Laborers Local 332 (C.D.G., Inc.)

National Labor Relations Board - Board Decisions

Sep 30, 1991

305 N.L.R.B. 298 (N.L.R.B. 1991)

298
305 NLRB No. 32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 Cf. Mine Workers (New Beckley Mining), 304 NLRB 71 (1991).
1 All dates hereafter are in 1989 unless otherwise indicated.
2 The term ‘‘General Counsel,’’ when used herein, will normally
refer to the attorney in the case acting on behalf of the General
Counsel of the Board, through the Regional Director.
3 The pertinent parts of the Act (29 U.S.C. § 151 et seq.) read as
follows:
8(b). It shall be an unfair labor practice for a labor organization
or its agents—. . . .
(4)(i) to engage in, or to induce or encourage any individual em-
ployed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, articles, mate-
rials, or commodities or to perform any services; or (ii) to
threaten, coerce, or restrain any person engaged in commerce or
in an industry affecting commerce, where in either case an ob-
ject thereof is—. . . .
(B) forcing or requiring any person to cease using, selling, han-
dling, transporting, or otherwise dealing in the products of any
other producer, processor, or manufacturer, or to cease doing
business with any other person, or forcing or requiring any other
employer to recognize or bargain with a labor organization as
Laborers International Union of North America,
Local 332 and C.D.G., Inc. Case 4–CC–1874
September 30, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 22, 1991, Administrative Law Judge Rus-
sell M. King Jr. issued the attached decision. The Gen-
eral Counsel and the Respondent filed exceptions and
supporting briefs. The General Counsel filed an an-
swering brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
We agree with the judge’s conclusion that an object
of the Respondent’s activity on December 11, 12, and
19, 1989, was to pressure Oliver Realty, on behalf of
Prudential Property Company, to cease doing business
with C.D.G. unless C.D.G. used only its members at
area standard wages. We further agree with the judge’s
conclusion that the Respondent’s picketing of the Mar-
ket Street Building on December 19 violated Section
8(b)(4)(ii)(B). Thus, for approximately 30 minutes on
that date, between 300 and 400 members of the Re-
spondent completely surrounded the building in a line
of march, blocked all entrances for about one-half
hour, and then held a rally at the building. Many of
the members carried signs with such legends as ‘‘Our
Mothers and Fathers deserve: 1. Fair Wages! 2. A Safe
Work Environment!! 3. Competitive Fringe Benefits!!
4. State of the Art Equipment!!’’
This activity contrasted sharply with the Respond-
ent’s lawful distribution of handbills on December 11
and 12 and on December 19 following the mass march
and rally2 On the first two of these days, no more than
100 of the Respondent’s members were scattered near
the many entrances to the building. On December 19,
about 20 members remained after the rally to distribute
handbills. On each day the handbillers milled about
and talked and moved aside when people approached
the entrances. The march and rally, on the other hand,
went beyond the mere attempt to convey a message by
handbill. In these circumstances, we conclude that the
conduct amounted to restraint and coercion. Such con-
duct, with the proscribed object stated above, violated
Section 8(b)(4)(ii)(B).
In reaching this conclusion, we do not rely on the
judge’s discussion of NLRB v. Fruit Packers Local
760, 377 U.S. 58 (1964), and NLRB v. Retail Clerks
Local 1001, 447 U.S. 607 (1980), which involved the
consumer picketing of struck products, an issue not
present in the instant case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Laborers International
Union of North America, Local 332, its officers,
agents, and representatives, shall take the action set
forth in the Order.
Scott C. Thompson, Esq., for the General Counsel.
Ronald A. White, Esq. and Marilyn Monaco, Esq., of Phila-
delphia, Pennsylvania, for the Respondent Union.
James J. Sullivan, Jr., Esq. (Pepper, Hamilton & Sheetz), of
Philadelphia, Pennsylvania, for the Charging Employer.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING, JR., Administrative Law Judge. This
case was heard by me on March 28 and 29, 1990, in Phila-
delphia, Pennsylvania. The charge was filed against the La-
borers International Union of North America, Local 332
(Local 332), on December 20, 1989, by the Charging Em-
ployer, C.D.G., Inc. (C.D.G.).1 Based on the charge, a com-
plaint was issued on February 2, 1990, by the Regional Di-
rector for Region 4 of the National Labor Relations Board
(the Board) on behalf of the Board’s General Counsel.2 The
complaint alleges that on December 11, 12, and 19, Local
332 violated the ‘‘strike encouragement’’ and ‘‘cease doing
business with’’ clauses, or secondary boycott provisions, of
Section 8(b)(4)(i) and (ii)(B) of the Act.3 Local 332 denies
299LABORERS LOCAL 332 (C.D.G., INC.)
