Carpenters Local 354 (Sharp & Tatro Development)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 354'and Sharp & Tatro Development, Inc. Case 32-CC- 311 15 December 1983 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 5 August 1981 Administrative Law Judge Maurice M. Miller issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and Charging Party filed cross-exceptions and briefs. 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 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 354, Gilroy, Califor- nia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Administrative Law Judge: Upon a charge filed on May 19, 1980, and duly served, the General Counsel of the National Labor Relations Board caused a consolidated complaint and notice of hearing dated June 3, 1980, to be issued and served on United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO, Local Union No. 354 (Respondent Union). Therein, Respondent Union was charged with the commission of unfair labor practices affecting com- merce within the meaning of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended. 61 Stat. 136, 73 Stat. 519, 88 Stat. 395. Respondent Union's answer, duly filed, reflects admissions with respect to certain factual allegations within the General Counsel's complaint, but denies the commission of any unfair labor practices. Pursuant to notice, a hearing with respect to this matter was held on March 17, 1981, in Oakland, Califor- nia, before me. The General Counsel, Respondent Union, and the complainant were represented by counsel. Each party was afforded full opportunity to be heard, to exam- ine and cross-examine witnesses, and to introduce evi- dence with respect to pertinent matters. When their re- spective testimonial presentations were completed, Re- 268 NLRB No. 58 spondent Union's counsel presented oral argument; the General Counsel's representative and complainant's counsel reserved argument for their briefs. Since the hearing's close, the General Counsel's representative, Re- spondent Union's counsel, and complainant's have filed briefs. These briefs have been duly considered. Upon the entire testimonial record, documentary and photographic evidence received, and my observation of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Throughout the period with which this case is con- cerned, and continuing to date, Sharp & Tatro Develop- ment, Inc., designated as complainant within this deci- sion, has functioned as a California corporation, with an office and place of business located in Morgan Hill, Cali- fornia; it participates in the building and construction in- dustry as a general contractor. During the 12 months which preceded the issuance of the General Counsel's complaint, Sharp & Tatro, in the course and conduct of its business operations, purchased and received goods valued in excess of $50,000 from sellers or suppliers lo- cated within the State of California; those sellers or sup- pliers had purchased and received such goods, in sub- stantially the same form, directly from out-of-state sources. With matters in this posture, I find that com- plainant was, throughout the period with which this case is concerned, and remains, an employer within the mean- ing of Section 2(2) of the Act, engaged in commerce and business operations which affect commerce within the meaning of Section 2(6) and (7) of the statute. ii. THE LABOR ORGANIZATION CONCERNED Respondent Union, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 354, was, throughout the period with which this case is concerned, and remains, a labor organization within the meaning of Section 2(5) of the Act. It maintains its prin- cipal offices in Gilroy, California, where it has been en- gaged in promoting and protecting the interests of work- ers within its designated craft jurisdiction. Likewise, throughout the period with which this case is concerned, Acklin Thebeaux has been a Santa Clara District Council of Carpenters organizer. Respondent Union's counsel concedes-for the purposes of the present proceeding solely-that Thebeaux has heretofore been, and remains, Respondent Union's agent, function- ing on its behalf, within the meaning of Section 2(13) of the statute. 111. THE UNFAIR LABOR PRACTICES CHARGED A. Issue Within his complaint, the General Counsel charges that Respondent Union picketed a construction project, in connection with a labor dispute concerning the gener- al contractor thereon, contrary to Section 8(b)(4)(i) and (ii)(B) of the statute. Respondent Union claims, however, that its posted pickets complied with the requirements of CARPENTERS LOCAL 354 (SHARP & TATRO) the Board's judicially confirmed "reserved gate" doc- trine. Electrical Workers IUE Local 761 (General Electric) v. NLRB, 366 U.S. 667 (1961). Respondent Union like- wise contends, affirmatively, that complainant's purport- edly separate "neutral" and "reserved" gates had neither been properly established, nor properly posted; the Union seeks a determination, therefore, that its decision to picket both gates should be considered privileged. These contentions present the question herein consid- ered. B. Facts 1. Respondent Union's picket line During April 1980, Sharp & Tatro Development, Inc., functioning as a general building contractor, commenced the construction of a commercial building which-when completed-would front upon Church Street, a semiresi- dential, semicommercial thoroughfare, some distance south of Welburn Avenue, in Gilroy, California. The structure called for woodframe construction; Sharp & Tatro hired four carpenters, directly, for the structure's required framing work. Complainant contractor, however, dealt-further- with several specialty contractors, who were to provide materials and services in connection with particular phases of the building's construction. When Respondent Union's pickets-with whom this case is concerned- were posted, complainant's electrical subcontractor, Ga- vilan Electric, Inc., together with a subcontractor com- mitted to construct a fire sprinkler system, Economy Fire Sprinkler Systems, were currently scheduled for work on complainant's project. On May 13, 1980, at 11 a.m. approximately, Respond- ent Union posted a single picket at Sharp & Tatro's job- site. He proceeded to patrol the jobsite's open Church Street frontage, carrying a picket sign which read: SHARP & TATRO DEVEL. INC. FAILS TO MEET WAGES & BENEFITS ESTABLISHED BY CARPENTERS IN THIS AREA CARPENTERS L.U. 354 2. Complainant posts a reserved gate Likewise on May 13, by 3:30 p.m., Charles Tatro, complainant's secretary-treasurer, had established two separately posted entrances to complainant's jobsite. The first, located close to the northeast corner of the proper- ty whereon complainant's contracted-for structure was being constructed, and reachable some 455 feet down a cul-de-sac "driveway" or "public access road" running south