Hearn Construction

354 NLRB No. 37 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Hearn Construction and Carpenters’ Union Local 180, United Brotherhood of Carpenters and Joiners of America. Case 20–CA–33534 June 30, 2009 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER On March 10, 2009, Administrative Law Judge Mary Miller Cracraft issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed cross- exceptions and supporting briefs. All parties filed an- swering briefs. The National Labor Relations Board1 has considered the decision and the record in light of the exceptions and briefs2 and has decided to affirm the judge’s rulings, findings,3 and conclusions and to adopt the recom- mended Order.4 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, __ F.3d __, 2009 WL 1676116 (2d Cir. June 17, 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed __ U.S.L.W. __ (U.S. May 27, 2009) (No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No. 08-1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition for re- hearing filed Nos. 08-1162, 08-1214 (May 27, 2009). 2 The General Counsel’s motion to strike the Respondent's brief in support of its exceptions is denied inasmuch as the brief substantially complies with the requirements of Sec. 102.46 of the Board’s Rules and Regulations. See La Gloria Oil & Gas Co., 337 NLRB 1120 fn. 1 (2002). 3 The Respondent excepts to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative 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 reversing the findings. We affirm the judge’s finding that the Respondent violated Sec. 8(a)(1) by causing the arrest of Union representatives who were en- gaged in lawful Sec. 7 activity on public property. We do not pass on the judge’s alternative theory of violation that assumes, arguendo, Union Representative Trent Schager was arrested for trespass on pri- vate property. We also find no need to pass on the General Counsel’s alternative theory of violation under BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002). Finally, we do not pass on the General Counsel’s ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Hearn Construction, Vaca- ville, California, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. Dated, Washington, D.C. June 30, 2009 Wilma B. Liebman, Chairman Peter C. Schaumber, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Kathleen C. Schneider and Jason Wong for General Counsel. Dennis B. Cook of Sacramento, California, for Respondent. Matthew J. Gauger of Sacramento, California, for the Charging Party. David Alderson of Fairfield, California for the City of Fairfield, California. DECISION MARY MILLER CRACRAFT, Administrative Law Judge. Hear- ing in this case was held in San Francisco, California, on De- cember 9, 2008, pursuant to the complaint and notice of hearing issued by the Regional Director for Region 20 of the National Labor Relations Board on October 31, 2007. The complaint is based on a charge filed on August 10, 2007, by Carpenters’ Union Local 180, United Brotherhood of Carpenters and Join- ers of America (the Union). The complaint alleges that Hearn Construction1 (Respondent) caused the arrest of two representa- tives of the Union in violation of Section 8(a)(1) of the National Labor Relations Act.2 All parties were provided full opportunity to appear, to in- troduce relevant evidence, to examine and cross examine wit- nesses, and to argue the merits of their respective positions. On the entire record, including my observation of the demeanor of the witnesses,3 and after considering the briefs filed by counsels exception to the judge’s failure to find a separate 8(a)(1) violation for the Respondent’s conduct in denying union representatives access to, and seeking their removal from, public property. Such a finding would be cumulative of the violation found and would not materially affect the remedy for the Respondent’s misconduct. There are no exceptions to the judge’s dismissal of the allegation that the Respondent violated Sec. 8(a)(1) by threatening to cause the arrest of union representatives. 4 We deny the Charging Party’s request for extraordinary remedies because we find that the Board’s traditional remedies for the unfair labor practice found herein are sufficient. 1 The name of Respondent appears as corrected at the hearing. 2 29 U.S.C. §158(a)(1). 3 Credibility resolutions have been made based upon a review of the entire record and all exhibits in this proceeding. Witness demeanor and inherent probability of the testimony have been utilized to assess credi- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 for the General Counsel, the Union, and the Respondent, I make the following findings of fact and conclusions of law. FINDINGS OF FACT Respondent, a general contractor in the construction industry, is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act Respondent admits and I find that at all material times it has been a general contractor in the construction industry perform- ing both residential and commercial construction. During a relevant 12-month period, Respondent admits that it provided services valued in excess of $50,000 to enterprises located within the State of California and that these enterprises each met the Board’s standards for