Laborers International Union Of North America, Afl-Cio, Local No. 389

National Labor Relations Board - Board Decisions

Dec 16, 1987

287 N.L.R.B. 570 (N.L.R.B. 1987)

570 -DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Laborers International Union of North America,
AFL-CIO, Local No. 389 and Calcon Construc-
tion Company. Cases 20-CC-2932 and 20-CC-
2993
16 December 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 6 October 1987 Administrative Law Judge
Joan Wieder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions 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 , Laborers
International Union of North America , AFL-CIO,
Local No . 389, its officers , agents, and representa-
tives, shall take the ' action set forth in the Order.
' The Respondent has excepted 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
Boren Chertkov, Esq., for the General Counsel.
Paul Supton, Esq. (Van Bourg, Weinberg, Roger & Rosen-
feld), of San Francisco, California, for the Respondent.
Roger Mason, Esq. (Thierman, Simpson & Cook), of San
Jose, California, for the Charging Party.
DECISION '
STATEMENT OF THE CASE
JOAN WIEDER , Administrative Law Judge . I heard this
case in San Francisco , California , on 22 June and 3
August 1987 . The consolidated complaint is based on
charges filed by Calcon Construction Company (Calton)
on 27 May 1986 and 9 January 1987,' respectively. The
allegation is that Laborers International Union of North
America , AFL-CIO, Local No 389 (Respondent or
Union) violated Section 8(b)(4)(i ) and (ii)(B) of the Na-
tional Labor Relations Act by engaging in common situs
picketing of Calcon in South San Francisco , California,
' Unless otherwise indicated, all references to activities in March
through June occurred in 1986 and those in January occurred in 1987
with the object of forcing or requiring neutral employ-
ers, including subcontractors, from doing business with
Calcon. Specifically, the complaint asserts that Respond-
ent violated the Act by picketing the common situs on
27-30 May, 4 and 6 June, and 9, 12, 'and 13 January with
signs that did not identify the primary employer.
Respondent denies the commission of the alleged
unfair labor practices. The Union admits in its answer, as
amended at trial , that it is a labor organization within the
meaning of Section 2(5) of the Act, and also admits that
the primary employer, Calcon, meets one of the Board's
applicable discretionary jurisdictional standards and is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. Accordingly,, I find that
assertion of jurisdiction will effectuate the policies of the
Act.
On the entire record, and from my observation of the
demeanor of the witness, and having considered the
timely filed briefs of the Union and the General Counsel,
I make the following
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Calcon is a general contractor engaged in the con-
struction of an Embassy Suites Hotel in South San Fran-
cisco, California. Construction commenced in September
1985. The jobsite has three entrances, denominated
during the trial as gates 1 and 2, on Gateway Boulevard
and gate 1 on Corporate Boulevard.2 At various times,
as here pertinent, the construction site was picketed by
one or more unions simultaneously. This proceeding in-
volves only- alleged violations of the Act by Respondent
Laborers Local 389 The other unions picketing the con-
struction site were identified as the Teamsters, Carpen-
ters, IBEW, and Operating Engineers.
There was only one witness, Jeffrey Palmer, Calcon's
project manager. About 24 March, Palmer met Jim
Bender, who Respondent admits is its assistant business
agent. Bender gave Palmer his card and asked Palmer if
he "was ready to sign a contract yet." There were indi-
viduals Palmer identified as Laborers who were in "close
proximity" to signs lying on the ground in a manner that
could be read by passers-by. The signs identified the
Union but not the employer that was the subject of the
dispute.4 Specifically, the sign read: "NAME OF CON-
TRACTOR," a blank space, and 'underneath that
"UNFAIR LABORERS." There was no local number
on the sign. Thereafter, Palmer saw Bender at the jobsite
2 The gates to the project were identified for the sole purpose of de-
scribing the jobsite , although there was a reserved gate system in force at
all times here pertinent, there is no allegation that Respondent 's picketing
violated the Act by contravening the reserved gate system Also, at
times, the witness failed to identify which gate I was referred to in his
testimony For clarity of the record , where the gate I location was de-
scribed, I mention the street name All references to gate 2 refer to a lo-
cation on Gateway Boulevard
3 Also present during this conversation was Jim Gustafson , who was
identified as an employee of the Carpenters Union
4 There is no allegation that this activity constituted a violation of the
Act
287 NLRB No. 58
LABORERS LOCAL '389 '(CALCON CONSTRUCTION)
on an almost daily basis in April, May, and June 1986
and January 1987
'Prior to 27 May, the Union had a dispute with'two or
more subcontractors at the jobsite, Hordyk and 'Viking.