from Welburn Avenue, 500 feet to a dead end midway within a city block, was posted with a printed sign which bore the following legend: STOP-READ (GATE 1) THIS GATE IS RESERVED FOR PERSONNEL, VISITORS & SUPPLIES OF THE CONTRACTORS LISTED BELOW: SHARP & TATRO DEVELOPMENT, INC. ALL OTHERS MUST USE GATE 2 A second entrance, located on the supposedly open Church Street frontage of complainant's jobsite, was like- wise posted. Complainant's printed sign there conveyed the following message: STOP-READ (GATE 2) THIS GATE MAY NOT BE USED BY PERSONNEL, VISITORS OR SUPPLIERS OF THE CONTRACTORS LISTED BELOW: SHARP & TATRO DEVELOPMENT, INC. ALL OTHERS MUST USE THIS GATE Shortly thereafter, presumably sometime between 4 and 4:30 p.m., Respondent Union's single picket ceased pa- troling the jobsite's Church Street frontage. At 5 p.m. complainant's carpenters, who had not ceased work, completed their day's tour of duty, and departed. In the meantime, however, within a May 13 telegram dispatched-so the record shows-at 4:21 p.m. complain- ant's secretary-treasurer had notified Respondent Union's designated "business manager, business agents, or whom it may concern" that reserved gates had been established at complainant's Church Street construction project. Gate l's location was described and Respondent Union's representatives were advised that: Failure to confine your picketing to Gate 1 will lead to all necessary legal action. Please advise us immediately of any claims that the reserve gate system has been violated. The record herein, reflects a stipulation, proffered in Re- spondent Union's behalf, that Secretary-Treasurer Tatro's May 13 telegram was received by Respondent Union sometime during the following day. For present purposes, however, no definitive determination, with regard to its precise delivery time, would seem required. 3. Subsequent developments On May 14, at 8:30 a.m. approximately, single pickets were posted, concededly in Respondent Union's behalf, close to both designated gates. One picket, carrying the sign previously noted herein, maintained a patrol some 20 feet distant from complainant's posted gate 1 sign, presumably within the roughly delineated confines of the nearby "driveway" or "public access road" previously noted. A second picket patroled the jobsite's Church Street frontage, where complainant's posted gate 2 was located. By II a.m. that same day, however, Respondent Union's single gate. 1 picket had moved from his original patrol location, within 20 feet of complainant's posted gate, north to the point at which the "public access road" leading to complainant's gate, previously noted, debouched upon Welburn Avenue; that point, so the DECISIONS OF NATIONAL LABOR RELATIONS BOARD record shows, was some 455 feet distant from complain- ant's posted gate. A diagram, which generally defines complainant's project situs, reveals the location of Secretary-Treasurer Tatro's separate reserved gates, and designates the places where Respondent Union's pickets were posted or main- tained circumscribed patrols, has been made a part of this decision. No representation is made, however, that my rendition, derived from a document proffered, de- scribed and received for the record, has been drawn pre- cisely to scale. At some time during May 14, morning hours-presum- ably rather early, though no precise time can be found specified within the present record-complainant's secre- tary-treasurer learned that his firm's two previously scheduled subcontractors, Gavilan Electric Company and Economy Fire Sprinkler Systems, would be unable to provide services that day because of the picket patrol- ing the jobsite's open Church Street frontage, close to complainant's posted "neutral" gate. That afternoon, when Secretary-Treasurer Tatro vis- ited Gavilan Electric's office, presumably to discuss com- plainant's situation, he "overheard" certain comments and responses proffered by Gavilan Electric's president, during a telephone conversation with Acklin Thebeaux, concededly a Carpenters Union District Council organiz- er. The record warrants a determination, which I make, bottomed upon Thebeaux' testimony, herein, that he was-then-returning a telephone call which Gavilan Electric's president had previously placed. While a witness, Tatro testified, comprehensively, with regard to what he-personally-heard Gavilan Electric's president say during this conversation. His testimony, however, reflects little more than President Truckness' vocal repetition-presumably for his benefit-with re- spect to various statements which Thebeaux had purport- edly been proffered. Further, complainant's secretary- treasurer testified that-pursuant to his subsequent re- quest-Gavilan Electric's president had, directly follow- ing her telephone conversation's conclusion, presented him with a written summary which, purportedly, reflect- ed the substance of Thebeaux' prior remarks. Gavilan Electric's president, however, did not testify. Thus, Tatro's proffer of President Truckness' memorandum, re- garding her just-concluded conversation with a Carpen- ters Union representative-though submitted and re- ceived for the present record-clearly constitutes hear- say twice removed, with respect to what Organizer The- beaux may have said. Upon this record, no determina- tions, with respect thereto, would-within my view-be warranted. Secretary-Treasurer Tatro's proffered recollections with respect to what he heard Gavilan Electric's presi- dent say provide no substantial, reliable, or probative evidence-within my view-sufficient to warrant defini- tive determinations with regard to precisely what was said; Tatro's testimony reveals, merely, that Thebeaux, concededly Respondent Union's representative for present purposes, did discuss both Respondent Union's picket line and complainant's newly posted reserved gates. Directly thereafter, so his testimony shows, Tatro tele- phoned Carpenters Union District Council headquarters; he suggested a conference with Thebeaux to be held shortly. Consensus was reached, the men agreed to meet and confer on May 16. On May 16, Tatro and Thebeaux did confer. Com- plainant's secretary-treasurer was accompanied by a friend; Thebeaux, who designated himself a district orga- nizer for the Carpenters Union District Council, brought Rudy Valente, whom he introduced as a Carpenters Union Local 316 business representative. When this case was heard, Respondent Union's coun- sel stipulated that, for the purposes of this proceeding specifically, the Carpenters Union District Council's rep- resentative should be considered Respondent Union's agent, within legal contemplation. Tatro's proffered recollections, which I credit in this connection, warrant a determination-which I make- that, inter alia, he queried Thebeaux with regard to how he could "get rid" of Respondent Union's pickets. He was advised to sign a union