the assertion of jurisdiction on the basis of direct involvement in interstate commerce. Thus, Respondent admits that it meets the Board’s standards for as- sertion of jurisdiction on the basis of indirect involvement in interstate commerce. Based upon these facts, Respondent ad- mits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act The complaint alleges that the Union has been a labor or- ganization within the meaning of Section 2(5) of the Act. Re- spondent admits this allegation and I so find. In May 2007,4 Respondent began work at the southwest corner of the intersection of Mangels Boulevard and Business Center Drive in Fairfield, California, constructing an adminis- trative headquarters facility for NorthBay Healthcare. In January 2007, Respondent entered into construction con- tracts for a headquarters building for NorthBay Healthcare at the southwest corner of Mangels Boulevard and Business Cen- ter Drive (the jobsite) in Fairfield, California. The jobsite en- compassed both public and private land. Pursuant to Section 16.4.3 of the Fairfield City Code, Respondent received an en- croachment permit in February5 to perform some of the head- quarters work within the public right-of-way. The public right- of-way work included grading, landscaping, irrigation and sidewalk installation. 6 Respondent began work in May. Respondent enclosed both the public and private land by erecting a chain-link fence bility. Testimony contrary to my findings has been discredited on some occasions because it was in conflict with credited testimony or docu- ments or because it was inherently incredible and unworthy of belief. 4 All dates are in 2007 unless otherwise specified. 5 The encroachment permit was issued in February 2007. Although the construction completion estimate was February 2008, the en- croachment permit was issued only until expiration of Respondent’s insurance, June 15, 2007. This was a standard City practice when the insurance would expire prior to the anticipated completion of the pro- ject. The City did this to ensure that it would receive an updated insur- ance policy. Upon receipt of such a policy, the City’s practice was to extend the encroachment permit through the anticipated completion date. 6 All permits granted subject to 16.4.3 are subject to the right of way of any person entitled to use the public right of way for any purpose for which it may lawfully be used. around the jobsite.7 The chain-link fence along the north and west sides of the project followed Mangels Boulevard as it curved toward the intersection with Business Center Drive. The chain-link fence on Mangels Boulevard abutted the back edge of the curb, i.e., the portion of the curb furthest from the street. Thus, inside the Mangels Boulevard chain-link fence, approxi- mately the first 25 feet of property abutting the fence was pub- lic property. Immediately outside the fence were the curb and then a lane of traffic. Respondent was granted an easement onto property just south of the jobsite In addition to the jobsite property, Respondent utilized a temporary construction easement onto the adjoining property immediately south of the jobsite (the easement area).8 This easement included a right to access for construction vehicles and other reasonable access in connection with construction of the headquarters facility. The property on which the easement area was located was owned by NorthBay Healthcare Group. The property was enclosed by a barbed-wire fence and was separated from the jobsite by the chain-link construction fence. The Union was involved in an area standards dispute with Sommerkal Construction, Inc., a nonunion concrete subcon- tractor at the jobsite Union field representative Mike Johnson first visited the job- site in May. He spoke with Sommerkal foreman John (last name unknown) and Sommerkal nonunion carpenter Andrew Schmidt. In a conversation with Schmidt, Johnson ascertained Schmidt’s wages and benefits and concluded that they did not meet the area standards negotiated by the Union. By letter dated June 22, the Union wrote to Sommerkal that it understood that Sommerkal did not pay the wages and fringe benefits estab- lished by the Union in the geographic area in which Sommerkal was working thus undermining the conditions established by the Union for its members. The letter disclaimed any interest in representation. Additionally, the letter requested that Sommer- kal furnish any information contrary to the Union’s understand- ing that Sommerkal did not pay area standard wages and bene- fits. The Union received no response from Sommerkal. On June 29, the Union began picketing at the jobsite After ascertaining that Sommerkal was at the jobsite, the Un- ion began picketing on June 29. Picket captain Mike Johnson, union employee Trent Schager, and several out-of-work union carpenters carried signs declaring that Sommerkal did not pay area standards. There was only one gate at the jobsite when picketing commenced. The picketers walked back and forth at that gate, an approximately 16 to 20 foot opening in the chain- link fence running along Mangels Boulevard. Two sections of the chain-link fence swung inward at a 90 degree angle to Mangels Boulevard in order to create the gate opening. The 7 The encroachment permit requires placement of construction barri- cades prior to commencement of work and to remain in place until construction is completed. 