International Brotherhood Of Electrical Workers, 302

920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local 302 and David Garcia and William Fre denckson d/b/a ICR Electric Case 32-CC-831 24 October 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 30 April 1984 Administrative Law Judge James M Kennedy issued the attached decision The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respond ent filed an answering brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings ' and conclusions as modified2 and to adopt the recom mended Order 1 In fn 2 sec IV par 7 of his decision the judge relying on the parties stipulation that there were no interruptions in the progress of work at the jobsite between 10 and 23 August found that the Charging Party s attorney inaccurately stated in his 9 August letter to the Union that the picketing had caused contractors to walk off the job The stipula tion however covered only the period of 10-23 August There was no evidence concerning the effects of the picketing before the 9 August letter Because the record does not support the judge s finding that the Charging Party s letter was partially inaccurate we specifically disavow it 2 We agree with the judge that the Respondent s picketing at the Anti och California construction site between 10 and 23 August 1983 did not violate Sec 8(b)(4)(1) and (i1)(B) of the Act but only for the reasons which follow As the judge found the Respondent complied with three of the four standards the Board established to assist in determining whether picketing at a common situs is primary or secondary Sailors Union (Moore Dry Dock) 92 NLRB 547 549 (1950) Thus the Respond ent limited the picketing to times when the situs of the dispute was at the construction site the picketing was limited to gate B the reserve gate a place reasonably close to the location of the situs of the dispute and the picket sign clearly disclosed that the dispute was with ICR the primary employer But because the Respondent picketed the reserve gate during a period it had been Informed that the primary employer would not be per forming work or receiving supplies at the site it did not fully comply with the requirement that at the time of the picketing the primary em ployer must be engaged in its normal business at the site The Moore Dry Dock criteria are evidentiary aids that are not to be me chanically applied See Electrical Workers IBEW Local 400 (County of Ocean) 269 NLRB 119 fn 2 (1984) Operating Engineers Local 675 (Indus trial Contracting) 192 NLRB 1188 1189 (1971) Although observance of these standards raises a presumption of legality the ultimate question— one of fact—remains does the union s conduct disclose an Illegal second ary object/ See T W Helgesen Inc v Iron Workers Local 498 548 F 2d 175 (7th Cir 1977) The record here in our view requires a negative answer A single picket carried a sign which was clearly addressed to the public and which stated that the dispute was only with ICR The sign read To the public Please be advised that ICR Electric does not have a contract with IBEW Local 302 and does not employ any of its mem hers This dispute does not Involve any other employer The picketing was confined to the reserve gate The Union did not ap proach any neutral employers or employees nor attempt to enlist the aid of other labor organizations The picket clearly attempted to avoid en meshing neutral employers employees by arriving at the site after most of the neutral employees were already working and leaving before them ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed and carrying the sign upside down when walking from his car to the re serve gate At the time ICR left the site It had performed only 10 per cent of its work and was clearly intending to return The reserve gate sign remained in place during ICR s absence and ICR left a small amount of material at the site At the time it left the site ICR did not Inform the Union of the precise date when it would return although it did so later No interruptions in work occurred at the site as a result of the picketing during ICR s absence The picketing took place on a busy street at times when the public could reasonably be expected to see the sign Contrary to the General Counsel we find Electrical Workers IBEW Local 595 (Hayward Electric) 261 NLRB 707 (1982) and Plumbers Local 519 (HL Robertson & Associates) 171 NLRB 251 (1968) distinguishable In Hayward the picket signs were not addressed to the public and did not state that the union had no dispute with any other employer The reserve gate had been removed and the union picketed the entire site and one neutral employee refused to cross the picket line In Robertson the pn mary employees were scheduled to be present at the site during certain hours but the union picketed the entire jobsite when no primary employ ees were present and neutral