The Union picketed the jobsite in April and May, when
these subcontractors were present, with"signs that named
the companies with whom they had a dispute. Palmer
testified without challenge that the sign read' "NAME
OF COMPANY" and on the blank space thereunder,
someone filled 'in "HORDYK EXCAVATION" and
then "UNFAIR LABORERS." Three men identified as
Laborers from the signs they carried at this time were
denominated by Palmer as "Red Cap, the black and the
Hispanic According' to' Palmer, ' he believes he saw the
Black and' Hispanic men carrying signs for the Laborers
which read "WAGES AND CONDITIONS BELOW
STANDARDS ESTABLISHED BY LABORERS,"
and underneath this statement it identified Calcon as the
Employer and Laborers Union 389 as the Union Near
the end of May, the Charging Party advised the Union
that Hordyk and Viking were leaving the job, and Re-
spondent stopped its picketing of those companies.
Hordyk and Viking left the jobsite prior to 27 May.
B. Events in May and June 1986
Palmer, who works from 6.30 a.m to 5 p m., saw
Bender when he arrived at work on 27 May at gate 2.
Bender was in the company of three or four other, men,
one of whom Palmer recognized as frequently accompa-
nying Bender by his red cap and blue jacket. Also
present were the black and Hispanic men. Palmer' identi-
fied all picketers' union affiliations by the signs they car-
ried or their,proximity to posted signs.
Palmer noticed a sign lying on the ground that read:
NAME OF COMPANY
UNFAIR `
LABORERS'
Red Cap was standing next to the sign . Bender was ob-
served frequently driving Red Cap to the jobsite ' Palmer
did hot' observe or otherwise know who placed the sign
next to the gate or who removed it. The blank on the
sign for the insertion of a company name was not filled
in. The sign was lying on a steep grade adjacent to gate
2 in a position where it could be read from the street,
Gateway Boulevard The sign and its location is similar
to the Union's practices he observed in March. Palmer
asked Bender, "if he could not make up his mind who he
was going to picket,that day." Bender replied, "He was
waiting to see what subcontractors I was bringing on the
job." Palmer did not inform Bender who the subcontrac-
tors were on the jobsite or who employed laborers 5 On
5 While Palmer claims he did not try to trap Respondent into a viola-
tion of the Act, he did admit in his affidavit
On Friday, May 23rd, 1986, I decided to let the Laborers Union help
make my decision for me whether to continue attempting to perform
portions of the project using contractors signed to union agreements
or whether to simply build the project nonunion I contacted
571
27-30 May 'and 4 and 6 June;'Calcon employed at the
jobsite' individuals' who performed the work of laborers.
There'-were several different picket'signs carried by
between 20 to 25 persons later in the day The signs
read "RAT JOB" and "SCABS GO HOME." Palmer
noticed five to eight pickets for the Carpenters at gate 1,
as well as the business agent for Teamsters Local 216, an
individual called Fitzpatrick, but he is not sure if any
Teamsters picketed that day. He also observed pickets at
gate 2 whom he could not identify with any union He
believes that there were pickets for the IBEW at gate 1
that day
Although Palmer identified Red Cap as a representa-
tive or agent of the Laborers Union, he admitted identi-
fying him as the individual who carried a Teamsters
picket sign in, June, in an affidavit, but when he testified
he claimed he was not sure that the man he observed in
June was "Red Cap" without the red cap but wearing a
blue jacket.