8 The easement was entered into between NorthBay Healthcare Group, the property owner, and NexCore Management, Inc., general partner of NorthBay Headquarters, LP, on behalf of NorthBay Health- care Corporation as tenant of the headquarters building. HEARN CONSTRUCTION 3 picketers walked along the curb between the gates inside the chain-link fence but staying on the public right-of-way portion of the project, i.e., the first 25 feet off of Mangels Boulevard. On June 29, Respondent created a “dual gate” system at the jobsite designating Gate 1 for Sommerkal and other nonunion contractors By letter of June 29, Respondent announced that Gate 1 was for the exclusive use of employees, subcontractors, and mate- rial suppliers of nonunion contractors including Sommerkal. Respondent announced establishment of Gate 2 a short distance from Gate 1 for the exclusive use of employees and materials suppliers of its union contractor. At the time the letter was faxed to the Union on June 29, picket captain Mike Johnson was unable to locate a second gate. However, as he was leaving for the day, he saw a gate company arrive and install a second gate. The following morning, there were signs at each of the two gates. Gate 1, the gate where the Union picketed on June 29, was designated for Sommerkal and other nonunion contrac- tors. The new gate, designated Gate 2, was for use of the one union contractor, who was not yet on the job. From June 29 until July 18, the Union picketed without incident at Gate 1 The Union’s practice was to arrive at the jobsite around 6 a.m. to 7 a.m. and remain in or around their cars. When Som- merkal arrived at the jobsite, the Union began picketing at Gate 1. When trucks entered and exited the gate, the picketers stood against the opened gates. The record reflects no impact on in- gress or egress of vehicles. Although the picketers were techni- cally inside the chain-link fence, they remained on the public right-of-way portion of the jobsite while at Gate 1. Prior to July 18, the Union picketed without incident in the easement area On two occasions prior to July 18, some of the picketers went onto the easement area to follow Sommerkal work. For instance, when a concrete pour occurred, some of the Sommer- kal trucks entered the jobsite from Business Center Drive. On another occasion, Sommerkal employees entered through an alternate opening from Business Center Drive. The pickets went to these locations and picketed while Sommerkal was present. After use of these alternate openings in the chain-link fence, Respondent sent follow-up letters re-establishing the “dual gate” system as set forth in the original June 29 letter. On July 18, the picketers engaged in area standards picketing in the easement area On July 18, around 10 a.m., the picketers saw a lumber de- livery truck arrive in the easement area south of the jobsite. An opening in the chain-link fence between the jobsite and the easement area had been created in this area for a Sommerkal employee to unload the lumber with a fork lift. Trent Schager and another picketer went to this area and picketed for about 1 hour while the lumber was unloaded. Around 11 a.m., a White Cap construction supply truck ar- rived in the easement area at another opening in the chain-link fence, this one near the jobsite construction trailer. The same Sommerkal employee reported to the White Cap truck with a forklift and began unloading the supplies. The pickets at the lumber delivery easement area moved to the White Cap supply truck position in the easement area. About 1 hour later, the easement area picketers returned to Gate 1. At both of these locations in the easement area, the picketers were on private property. On July 18, the City of Fairfield Police Department was sum- moned to the jobsite Upon arriving at the jobsite on July 18, project manager James Clarke observed union picketers at Gate 1 as well as two picketers in the easement area where Sommerkal was unloading materials. Clarke was at the site to hold a weekly progress meeting at the construction trailer. As he began the progress meeting, the picketers in the easement area moved near the construction trailer. Also attending the progress meeting was Ted Maestes, the designated project representative of NexCore Management, Inc., general partner of NorthBay Headquarters, LP. At the request of Maestes, Clarke asked the picketers in the easement area to return to Gate 1. When these picketers refused to leave the easement area, Clarke asked Johnson to have the picketers in the easement area return to Gate 1. Johnson declined, aver- ring that the Union could picket wherever Sommerkal was pre- sent. At this point, Maestes contacted the City of Fairfield Po- lice Department. When the police arrived, they asked Johnson to remove the pickets from all locations except Gate 1. Johnson refused claiming a right to picket wherever Sommerkal was present. However, after Johnson spoke with the police, all picketers returned to Gate 1. At this point, Maestes and Clarke left Gate 1 and joined construction workers and others who were gathered for a barbecue to mark a