carpenter employees did not work dunng the picketing We find that the factors indicating a primary objective outweigh the technical breach of one of the Moore Dry Dock criteria We therefore conclude that the Union s picketing did not violate Sec 8(b)(4)(1) and (n)(B) of the Act and shall dismiss the complaint DECISION STATEMENT OF THE CASE JAMES M KENNEDY Administrative Law Judge This case was tried before me in Oakland California on Janu ary 16 1984 pursuant to a complaint issued by the Re gional Director for the National Labor Relations Board for Region 32 on September 28 1983 1 and which is based on a charge filed by David Garcia and William Frederickson d/b/a ICR Electric (the Charging Party or ICR) on August 8 The complaint alleges that Interna tional Brotherhood of Electrical Workers Local 302 (Union or Respondent) has engaged in certain violations of Section 8(b)(4)(1) and (n)(B) of the National Labor Re Wiens Act (the Act) Issue Whether Respondent violated Section 8(b)(4)(1) and (u)(B) when it picketed a construction site in Antioch California for 8 days during a 13 day period in August when ICR was temporarily off the site 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 All parties filed briefs which have carefully been considered On the entire record of the case and from my obser vation of the witnesses and their demeanor I make the following 1 All dates herein refer to 1983 unless otherwise indicated 272 NLRB No 140 ELECTRICAL WORKERS IBEW LOCAL 302 (ICR ELECTRIC) 921 FINDINGS OF FACT I THE EMPLOYER S BUSINESS At the hearing Respondent admitted that the Charging Party is a California corporation having its principal place of business in Antioch where it is engaged in the construction business as an electrical contractor It fur ther admits that during the past 12 months ICR has pur chased and received goods valued in excess of $50 000 from California suppliers who had obtained such goods from outside the State and thus it meets the Board s indi rect inflow jurisdictional standard Accordingly it admits ICR is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Respondent admits and I find that at all material times it has been a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES The construction site is owned by one Gerald Jeffrey He has contracted with Mid State Construction a gener al contractor to erect an office building Mid State in turn has subcontracted portions of the construction to at least 23 subcontractors The electrical subcontractor is the Charging Party ICR Electric The project in question is located at the intersection of West Tregallas Road and Lone Tree Way not far from downtown Antioch The evidence shows that Lone Tree Way is a major thoroughfare in that city To the north is the downtown business district and to the south are a large shopping center the city airport and recreational facilities Opposite the construction site on Tregallas Road is a small shopping center adjacent to the intersec tion of Tregallas and Lone Tree are on and off ramps to Highway 4 a freeway serving northern Contra Costa County and a commute route to Oakland San Francisco The testimony shows that there is both heavy vehicular and pedestrian traffic on Lone Tree Way The construction site itself is an isosceles triangle with the apex at the intersection The building configuration is a modified triangle designed to fit the lot There is a parking lot running parallel to the base of the triangle it has two entrances one on Tregallas known as Gate A and one on Lone Tree Way known as Gate B The dis tance from each of those two gates to the intersection is 200 feet the distance between the two gates via the parking lot appears to be nearly 300 feet Although each gate could be seen from the other during the initial stages of construction as the building rose the view became blocked According to a stipulation of the parties on about July 29 Mid State notified Respondent that a dual gate system had been established at the site Gate A was posted with a sign reserving entry exclusively for the employees and suppliers of 22 named contractors It stated that all other persons must use the gate on Lone Tree Way Gate B That gate was posted with another sign containing the following legend This gate reserved exclusively for the employees and suppliers of I C R Electric All other persons must use gate located on West Tregallas Road [Gate A] The record does not reflect what prompted the general contractor to post the signs at this time Nonetheless on August 3 Respondent wrote ICR a letter asserting that it understood that ICR had engaged employees to perform the electrical work on the job under wages and conditions which are substandard The letter advised that Respondent intended to picket ICR s project to protest the substandard wages and con ditions It went on to explain that such wages and condi tions