clause published above Worley said no contractor could be permitted to subcontract non union Shortly after this call ended Kealey called Hutchison and said LeRoy told him to send a copy of the labor agreement to him and no changes would be permitted On 21 August, about 10 20 am Kealey delivered the labor agreement to Hutchison (G C Exhs 39, 40) During the afternoon of the same day, Worley called Hutchison and said he was then on vacation Worley added Attorney Van Bourg would be calling to arrange for negotiations to begin The witness said that Van Bourg had called a few minutes before but he had re ferred Van Bourg to the attorney for Hoffman Then Hutchison stated that since no changes were to be per mitted in the labor agreement he did not see any point in meeting to negotiate To this, Worley responded that if Hoffman wanted their jobs to remain shutdown for 10 days while he was on vacation, thats up to them On the following day picketing ended As to the Columbia Building and Construction Trades Council referred to herein as having sanctioned various strikes and picket lines, Hutchison was acquainted with the group having worked with them often over the years It is a local chaper of the National AFL CIO Building Trades Each building trade union belongs to the Columbia Pacific Building and Construction Trades Council One of its main functions is to act as a clearing house for sanctioning a picket In other words, if the picket is sanctioned then the other crafts are required to honor the picket line In the course of Hutchison s 24 years in the business he has had 10 to 15 experiences of determining the authenticity of a given picket line by contacting an individual at Columbia Pacific Building and Construction Trades Council No evidence supports the pickets claim that the strike was sanctioned by Co lumbia Pacific Building and Construction Trades Coun cil D Analysis and Conclusions 1 Is deferral appropriate to resolve the issues contained in this case's At pages 4-5 of their brief, Respondents argue that this case should be deferred to arbitration pursuant to Collyer Insulated Wire, 192 NLRB 837 (1971) For sever al reasons, I find this case is not appropriate for deferral I note that Respondents cite no cases where charges of 8(b) (4) (A) and (B) violations of the Act have been de ferred I am not aware of any such cases Deferral under Collyer is appropriate when (1) of the disputed issues are, 578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in fact, issues susceptible of resolution under the oper ations of the grievance machinery agreed to by the par ties, and (2) there is no reason to believe that use of that machinery by the parties could not or would not resolve such issues in a manner compatible with the purposes of the Act Eastman Broadcasting Co, 199 NLRB 434, 437 (1972) Here, the disputed issues are not susceptible to inter pretation under operation of the grievance machinery An arbitrator is not authorized to determine whether Re spondents attempted to coerce Charging Party into agreeing to a contract in violation of Section 8(e) of the Act nor to determine whether Respondents engaged in a secondary boycott In Boilermakers (Bigge Drayage Co), 197 NLRB 281, 286 (1972), the Board affirmed the trial examiners decison not to defer in an 8(e) case Furthermore, even if the arbitrator were authorized to decide these issues, he would have no power to remedy any violations found in a manner compatible with the purposes of the Act At page 4 of their brief, Respondents quote articles 8 9 8 91, and 10, pages 10, 14 of the Ironworkers master agreement (G C Exh 3), as purporting to bind REFA Erection Co to a collective bargaining relationship for all times material to this case Assuming for the sake of argument that REFA is a party to the contract nothing in the sections mentioned above expressly deals with un lawful picketing of neutrals Therefore deferral is not appropriate United States Steel Corp, 223 NLRB 1246, 1247 (1976) As to Hoffman Construction, its agreement with Re spondents, inadequate for deferral to begin with had ex pired during all times material to this case Even if the grievance arbitration clause were adequate expiration of the labor contract can be another factor precluding de ferral Meilman Food Industries 234 NLRB 698 (1978), Sahara Tahoe Corp, 229 NLRB 1094 (1977), enfd 581 F 2d 767 (9th Cir 1978) Cf American Gypsum Co 285 NLRB (1987) When some though not all of the unfair labor prac tice allegations can be dealt with in arbitration, deferral may not be appropriate Sheet Metal Workers Local 17 (George Koch) 199 NLRB 166 168 (1972) enfd 416 US 904 (1973) Thus it would be necesary for the arbitrator to resolve not only the two major issues in this case but also to resolve the role of the district council as well This the arbitrator would not be authorized to do even under Respondents theory 2 Is General Counsel estopped from amending the complaint to include matters not litigated in court? Early in the hearing the General Counsel was permit ted to amend the complaint to add certain allegations re garding Good Samaritan Hospital and Hoffman Colum bia Plaza These had not been litigated before the district judge in the petition for 10 injunction Without any cita tion of authority Respondents argue pages 6-7 of their brief that the General Counsel is now estopped from amending the complaint and litigating the two matters added I find that Respondents argument is totally without merit The Board is not bound by judicial opinions in collateral proceedings Cf Advertisers Mfg Co 280 NLRB 1185 (1986) Similarly the General Counsel is not estopped by the court proceedings, because the two pro ceedings are not related and serve different functions I find no estoppel here 3 Did Respondents seek a labor agreement in violation of Section 8(e), and violate Section 8(b) (4) (A) of the Act by picketing to achieve that objective? In seeking the answers to the questions presented above, I begin with some preliminary matters First, as noted above neither Worley nor Kealey testified in this case The failure of Respondents to call their own offi cials as witnesses or to explain the failure to do so raises an adverse inference in this case against Respondents Martin Luther King Sr Nursing Center, 231 NLRB 15 fn 1 (1977) Next the Board has held that in considering a union s motivations for striking or picketing, [the Board and] courts have found it useful