construction milestone. Although the police initially told the picketers to remain at Gate 1, eventually the police attempted, under threat of arrest, to relocate the picketers to a sidewalk at the intersection of Mangels Boulevard and Business Center Drive. After Clarke and Maestes left Gate 1, the police requested that, for their own safety, the picketers relocate from Gate 1 to a sidewalk area at the intersection of Mangels Boulevard and Business Center Drive. The picketers continued to claim a right to picket at Gate 1, the designated Sommerkal gate. Fi- nally, a police officer told picketing captain Johnson that if the picketers did not leave Gate 1, they would be arrested. At this point, Johnson directed all picketers to leave Gate 1. Johnson remained, however, with fellow picketer Trent Schager. After Clarke agreed to sign a citizen’s arrest form, the picketers were arrested at Gate 1 while on the public right-of-way At the request of the police, Clarke agreed to sign a citizen’s arrest form. Thereafter, Johnson and Schager, the two remain- ing picketers, were arrested at Gate 1 while on the public right- of-way. The picketers were taken to the police department, cited and released. Johnson’s citation indicates that he was arrested for violation of California Penal Code 602.1, refusal to leave private prop- erty, and for violation of a City ordinance which requires a permit for use of a bullhorn. Schager was arrested for violation DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 of California Penal Code 602.1, refusal to leave private prop- erty. California Penal Code 602.1 provides in relevant part, (a) Any person who intentionally interferes with any lawful business or occupation carried on by the owner or agent of a business establishment open to the public, by obstructing or intimidating those attempting to carry on business, or their customers, and who refuses to leave the premises of the busi- ness establishment after being requested to leave by the owner or the owner’s agent, or by a peace officer acting at the re- quest of the owner or owner’s agent, is guilty of a misde- meanor, punishable by imprisonment in a county jail for up to 90 days, or by a fine of up to four hundred dollars ($400), or by both that imprisonment and fine. An exception to code 602.1 states as follows: (c) This section shall not apply to any of the following per- sons: 1. Any person engaged in lawful labor union activities that are permitted to be carried out on the property by state or fed- eral law. At the time of the arrests, Respondent’s encroachment permit was technically expired. The permit was extended at a later date Respondent’s original encroachment permit expired on June 15. There is no dispute that Respondent’s encroachment permit had not been renewed as of July 18. At a later date, Respondent produced the appropriate proof of insurance renewal and the permit was extended to June 15, 2008. The Solano County District Attorney did not prosecute Johnson On August 16, Johnson appeared in court and was told that all charges against him had been dropped. He received a “No- tice of Intent not to Prosecute” stating that no formal charges would be brought against him for the charge relating to viola- tion of Section 602.1 of the Penal Code. The reason given on the notice was “Civil remedies should be sought.” There is no evidence whether Schager was prosecuted or not. At the time of the hearing, Johnson did not know Schager’s whereabouts. CONCLUSIONS OF LAW Johnson and Schager were arrested on public property at Gate 1 At the time of their arrest, Johnson and Schager were stand- ing on the public right-of-way within Gate 1. They were there- fore on public property at the time of their arrest. Although Schager was in the easement area earlier when the police were initially contacted, he left the easement area and returned to Gate 1 about one hour prior to being arrested. Johnson and Schager were engaged in lawful Section 7 activity at the time of the arrest At the time of their arrest, Johnson and Schager were en- gaged in lawful area standards picketing. Thus, the Union in- vestigated wages and benefits paid by Sommerkal, determined that these wages and benefits did not meet the area standards paid to union-represented employees, asked Sommerkal to refute this assertion if it was in error and, receiving no re- sponse, picketed with signs stating that Sommerkal did not pay area standards. Picketing for protection of area standards is clearly lawful Section 7 activity. See, e.g., Corporate Interiors, 340 NLRB 732, 745–747 (2003), citing Bristol Farms, 311 NLRB 437 (1993). Respondent violated Section 8(a)(1) by causing the arrest of union representatives who were engaged in lawful Section 7 activity on public property. Where public property is concerned, “[I]t is beyond question that an employer’s exclusion of union representatives . . . vio- lates Section 8(a)(1), so long as the union representatives are engaged in activity protected by Section 7 . . . .” Roger D. Hughes Drywall, 344 NLRB 413, 414–415 (2005), citing Bristol Farms, 311 NLRB 437 (1993); see also, Gaines- ville Mfg. Co., 271 NLRB 1186 (1984). Based upon this author- ity, I find that Respondent violated Section 8(a)(1) in causing the arrest