threatened benefits negotiated by Respondent for its own members and undermined the ability of union signa tory contractors to obtain work for its members The letter asserted the picketing would not be for the pur pose of seeking representation rights for ICR s employ ees and that it did not seek to obtain a contract covering those employees or to compel ICR to abide by the terms of the master contract It said The single purpose of the picketing would be to call to the attention of all con cerned that the work was being performed under sub standard conditions Respondent then offered to remove the pickets on the presentation of evidence that ICR s employees were re ceiving comparable wages and benefits and advised ICR that the total economic outlay for employee benefits under the master agreement amounted to $30 33 for each straight time hour It offered to explain how that figure was calculated It repeated that its object in this matter is solely to bring pressure to eliminate the competitive advantage which you have over other employers under their contracts with us by paying substandard wages and benefits It concluded by stating if ICR proved that the level of benefits had been met you may rest assured that we will engage in no protest activities Almost si multaneously the picketing commenced There is an in consequential dispute with respect to when it actually began The General Counsel asserts it was August 1 Re spondent asserts it was August 3 In any event the Union picketed Gate B with the following legend IBEW Union Local 302 protests the fact that ICR Electric does not pay prevailing wages for electrical work There is no dispute with any other employer On August 9 ICR answered Respondent s letter and its picketing by two separate communications First ICR s attorney Paul V Simpson wrote union attorney Peter Nussbaum a letter which inter aim advised that ICR did not employ any electricians saying the two owners did all the work themselves Simpson contended the picketing could not therefore have the area standards object which Respondent was claiming 2 The second 2 Simpson s letter also fired a broadside salvo He asserted that the picketing had caused contractors to walk off the job and thus violated Sec 8(b)(4)(B) he also said because ICR employed no unit personnel Sec 8(b)(7)(C) was also being violated for the picketing had a perceived organizational or recogrutional purpose He threatened a Sec 303 damage suit as well as a defamation action in connection with certain handbills which were also being distributed (The handbills were distributed at lo cations other than the construction site and are not in issue here ) The parties later stipulated that no contractor or its employees had walked off the job Thus Simpson s letter was partially Inaccurate furthermore there is no contention that the picketing actually violated Sec 8(b)(7)(C) 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD message was a mailgram sent by Simpson directly to the Union It contended the picketing was illegal as ICR did not employ anyone to perform the work except its two owners He also asserted that the owners total compen sation exceeded that set forth in the IBEW contract He advised that NLRB charges had been filed and threat ened civil action unless the picketing and handbilling ceased That same day as a response to both communications the Union s business manager John A Hunter sent a mailgram to ICR reconfirm[ing] the fact that IBEW Local 302 was not interested in organizing your employ ees obtaining representative rights for them obtaining a contract or having [ICR] abide by the terms of our master agreement He said the Union was interested in informing the public that ICR did not have a contract with the Union and did not employ its members He con eluded In order to advise the public of these facts Local 302 will engage in purely informational picketing at the project Simultaneously Respondent changed its picket sign to read To the public Please be advised that ICR Electric does not have a contract with IBEW Local 302 and does not employ any of its members This dispute does not in volve any other employer Also on August 9 attorney Simpson on behalf of ICR sent another mailgram to the Union He advised that ef fective August 10 ICR would not perform work or re ceive supplies at the project until further notice He asked that the pickets be removed The Union did not re ceive this mailgram until August 11 Prior to receiving ICR s two communications of August 9 Respondent had picketed Gate B each day commencing at 6 45 a m After receiving the August 9 communications Respondent delayed picketing until 8 a m After receiving Simpson s second mailgram on August 11 Respondent continued with its new schedule picketing Gate B each weekday beginning at 8 a m and stopping at 2 30 p m Respondent s assistant business manager Foster