to ask what concessions the company would have to make to abate the union activi ty NLRB v Union de Empleados (National Packing Co), 455 F2d 1248 (1st Cir 1972) In this case, evidence is overwhelming to show that Respondents desired Charging Party to sign a certain labor agreement Worley told Hutchison that signing the labor agreement was the only way the pickets would be removed I will find below that the labor agreement and another pro posed agreement contains subcontracting clauses viola tive of Section 8(e) of the Act This is compelling evi dence of Respondents unlawful motivation as further discussed below Respondents also desired the Charging Party to join an employer s association At pages 7-10 of their brief, Respondents contend that no evidence exists of any unlawful conduct on the part of District Council I reject this notion and find it to be without merit Evidence in this case reflects that both Respondents engaged in a joint venture to violate the Act as more specifically found below Through its agent Worley Respondent District Council aided and abetted LocaL 29 in attempting to achieve an unlawful objec tive Moreover the evidence shows that each Respond ent acted as the agent of the other with either real or ap parent authority Building & Construction Trades Council of Reading (General Plumbing) 155 NLRB 1184, 1186-87 (1965) See also Teamsters Local 526 (Penn Yan Express), 274 NLRB 449 (1985) Machinists (Pratt & Whitney), 278 39 (1986) With respect to the question of joint venture and agency, note the evidence showing the combined activi ties of Respondents District Council and Local 29 On 24 February Thomas notified Local 29 of its desire to termi nate the labor agreement as of 30 June That letter is an swered by Worley on behalf of the District Council and apparently on behalf of Local 29 as well In early June Worley arranged a meeting with Thomas and although he promised to bring Kealey to the meeting, he met with Thomas without Kealey, again with apparent authority to speak for Local 29 To make his intent clear before the meeting, he sent Thomas an application for an em IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) ployer s association and the new master labor agreement At the meeting, Worley told Thomas that We want you to get on board Worley made certain other statements at this meeting showing an agency joint venture relation ship with Local 29 To all of this evidence, I add the conversation between Worley and Hutchison on 20 August as reflected in section C 6 above At page 8 of their brief, Respondents contend that the General Counsel and Charging Party base their theory of liability regarding Respondent District Council solely on the encounter between Hutchison and Worley This claim is not true Worley and Respondent District Coun cil are inextricably intertwined into the fabric of this case by more evidence than merely the encounter between Worley and Hutchison Accordingly, Respondent Dis trict Councils culpability in this case is equivalent to Re spondent Local 29's and both Respondents will be judged accordingly Turning now to discuss the alleged violation, I begin with relevant statutes Section 8(b) It shall be an unfair labor practice for a labor organization or its agents- (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in com merce or in an industry affecting commerce to engage in a strike or a refusal in the course of his employment to use, manufacture process transport, or otherwise handle or work on any goods articles, materials or commodities or to perform any serv ices, or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry of fecting commerce, where in either case an object thereof is- (A) forcing or requiring any employer to enter into any agreement which is prohibited by section 8(e) , (B) forcing or requiring any person to cease using selling, handling transporting or otherwise dealing in the products of any other producer, proc essor or manufacturer or to cease doing business with any other person or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the pro visions of section 9 Provided that nothing contained in this clause (B) shall be construed to make unlaw ful, where not otherwise unlawful, any primary strike or primary picketing In Operating Engineers Local 701 (Lease Co), 276 NLRB 597 600 (1985) the Board stated the following principles of law Section 8(e) of the Act makes it unlawful for any labor organization or employer to enter into a con tract in which the employer agrees to refrain from dealing in the product of another employer or to cease doing business with any other person 8 How ever it is well established that contract clauses which may technically fall within the literal pro 579 scription of Section 8(e) are not unlawful if the clause is found to be primary in nature i e, one in tended to preserve or protect the work of unit em ployees 9 Furthermore even clauses which are sec ondary in nature i e, intended to affect the employ ment practices of other persons or employers not party to the contract and which are within the gen eral proscription of Section 8(e), may be lawful and protected if they satisfy the requirements for exemp tion under the construction industry proviso to Sec tion 8(e) As stated in J K Barker Trucking Co, i 2 the Board has developed rules of construction regarding agreements alleged to violate Section 8(e), as fol lows [I]f the meaning of the clause is clear, the Board will determine forthwith its validity under 8(e), and where the clause is not clearly unlawful on its face, the Board will interpret it to require no more than what is allowed by law On the other hand, if the clause is ambiguous, the Board will not presume unlawfulness but will consider ex trinsic evidence to determine whether the clause was intended to be administered in a lawful or unlawful manner In the absence of such evi dence the Board will refuse to pass on the validi ty of the clause [Id at 517 ] Sec 8(e) of the Act provides in relevant part It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement ex press or implied whereby such employer ceases or refrains or agrees to cease or refrain from handling using selling trans porting or otherwise dealing in any of the products of any other employer or to cease doing business with any other person and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void Provided That nothing in this subsection (e) shall apply to an agreement between