When Palmer arrived at the jobsite on 28 May, he ob-
served about 15 signs, none of which had the name of an
employer, company, contractor, or subcontractor on
them. The signs variously read "LOW PAY," "NO
FRINGE IS DUMB," "WE'RE MAD AS HELL,"
"RAT JOB," "SCABS GO HOME," "ORGANIZED
TO DISORGANIZE," "LOW PAY ' AND' NO
FRINGES IS DUMB," and "CALCON EMPLOYEES
SCABS " Palmer, could not identify . who carried the
signs or what union they represented He did observe
Red Cap at gate 2, and the previously described "unfair
laborers" sign lying against the bank, the sign that did
not contain the name of a company. He did not see any
sign with the Laborers named thereon carried this day or
on 27 or 28 May. Bender was also present from about 7
a.m. to noon Gustafson was at gate 1 on Gateway brief-
ly that morning. He does not recall seeing a business
agent from the IBEW or Teamsters that day
The individuals Palmer identified as Carpenters were
at gate 1, sitting in lawn chairs near signs that were stuck
in the ground
On 29 May Palmer noticed, when he arrived at the
jobsite, three to five people standing at gate 2, including
Red Cap and Bender. Picket signs that read "RAT JOB"
and "SCABS GO HOME" were being carried by some
of the picketers. Palmer did not recognize any of the
pickets as representing the IBEW or the Teamsters. He
did identify Red Cap and another as representing the La-
borers and he saw' a sign that contained a reference to
Pumpco (P-U-M-P-C-O) of California, the contractor I had contract-
ed to pump the concrete from the Redi-max supplier unto [sic] the
project where it would be handled by employees of Viking concrete
[an employer different than the Viking Respondent had the labor dis-
pute with prior to 27 May] I did not intend to perform a pour on
Tuesday, May 27th, 1986 However, I requested Pumpco to provide
a pump and one man on Tuesday morning, May 27th, 1986 The sole
purpose in having Pumpco provide a pump on that was to see
whether the Laborers Union would picket, regardless of a lawful
reason
The conversation with Bender on 27 May occurred before the Pumpco
truck arrived There is no evidence that Pumpco's name was later insert-
ed in the blank space on the sign Palmer did not tell Bender that he ex-
pected the Pumpco vehicle later that day He did not feel he had an obli-
gation to so inform the Union
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Laborers Union, which was not carried He also
identified two pickets at gate 1 as representatives of the
Carpenters
When Palmer arrived at the job on 30 May, he again
saw pickets carrying signs proclaiming "RAT JOB" at
gate 2 He could not identify the person carrying the
sign or recall if it identified the Carpenters as the picket-
ing union Palmer did observe Bender conversing with
the pickets When asked if Gustafson of the Carpenters
Union was present, Palmer replied that he could not
recall, he may have been He did see Fitzpatrick, the
business agent for the Teamsters, that day at the jobsite
but could not recall if Jim Derby, the business agent for
the Operating Engineers, was also present There were
individuals carrying signs that identified the Teamsters
Union and he saw signs identifying the Carpenters
Union, but he could not remember if these were carried
or posted
Palmer saw Red Cap on 4 and 6 June with about three
other persons near two signs that were placed on the
steep grade near gate 2, as previously described. The
signs read- "RAT JOB" and "NAME OF THE COM-
PANY," a blank underneath, and at the bottom,
"UNFAIR LABORERS " He did not see who placed
the picket signs near the gate. On 4 June, although other
pickets were present, he did not see anyone he thought
was from a craft other than Laborers standing near these
signs He did see other crafts on 6 June, but none were
patrolling, all the signs were posted For example, there
was a Carpenters sign stuck in the ground near gate 1.
On reflection, Palmer then testified that he thought
IBEW pickets were present this day and they always
carried their signs There were also Teamsters Union
pickets at the jobsite on 4 and 6 June He saw Fitzpa-
trick and Gustafson on 4 June talking to pickets.
On cross-examination, Palmer also admitted that he
saw, Red Cap at the jobsite on one or more days during
21, 22, and 23 December He could not recall if he saw
either the black or Hispanic man at this time, but after
having his memory refreshed from an affidavit, he re
called that on 22 December a driver for Silvey Trans-
portation told him that the same black man he identified
as a Laborers representative spoke to him about the
IBEW's picketing The Carpenters Union was also pick-
eting at this time. Although he could not recall clearly if
Bender was present on these 3 days in December, he be-
lieves Bender visited the jobsite daily.
On 27, 28, 29, and 30 May and 4 and 6 June, Consoli-
dated Engineering, a testing service which is a subcon-
tractor with Calcon, was present at the jobsite.