Whitehurst testified that the picket was instructed to patrol during those hours because those were the most convenient hours for people driving by to see [the] sign It is obvious that picketing during those hours tended to minimize the impact it might have had on neutral em ployees entering the site during the early morning hours or those leaving in the afternoon Thus it is fair to con elude that by the time the picket appeared at 8 a m most of the neutrals employees other than deliverymen were already on the site and that he had left before the neutral personnel left for the day The picket a college student engaged in summer employment was under strict in structions to patrol Gate B and to go no further than a city bus stop 40 feet away There is no evidence that he ever breached those instructions In addition when going to or from his parked automobile which was parked in the lot of the small shopping center on Tregal las he always carried his sign upside down The picket testified that while he was at Gate B pedestrians and ye hides on occasion stopped to read his sign He observed that there is a bicycle lane on Lone Tree Way as well as the bus stop which made it relatively easy for vehicles to pull over to read his sign Foot traffic to and from a nearby convenience store also read the sign There is no evidence that any employee of a neutral contractor while on his way to or from Gate A ever stopped Indeed the parties have stipulated that the picketing had no effect whatsoever and that no work stoppages occurred On August 19 Simpson advised the Union that ICR would return to the project on Tuesday August 23 ICR did return to the site on August 23 the picketing contin ued unchanged It should be observed that during the 13 day period in question Respondent picketed only 8 of those days as its policy was to picket during weekdays not weekends Al though no owner or employee of ICR actually per formed electrical work during its 13 day absence it is undisputed that it had performed only 10 percent of the work it had contracted to do for Mid State In other words 90 percent of the job remained to be done On one or more occasions during the 8 days in question one of Respondent s owners Daniel Garcia parked a compa ny pickup truck across the street from the entrance to Gate B approached the picket and engaged him in con versation Almost daily Garcia using a company pickup truck visited a liquor store across from the site with which ICR maintains a charge account Also during that period Respondent left a small quantity of plastic conduit at the site and on another occasion one of its suppliers attempted to make a delivery but was rebuffed as Gate B was locked Despite being locked the gate continued to display the reserve gate sign placed there in late July by Mid State IV ANALYSIS AND CONCLUSIONS The only period of picketing alleged to be unlawful is that conducted by Respondent between August 10 and August 23 when ICR temporarily absented itself from the jobsite The General Counsel contends that because ICR was not physically present during that period Re spondent must have had a cease doing business objec tive 3 Although the statutory language has long been recog nized to be somewhat unclear it can fairly be said that the provision prohibits a labor organization from involv ing neutral employers in disputes which are not their own Of course it is also recognized that every primary labor dispute may have incidental effects upon secondary 3 In pertinent part Sec 8(b)(4)(1) and (11)(B) reads as follows Section 8(b) It shall be an unfair labor practice for a labor organiza non or its agents— (4)(1) To engage in or to induce or encourage any individual ern ployed by any person engaged in commerce or in an Industry affect mg 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 services or (n) to threaten coerce or restrain any person engaged in commerce or in an industry affecting commerce where in either case an object thereof is (B) forcing or requiring any person to cease doing business with any other person Provided That nothing contained in this clause (B) shall be construed to make unlawful where not otherwise unlawful any primary strike or primary picketing ELECTRICAL WORKERS IBEW LOCAL 302 (ICR ELECTRIC) 923 or neutral persons The mere fact that incidental second ary effects may occur does not convert lawful primary picketing into secondary picketing Oil Workers Local 346 (Pure 011 Co) 84 NLRB 315 (1949) Sometimes the fact pattern makes it quite difficult to determine whether or not picketing is primary or secondary in nature Nonetheless the Board has said on many occasions that in determining the lawful or unlawful nature of the union s object one should look to all the surrounding cir cumstances be realistic and apply common sense to such a determination Indeed Electrical Workers Local 861 (Plauche Electric) 