a labor or ganization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction alteration painting or repair of a build mg structure or other work 9 National Woodwork Mfrs. Assn v NLRB 386 U S 612 (1967) 12 Teamsters Local 982 (IK Barker Trucking Co) 181 NLRB 515 (1970) See also Retail Clerks Local 1288 (Nickels Stores), 163 NLRB 817 818-819 (1967) enfd in pert part 390 F 2d 858, 861-862 (D C Cir 1960) I have recited above in section C 1 a subcontractor clause taken from proposed master labor agreement to which Hoffman Construction was asked to become a party by joining the Northwest Ironworkers Employers Association (G C Exh 7(b)) I have also rectied a second subcontractor clause taken from a proposed Independent Agreement," again to which Hoffman was asked to become a party (G C Exh 8(b)) Neither of these need be repeated In construing these two clauses, I note that Charging Party has no contractual unit Since September 1985, it 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD has no employed ironworkers and does not intend to employ them in the future (see C P Exh 2 C and enclo sures) Nothing in the so called Wacher Project or the so called Kyocera Project (C P Exhs 2 and 4) changes or alters these conclusions The Wacker and Kyocera single project agreements between Hoffman Construction or a subsidary and Columbia Pacific Building and Con struction Trades Council and several other labor organs zations do not utilize ironworkers employed by Charging Party As noted in the facts above, Hoffman Construc Lion s disclaimer of interest in the employment of iron workers was conveyed to Respondents and understood by them I find therefore that the clauses in issue are intended to affect the employment practices of employers who are not parties to the contracts That is, these clauses are sec ondary in nature because their object is to aid and assist union members generally rather than to aid employees in a contractual unit a primary object Colorado Building Trades Council, 239 NLRB 253 255 (1978), Operating Engineers Local 701 239 NLRB 274, 276 (1978) This finding does not end the inquiry As the Board instructed above before any finding is made that a sub contracting clause which is secondary in nature violates Section 8(e) of the Act it must be determined whether the clause satisfies the requirement for exemption under the construction industry proviso to Section 8(e) If so the clause is lawful and protected To answer that question for the two clauses in issue I again turn to the case of Colorado Trades Council, supra 239 NLRB at 256, where the Board stated In Woelke & Romero Framing Inc," a companion case for oral argument, we concluded that the Con nell decison construed the construction industry proviso to Section 8(e) to permit subcontracting clauses such as that in the instant case in the context of a collective bargaining relationship We further noted that the Connell court suggested that such clauses might be protected by the proviso even without a collective bargaining relationship if they were directed toward the problems raised by the close relationship between contractors and subcon tractors at the construction site and/or to the reduc tion of friction that may be caused when union and nonunion employees are required to work together at the same jobsite Here, Respondent seeks the subcontracting clause outside the context of a collective bargaining rela tionship and thereby loses the protection of the pro viso unless, possibly the clause is addressed to problems posed by the common situs relationships on a particular jobsite or to the reduction of friction between union and nonunion employees at a jobsite Respondents clause, however despite its different phrasing, is no more related to these concerns than was the Connell clause The instant clause does not restrict the subcontracting of other types of work at the jobsite, nor does it apply only to jobsites where the Union s members are working Thus the clause allows for the possibility of union and nonunion em ployees working side by side at a jobsite Furthermore, as in Connell Respondent does not seek the clause in order to organize a nonunion subcontractor on the building project it picket ed, 10 Respondents clause therefore, is not aimed at avoiding problems raised by common situs relationships 11 As in Connell, the effect of the in stant clause is to place too great an organizational weapon in the hands of the Union by allowing it to compel any general contractor to agree to bring economic pressure on any nonunion subcontractor provided the agreement covers work to be per formed at any construction jobsite In accord with the Courts holding in Connell, we find that this clause is not saved by the proviso Accordingly we find in agreement with the Ad minstrative Law Judge, that he proposed agreement violates Section 8(e) and Respondents picketing to obtain the agreement violated Section 8(b)(4)(ii)(A) of the Act 9 Carpenters Local No 944 United Brotherhood of Carpenters and Joiners of America AFL-CIO and Carpenters Local No 235 United Brotherhood of Carpenters and Joiners of America AFL-CIO (Woelke & Romero Framing Inc) 239 NLRB 241 10 Connell Construction Co Inc Y Plumbers & Steamfitters Local Union No 100 421 U S at 631 11 In light of this finding we need not and do not pass on the question of what type of clause would address these concerns and whether it would be authorized by the proviso if it were sought outside the context of a collective bargaining relationship See also Woelke & Romero Framing v NLRB 456 U S 645 666 (1982) The Board s statement is directly applicable to the present case Respondents sought the subcontracting clause outside the context of a collective bargaining rela tionship as discussed below Furthermore the two clauses allow for the possibility of union and nonunion employees working side by side at a jobsite so they are not meant to reduce friction Finally there is no attempt to address problems caused by common situs relation ships on a particular jobsite At pages 18-22 of their brief, Respondents contend that because a collective bargaining relationship once ex isted between Charging Party and Respondents it carries over to embrace the events of July and August It is true that unlike the respondent in Laborers Local 185 (West Cal Construction) 255 NLRB 53 (1981) in which the re spondent union was a stranger to the employer Re spondents in this case were not