C Events in January 1987 -
Palmer observed picketing he attributed to the Labor-
ers on 9, 12, and 13 January 1987. On 9 January, when
he arrived at the Jobsite early in the morning, he saw
two men whom he identified as Laborers based on the
signs they carried, which read- "WAGES AND CON-
DITIONS BELOW STANDARDS ESTABLISHED
BY CONSTRUCTION AND GENERAL LABOR-
ERS, UNION 389." Palmer took a picture of the sign on
13 January at a location about 130 feet from the property
line The sign was on the outside of a parked van and the
individual identified as the black man was sitting in the
driver's seat. There is no claim that any other union had
the Local designation 389. The Union stipulated that the
language on the signs was the same for all 3 days in
question in January. The signs did not have the name of
any employer, contractor, or subcontractor.
He recognized the picketers as those he observed with
Bender in May 1986. They were the black and Hispanic
men. He also saw Bender conversing with them on this
date, 9 January They were carrying the signs, first at
gate 1 on Gateway Boulevard and then they ,moved be-
tween that gate and, gate 1 on Corporate Boulevard.
They did not picket at gate 2. He did not know the pick-
eters' names or who employed, them
On 12 and 13 January Palmer saw three pickets he
identified as Laborers. He saw the black and Hispanic
men carrying picket signs identifying "Laborers 389" as
part, of the legend and he also saw Red Cap. Not all
three men patrolled on these 2 days On 12 January the
black man stood by a fire hydrant about 40 feet from a
Gateway Boulevard entrance and on 13 January he sat in
the previously described van On these dates,' as on 9
January, these men picketed between the two gate l's,
not at gate 2: On these dates the two'gate l's were re-
served for Calcon. The subcontractors present on the
jobsite these 3 days were- Delta Electric; Consolidated
Engineering; Precision Mechanical; and Cucksey Equip-
ment.
On one or more of these days,- the IBEW was also
picketing at gate 1, and on 12 January Palmer believes
he saw Gustafson talking to pickets, but he never saw
him talk to Red Cap or the Hispanic or black man. All
the unions alternated picketing positions between the two
gate l's They were not segregated from one another
D Discussion and Conclusions
1. Applicable principles
Section 8(b)(4)(i) and (u)(B) of the Act states in perti-
nent part that it is an unfair labor practice for a labor or-
ganization or its agents:
(i) . . to induce or encourage any individual em-
ployed' by any person . . to engage in a strike
. . ; or
(ii) to threaten, coerce, or' restrain ' any person
where in either case the object thereof is:' -
(B) forcing or requiring any person, to cease
doing business with any other.pe'rson .; Provided,
that nothing contained in this clause (B) shall be
construed to make unlawful, any . . . primary pick-
eting.
As noted in NLRB v. Denver Building & Construction
Trades Council, 341 U.S. 675 at 692 (1951): These provi-
sions of the Act implement "the dual Congressional ob-
jectives of preserving the right of labor organizations to
bring pressure to bear on offending employers in primary
labor disputes and of shielding unoffending employers
and others from pressures in controversies not of their
own." Cf. National Woodwork Mfrs. Assn. v. NLRB, 386
U.S. 612, 620-627 (1967).
LABORERS LOCAL 389 (CALCON CONSTRUCTION)
The' object, not the effect, of the picketing is the factor
controlling its lawfulness. Electrical Workers IUE Local
761 v. NLRB, 366 U S 667, 672-674 (1961.); Ramey Con-
struction Co. v. Painters Local 544, 472 F 2d 1127; 1131
(5th Cir. 1973) In a common situs situation as is present
in this case, it is at times difficult to evaluate whether the
object of the picketing is to pressure a neutral employer,
and thus secondary and unlawful, or if the sole object is
to influence the -primary employer, even if neutrals are
incidentally affected, which is lawful. Thus unions' are
charged with the obligation of making reasonable efforts
to minimize the impact of their picketing upon neutrals.
NLRB v. Denver Building & Construction Trades Council,
supra; NLRB v Nashville Building & Construction Trades
Council, 425 F 2d 385 at' 391 (6th Cir 1970); American
Bread Co. v. NLRB, 411 F 2d 147, 154 (6th Cir. 1969).