135 NLRB 250 (1962) was the Board s specific response to court criticism of the rigid somewhat unrealistic rule of law set forth in Teamsters Local No 67 (Washington Coca Cola) 107 NLRB 299 (1953) enfd 220 F 2d 380 (DC Cir 1955) In Plauche the Board expressly overruled Washington Coca Cola which had held that picketing at a common situs was un lawful when the primary employer had a regular place of business elsewhere which could be picketed Indeed that is one of the arguments the Charging Party makes here that ICR had an office located elsewhere in Anti och which could easily have been picketed instead 4 Fur thermore the trial examiner in Plauche had observed that the picketing at the common situs had continued during the day even though the primary s employees temporan ly left the site for coffeebreaks lunch and the like The Board thought a violation in that circumstance was absurd Instead it applied the Moore Dry Dock 5 stand ards to the case Even so it said the Moore Dry Dock standards were to be applied with common sense and stated not for the first time that they are not to be ap plied on an indiscriminate per se basis but are to be re garded merely as aids in determining the underlying question of statutory violation Thus the standards themselves which will be discussed below are not rules of law but are designed to assist the trier of fact to deter mine the true object of the picketing 6 Indeed the Board has within the last month reaffirmed the nature of the Moore Dry Dock standards as evidentiary aids which are not to be mechanically applied See Electrical Workers Local 400 269 NLRB 119 (1984) Earlier admonitions of a similar nature are found in Operating Engineers Local 675 (Industrial Contracting Co) 192 NLRB 1188 (1971) Operating Engineers Local 450 (Linbeck Construction Corp ) 219 NLRB 997 (1975) and Carpenters Local 1245 (New Mexico Properties) 229 NLRB 236 (1977) Because a union usually can lawfully picket a common situs if it complies with the Moore Dry Dock criteria and 4 Its office was on a side street which offered little traffic 5 Sailors Union (Moore Dry Dock) 92 NLRB 547 (1950) 6 The Moore Dry Dock cntena were recently scrutinized in a Sec 303 action Constar Inc v Plumbers Local 447 568 F Supp 1440 (E D Cal 1983) (notice of appeal filed August 23 1983 9th Cir docket #83-2316) In that case also involving reserve gates the court found the Moore Dry Dock cntena to be of limited utility in determining a union s object particularly where only technical breaches had occurred I commend the case to the Board both for its recognition of construction site game playing as well as for its thoughtful analysis of Moore Dry Dock I note that the Charging Party s counsel here was plaintiff's counsel there Were similar games being played in this dispute? If so can Moore Dry Dock re alistically be expected to deal appropriately with them ? Board litigation over such game playing appears both unbecoming and inexpedient because such picketing often has lawful incidental effects upon neutral employers—resulting in work stoppages which are not cognizable under Section 8(b)(4)(B) the so called reserve gate tactic was adopted The reserve gate permits with court approval 7 the physical if fic tonal separation of the primary disputant from the neu trals This is usually done as here by arranging for sepa rate entrances for both the primary disputant and the neutrals When that occurs what previously had been a common situs within the meaning of Moore Dry Dock and Denver Building & Construction Trades Council v NLRB 341 U S 675 (1951) becomes something less than that By operation of law as well as by the physical separa tion, the primary disputant can reasonably be said to have a location or situs separate from that of the neu trals Literally of course both the neutrals and the pn mary are actually present simultaneously at the site Nonetheless a legal fiction has been created placing the neutrals at the gate reserved for them and the primary at the gate reserved for it Thus it cannot be said that the Moore Dry Dock evidentiary aids are as effective in de termining the lawful or unlawful objective of the union as they would be had the situs remained truly common This is undoubtedly because the proviso of Section 8(b)(4)(B) specifically protects primary picketing (see fn 3 supra) stating that nothing in the clause shall be construed to make unlawful where not otherwise unlaw ful any primary picketing The Moore Dry Dock criteria were specifically de signed to determine what is primary picketing and what is not Those criteria are (a) The picketing must be strictly limited to times when the situs of the dispute is located on the secondary (neutral) employer s premises (b) At the time of the picketing the primary employer must be engaged in its normal business at the site (c) The picketing must be limited to places