strangers to Hoffman Construction Except for that distinction all other facts of West Cal Construction are very similar to those of the instant case The issues are also identical and the Board affirmed the finding of a violation of Section 8(b)(4)(ii)(A) of the Act caused by Respondents picket ing to obtain an agreement West Cal Construction supports a finding of the viola tion in the present case Merely because a collective bar gaining relationship once existed between Hoffman and Respondents under the facts and circumstances of this case does not mean a collective bargaining relationship existed for 8(e) purposes or for the construction industry proviso to apply This is so because the unit of employ IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) 581 ees once represented by Respondents no longer exists and so far as the evidence shows will not exist in the future Accordingly the collective bargaining relation ship, such as it was since September 1985, also no longer exists In their brief Respondents rely heavily on two cases A L Adams Const Co v Georgia Power Co 733 F 2d 853 (11th Cir 1984) cert denied 471 U S 1075 (1985) and Shaver Inc v NLRB, 635 F 2d 859 (D C Cir 1980), cert denied 451 U S 976 (1981) Both cases involve issues concerning prehire agreements arising under Sec tion 8(f) of the Act The facts of each are lengthy and complex and need not be recited here It suffices to say that nothing in either case suggests that a collective bar gaining relationship still exists between an employer and union when the prior labor agreement has expired and where the employer no longer employs unit employees and has disavowed any intent to hire unit employees in the future Accordingly neither Adams nor Schriver ap plies to the instant case Although the two subcontracting clauses are second ary in nature and are not rendered lawful by the con struction proviso to Section 8(e) I further conclude that the picketing in this case violated Section 8(b)(4)(A) of the Act, and that Respondents are responsible for these violations 4 Did Respondents violate Section 8(b)(4)(B) of the Act by picketing neutral gates, by the use of picket signs which failed to identify the primary employer, and by other acts, the object of which was to enmesh neutral employers in a dispute with a primary employer? I begin with a review of relevant Board law taken from the case of Broadcoast Employees NABET Local 31 (CBS Inc), 237 NLRB 1370, 1374-1375 (1978) enfd 631 F 2d 944 (D C Cir (1980) There the Board affirmed the rulings, findings, and conclusions contained in the de cision of Administrative Law Judge Paul Bisgyer, who held At the outset it may be appropriate to review some basic principles respecting secondary boy cotts It has long been established that dispite the literal language of Section 8(b)(4)(B),21 its prohibi tions are designed to reach only secondary boycott activities by a labor organization, leaving primary action outside the scope of this provision Indeed, when the 1959 amendments to the Act were en acted Congress took special care to assure that pri mary action was not intended to fall within the ban of Section 8(b)(4)(B) by providing that nothing contained in this clause (B) shall be construed to make unlawful where not otherwise unlawful, any primary strike or primary picketing To be sure, the line between secondary and pri mary activity is not always clear, especially in common situs situations where more than one em ployer are engaged in their normal business oper ations at the same location Mindful of dual con gressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shield ing unoffending employers and others from pres sures in controversies not their own, 22 the Board devised the familiar Moore Dry Dock guidelines 23 approved by the courts, to aid in determining whether the unions object was primary and there fore lawful or whether it was really secondary as being calculated to enmesh neutral employers and employees in the union s dispute with the primary employer which the Act was designed to prevent However the Board and the courts have cautioned tht the Moore Dry Dock standards are only guide lines not to be mechanically applied and that, while compliance might give raise to a rebuttable infer ence that the picketing was primary, the totality of the evidence might reveal an underlying proscribed secondary objective and overcome the presump tion 24 In addition to the Moore Dry Dock standards adopted to minimize the potential for unnecessarily involving neutrals in a primary dispute of no con cern to them the Board and courts have recognized the rights of employers to designate at a common site a gate specially reserved for the exclusive use of primary employer his employees suppliers, and materialmen for entry and departure and to estab lish other gates for use by neutral employers em ployees, and others having business relationships with the neutral employers 25 Where separate gates are thus designated and legitimately maintained, the union must confine its picketing activities to the pri mary gate and avoid implicating neutrals by picket ing the gates set aside for the neutral s sole use or else risk violating Section 8(b)(4)(B) of the Act 26 Of course the integrity of the neutral gate must not be compromised by its use by primary personnel or suppliers which would not result in destroying its immunity form primary picketing 27 Moreover the establishment of the reserved primary gate must not be at a location on the site which would impair the effectiveness of picketing to reach the primary em ployer and employees For, as the Board noted in one case, The purpose of the separate gate is to permit lawful picketing that will be conducted so as to minimize its impact on neutral employees in sofar as this can be done without substantial impair ment of the effectiveness of the picketing in reach ing the primary employees 28 21 Formerly numbered Sec 8(b)(4)(A) 22 NLRB v Denver Building and Construction Trades Council (Gould & Preisner) 341 U S 675 692 (1951) 23 Sailors Union of the Pacific (Moore Dry Dock) supra Under this doctrine to support an inference of primary action (a) the picketing must be strictly limited to times when the situs of the dis pute is located on secondary employers premises (b) at the time of the picketing the primary employer is engaged in his normal business at the situs (c) the picketing is limited to places reason ably close to the