contract. When complain- ant's secretary-treasurer protested that he had never seen such a contract or conducted "face-to-face" negotiations with any union representative, Thebeaux conceded that he had been misinformed; he declared he had been, pre- viously, told that Respondent Union's business represent- ative had discussed a contract with complainant's spokes- man. The district organizer declared, however, that he had, indeed, directed the picket line's establishment, since Sharp & Tatro were considered "non-union" business- men, who should be required to negotiate a collective- bargaining agreement. When queried by Tatro, with re- spect to whether he had received complainant's March 13 telegram, Thebeaux-so I find-nodded affirmatively; he reiterated his determination, however, that Respond- ent Union's pickets would remain posted, until complain- ant signed a collective-bargaining contract. When Tatro protested that he could not sign a contract which he had never seen, read, or digested, Thebeaux promised to pro- vide him with a copy, which complainant's secretary- treasurer declared he would be "more than happy" to review. Tatro credibly testified that both men parted cordially. Later that morning, Thebeaux did bring a Carpenters' union draft contract to complainant's jobsite; complain- ant's secretary-treasurer, so the record herein suggests, accepted Thebeaux' contract proposal, for study. Respondent Union's pickets, however, continued to picket both complainant's posted "neutral" and "re- served" gates. On June 5 following the issuance of the General Counsel's complaint herein, Respondent Union's gate 2 picket withdrew from complainant's Church Street jobsite frontage. The picket posted at Welburn Avenue's junction with the northern terminus of the so- called driveway or public access road which led to com- plainant's gate I continued his patrol until some date, later in June 1980, never specified for the present record. CARPENTERS LOCAL 354 (SHARP & TATRO) SHARP AND TATRO PROJECT GATE #2 SIGN 0 G APARTMENTS 0 z PUBLIC ACCESS ROAD 30 It L]BLOOM'S USED SHELL II OIL CO PICKET LOC Neither the General Counsel nor Respondeni counsel has proffered testimony, herein, thz ATE #1 I-- 3ATE #2 ... IGATE #1 SIGN PROPERTY LINE COMMERCIAL BUILDING AL SANCHEZ DEALERSHIP SHOWROOM AL SANCHEZ USED CARS WELBURN AVE. .1E1± Sharp & Tatro's reserved gates were being maintained- any of Sharp & Tatro's employees, suppliers, or visitors DECISIONS OF NATIONAL LABOR RELATIONS BOARD utilized its posted "neutral" gate for their ingress to or egress from the Church Street jobsite. Nothing within the record, further, would warrant a determination, with respect to whether negotiations, looking toward a collective-bargaining contract between complainant and Respondent Union's representative, were ever initiated, or whether such a document was subsequently signed. C. Discussion and Conclusions I. Generally applicable principles Section 8(b)(4)(i) and (ii)(B) of the Act was designed to preserve "the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes" while, at the same time, shielding "unoffending employers and others from pressures in controversies not their own." NLRB v. Denver Building Trades Council, 341 U.S. 675, 692 (1951). Where the primary employer's and neutral employers' function at separate worksites, the necessary line between legitimate primary activity and unlawful secondary activity can be drawn with rela- tive ease. Where the primary employer and related neu- tral employers perform separate work within a common site, however, the necessary line-frequently-cannot be drawn so readily. Nevertheless, when confronted with "common situs" situations, such as the situation present- ed herein, this Board and the courts require the labor or- ganizations concerned to accommodate the right of neu- tral employers to remain immune from the full impact of the labor dispute, by making reasonable efforts to limit those inducements and restraints which are inherent in common situs picketing to the primary employer, so far as the common situs makes that practical. See Retail Clerks Union Local 1017 (Crystal Palace Market), 116 NLRB 856, 859 (1956), enfd. 249 F.2d 591 (9th Cir. 1957), cited with approval in Electrical Workers 1BEW Local 761 (General Electric) v. NLRB, 366 U.S. 667, 674, 678 (1961), in this connection. As an aid in drawing the necessary line between lawful and proscribed common situs picketing, this Board, in Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950), has developed certain criteria which the Supreme Court, in Electrical Workers IBEW Local 761 (General Electric) v. NLRB, 366 U.S. at 677, summarized as fol- lows: . . . (1) that the picketing be limited to times when the situs of dispute was located on the secondary premises, (2) that the primary employer be engaged in his normal business at the situs, (3) that the picket- ing take place reasonably close to the situs, and (4) that the picketing clearly disclose that the dispute was only with the primary employer. [Emphasis supplied.] Further, pursuant to well-settled decisional doctrines, particularly related to the third element of the Moore Dry Dock test, concerned employers may, "by use of separate gates for the purposes of [the primary employer's] in- gress to and egress from the job site, lawfully force the union to picket only those 'separate gates."' Plumbers Local 519 v. NLRB, 416 F.2d 1120, 1125 (D.C. Cir. 1969). See also NLRB v. Lafayette Building Trades Coun- cil, 445 F.2d 495, 497 (5th Cir. 1971). When such sepa- rate, reserved gates are established, the labor organiza- tion concerned-consistently with its obligation to mini- mize the secondary effects of common situs picketing- must, absent unusual circumstances, avoid extending its appeals to those jobsite access points used solely by neu- tral employers and their employees. Retail Clerks Union Local 1017 v. NLRB, 249 F.2d 591, 597-600 (9th Cir. 1957). Thus, picketing which extends beyond the gate es- tablished for the primary employer, plus its employees and direct suppliers, sufficiently to reach the gate or gates reserved for workmen engaged by neutral employ- ers for work on the jobsite, has been held "strongly in- dicative" regarding the concerned labor organization's presumptive determination to act without the comfort of statutory protection. Ramey Construction Co. v. Painters Local 544, 472 F.2d 1127, 1131 (5th Cir. 1973); accord: Plumbers Local 519 v. NLRB, supra. Consistently with Moore Dry Dock requirements, challenged picketing must be so conducted as to minimize its impact with respect to neutral employeees, insofar as this can be done without substantial impairment of such picketing's effectiveness in reaching the primary employer's workmen. 