reasonably close to the location of the situs (d) The picketing must clear ly disclose that the dispute is with the primary employer If these criteria are met a rebuttable presumption of lawful objective has been created If not the presump tion is not as clear Even so a single failure to comply with one criterion does not result in an automatic con elusion of unlawfulness See Industrial Contracting Co Lmbeck Construction and New Mexico Properties all supra Such a conclusion would amount to an irrebutta ble presumption—not countenanced by Section 10(c) of the Act or the Plauche evidentiary aid approach Such methodology must be rejected Presumptions are not proof Even assuming that the construction site here was a true common situs it is clear that the Union complied with three of the four criteria Obviously the construc tion site is the situs of the dispute for it was there that ICR was accused of failing to employ Respondent s members furthermore the picketing was limited to Gate B a place reasonably close to the location of the situs of the dispute and the picket sign clearly disclosed that the 7 See Electrical Workers Local 761 (General Electric Go) v NLRB 366 US 667 (1961) 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute was with ICR the primary employer The only real question is whether or not the picketing was in corn phance with Moore Dry Dock criteria (b) Did the picket mg occur at a time when the primary employer was en gaged in its normal business at the site? ICR s normal business is electrical contracting in the building and construction industry It performs that busi ness on construction sites The installation of electrical wiring and fixtures at construction sites is normally per formed on a staged basis 1 e according to schedules in which various crafts including electricians appear and often reappear at the site as the project progresses In this particular case ICR had performed only 10 percent of its contract When it left the site on August 9 or 10 it obviously had every intention of returning shortly and it cannot be said that its absence was permanent More over it did not advise Respondent when it would return though it promised to do so Indeed although the prom ise was later kept the Charging Party s attorney made factual assertions in his letter which were not accurate Could the Union fully trust the Charging Party here, Considering the fact that ICR s Garcia also occasionally appeared at or near his primary gate the Union had ample reason to believe that ICR was still present Thus using the Moore Dry Dock rules as evidentiary aids to determine Respondent s object here it appears that Respondent complied with three of the four criteria and partially complied with the fourth Both before August 9 and after August 23 Respondent had fully complied During that 13 day period even though ICR was absent from the site the Union continued to picket on 8 weekdays Yet the picketing was at a location which the general contractor had dedicated and had publicly posted as ICR s Thus even if ICR was not ac tually on the site and even if the Union knew it to all appearances insofar as the public and the neutrals were concerned Respondent was picketing ICR at a place where ICR was supposed to be Indeed the general con tractor had taken steps to remove the neutrals from that location by placing their entry nearly 300 feet away a location which could not even be seen from the primary gate Thus there were no neutrals to even be enmeshed at that location Since it was not a pure common situs due to the re serve gate arrangement the Moore Dry Dock rules are not as useful as they might be to determine the Union s object We must also look to the Union s acts and con duct with respect to its treatment of the neutral employ ers on the site Section 8(b)(4) (i) condemns the induce ment of the employees of neutrals not to perform work as evidencing an unlawful object In this case there is ab solutely no evidence whatsoever that any inducement of neutrals occurred independent of the picketing itself Similarly subsection (n) bans threatening coercing or restraining neutral persons (employers) having a cease doing business object Yet there is no evidence whatso ever that Respondent approached any neutral in an un lawful manner 8 Indeed it appears that the Union took 8 There is some rejected evidence that the Union engaged in handbill mg the owner of the project elsewhere in the city but that was not part pains to picket only after the neutrals employees had gone to work and to leave before they left thus minimiz ing the likelihood that they would be induced by the sign itself In addition the picket was careful to carry his sign upside down and to give the appearance of not pick eting while walking between Gate B and the place where he parked his car Nor is there evidence that Re spondent enlisted the