location of the situs and (d) the picketing dis closes clearly that the dispute is with the primary employer Since Moore Dry Dock the Board has extended these standards to pick eting at the situs of a primary employer where a secondary or neu tral employer is engaged General Teamster Warehouse and 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dairy Employees Union Local No 126 et al (Ready Mixed Concrete Inc) 200 NLRB 253 in 5 (1972) to the same effect Retail Fruit & Vegetable Clerks Union Local 1017 et al (Crystal Palace Market) 116 NLRB 856 859 (1956) 24 International Brotherhood Electrical Workers Local Union 861 (Plauch Electric Inc) 135 NLRB 250 255 (1962) Northeastern Washington Northern Idaho Building and Construction Trades Coun cil et al (Northwestern Construction of Washington Inc) 152 NLRB 975 980 ( 1965) International Union of Operating Engineers Local Union No 450 AFL-CIO (Linebeck Construction Corporation) 219 NLRB 997 998 (1975) affd 550 F 2d 311 (C A 5 1977) 25 Local 761 International Union of Electrical Radio & Machine Workers AFL-CIO (General Electric Company) v NLRB 366 U S 667 (1961) 2e Ibid 27 International Union of Operating Engineers Local Union No 450 (Linebeck Construction) supra 28 International Brotherhood of Electrical Workers Local 640 AFL-CIO (Timber Buildings Inc) 176 NLRB 150 151 (1969) quoting from Retail Fruit & Vegateble Clerks Union Local 1017 (Crystal Palace Market) supra 859 Nashville Building & Construc tion Trades Council et al (H E Collins Contracting Company Inc) 172 NLRB 1138 1140 (1968) see also Wire Service Guild Local 222 The Newspaper Guild AFL-CIO-CLC (The Miami Herald Publishing Company) 218 NLRB 1234 1236 (1975) In more recent cases the Board has uniformly followed those general principles of law See, e g, Carpenters of Western Pennsylvania (Bridges & Co), 282 NLRB 422 (1986), Electrical Workers IBEW Local 332 (Lockheed Missiles), 241 NLRB 674 (1979) In Iron Workers Local 433 (McKee Inc), 233 NLRB 283 (1977), enfd in part 598 F 2d 1154 (9th Cir 1979), the Board and the Ninth Circuit Court of Appeals found that Iron Workers Local 433 violated Section 8(b)(4)(i)(u)(B) of the Act by its un lawful picketing at a reserved gate on a construction project in Iron Workers Local 433 (Oltmans Construc tion), 272 NLRB 1182 (1984), the Board found that Iron Workers Local 433 unlawfully involved neutrals in its dispute with a primary employer through the picketing of gates reserved for neutrals Finally in Iron Workers Local 433 (United Steel), 280 NLRB 1325 (1986) the Board once again found that Iron Workers Local 433 had violated Section 8(b)(4)(i) and (n)(B) of the Act by picketing at reserved gates That case involved four dif ferent jobsites in two different States With these principles of law in mind I turn to the facts of this case Contrary to Respondents argument at pages 24-26 of their brief, I find that their activities at the three construction sites discussed in the facts were calculated to enmesh neutrals in a labor dispute with the primary employer See Electrical Worker IBEW Local 302 (ICR Electric), 272 NLRB 920 (1984) 16 Furthermore, I reiterate that both Respondents are re sponsible for the acts of the pickets in this case Omaha Building Trades Council (Crossroads Joint Venture) 284 (1987) Avis Rent A Car System, 280 NLRB 580 (1986) Compare Cedar Rapids Building Trades Council, 283 NLRB 1155 (1987) The Board has stated that where a union authorizes a picket line, it is required to retain con trol over the picketing If a union is unwilling or unable to take the necessary steps to control its pickets it must 18 I assume for the sake of argument that Respondents may have had one or more lawful objectives as well If one of the objects of picketing is unlawful it is immaterial that Respondents also intended to secure a collective bargaining agreement Electrical Workers IBEW Local 3 (Bi santz Electric) 192 NLRB 283 287 (1971) bear the responsibility for their misconduct' Iron Work ers Local 455 (Stokvis Corp), 243 NLRB 340 (1979) Here the evidence shows not merely a failure to keep control but an affirmative direction of the picket s unlawful ac tivities Note some examples (1) Worley's statements to Thomas on 9 June that Respondents would not permit large general contractors like Hoffman to sub nonunion, (2) Kealey s statement to Thomas on 23 June that Kealey did not care if Hoffman hires ironworkers, he just wanted to tie Hoffman to the subcontracting clause, (3) Kealey's delivery of picket signs on 18 August at the Performing Arts Center, (4) Kealey's explicit disavowal of the settlement agreement on 18 August by characteriz mg it as not meaning anything and his implicit disavowal of the court s injunction by aiding and abetting the pick ets to resume picketing, (5) Kealey s involvement in signal picketing on 18 August at One Financial Center, (6) Kealey falsely representing on the same day and at the same place that the strike was sanctioned, (7) Wor ley s statements to Hutchison on 20 August that the only way for Hoffman to resolve the matter of illegal pickets was to sign the labor agreement (G C Exh 7(b)) [con taining an unlawful subcontracting clause] and to join the Northwest Iron Workers Employers Association, and (8) Worley's additional statement to Hutchison on the same day, after being told that Hoffman would not agree to the labor agreement If Hoffman wanted their jobs to remain shut down for 10 days while he was on vacation that s up to them (a) Failure of picket signs to disclose that the dispute was with Hoffman Construction the primary employer As the facts reflect, and the various photographic ex hibits clearly show during the July phase of the picket ing the various signs did not indicate that the labor dis pute was with Hoffman Construction This violation of a Moore Dry Dock standard raises a presumption of illegal intent which Respondents offered no evidence to rebut Plumbers Local 274 267 NLRB 1111 1114 (1983) For the above reason I find that Respondents violated Sec tion 8(b)(4)(B) (b) Failure to confine picketing to primary gate In the facts section of this decision I have recited for the three construction projects the establishment on or about 30 June of a reserved gate system Accompanying diagrams of the sites reflect exactly where the gates are located Later second neutral gates were also estab lished There is uncontradicted evidence that picketing oc cured at neutral gates