the representative of his employees unless such labor organiza-
tion has been certified as the representative of such employees
under the provisions of section 9 [section 159 of this title]: Pro-
vided, That nothing contained in this clause (B) shall be con-
strued to make unlawful, where not otherwise unlawful, any pri-
mary strike or primary picketing . . . . Provided further, That
for the purposes of this paragraph (4) only, nothing contained
in such paragraph shall be construed to prohibit publicity, other
than picketing, for the purpose of truthfully advising the public,
including consumers and members of a labor organization, that
a product or products are produced by an employer with whom
the labor organization has a primary dispute and are distributed
by another employer, as long as such publicity does not have
an effect of inducing any individual employed by any person
other than the primary employer in the course of his employ-
ment to refuse to pick up, deliver, or transport any goods, or not
to perform any services, at the establishment of the employer
engaged in such distribution.
4 In addition to James Sullivan, also appearing on the brief for
Local 332 is Julie L. Kitze, Esq.
5 The facts found are based on the record as a whole and on my
observation of the witnesses. The credibility resolutions have been
derived from a review of the entire testimonial record and exhibits
with due regard for the logic of probability, the demeanor of the wit-
nesses, and the teaching of NLRB v. Walton Mfg. Co., 369 U.S. 404,
408 (1962). As to those testifying in contradiction of the findings,
their testimony has been discredited either as having been in conflict
with the testimony of credible witnesses or because it was in and
of itself incredible and unworthy of belief. All testimony and evi-
dence, regardless of whether mentioned or alluded to, has been re-
viewed and weighed in light of the entire record.
6 On or about May 23, 1990, the General Counsel filed a motion
to correct the transcript to which counsel for Local 332 filed a re-
sponse, objecting to only one change, at p. 42, L. 25, changing ‘‘be-
neath’’ to ‘‘that meet.’’ The p. 42, L. 25 change was thereafter with-
drawn by the General Counsel, and with that exception, the General
Counsel’s motion to correct the transcript is granted. These correc-
tions appear in Appendix A [omitted from publication].
7 Perry DeVirgillio was a business representative for Local 332.
that it violated any provision of the Act and alleges that it
engaged in an ‘‘informational march’’ for which it had ob-
tained appropriate parade permits, and that it otherwise en-
gaged in lawful handbilling for informational purposes.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed herein by the General Counsel, counsel for Local
332,4 and counsel for C.D.G., I make the following
FINDINGS OF FACT5
I. JURISDICTION AND THE LABOR ORGANIZATION
The pleadings, admissions, evidence, and testimony in the
case establish the following jurisdictional facts. C.D.G. is,
and has been at all times material, a Pennsylvania corpora-
tion engaged as a contractor in building and construction in-
dustry, with its principal office located in Philadelphia, Penn-
sylvania. During the year immediately preceding the issuance
of the complaint, C.D.G., in the course and conduct of its
operations, purchased and received goods and materials val-
ued in excess of $50,000 directly from points outside of the
State of Pennsylvania. Thus, I find that C.D.G. is, and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Further, and as admitted, I find that Local 332 has been
at all times material a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Brief History
Much of this case centers around a 36-story office building
in downtown Philadelphia at 1601 Market Street. The build-
ing is owned by the Prudential Property Company, a sub-
sidiary of Prudential Insurance Company of America (Pru-
dential), and the building’s tenants include Bell of Pennsyl-
vania, Meridian Bank, and other substantial tenants. The
building is managed by Oliver Realty, on behalf of Pruden-
tial. In the fall of 1989, Prudential was in the process of re-
moving asbestos from the building, and when the 10th and
24th floors became available, Oliver retained Alternative
Ways, an environmental consultant, to develop plans and
specifications for the work. Thereafter, Oliver sought bids
from contractors to perform the work. C.D.G., whose em-
ployees were represented by the Metropolitan District Coun-
cil of Carpenters of the Philadelphia Vicinity, submitted a
bid to Oliver to perform the work. Much of the asbestos re-
moval work in the Philadelphia area had been performed by
companies whose employees were represented by Local 332,
which began to exert influence on Alternative Ways and Oli-
ver to ensure that C.D.G. would not get the contract. Not-
withstanding Local 332’s lobbying efforts, in late November
Prudential awarded the contract to C.D.G. Thereafter, Local
332 attempted to convince C.D.G. to give the asbestos re-
moval work exclusively to employees it represented, rather
than C.D.G.’s employees, who were represented by the Car-
penters Union, and Local 332 was for the most part unsuc-
cessful in this endeavor also. C.D.G. began the work at 1601
Market Street on November 27, and thereafter (in December)
Local 332 commenced to engage in the activities objected to
in this case.