2. Permissible picketing at gates purportedly reserved for neutrals Despite this Board's well-settled proscription of picket- ing conducted at jobsite access points properly posted for utilization by neutral employers solely, previously noted herein, such "neutral gate" picketing-maintained in con- formity, otherwise, with Moore Dry Dock standards-has, contrariwise, been found beyond statutory interdiction whenever purportedly separate jobsite access points for workmen and suppliers of designated primary and neu- tral employers have been considered confusingly, or less than adequately, defined. Electrical Workers IBEW Local 441 (Jones and Jones), 158 NLRB 549, 551-552 (1966); accord: Electrical Workers IBEW Local 640 (Timber Buildings), 176 NLRB 150, 151 (1969). With due regard for the particular circumstances revealed within the first cited case's record, the Board found, therein, that: • . . the primary entrances were not designated in a manner sufficient to warrant circumscribing the area of permissible common situs picketing. . . . [T]he mere posting of signs does not itself limit the situs of the dispute. . . . [W]e are satisfied [under the circumstances presented herein] that the effective- ness of Local 441's picketing in reaching primary employees and deliverymen would be unjustly im- paired if the permissible area of picketing were re- stricted to the [primary employer's] entrance at each [of two] sites. . . . [Tihe signs placed at the somewhat remotely located [primary employer's] entrance on each project were ambiguous. . .. [W]e are satisfied that neither project area was marked in an unconfusing manner so as to provide reasonable assurances to Local 441 that, by picket- ing confined to the [primary employer's] entrances, its message would be carried to all within legitimate CARPENTERS LOCAL 354 (SHARP & TATRO) direct appeal of its picket signs. Accordingly, we find that the situs of the dispute was not thereby re- stricted to the [primary employer's] entrances, and, as the picketing fully conformed with Moore Dry Dock standards, it was not conducted in a manner from which a proscribed secondary objective is in- ferable. Consistently with this determination the Board has, like- wise, found that-when construction jobsite access points, clearly marked and properly defined, have been separately established for the workmen and suppliers of some primary employer and concurrently present neutral firms, respectively, with the primary contractor's desig- nated entrance "placed in an alley at the rear of [the job- site] and barely visible, if at all" from 'the nearest public thoroughfare-the concerned labor organization's contin- ued picketing confined to the posted streetside project entry point for neutrals provided no basis for determinations that Section 8(b)(4)(i) or (ii)(B) had been violated. Elec- trical Workers IBEW Local 453 (Southern Sun Electric), 237 NLRB 829, 830 (1978). The Board's decision, there- in, reflects its determinations, rather, that: • .. in the present case the gates were improperly established. Restrictions of picketing to the en- trances reserved for the primary employer would unjustly impair the effectiveness of [Respondent Union's] lawful picketing to convey its message to [the primary employer's] personnel, suppliers, visi- tors, and the general public. . . .[N]either the pri- mary nor the neutral area was delineated in such a manner to provide reasonable assurances to Re- spondent that its message would be carried to all within the legitimate, direct appeal of its picket sign. [IBEW, Local 441, supra, cited.] We therefore find that the legal status of the dispute was not re- stricted by the posted signs and, absent evidence that the picketing did not otherwise fully conform with Moore Dry Dock standards, that it was not conduct- ed in a manner from which a proscribed secondary objective is inferable. [Emphasis supplied.] Essentially, the Board's conclusion, considered with par- ticular regard for its circumstantial context, reflects its basic determination that-when a concerned labor orga- nization finds itself, consistently with Moore Dry Dock's requirements, presumptively constrained to picket "rea- sonably" close to some primary employer's reserved gate effectively hidden from public view, or so remotely lo- cated as to substantially impair the effectiveness of the labor organization's otherwise lawful picketing calculat- ed to reach the primary employer's personnel, suppliers, vistors, and the general public-no defined circumscrip- tion, designed to confine or restrict the area within which permissible common situs picketing may be con- ducted, would be warranted. 3. The General Counsel's contention Within his complaint, drafted and served, the General Counsel had charged-initially-that, following Re- spondent Union's May 13 generation of a.picket line cal- culated to publicize its primary dispute with complainant herein, the firm had established properly posted separate gates, which its workmen, direct suppliers, and visitors, together with those hired by or concerned with pre- sumptively neutral subcontractors, had been-separate- ly-directed to use; that Respondent Union had, on May 14 and thereafter, picketed both complainant's primary and neutral gates; and that-by picketing both designated gates under those circumstances-Respondent Union had induced and encouraged Gavilan Electric's workmen to refuse to perform services, and had-further-threat- ened, coerced, and restrained Gavilan Electric, for a statutorily proscribed purpose. When this case was heard, however, the General Counsel's representative disclaimed any contention that Respondent Union's picketing "at the corner of Welburn Avenue and the access road" whether on May 14 or thereafter, should be considered unlawful. The General Counsel's representative presently submits-rather-that his record made regarding Respondent Union's designat- ed picket patrol: • . .serves as a back up for . . . General Counsel's argument . . . which we will make, that the picket- ing at the corner of Welburn Avenue and the access road was sufficient . . .to serve that organization's statutorily permissible purpose. [Emphasis supplied.] Proceeding from this premise, the General Counsel seeks a determination-now-that Respondent Union had no right to picket complainant's jobsite, save at the firm's posted primary gate "and/or" the Welburn Avenue public access road intersection. And, within his brief, currently revised in response to Respondent Union's post-hearing motion to strike a portion thereof, the Gen- eral Counsel's representative contends, essentially, that- since a restriction of picketing to these designated loca- tions would not have "substantially impaired" that lawful picketing's effective conveyance of Respondent Union's message to complainant's personnel, suppliers, visitors, and the general public, sufficiently to render the Board's Southern Sun doctrine applicable-that organization's concurrently maintained picket line at complainant's properly posted Church Street gate should, necessarily, be deemed calculated to produce secondary consequenc- es statutorily proscribed. 