on all three projects and I find that Respondents were responsible Before elaborating briefly I should stress two facts First, because Charging Party had no ironworkers or other unionized employees on any of the three projects and because there was little or no construction material delivered to the Charging Party, lawful picketing would have been an exercise in futility Work would have continued as before It was only by unlawfully extending the picketing to the neu trals could Respondents have made an impact, by induc ing the employees of the subcontractors to cease work IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) ing 17 This strategy is best illustrated by reference to the 30 August telephone conversation between Worley and Hutchison in which the former said, If Hoffman wanted their jobs to remain shut down for 10 days while he was on vacation, that's up to them " Hoffman s offense? It re fused to accede to Worley s demand that it agree to a collective bargaining agreement containing a clause that I have found above violated Section 8(e) of the Act The second fact to be emphasized is that while Hoff man had no union employees, all of the subcontractor employees on all three projects were unionized and sig natory to collective bargaining agreements As such, they were required to observe all sanctioned strikes and picket lines On the basis of uncontradicted testimony, job diaries, and photographs, I have found in the facts that iron workers picketed 18 the neutral gate at the Performing Arts Center (G C Exhs 10, 43, 44, 45, and 47), at One Financial Center (G C Exhs 12, 20(a) and (b), and 21(a) and (b)), and at Good Samaritan Hospital (G C Exhs 53 and 55) To all of the direct evidence marshaled above, I add an inference on which I also rely Respondents picketing of the neutral gate at a time when a common situs had been established and sub contractors were scheduled to work supports an in ference that the later failure of the two subcontrac tors to appear and continue their work was due to Respondents picketing at the neutral gate Carpenters Local 1622, 262 NLRB 1211 (1982) In attempting to fend off the inevitable, Respondents raise certain arguments that are devoid of merit First, Respondents argue that the reserve gate system on the three projects was invalid because it prevented Respond ents from conveying their message to the general public and to the personnel and suppliers to the jobsite Citing Southern Sun Electric 237 NLRB 829 (1978) Respond ents attack particularly the Hoffman gate at One Finan cial Center I find nothing in the location of the primary gate there or at either of the other two projects to assist Respondents In Carpenters Local 354 (Sharp & Tatro), 268 NLRB 382 (1983) the Board affirmed the decision of the administrative law judge in which he observed nothing in the Board s Southern Sun Decison requires reserved primary gate placements calculated to maxi mize a pickets chance to reach members of the public with his organizations message That decision merely proscribes gate placements which would substantially and unjustly impair the effectiveness of picketing- conducted in conformity with Moore Dry Dock's stand ards-in reaching a primary emplooyer s personnel, sup pliers, visitors and the general public Similarly, the Electrical Workers IBEW (Pond Electric), 269 NLRB 274 (1984) the Board stated, Southern Sun 17 See Operating Engineers Local 12 (Hensel Phelps) 284 NLRB 246 (1987) 18 Traditional forms of picketing are not required for a finding that picketing in fact occured Groups of men gathered around a sign consti Lute a signal to the employees of secondary and neutral employers Plumbers Local 274 supra 267 NLRB at 1114 583 Electric does not hold that a primary reserved gate on a public road is established improperly simply becuase there is little traffic by the general public at the primary reserved gate In distinguishing the two cases, the Board observed [I]n Southern Sun, the gate sign for neutrals was placed about a halfway between two entrances to the construction site, the reserved gate sign for the primary was located near a third entrance on a pri vate alley which, although owned by the general contractor, could not be distinguished visually from the private parking lot of the adjacent store build ing Furthermore, the reserved gate sign was barely visible from a public right of way In the instant case the primary reserved gate was clearly marked and maintained, and thus the respondent union was able to convey its message directly to the primary employer and its employees, visitors, suppliers, and the general public The Board also considered and rejected similar argu ments in Electrical Workers IBEW Local 323 (Renel Con struction), 264 NLRB 623 (1982), and Electrical Workers IBEW Local 903 (Hinton Contractors), 230 NLRB 1017 (1977) In Renel Construction the Board noted that al though the primary gate was not located on a main road the record did not indicated that the public's use of the road was restricted in any way or that respondent could not communicate to the public at that location In Hinton, although the public had access to the reserved gate it was not generally used by the public Neverthe less the Board affirmed a finding of a violation notwith standing that the reserved gate location was less accessi ble to the public than the location of the picketing on the public road In the present case there was no confusion as to the location of any primary reserved gate They were clearly marked and Respondents were able to convey their mes sage directly to the primary employers visitors, and sup pliers I find that the location of the gates did not unrea sonably deny Respondents the opportunity to convey its message to the public Next Respondents contend that no proper reserved gate system was established and maintained at the three jobsites More specifically, Re spondents assert that Nelson Construction Co is an inte gral part of the Charging Party Therefore its use of the neutral gate tainted the entire system To resolve this question I first turn to the record on cross examination Cecil Drinkward, president of Hoff man Construction of Oregon, testified as follows Q Do you own an interest in Nelson Construc tion as well? A Not personally Q Well in some direct fashion do you? A Yes Q And what is that fashion? A Hoffman Corporation has an interest in Nelson Q Majority interest? A Yes 