B. The Testimony and Evidence6
Julian T. Canuso testified as an employee for Alternative
Ways, an environmental consultant. Canuso indicated that
Alternative Ways develops plans and specifications for as-
bestos abatement, and that his position was that of an envi-
ronmental design consultant. Canuso testified that Alternative
Ways was retained by Oliver ‘‘to create the contract docu-
ments, the plans and specifications, for asbestos removal on
the 10th [and] 24th floor[s]’’ at 1601 Market Street. Accord-
ing to Canuso, Alternative Ways had no business relationship
with either Prudential or C.D.G., adding that Alternative
Ways was retained by Oliver sometime in September.
Canuso testified that on October 30, one Perry DeVirgillio
contacted his office, and he (Canuso) was asked to return
DeVirgillio’s call.7 Canuso related that DeVirgillio said he
was affiliated with Laborers Local 332 and that he wanted
to advise him (Canuso) ‘‘that one of the contractors that
were in consideration for the work at 1601 Market Street did
not have a signed agreement with Laborers Local 332 and
that asbestos removal was the Laborers’ work,’’ adding that
the contractor in question was C.D.G. Canuso testified that
he referred DeVirgillio to the ‘‘building manager,’’ explain-
ing that as consultants, they did not get involved with such
matters.
Joseph C. Gallagher, the secretary-treasurer of C.D.G., tes-
tified that his company is a ‘‘demolition and asbestos abate-
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The contract was entitled ‘‘Asbestos Abatement Agreement,’’
commencing on November 15, 1989, and expiring April 30, 1991.
9 Gallagher clarified that the ‘‘signs’’ that were being handed out
were in the nature of a handbill, a copy of which was identified by
Gallagher and admitted into evidence. The full contents of that hand-
bill is set out in Appendix B [omitted from publication].
10 The handbills that were being passed out by members of Local
332, Appendix B [omitted from publication], raise concerns about
proper notice, employee certifications, adequate training, supervision
and inspection, and area standard wages.
ment contractor.’’ Gallagher added that this work includes
removing interior fitups, walls and ceilings, including the re-
moval of asbestos and the refireproofing where asbestos has
been removed. According to Gallagher, this type of work is
considered construction work. Gallagher testified that C.D.G.
has entered into a collective-bargaining relationship with the
Metropolitan District Council of Carpenters of Philadelphia
and Vicinity, who represents all of its employees.8 Gallagher
added that he has no contract with the Laborers Local (332),
or with any other Laborers Union. Gallagher testified that in
early November, C.D.G. submitted a bid to Prudential for re-
moving partitions and ceilings, and replacing the fireproofing
material that is asbestos-bearing on the 10th and 24th floors
of 1601 Market Square, and in mid-November C.D.G.
learned that it was the lowest bidder, and was contacted by
Alternative Ways. Gallagher indicated that soon thereafter,
they entered into a contract with Prudential and the work
commenced on November 27. Gallagher testified that at that
time, C.D.G. had 32 employees, 26 of which were carpenters
from the Carpenters Metropolitan District Council, adding
that these carpenters are also known as ‘‘asbestos abatement
technicians.’’ Gallagher indicated that in addition to the 26
carpenters, C.D.G. also employed four laborers who were
members of Local 332, and whose jobs included carrying
bags and removing packages from the building. Gallagher
testified that the normal workday for carpenters in asbestos
removal was between 7 a.m. and 1:45 p.m., working through
the lunch hour because of the necessity to shower and decon-
taminate themselves when they left the worksite. Gallagher
testified that on November 22, one Bill Henderson, a busi-
ness representative of Local 332, called him stating that he
understood that C.D.G. was going to do the job at 1601 Mar-
ket Street using carpenters. Gallagher replied to Henderson
that he always used some of ‘‘your people as well.’’ Accord-
ing to Gallagher, Henderson replied that ‘‘this job is a big
job . . . . You’re going to have to sign an agreement with
us.’’ Gallagher then replied, ‘‘Bill, we’ve gone over and over
with the agreement . . . . There are things in the agreement
we don’t go along with . . . . We’re not going to sign the
agreement.’’ Henderson then replied, ‘‘That work belongs to
us, you’re going to have to sign an agreement, if you’re
going to do big jobs in Philadelphia.’’ According to Galla-
gher, he replied, ‘‘Well, Bill, we’re going to do this way the
same as we always do . . . . It’s going to be a mix.’’ Hen-
derson then said, ‘‘Well, go ahead and have a nice Thanks-
giving turkey and we’re going to have to let the chips falls
where they’re going to fall,’’ whereupon the phone conversa-
tion ended.