assistance of any other unions Finally there is the Union s assertion that its picketing was simply for the purpose of advertising to the public the fact that ICR did not have a contract with Respond ent or employ any of its members That language of course tracks the publicity proviso of Section 8(b)(7)(C) 9 It appears moreover that Respondent had chosen a reasonably good location to publish its message Gate B is located on a main thoroughfare in Antioch which has heavy vehicular and foot traffic There is evi dence that individuals stopped to read the sign and its message was conveyed Oddly the General Counsel argues that because Re spondent did not picket after 2 30 in the afternoon that it could not have had a publicity object for he observes that removing the picket in midafternoon meant missing evening commute traffic However the General Counsel obviously wants it both ways because had Respondent picketed during the commute period it would have in creased the probability of inducing or otherwise enmesh ing the employees of neutrals as they left the site Had that occurred the General Counsel undoubtedly would then have argued that it was Respondent s purpose to enmesh the neutrals The General Counsel cannot have it both ways to do so would effectively deny the existence of the right to engage in primary picketing Thus looking at the Union s conduct as well as its statements its object appears clear It had a dispute with ICR and wished to advertise it at a location where ICR could be seen by the public to be engaged in business It made every effort to avoid enmeshing neutral employees and employers In fact it succeeded for the parties have stipulated that at no time did the picket cause any neutral employees or employers to cease performing work at the site 1° Thus there were not even any incidental second ary effects arising from this dispute Given all this the only objective which can be seen is that stated by the Union in its letters and its sign—to publicly announce that ICR did not have a contract with it or employ its members The mere fact that one of the Moore Dry Dock criteria was not fully met during an 8 day period in August is hardly sufficient to conclude that its objective was otherwise Indeed the General Counsel has not complained that the pre August 9 picketing or the post August 23 picketing when ICR was actually present at the site was ever unlawful Thus in effect the of this complaint It is apparently conceded that the handbilling was pro tected by the publicity proviso of Sec 8(b)(4) 9 In pertinent part the proviso to Sec 8(b)(7)(C) states nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including con sumers) that an employer does not employ members of or have a con tract with a labor organization ''' By this observation I do not suggest that Inducements or threats need be successful before a violation occurs ELECTRICAL WORKERS IBEW LOCAL 302 (ICR ELECTRIC) 925 General Counsel concedes that Respondent s picketing before and after that 13 day period was lawful Since Re spondent s objective never changed during that entire time including the 13 day period in question the only thing in the General Counsel s opinion which trans forms the picketing from lawful to unlawful is ICR s temporary absence from the site Given the Plauche Elec trzc admonishment against the wooden and mechanical application of the Moore Dry Dock rules which are not fully applicable in any event given the reserve gate divi sion of this otherwise common sans 11 it seems inappro pnate to find that Respondent violated the Section 8(b)(4)(B) of the Act I might have reached a different conclusion had the General Counsel been able to show that Respondent was reckless in its picketing or that it had engaged in proscnbed (i) or (n) conduct away from the picket line 12 However it did not do so thus the pn mary picketing proviso of Section 8(b)(4)(B) must con trol Accordingly I shall recommend dismissal of the complaint On the foregoing findings of fact and on the entire record I make the following CONCLUSIONS OF LAW 1 David Garcia and William Frederickson d/b/a ICR Electric is an employer within the meaning of Section 2(2) (6) and (7) and Section 8(b)(4) of the Act 2 Respondent is a labor organization within the mean ing of Section 2(5) of the Act 3 Respondent has committed no unfair labor practice within the meaning of Section 8(b)(4)(1) and (n)(B) of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed" ORDER The complaint is dismissed in its entirety " For this reason Electrical Workers IBEW Local 595 (Hayward Elec tric) 261 NLRB 707 709 (1982) is factually distinguishable During the absence period no reserve gate was in effect there It was therefore a true common situs " See e g Electrical Workers IBEW Local 11 (L G Electric Contrac tors) 154 NLRB 766 (1965) i3 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 i