of lawful area standards picketers Johnson and Schager. Although the complaint also alleges a threat of arrest, the only evidence of such a threat was a statement made by the police. There is no evidence that a representative of Respondent made such a threat. The allegation regarding a threat of arrest is dismissed. Assuming, arguendo, that Schager was arrested for trespass on private property, Respondent has failed to demonstrate a suffi- cient property interest to foreclose violation of the Act Counsel for Respondent argues that the picketers were ar- rested for trespass on private property. Of course, this argument could only apply to Schager. There is no dispute that Johnson remained on public property at all times. In any event, Respon- dent asserts that the appropriate analysis is set forth in Lech- mere, Inc. v. NLRB, 502 U.S. 527 (1992). Lechmere provides that if there are reasonable alternative means of communication between a union and its audience, exclusion of a nonemployee union organizer from private property does not violate Section 8(a)(1) of Act if the respondent had a right under applicable state law to prevent trespass. Citing Sears, Roebuck & Co. v. San Diego District Council of Carpenters, 25 Cal.3d. 317, 158 Ca. Rptr. 370 (1979) and Fashion Valley Mall, LLC v. NLRB, 42 Ca. 4th 840, 69 Cal. Rptr. 3d 288 (2007), Respondent acknowledges that the Cali- fornia Penal Code exempts certain lawful union activity from prosecution for trespass. Respondent argues nevertheless that these cases are distinguishable because Respondent’s jobsite, unlike a shopping center, was not open to the public. Respon- dent notes that no commercial, retail or public forum activities occurred on the jobsite. Thus, Respondent argues that the Un- ion could effectively communicate its message without tres- passing. Finally, Respondent distinguishes In re Catalano, 29 Cal.3d 1, 171 Cal. Rptr. 667 (1981). In that case, the Supreme Court of California held that union representatives who entered a jobsite to conduct a safety inspection and prepare a steward’s report were engaged in lawful union activity which did not warrant prosecution for trespass. Respondent notes that the Union herein was not on the jobsite for either a safety inspection or HEARN CONSTRUCTION 5 preparation of a steward’s report. I reject Respondent’s arguments. First, as I have found above, Johnson and Schager were arrested while on the public right-of-way. There is absolutely no evidence that Johnson entered upon the adjacent private property. Rather, Johnson was always present at the assigned picketing position, Gate 1, well within the public right-of-way. Assuming, however, for the sake of argument, that Schager was arrested for his presence on private property, I nevertheless conclude that his arrest would violate Section 8(a)(1). Lechmere9 holds that nonemployee union organizers may not trespass on private property in order to organize employees unless there are no reasonable alternative means of communi- cating with the employees. Lechmere applies in the context of area standards picketing. Leslie Homes, Inc., 316 NLRB 123, 127–129 (1995). Given my finding that the Union was engaged in lawful area standards picketing, pursuant to Lechmere, Re- spondent must demonstrate a private property interest pursuant to state law sufficient to warrant arrest for trespass. See Bristol Farms, 311 NLRB 437, 438 fn. 6 (1993); Indio Grocery Outlet, 323 NLRB 1138, 1142 (1997), enfd. sub nom. NLRB v. Cal- kins, 187 F.3d 1080 (9th Cir. 1999). Johnson and Schager were cited with violation of California Penal Code 602.1 with the notation, “Refused to leave private property.” However, this section of the penal code specifically exempts persons engaged in labor union activities which are permitted by the National Labor Relations Act. Because John- son and Schager’s actions fall within that exemption, Respon- dent has failed to demonstrate a property interest sufficient to warrant arrest for trespass on private property. Further, I note that Respondent did not attempt to exert any public safety concerns by instituting designated area or peak traffic restrictions in order to avoid disruption of normal busi- ness operations. See, e.g., Needletrades Employees (UNITE) v. Superior Court of Los Angeles County, 65 Cal. Rptr. 2d 838 (Ca. Ct. App. 1997), cited with approval in Glendale Associ- ates, Ltd., 335 NLRB 27, 28 (2001), enfd. 347 F.3d 1145 (9th Cir. 2003). Additionally, I reject Respondent’s argument that Sears and Fashion Valley are distinguishable. Although Respondent is correct that both Sears and Fashion Valley arise in public shop- ping areas, the penal code exemption from prosecution for law- ful union activity pertains to all trespass, not just trespass in public shopping areas. See, e.g., In re Zerbe, 388 P.2d 182 (S. Ct. Cal 1964) (union official who picketed on right-of-way of railroad serving employer’s plant was engaged in lawful labor activities and not subject to conviction for willful trespass un- der California Penal Code). Finally, I reject as misplaced Respondent’s argument that because its jobsite was not open to the public there were rea- sonable alternative means for communicating outside the fence. The penal code exemption controls