4. Respondent Union's contentions Responsively, within his brief and related statements for the record, Respondent Union's counsel-basing his position on legal principles purportedly derived from the Board's Southern Sun decision previously noted-sug- gests, shortly and simply, that when a separate gate re- served for some primary employer's workmen, suppliers, and visitors has been improperly established, concerned labor organizations may freely picket the entire jobsite with respect to which that primary employer may be providing services, without restriction. More particular- ly, counsel proffers several contentions, bottomed on his client's basic legal premise, that: • . .a reserved gate [posted for use by a primary em- ployer's workers, suppliers, and visitors solely] requires DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union to picket at the reserved gate if and only if the reserved gate is properly established. If not, the Union may [lawfully] picket anywhere. [Emphasis supplied.] Proceeding from this fundamental premise, Respondent Union's counsel seeks a dispositive determination, on this record, that-since, within his view, complainant con- tractor's purportedly hidden or remoted located primary gate, herein, may reasonably be considered "improperly established" within the rational intendment of the Board's Southern Sun decisional rubric-the pickets posted closely proximate to complainant's properly delin- eated neutral gate should not be deemed calculated to promote a proscribed secondary objective In this connection, counsel contends-having proffered his legal syllogism's major premise-that, with due regard for the testimonial, pictorial, and documentary record made herein complainant's posted primary gate should have been considered improperly located, for sev- eral reasons: First, because Respondent Union's primary gate picket, had he been required to maintain his patrol directly in front of complainant's posted gate I location, within the confines of the public access road, would have bound his picketing's effectiveness "substantially" impaired, within the meaning of the Board's Southern Sun decisional prin- ciple; though he would, concededly, have reached com- plainant's workmen, suppliers, and visitors who utilized the designated gate, with Respondent Union's message, counsel contends that his picket sign's appeal would not have been conveyed to those members of the general public whom Respondent Union might, legitimately, wish to reach. Second, because Respondent Union's relocated picket, when subsequently stationed at the public access road's junction with Welburn Avenue more than 400 feet from complainant's primary gate, was-likewise-confronted with a situation which provided Respondent Union with no "reasonable assurance" that its message would reach "all" those persons toward whom its picket sign's appeal might, legitimately, be directed; this was so, counsel sug- gests, because members of the public, passing on Welburn Avenue, could not have-clearly-seen Sharp & Tatro's relatively distant and partially obscured construction site, could not have read complainant's distantly posted gate I sign, and, therefore, could not have connected the pro- claimed "dispute" message putatively conveyed by Re- spondent Union's picket sign, conceptually, with Sharp & Tatro's project. Respondent Union's counsel concedes, herein, that some members of the general public could have been reached, effectively, by Respondent Union's picket sign message had the picket's patrol been confined-as it was initially-to the public access road directly in front of complainant's reserved primary gate. He contends, how- ever, that such persons-residents of the apartments lo- cated at the public access road's dead end, customers of various nearby stores and, conceivably, garbage collec- tors-would have constituted a particularly "limited" public, so that Respondent Union's required maintenance of closely located picket patrols 400 feet down the public access road, which might reach them but could not reach other members of the general public, would have "sub- stantially" and "unjustly" restricted that organization's right to publicize its primary dispute. In this connection, counsel suggests, further, that com- plainant's Church Street jobsite frontage constituted the sole location where Respondent Union's picket line could lawfully have been maintained-close to the proper situs of that organization's primary dispute, pursuant to Moore Dry Dock's third requirement previously noted-with some reasonable assurance that its message would be con- veyed, not merely to Sharp & Tatro's employees, suppli- ers, and visitors, but, likewise, to Gilroy's general public. Specifically, counsel contends that Sharp & Tatro could have: preferably, located both separately designated re- served gates on their construction project's Church Street frontage, or alternatively, located a primary gate, solely, on their jobsite's Church Street side, with a sepa- rately designated reserved gate for neutrals located at that jobsite's rear point of contiguity with the public access road. In either case, Respondent Union's counsel suggests his client's pickets would have been-consistently with law-restricted to patrols closely proximate to complain- ant's properly reserved "primary" gate, while their right to convey a meaningful, and presumably effective, public "appeal" would, nevertheless, have been properly pre- served. 5. Conclusions Upon this record, Respondent Union's present conten- tion, that Sharp & Tatro's designated "primary" and "neutral" gates had been improperly established, and that its picket posted directly in front of the designated con- tractor's proclaimed "neutral" gate should, therefore, be considered beyond statutorily mandated proscription, carries no persuasion. Within my view, Respondent Union's factual premise-that complainant's gates had not been properly established-lacks reliable, substantial, and probative record support. No contention-it should be noted-has been prof- fered, herein, that complainant's gates I and 2 should be considered improperly established because the firm's job- site signs, which designated its posted primary and neu- tral gates, respectively, had been ambiguously phrased; nor has any suggestion been made that-because of their particular language or particular location on Sharp & Tatro's jobsite-those signs had failed to convey their purportedly restrictive messages with requisite complete- ness and specificity sufficient to preclude any possibility that complainant's workmen, suppliers, and visitors, or those doing business with neutrals, might have been con- fused, or left without guidance, thereby. Compare