As the Court held in Iron Workers Local 433 v., NLRB,
598 F.2d 1154,1159 (9th Cir. 1979), quoting from Ramey
Construction Co. v. Painters Local 544, 472 F 2d 1127,
1131 (5th Cir. 1973), the picketing union must "do every-
thing that is reasonably necessary to insure that second-
ary employees are not misled or coerced into observing
the picket line " Accord: Plumbers Local 388, 252 NLRB
452, 460 (1980) "This requirement places a heavy burden
on the picketing union to'convince the trier of fact that
the picketing was conducted in a manner .least' likely to
encourage secondary effects." Ibid.
To assist in the determination of the legality of
common situs picketing, the Board, set forth the follow-
ing criteria in Sailors Union (Moore Dry Dock), 92 NLRB
547, 549 (1950).
Picketing . . is primary if it meets the following
conditions- (a) The picketing is strictly confined to
times when the situs of the.dispute is located on the
secondary employer's premises, (b) at the time of
the picketing the primary employer is engaged in its
normal business on the situs; (c) the picketing is lim-
ited to places reasonably close to the location of the
situs; and (d) the picketing discloses clearly that the
dispute is with the primary employer
Although these criteria are not to be applied mechani-
cally, failure to comply with them creates a strong, albeit
rebuttable, presumption that the picketing had an unlaw-
ful secondary object. Ramey, Construction Co. v. Painters
Local 544, supra,, 472 F 2d at 1132; Electrical Workers
IUE Local 480 v NLRB, 413,F.2d 1085, 1089 (D.C. Cir.
1969); NLRB v. Laborers Local 185, 389 F 2d 721, 725
(9th Cir. 1968), enfg. 154 NLRB 1384 (1965). These cri-
teria are not all inclusive; other relevant factors may be
considered in assessing the union's purpose, such as state-
ments or actions.
The gravamen of the complaint is that Respondent
picketed without clearly identifying the primary employ-
er as required by the fourth criterion promulgated in
Moore Dry Dock, supra, thus its actions are indicative of
an unlawful object.
The Board defined picketing in Mine Workers District
12 (Truax-Traer Coal), 177 NLRB 213 at 218 (1969), as
follows-
573
The definition of the terms "picket" and "picket-
ing" as defined in Black's and Bouvier's law dic-
tionaries do not mention the use of picket signs or
placards or the movements of pickets other than
being posted or stationed at a particular place. In
NLRB v. Local 182, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Woodward Motors), 314 F 2d 53, 58 (C A
2), the Court quoted Webster's New International
Dictionary (2d Ed.) as defining the verb "picket" as
meaning "to walk or stand in front of a place of em-
ployment as a picket," and the noun as "a person
posted by a labor organization at an approach to the
place of work" and concluded that any particular
movement by the picket was not a necessary ingre-
dient of picketing. In none of these definitions is the
patrolling or the carrying of signs considered a req-
uisite component part of picketing The purpose of
picketing in labor disputes is to convey a message
which is usually intended to influence the conduct
of certain persons to stay away from work or to
boycott a product or business, and is frequently ac-
complished, as was done herein, by posting individ-
uals at the approaches to a place of work Accord.
Lumber & Sawmill Workers Local Union No. 2797
(Stoltz Land & Lumber Co.), 156 NLRB 388, 394
(1965).
2 Argument and conclusions
The General Counsel argues that when the above-
stated principles are applied to the facts of this case, it
must be found that Respondent failed to make a reasona-
ble effort to minimize the impact of its picketing on neu-
trals and thus it violated Section 8(b)(4)(i) and (n)(B) of
the Act.
' Respondent initially asserts that no one picketed with
a Laborers sign. I find this argument to be without merit
for, as previously defined, picketing does not require the
holding of a sign while patrolling. Id In this case the
signs with Laborers identified on them were placed at or
near one or more of the entrances to the common work
site in a manner in which they could be read by anyone
approaching them Also, in January, individuals patrolled
gates to the site carrying signs that identified Respondent
as the picketing Union There were individuals stationed
nearby or carrying these signs that were identified with-
out any refuting testimony as representatives or agents of
Respondent. I find their actions constitute pickets and
picketing as defined above
The signs indisputably did not name the primary em-
ployer. The Union's explanation is that on 27 May it was
waiting to determine which subcontractors would be
working on the site. This explanation does not mitigate
its obligation to refrain from displaying the sign until it
could determine if a primary employer would be on the
site, then placing the employer's name on the sign(s)
This excuse also does not explain Respondent's repeated
failures to name the primary employer on all the dates
considered. Although Respondent infers the general con-
tractor had an obligation to inform it of the subcontrac-
tors who would be present on the site, there is no legal
574 DECISIONS OF THE NATIONAL' LABOR RELATIONS BOARD
or other outcome determinative basis for this assertion,
and it is found to be without merit.