whether Respondent may demonstrate a sufficient property interest to warrant arrest for trespass. Respondent’s argument—that the Union could effec- tively communicate its message without coming inside the fenced jobsite—presumes demonstration of a sufficient prop- 9 Lechmere, Inc. v. NLRB, supra, 502 U.S. at 535. erty interest to warrant application of Lechmere. The penal code exemption precludes such a showing. Therefore, Lech- mere’s reasonable alternative means analysis is not reached. Although it may be possible to analyze this case pursuant to the right to seek redress of grievances, I decline General Counsel’s invitation to do so. General Counsel asserts that BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002), reaffirming the holding in Bill Johnson’s Restaurant v. NLRB, 461 U.S. 731 (1983), provides the framework for analysis. Thus, counsel asserts that the arrest violated Section 8(a)(1) of the Act because it was objectively baseless (because the district attorney did not prosecute) as well as retaliatory. Counsel notes that retaliation is evidenced by Clarke’s admission that the Union had a right to picket at Gate 1, Clarke’s testimony that the only reason he signed the citi- zen’s arrest form was because the pickets showed disrespect for the police by refusing to move to safer locations at the request of the police, and Clarke’s admission that, to be quite honest, he would rather not have any picketers at all. Counsel for Charging Party agrees with this rationale. Because I have found that Johnson and Schager were ar- rested on public property while engaged in lawful area stan- dards picketing, it is not necessary to address these issues. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Consistent with Board authority, I recommend that Respondent be ordered to make the Union whole with respect to the litigation costs arising from Johnson and Schager’s arrest and that Respondent be ordered to notify the appropriate law enforcement and court authorities of the illegality of the arrest and to seek the expungement of associ- ated records. Roger D. Hughes Drywall, 344 NLRB 413 (2005) and cases cited therein as follows: Schear’s Food Center, 318 NLRB 261, 267 (1995); K Mart Corp., 313 NLRB 50, 58 (1993); Baptist Memorial Hospital, 229 NLRB 45, 46 (1977), aff’d. 568 F.2d 1 (6th Cir. 1977). See also Petrochem Insula- tion, Inc., 240 F.3d 26, 35 (D.C. Cir. 2001). ORDER Respondent Hearn Construction, Vacaville, California, its of- ficers, agents, successors, and assigns, shall cease and desist from interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act by causing the arrest of picketers lawfully engaged in area stan- dards picketing as employees or representatives of Carpenters’ Union Local 180, United Brotherhood of Carpenters and Join- ers of America or in any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. Respondent shall take the following affirmative action nec- essary to effectuate the policies of the Act: (a) Notify the Solano County District Attorney’s Office and appropriate court authorities in writing, with a copy to the Un- ion, that the Board has determined that Johnson and Schager’s DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 arrest on July 18, 2007, violated the Act; request in writing, with a copy to the Union, that the District Attorney’s Office and the court remove any and all records of that unlawful ar- rest; and make Carpenters’ Union Local 180, United Brother- hood of Carpenters and Joiners of America whole, with interest, for all reasonable legal fees and expenses incurred as a result of the arrest. (b) Within 14 days after service by the Region, post at its Vacaville, California, office, copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. (c) Reasonable steps shall be taken by the Respondent to en- sure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since July 18, 2007. (d) Sign and return to the Regional Director sufficient copies of the notice for posting by the Union, if it so chooses, at all places where it customarily posts notices to its members and employees. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found. Dated, Washington, D.C. March 10, 2009 10 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” APPENDIX NOTICE TO EMPLOYEES 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act by causing the arrest of picketers lawfully engaged in area stan- dards picketing as employees or representatives of Carpenters’ Union Local 180, United Brotherhood of Carpenters and Join- ers of America. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of the rights guaran- teed them by Section 7 of the Act. WE WILL notify the Solano County District Attorney’s Office and appropriate court authorities in writing, with a copy to the Union, that the Board has determined that Johnson’s and Schager’s arrests on July 18, 2007, violated the Act. WE WILL request in writing, with a copy to the Union, that the Solano County District Attorney’s Office and the court remove any and all records of that unlawful arrest. WE WILL make Carpenters’ Union Local 180, United Broth- erhood of Carpenters and Joiners of America whole, with inter- est, for all reasonable legal fees and expenses incurred as a result of the arrests. HEARN CONSTRUCTION