Gallagher testified that he was not on the jobsite on De-
cember 11 but that he arrived at 1601 Market Street at ap-
proximately 9:30 a.m. on December 12, and observed 80 to
90 members of Local 332 ‘‘giving signs out to people on
sidewalks [and] standing in front of the doorways.’’ Galla-
gher added that Local 332’s Business Manager Sam Staten
Sr. and Business Representative DeVirgillio were also
present.9 Gallagher testified that he walked up to Sam Staten,
Sr., who stated ‘‘We’ve got big problems . . . . We have to
make people aware that you’re employing unskilled labor
and paying substandard wages and the people just have to be
notified.’’ Gallagher replied to Staten that ‘‘you know that
I have skilled people . . . . Everybody has a certification
that’s working in this space and they’re all union, they’re all
Carpenters . . . . I have some of your people.’’ Staten then
stated, ‘‘I heard about that agreement that you have with the
Carpenters . . . . That’s the dirtiest trick anybody’s ever
played on me . . . . These people here all standing out here,
it’s almost Christmastime [sic] and they all need jobs.’’ Gal-
lagher replied, ‘‘[T]he people upstairs need to be employed
also,’’ to which Staten said, ‘‘We have to talk,’’ and Galla-
gher replied, ‘‘Any time you want to talk, I’ll talk to you
but it’s going to have to be a different agreement than you
have now,’’ to which Staten finally replied, ‘‘Well, I guess
there’s no sense in us talking any further,’’ and the two then
shook hands and departed. Gallagher indicated that he was
also not present at 1601 Market Street on December 19 but
he described what is known as ‘‘Four Penn Center’’ as being
a 20-story office building located across a courtyard from,
and on the same block (back to back) with 1601 Market
Street. Gallagher testified that on December 12, there were
members of Local 332 handbilling at Four Penn Center, and
at yet another location known as Seven Penn Center, located
approximately 420 feet from 1601 Market Street. Gallagher
also testified that aside from his conversation with Staten on
December 12, no one has ever contacted him regarding
whether C.D.G. has given proper notice to other employees
who work in or near 1601 Market Street pertaining to the
certification of his employees, the removal training of his
employees, or regarding the supervision and inspection of the
asbestos removal project. Gallagher added that no one has
made any inquiry regarding whether or not the wages of
C.D.G. are in accordance with area standards.10 Gallagher
testified that notices were posted on the floor above and
below each floor that was being worked on, explaining that
the asbestos removal was under the directive of an on-site
hygienist, and that the phone number of C.D.G. was also on
the notice should outside individuals or other employees
have any further questions. Gallagher added that notification
was also given to the city of Philadelphia and to state and
Federal agencies. Gallagher testified that in fact his car-
penters had completed proper asbestos removal training, and
had been certified to remove asbestos in accordance with the
Philadelphia Health Department regulations, adding further
that the project was supervised and inspected by qualified li-
censed project supervisors and inspectors approved by the
Philadelphia Health Department. Gallagher also added, how-
ever, that C.D.G. was paying wages below the area standard,
but in accordance with his contract with the Carpenters
Union. Gallagher indicated that on December 13, he had a
conversation with a representative of Prudential who was
concerned that C.D.G. had union employees and questioned
whether C.D.G. would be able to do the asbestos removal
work without labor interruptions. Regarding the handbilling
that occurred at 1601 Market Street on December 12, Galla-
301LABORERS LOCAL 332 (C.D.G., INC.)
11 A tenant list admitted into evidence reflects approximately 23
separate corporations or other businesses or concerns, all of which
may be considered as ‘‘high quality.’’
12 Admitted into evidence was a reduced blueprint of the con-
course entrance, depicting three double swinging doors into the
building.
13 A reduced blueprint of these areas was also admitted into evi-
dence, and during Powell’s testimony, he referred to both blueprints.