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. Sole interest? A. No. Q. What percent? A. Eighty. Q. Eighty percent. And Nelson Construction and Hoffman of Oregon have the same labor relations managers, isn't that true? A. No. Q. Oh, isn't that Mr. Hutchison? A. No. Mr. Hutchison. is labor relations for Nelson. Mr. Thomas is for Oregon. Q. And is Mr. Hutchison also labor relations for Hoffman of Washington? A. No. Q. Is he labor relations for Hoffman of Alaska? A. Yes. Q. I'm sorry. I'm confused. I hope I didn't con- fuse you. [R. pp. 1079-1080.] To this, I add the relevant testimony of Hutchison: Q. You do labor relations for Hoffman of Wash- ington and Hoffman of Alaska? A. I do of Hoffman of Alaska. I'm assigned Hoff- man of Alaska, Hoffman Mechanical Corporation, and Nelson Concrete. Q. I won't touch that one yet, except to ask, Nelson Concrete is owned by Hoffman Construc- tion Company? A. Partially, yes. Q. In connection with the dispute at issue here, was Nelson a subcontractor on these jobs? A. I believe they were sub on one of them. Q. Which one do you believe? A. I believe they were sub on the-no, two of them. On Good Samaritan Hospital and on the Per- forming Arts Center. Q. And who owns Nelson? A. Nelson, I believe-they're a separate corpora- tion completely. Q. Who owns them? A. They're self-owned. Dave Nelson is the presi- dent. Q. And you do the labor relations for Nelson? A. Yes. Q. And who pays you for doing the labor rela- tions for Nelson? A. Nelson. Q. So you have more than one employer? A. Technically I do, yes. Q. Do you get more than one pay check? A. Yes [R. pp. 924-925.] It is well established that a secondary employer is not a "neutral" entitled to the protection of the Act if the primary and secondary are so closely integrated that they in essence constitute a single employer. Teamsters Local 639 (Poole's Warehousing), 158 NLRB 1281 (1966); Newspaper & Mail Deliverers (Gannett Co.), 271 NLRB 60 (1984). In determining whether a joint employer relation- ship exists, the Board looks to the existence of four fac- tors: (1) common ownership; (2) common management; (3) centralized control of labor relations; and (4) interre- lationship of operations. Gannett Co., supra. Assuming without finding that the Charging Party and Nelson Construction Co. have common ownership and management, there is no credible evidence of centralized control of labor relations nor interrelationship of oper- ations. Accordingly, I find no pollution of the reserved gate system on that basis. Los Angeles Newspaper Guild Local 69 (Hearst Corp.), 185 NLRB 303, 304-305 (1970), enfd. 443 F.2d 1173 (9th Cir. 1971), cert. denied 404 U.S. 1018 (1972). Respondents also claim that on at least one site, Nelson was an ally of the Charging Party. That is, it per- formed work of Hoffman which would otherwise have been done by the ironworkers. NLRB v. Electrical Work- ers UE (Royal Typewriter), 228 F.2d 553 (2d Cir. 1955), cert. denied 351 U.S. 962 (1956). There is no showing that Nelson is allied with Hoffman for that or any other reason. Miami Pressman's Local v. NLRB (Knight News- papers), 322 F.2d 405 (D.C. Cir. 1963). See also Sacra- mento Carpenters (Malek Construction), 244 NLRB 890 (1979). I find that Respondents are responsible for the picket- ing at the neutral gates done for the purpose of inducing neutral employees to cease working and constituted co- ercion and restraint in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. (c) Distribution of pamphlets as unlawful inducement In addition to picketing, ironworkers also passed out pamphlets to witness Jeannis and others (G.C. Exhs. 19, 60, and 61). The content of these documents has been re- cited in the facts. Respondents were responsible for these incidents. Under the circumstances presented, the distri- bution of the pamphlets to Jeannis and others violated Section 8(b)(4)(B) of the Act as their purpose was to induce neutral employees to cease work. See Electrical Workers IBEW Local Union 684, 246 NLRB 549, 556 (1979). Broadcast Employees NABET Local 31 (CBS Inc.), 237 NLRB 1370 (1978). (d) Oral statements to neutral employees as unlawful inducement The statements made to Jeannis also violated Section 8(b)(4)(i)(B) of the Act. See Laborers Local 304, 282 NLRB 100 (1986). Thus as he sought to report for work, the ironworker pickets told him that their union support- ed his union; then they distributed a pamphlet to him (G.C. Exh. 19). Later in the day while he was working, Jeannis heard pickets yelling at him asking why he was working when he knew a strike was in progress. Still later, two iron- workers met Jeannis in a trailer used by Ace Electric and asked him if he knew that the electricians' union agreed with their union in support of their strike. These remarks to Jeannis are reasonably interpreted as a re- quest to engage in a work stoppage against his employer. Each of them therefore constituted inducement or en- couragement within Section 8(b)(4). Laborers Local 304, supra. IRON WORKERS PACIFIC NORTHWEST COUNCIL (HOFFMAN CONSTRUCTION) (e) Printed and oral representations that strike was sanctioned as unlawful inducement Finally I find Respondents violated Section 8(b)(4)(i) and (ii)(B) by oral and written representations that the strike was sanctioned I agree fully with the Charging Party (Br 96-97) that the printed and oral representations made to neutral em ployees of subcontractors were additional separate viola tions of Section 8(b)(4)(B) of the Act To support these conclusions, I turn to Los Angeles Building Trades Coun cil (Sierra South), 215 NLRB 288 290 (1974), in which the Board stated the following The Supreme Court first interpreted the scope of the words to induce or encourage in International Brotherhood of Electrical Workers Local 501 et al (Samuel Langer) v NLRB, 341 US 694 (1951) In that case, in the context of finding peaceful picket ing to be a form of inducement or encouragement proscribed by Section 8(b)(4) where it had second ary object the Court stated The words induce or encourage are broad enough to include in them every form of influ ence and persuasion [p 701] Since then, the Board has repeatedly found un lawful any statements which agents of a union make directly to the employees of a secondary employer if such statements would reasonably be understood by the employees as a signal or request to engage in a work stoppage against their own employer In Great Falls Building and Construction