Elec- trical Workers IBEW Local 441 (Jones and Jones), supra and Electrical Workers IBEW Local 640 (Timber Build- ings), 176 NLRB 150 (1969), in this connection. Had such contentions been proffered, I would have found them, upon this record, completely without merit. In short, Respondent Union presents no critical claims herein that complainant's reserved gates had been estab- lished improperly because the particular "method and CARPENTERS LOCAL 354 (SHARP & TATRO) manner" which Secretary-Treasurer Tatro had em- ployed, when locating and designating his firm's primary and neutral gates, somehow lacked clarity, required to provide the Union with a reasonable assurance that-had it confined its single picket patrol to gate 1 on the public access road-its message would, nevertheless, have reached those persons to whom its picket sign's direct appeal might, legitimately, be conveyed. Likewise, it should be noted, Respondent Union's counsel proffers no contention, upon this record, that his client's determination to picket complainant's designated Church Street gate should be considered privileged- rather than purposed to pursue a secondary objective statutorily proscribed-because that gate's posted restric- tions, calculated to confine its utilization to neutrals and those privy to their operations, solely, had, purportedly, been disregarded or breached by complainant's primary workmen, suppliers, or visitors. So far as the testimonial, pictorial, and documentary record shows, complainant's posted restrictions, with respect to reserved gate usage, had been-throughout the period with which this case is concerned-strictly complied with. Rather, Respondent Union presently contends-basi- cally-that complainant's reserved gates should, herein, be considered improperly established because the firm's designated primary gate, specifically, had been located within a remote corner of Sharp & Tatro's jobsite, so ef- fectively hidden from public view that "no [member] of the general public could tell what [Respondent Union's picket] sign was about, what the dispute was about." With due regard for the situation described, Respond- ent Union's counsel suggests that a mandated restriction of his client's picket patrols to complainant's posted pri- mary gate-whether that patrol was maintained within the confines of the public access road, close to the gate, or some 455 feet distant, where the public access road debouched upon a public thoroughfare-would have "substantially" and "unjustly" impaired the effectiveness of Respondent Union's lawful picketing, so far as the privileged convey- ance of its message to complainant's workmen, suppliers, visitors and, most particularly, members of the general public was concerned. However, counsel's proffered justification for this sug- gestion, purportedly bottomed on the present record, carries no persuasion within my view for several reasons. First: I note Respondent Union's specific concession that its gate 1 picket-whether he patroled directly in front of complainant's posted primary entrance or near the public access road's connection with Welburn Avenue more than 400 feet distant-could effectively reach, and did reach, complainant's carpenters, direct suppliers, and visitors, whose place of permitted ingress and egress, from the firm's jobsite, had been specifically restricted to gate 1, solely. Counsel's complaint, never- theless, that his client's right to conduct primary picket- ing would have been restricted, without lawful warrant, had such picketing been confined to either location noted, because that organization's picket line message could not have been-meaningful-communicated to members of the general public, whom Respondent Union might, legitimately, have hoped to reach, I find, lacks record support. True, Respondent Union's picket sign message-had its picket been restricted to patroling directly in front of complainant's designated primary gate-would have reached a somewhat "limited" public. However, that public-the tenants of nearby apartments, their visitors, and prospective customers or business callers who might park their cars on the public access road while visiting nearby stores-certainly could have seen complainant's primary gate; they could have read that gate's plainly posted sign, and could have-with equal facility-noted a picket's message, had one maintained his station there. Upon this record, no determination would be warranted, within my view, that Sharp & Tatro's designated pri- mary jobsite entrance had been so well hidden, or so re- motely located, that any restriction of Respondent Union's picket patrol to such a reserved gate's immediate vicinity would have "substantially" impaired any lawful picket- ing's effectiveness. Complainant's gate 1, herein, was- clearly-more accessible and visible to members of the general public who might find themselves nearby, while pursuing their personal concerns, than the primary gate which Southern Sun's concerned contractor had estab- lished. Having reached this conclusion, I find Respond- ent Union's contention-that Secretary-Treasurer Tatro's challenged gate 1 placement, when compared with the virtually inaccessible and hidden reserved gate placement devised by Southern Sun's primary contractor, likewise reflected a questionable "game playing" ploy which complainant's management representative had carried "too far" restrictively-a contention smacking of hyper- bole, and without substantive merit. Should a determination be considered warranted, con- trariwise, that a restriction of Respondent Union's picket line to some locus closely adjacent to complainant's pri- mary gate would have "substantially" restricted the Union's presumptively privileged effort to communicate with members of the public, I would find, consistently with the General Counsel's contention herein, that Re- spondent Union's picketing on Welburn Avenue, though somewhat removed from complainant's primary gate, sufficiently fulfilled the Union's statutorily recognized needs. Clearly, Respondent Union's Welburn Avenue picket could still reach-and did reach-complainant's hired carpenters, direct suppliers, and visitors, with his mes- sage, since they regularly passed him, perforce, while on their way to complainant's reserved primary gate. Fur- ther, the Union's picket sign message, proclaimed on Welburn Avenue, could likewise reach-and presumably did reach-substantial segments of the general public; the record warrants a determination, which I make, that Welburn Avenue carried much more traffic-vehicular and pedestrian-than Church Street, which complain- ant's concurrently posted "neutral" gate faced. Respondent Union's counsel contends, nevertheless, that complainant's jobsite and gate 1 sign could not be seen from Welburn Avenue by members of the general public, save from certain circumscribed locations, and that the sign's message-some 