Further, this- argument overlooks Respondent's admis-
sion, explicit in Bender's question of 24 March, that it
was seeking. to unionize Calcon so that it would employ
its members. Also, Bender admitted in the 27 May con-
versation with Palmer that the Laborers picket sign was_
deficient in not naming the primary employer, but Re-
spondent persisted in picketing with this sign and others
that failed to identify the primary employer(s) on 28, 29,
and 30 May, 4 and 6 June 1986, and 9, 12, and 13 Janu-
ary 1987
It is also evident that the picketing was designed not
only to induce Calcon to sign a contract but to induce
employees of subcontractors and other secondary em-
ployers who were unionized to withhold their labor from
the site. The pickets were present at the commencement
of the workday and generally remained until 2 or 2.30
p.m. Respondent did not claim that it made any attempt
to determine which subcontractors would be present on
the site prior to picketing. The picket signs did not clear-
ly convey that it was an organizational campaign against
Calcon; the picketing was not shown to have been con-
ducted at any subcontractors' business, so the reasonably
anticipated effect is that the picketing would affect not
the general contractor employees but those of unionized
subcontractors
I find the Union, at the very least, adopted the unlaw-
ful objective demonstrated by these signs as established
by Bender's comments of 27 May; his presence on the
subsequent days; and the use of signs identifying Re-
spondent to picket the common jobsite. The Union
cannot now disclaim responsibility for the picketing by
the bare claim that the identities of Red Cap and the
black and Hispanic men were not established-. These men
were clearly associated with Laborers picket signs and
were seen in Bender's presence. Thus, their actions iden-
tify Respondent as being engaged in picketing with signs
that failed to identify the primary employer. Bender, in
fact, adopted the use of the sign by his admission on 27
May that Respondent was using the offending signs and
intended to fill in the primary employer's name sometime
later. I conclude that Bender's actions demonstrate Re-
spondent ratified and condoned the use of picket signs
that failed to identify the primary employer on the dates
in question. See' U.S. Steel Corp. v. Mine Workers, 598
F.2d 363, 365-366 (5th Cir 1979), which found that the
actions of a union official determined the culpability of
the union for condoning or ratifying illegal picketing.
See, generally, Davlan Engineering, 283 NLRB 803
(1987); Jet Port Express, 284 NLRB 739 (1987), and Bio-
Medical of Puerto Rico, 269 NLRB 827 (1984).
Respondent admitted that the picket signs in January
identified it as the picketer. The signs posted near gate 2
on the dates in question during May and June also identi-
fied the Laborers as the picketing Union Palmer did- in-
dicate that one or more of these pickets may also have
acted on behalf of one or more other unions This admis-
sion does not warrant a different conclusion. At times
pickets are hired by unions and their actions are equally
attributable to the union as members or employees. Also,
there is no impediment against a representative or agent
of one-union acting in the-interest of another. Palmer's
testimony on this point, although reticent at times, does
not require a different conclusion inasmuch as Respond-
ent admitted -to at least some of the above-described
picketing and ^ failed to refute Palmer's assertion that
signs identifying the Laborers, but not the primary em-
ployer; were used to picket the common situs on the
dates in question.
In fact individuals admittedly carried picket signs iden-
tifying Respondent and not identifying the primary em-
ployer in January 1987. The same individuals were seen
picketing in May and June 1986, using signs that failed to
identify the primary employer and- naming the Respond-
ent as the picketer. Thus Respondent's claim that the
pickets and offending union were not clearly identified is
found to be without merit In addition to the above-de-
scribed circumstantial evidence identifying Respondent
as the sponsor of the picketing, there was no evidence
offered to rebut any of the circumstantial evidence. Con-
sidering the totality of the circumstances, I conclude that
the Union picketed with an unlawful object. Ironworkers
Local 433 (United Steel), 280 NLRB 1325 (1986), citing
Connecticut Foundry Co., 165 NLRB 916 (1967), and
Ironworkers Local.433 v. NLRB, 598 F 2d 1155, 1160 (9th
Cir. 1979).