Trades Council et al (Purvis Fedco Inc) 154 NLRB 1637 at 1644 (1965) the Board found unlawful induce ment in a union agent s statement to a neutral em ployee that the local building trades council au thorized certain picketing The Board there equat ed the affect of calling picketing authorized to that of terming the primary unfair as in District Council of Painters #48 supra Accordingly as found in the facts above printed signs either carried by or in the immediate vicinity of pickets at the three construction projects which read Sanc tioned by Columbia Pacific Building & Construction Trades Council violated the Act In addition oral state ments to the same effect, made by Kealey on 18 August at One Financial Center and by pickets at Good Samari tan Hospital during the June picketing similarly violated the Act CONCLUSIONS OF LAW 1 Hoffman Construction Company of Oregon is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 Ironworkers District Council of the Pacific North west and Local Union No 29 of the International Asso ciation of Bridge Structural and Ornamental Iron Work ers are labor organizations within the meaning of Section 2(5) of the Act 585 3 Deferral is not appropriate to resolve the issues in this case 4 The General Counsel is not estopped from amend ing the complaint to add two new allegations 5 By picketing and otherwise attempting to coerce Hoffman Construction Company of Oregon into agreeing to a labor agreement containing a clause violating Sec tion 8(e) of the Act, Respondents violated Section 8(b)(4)(A) of the Act 6 By picketing with signs failing to disclose the mane of the primary employer, Respondents violated Section 8(b)(4)(B) of the Act 7 By picketing at gates reserved for neutrals at the Performing Acts Center One Financial Center and Good Samaritan Hospital Respondents violated Section 8(b)(4)(i) and (ii)(B) of the Act 8 By distributing pamphlets at the three projects re ferred to above for the purpose of inducing neutral em ployees to cease work Respondents violated Section 8(b)(4)(B) of the Act 9 By telling neutral employees that their union sup ported the ironworkers union by telling neutral employ ees they were working when a strike was in progress, and by making similar statements for the purpose of in ducing neutral employees to cease work, Respondents violated Section 8(b)(4)(i)(B) of the Act 10 By falsely telling neutral employees that a strike and picketing was sanctioned by Columbia Building and Construction Trades Council and by using picket signs printed with a similar legend, Respondents violated Sec tion 8(b)(4)(i) and (ii)(B) of the Act I I The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 12 Other than specifically found Respondents com mitted no other unfair labor practices 19 THE REMEDY Having found that Ironworkers District Council of the Pacific Northwest and Local Union No 29 of the Inter national Association of Bridge Structural and Ornamen tai Iron Workers have engaged in unfair labor practices within the meaning of Section 8(b)(4)(A) and 8(b)(4)(i) and (ii)(B) of the Act I recommend that they be ordered to cease and desist and take certain affirmative actions designed to effectuate the policies of the Act In Administrative Law Judge s Exhibit 3 page 1 para graph 3 the General Counsel specifically disclaims an in terest in a broad remedial order This disclaimer is not binding on me Cf All Massera 97 NLRB 712 714 (1952) In Hickmott Foods 242 NLRB 1357 (1979) the Board established alternative conditions as a basis for a broad order When the respondent has shown a proclivi ty to violate the Act, or has engaged in such egregious or widespread misconduct as to demonstrate a genera] disregard for fundamental statutory rights In rec ommending a broad order to the Board I find sufficient evidence to support both conditions in this case howev 19 1 will recommend to the Board that all allegations regarding picket mg of Hoffman Columbia Plaza be dismissed as I find no legal basis to sustain these charges 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er there is overwhelming evidence to show egregrious and widespread misconduct so as to qualify particularly under the second prong of Hickmott See Service Employ ees Local 77 (Thrust IV), 264 NLRB 628, 629 (1982) Compare Iron Workers Local 118, 285 NLRB (1987) and Operating Engineers Local 12, 284 NLRB 246 (1987) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed20 ORDER The Respondents, Ironworkers District Council of the Pacific Northwest and Local Union No 29 of the Inter national Association of Bridge Structural and Ornamen tal Iron Workers, their officers, agents and representa tives, shall 1 Cease and desist from (a) Picketing or signal picketing at or near entrances to construction jobsites, to coerce Hoffman Construction Company of Oregon into agreeing to a labor agreement containing a clause violating Section 8(e) of the Act (b) Picketing or signal picketing at or near entrances to construction jobsites with signs failing to disclose the name of Hoffman Construction Company of Oregon as a primary employer with whom Respondents are engaged in a labor dispute (c) Picketing or signal picketing distributing pam phlets, making oral statements to emplpoyees of neutrals or falsely telling neutral employees that a strike was sanctioned, at construction site gates reserved for neu trals or in any other manner threatening coercing or restraining Hoffman Construction Company of Oregon, any of its subcontractors, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require those employers or any other person to cease doing business with each other or any other person 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its business office and meeting halls copies of the attached notice marked Appendix 21 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent s authorized representative, shall be posted by the Re spondent 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 cov ered by any other material (b) Furnish the Regional Director with signed copies of the notice for posting by Hoffman Construction Com pany of Oregon and its subcontractors on the Performing Acts Center, One Financial Center, and the Good Sa maritan Hospital projects, if those companies are willing to post them (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 20 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 21 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