455 feet distant-could not be read from Welburn Avenue, conveniently. He sug- gests that Respondent Union was prevented from "effec- DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively" picketing complainant's posted primary gate, under such circumstances, since members of the general public-who could not see Sharp & Tatro's complete construction project from Welburn Avenue; who could not clearly see that firm's posted gate 1 sign more than 400 feet distant, or decipher its legend; who could not determine complainant's involvement; and who, conse- quently, could not "associate" the message conveyed, by the labor organization's visible Welburn Avenue picket sign, with any current labor dispute's situs-would never have been able to determine precisely what that dispute concerned. Consistently with the General Counsel's proffered ri- poste, however, I find Respondent Union's claim-that Welburn Avenue's vehicular and pedestrian passers-by might possibly fail to notice complainant's posted gate I sign, or find themselves unable to read it-without sig- nificance herein. Union counsel's basic suggestion-that a labor organization cannot "effectively" picket a reserved primary gate at some construction jobsite unless members of the public can, without difficulty, discern a connection between that organization's picket sign messages and some nearby, readily visible, project designated as the proclaimed dispute's particular situs-lacks persuasive precedential support. Consistently with this Board's Moore Dry Dock stand- ards, picketing calculated to publicize some labor organi- zation's dispute with a primary employer, performing services on some construction project where neutral em- ployers may concurrently be engaged, must-of course- be confined to particular locations "reasonably close" to their dispute's situs. In Moore Dry Dock, however, labor organization pickets posted before a ship repair yard's main gate-while the ship with which their dispute was primarily concerned was "tied to a pier" within the yard, presumably beyond the clear view of landside passers-by who could see the picketing "local in point of contact" with the primary employer's operations directly in- volved. Sailors Union (Moore Dry Dock), 92 NLRB 547, 559, 561, 566-567 (1950). Specifically, the Board found that Sailors Union pickets-who had been "denied" per- mission to picket the vessel berthed within Moore Dry Dock's yard, directly at dockside, to publicize their dis- pute with the vessel's owner-had been posted "as close to [their dispute's situs] as they could get" under the cir- cumstances. And, since their picket signs had neverthe- less disclosed, clearly, that their dispute lay, not with the readily visible shipyard but with a differentiated "pri- mary" employer whose normal business operations were being conducted within the yard beyond the general public's view, the practice which the challenged pickets followed was considered directed toward primary, rather than sec- ondary, goals. In so concluding, the Board's Moore Dry Dock decision-implicitly-reflected a determination that picket patrols, maintained at proper times, with properly drafted picket signs messages, could effectively publicize a primary dispute, even though their dispute's particular situs might not be-readily-discernible by members of the general public cognizant of their picket line's pres- ence. Since Respondent Union's picket, stationed at the public access road's junction with Welburn Avenue, con- cededly reached Sharp & Tatro's workmen, suppliers, and visitors, with his message-and since members of the general public traversing Welburn Avenue were, likewise, well "exposed" thereto-that picket line, so the General Counsel contends, effectively fulfilled Respondent Union's legitimately pursued purpose. I concur. Respondent Union's counsel, however, suggests-fur- ther-that both of complainant's reserved gates could have been located within the picketed project's open Church Street frontage; counsel contends, therefore, that Secretary-Treasurer Tatro's calculated gamesmanship, displayed when he deliberately placed complainant's gate I on the picketed jobsite's less visible side, gave Re- spondent Union the right to picket complainant's posted neutral gate. I have not been persuaded. Nothing in the Board's Southern Sun decision requires reserved "primary" gate placements calculated to maximize a picket's chances to reach members of the public with his organization's mes- sage. That decision merely proscribes gate placements which would "substantially" and "unjustly" impair the effectiveness of some labor organizations picketing-con- ducted in conformity with Moore Dry Dock standards- in reaching a primary employer's personnel, suppliers, visitors and the general public. In any event, Secretary-Treasurer Tatro's testimony herein-proffered without contradiction-warrants a de- termination, which I make, that a parallel placement of separated primary and neutral gates, within the confines of complaint's project frontage on Church Street, would have been difficult, or-perhaps-even impossible. The project's ground space, fronting on Church Street, south- ern of complainant's posted neutral gate, was-at least when Respondent Union's picketing commenced-large- ly rendered inaccessible, so the record shows, by trench- es, piles of dirt and sand, drainage ditches, and miscella- neous obstacles which would have, realistically, substan- tially impeded or prevented vehicular entries. Under the circumstances, Secretary-Treasurer Tatro's decision to locate complainant's primary gate on their project's rear property line may well have reflected a deliberate choice; within my view, however, it cannot-fairly-be charac- terized as game-playing, motivated by some conscious cal- culation that the effectiveness of Respondent Union's continued picketing would be significantly restricted thereby. Assuming, for the sake of argument, that complaint's gate 1 placement may have, conceivably, reflected a cal- culated "bad faith" ploy, specifically designed to render Respondent Union's picketing directly in from of that gate ineffective so far as communication with the general public was concerned the firm's action, nevertheless, pro- vided no license-within my view-for secondary union picketing, reasonably calculated to enmesh neutrals. Such conduct on complainant's part merely licensed picketing elsewhere, which Respondent Union was-still-re- quired to maintain in full conformity with Moore Dry Dock standards.13 1These standards-when applied with due regard for the competing interests which must be ac- commodated when a picketing labor organization's ob- jectives have to be ascertained-require that picket pa- CARPENTERS LOCAL 354 (SHARP & TATRO) trols, maintained at locations other than "as to minimize its impact on neutral employees insofar as this can be done without substantial impairment of the effectiveness of the picketing in reaching the primary employees." Retail Clerks Union Local 648 (Crystal Palace Market), 116 NLRB 856, 859 (1956), cited in Electrical Workers IBEW Local 441 (Jones and Jones), 158 NLRB 549, 552 (1966). In this case, the Board's test-clearly-has not been satisfied. Having found that Respondent Union's legiti- mate picket line objectives were "effectively" served, without "substantial" impairment, when its picket pa- trolled the public access road's junction with Welburn Avenue, despite that junction's location 455 feet from complainant's primary gate, I conclude that no cognate need has been-herein-demonstrated for the designated organization's concurrent Church Street picketing, close- ly proximate to the general contractor's posted neutral gate. That picketing transgressed permissible limits. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Union, set forth in sec- tion III above, since they occurred in connection with Sharp & Tatro's business operations described in section I above, had a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States. They have led, and absent correction would tend to lead, should they be continued or resumed, to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Sharp & Tatro Development, Inc. is an employer engaged in commerce, and business operations affecting commerce, within the meaning of Section 2(2), (6), and (7) and Section 8(b)(4)(i) and (ii)(B) of the Act, as amended. 2. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 354 is a labor or- ganization within the meaning of Section 2(5) of the Act, as amended. 3. By inducing and encouraging individuals employed by Gavilan Electric and Economy Fire Sprinkler Sys- tems, or by other persons engaged in commerce or in an industry affecting commerce, to engage in a strike or re- fusal in the course of their employment to perform serv- ices, and by threatening, coercing, and restraining the above-named employers, or other persons engaged in commerce or business operations affecting commerce, with an object of forcing or requiring the above-named persons to cease doing business with Sharp & Tatro De- velopment, Inc., Local Union No. 354, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the Act, as amended. REMEDY Since I have found that United Brotherhood of Car- penters and Joiners of America, AFL-CIO, Local Union No. 354 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and that it take certain af- firmative action designed to effectuate the policies of the Act, as amended. Upon the foregoing findings of fact, conclusions of law, and the entire record herein,' I hereby issue, pursu- ant to Section 10(c) of the Act, as amended, the follow- ing recommended ORDER 2 The Respondent, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union Np. 354, Gilroy, California, its officers, agents, and represent- atives, shall 1. Cease and desist from (a) Inducing or encouraging any individual employed by Gavilan Electric, Economy Fire Sprinkler Systems, or any other person engaged in commerce or in an in- dustry affecting commerce, to engage in a strike or a re- fusal in the course of employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is to force or re- quire the employers named above, or any other person engaged in commerce or in an industry affecting com- merce, to cease using, selling, handling, transporting, or otherwise dealing in the products of, or to cease doing business with Sharp & Tatro Development, Inc. (b) In any manner threatening, coercing, or restraining Gavilan Electric, Inc., Economy Fire Sprinkler Systems, or any other persons engaged in commerce or in any in- dustry affecting commerce, where an object thereof is to force or require the employers named, or any other per- sons engaged in commerce to cease using, selling, han- dling, transporting, or otherwise dealing in the products of, or cease doing business with Sharp & Tatro Develop- ment, Inc. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the National Labor Re- lations Act, as amended. (a) Post at its office and meeting halls copies of the at- tached notice marked "Appendix."'3 Copies of said notice, on forms provided by the Regional Director for Region 32, shall be posted by United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 354, after being duly signed by its authorized I Certain errors in the transcript are hereby noted and corrected. 2 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regula- tions, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 3 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative, immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to members are customarily pogted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Deliver to the Regional Director for Region 32 signed copies of said notice in sufficient number for post- ing by the employers involved herein, should those firms be willing, at all locations where notices to their employ- ees are customarily posted. (c) File with the Regional Director for Region 32, as the Board's agent, within days from the date of this Order, a written statement seeking forth whatever steps Respondent Union has taken to comply herewith. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, during which all parties were given an opportunity to present evidence and argu- ment, it has been determined that we violated the law by committing an unfair labor practice. In order to correct and remedy such conduct we are being required to take certain actions and to post this notice. We intend to comply with these re- quirements, and to abide by the following commit- ments: WE WILL NOT, nor will our officers, business representatives, business agents, or anyone acting for us, whatever his title may be, engage in or induce or encourage any individual employed by Gavilan Electric, Inc., Economy Fire Sprinkler Systems, or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of employment to use, manufacture, process, transport, or otherwise handle, or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require the above- named employers, or any other person engaged in commerce or in an industry affecting commerce, to cease using, selling, handling, transporting, or oth- erwise dealing in the products of, or cease doing business with Sharp & Tatro Development, Inc. WE WILL NOT threaten, coerce, or restrain Gavi- lan Electric, Inc., Economy Fire Sprinkler Sys- tems, or any other employers engaged in com- merce or in any industry affecting commerce where an object thereof is to force or require the said employers or any other persons engaged in commerce to cease using, selling, handling, trans- porting, or otherwise dealing in the products of, or cease doing business with, Sharp & Tatro Develop- ment, Inc. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, LOCAL UNION No. 354