As the object was to effect the actions of employers'
subcontractors with whom Respondent did not have a
dispute, the picketing by the Laborers clearly had a sec-
ondary object and was violative of Section 8(b)(4)(i) and
(ii)(B) of the Act. Piezonki v. NLRB, 219 F.2d 879, 883
(4th Cir. 1955). Respondent has not demonstrated the ex-
istence of any,unusual circumstances warranting a differ-
ent'decision. Cf NLRB v. Carpenters Local Union No. 55,
218 F 2d 226, 230-232 (10th Cir. 1954). Its claim that
Calcon schemed to entrap- Respondent by not informing
the Union of the subcontractors and having a cement
pump-truck come to the site to test the Laborers' reac-
tion is not exculpatory. As noted above, Calcon, or any
other employer for that matter, has no duty, to inform
Respondent of their intentions, and no action was shown
to have "entrapped" the Union into unlawful activity.
The Union chose to assume the risk of picketing in a
manner that Bender's comment clearly demonstrated it
knew was improper. The Union must assume the'risks of
its own actions and the failure to present any witnesses
under the circumstances presented further supports the
conclusion that it was not misled by Calcon.
Accordingly, I find that by picketing the South San
Francisco jobsite on 27, 28, 29, and 30 May, and 4 and 6
June 1986, and 12 and 13 January 1987, with signs that
did not identify the primary employer, Respondent en-
gaged in common situs picketing with the object of forc-
ing neutral employers, including subcontractors, from
doing business with Calcon in violation of Section
8(b)(4)(i) and (u)(B) of the Act
CONCLUSIONS OF LAW
1. Calcon Construction Company is an employer en-
gaged in commerce or in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
LABORERS LOCAL 389 (CALCON CONSTRUCTION)
2. Laborers International Union of North America,
AFL-CIO, Local No. 389, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By picketing the common situs Executive Suites
Hotel construction site in South San Francisco, Califor-
nia, with picket signs that did not disclose the employer
with whom Local 389 had a dispute, Respondent Union
has violated Section 8(b)(4)(i) and (u)(B) of the Act.
4. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Union has engaged in
unfair labor practices proscribed by Section 8(b)(4)(i) and
(ii)(B) of the Act, I recommend that it cease and desist
therefrom, and that it take certain affirmative action de-
signed to remedy the unfair labor practices and to effec-
tuate the policies of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, Laborers International Union of
North America, AFL-CIO, Local No. 389, its officers,
agents, and representatives, shall
1. Cease and desist from picketing the Executive Suites
Hotel construction project in South San Francisco, Cali-
fornia, with picket signs that did not disclose the em-
ployer with whom Local 389 had a dispute, thereby ex-
hibiting as an object the threatening, coercing, or re-
straining of neutral secondary employers, including
Cucksey Engineering, Precision Mechanical, Consolidat-
ed Engineering, and Delta Electric, or any other person
to cease doing business with Calcon Construction Com-
pany.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its business offices and other places where
notices to members are customarily posted copies of the
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
575
attached notice marked "Appendix."7 Copies of the at-
tached notice, on forms provided by the Regional Direc-
tor for Region 20, shall be posted by the Respondent
Local 389, after being signed by its authorized represent-
ative, and shall be posted for 60 consecutive days in con-
spicuous places where notices to members are customari-
ly posted. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered or covered by
any material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
' If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading " Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT picket with signs that do not disclose
the employer with whom we have a dispute, or in any
manner proscribed by Section 8(b)(4)(i) and (u)(B) of the
National Labor Relations Act, thereby demonstrating as
the object thereof to force or require Cucksey Engineer-
ing, Precision Mechanical, Consolidated Engineering and
Delta Electric or any other person to cease doing busi-
ness with Calcon Construction Company.
WE WILL NOT in any like or related manner restrain or
coerce Cucksey Engineering, Precision Mechanical, Con-
solidated Engineering, Delta Electric or any other
person engaged in commerce with an object of forcing
them to cease doing business with Calcon Construction
Company.
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO, LOCAL 389