14 A film clip of some of this activity, taken by the local television
station, was admitted into evidence.
gher testified that ‘‘there were numerous people in front of
the office building, disrupting patrons of the building,’’ add-
ing that he observed a woman coming up off the subway and
‘‘having papers shoved in their [sic] face.’’
Robert J. Powell is a senior project manager for Oliver
Realty, and as such, was responsible for the total operations
of 1601 Market Street, where his office is also located. Pow-
ell testified that among the tenants are included Arther An-
derson and Company, Merrill Lynch, Meridian Bank, and
Bell of Pennsylvania.11 According to Powell, at any given
time there is always approximately 2000 individuals em-
ployed in the building. Powell testified that prior to
Prudential’s awarding of the bid to C.D.G. for the 10th and
24th floors, Prudential had previously awarded a bid to
C.D.G. to abate asbestos on the 3d and 4th floors. Powell in-
dicated that the 10th and 24th floor bids were awarded to
C.D.G. in late November. Powell testified that he arrived at
1601 Market Street at 7:30 a.m. on December 11, and as he
approached the ‘‘concourse entrance,’’ he saw 50 to 75 peo-
ple ‘‘standing in front of the building abreast of the con-
course doors with pieces of paper in their hand.’’12 Powell
related that some people were dressed in white asbestos
abatement suits, and they were all standing in front of the
doors holding the handbills, which were identified earlier by
C.D.G.’s secretary-treasurer Gallagher. Powell testified that
each of the three entrance doors off the concourse were ap-
proximately 3 feet wide, and that no more than two individ-
uals abreast could fit through one door at a time. Powell then
indicated he walked up through the building’s lobby and
through one of the street entrances, whereupon he observed
between 75 to 100 workers, again some dressed in white as-
bestos abatement suits, handing out handbills in front of the
doors. Powell testified that the building itself is situated at
the corner of 16th and Market Streets with a plaza running
along the other two sides of the building.13 Powell added
that there were also entrances into the building from all four
sides (Market and 16th Streets, and both plazas), and that the
‘‘workers’’ with the handbills were at all the entrances. Pow-
ell further related that entrance into the building from the
16th Street side and the western plaza side was through a re-
volving door, capable of handling only one person at a time,
and Powell added that along the 16th Street side there were
approximately 30 or 40 of such workers. Powell added that
the handbilling on December 11 continued until about 2 or
3 p.m., and that virtually the same activity, with the same
number of ‘‘workers,’’ occurred the following day (Decem-
ber 12).
Powell testified that he arrived at 1601 Market Street at
about 7:30 a.m. on December 19, and although there were
workers there handbilling the building, at that time they
numbered about half as many as were present on December
11 and 12. Powell related that at approximately 9 a.m. that
morning he met with individuals from C.D.G., Alternative
Ways, and the ‘‘hygienist,’’ in his office, which looks out
onto the Market Street side of the building. Powell testified
that he first heard what sounded like a ‘‘muffled sound,’’
which later turned into a ‘‘loud roar,’’ adding that he could
see a large number of people approaching the building from
the 16th Street side. Powell indicated that he went down to
the lobby and saw a group of workers which he estimated
to be approximately 500 individuals, on the sidewalk of the
16th Street side of the building ‘‘marching seven or eight
abreast across the sidewalk . . . chanting and carrying
signs.’’ Powell indicated that this group then turned right on
Market Street and headed west to the western plaza side of
the building, whereupon the group then turned north, and
when it had reached the northern plaza side of the building,
the group again turned down the northern plaza side ‘‘so that
in effect the column of people encircled the building by the
time the lead group had caught up with the tail group of
marchers.’’ Powell additionally testified that the marchers
‘‘marched around, chanting, carrying signs, and after about
15 or 20 minutes . . . they appeared to leave,’’ adding that
apparently, in fact, they had not left because a short time
thereafter the marchers came back and encircled the building
again, chanting and carrying the same signs and slogans.
Powell testified that ‘‘there was virtually a human wall of
people . . . . You could not gain access into or gain egress
from the building at that time.’’ Powell added that this con-
dition existed initially for 15 to 20 minutes, and when the
group came back again for the second time, it also lasted for
15 to 20 minutes, again adding that no one could enter the
building and that he recognized a number of tenants standing
on a corner, and then leaving. Powell testified that there was
a local television station camera crew on the scene, and ‘‘
a number of the marchers . . . scrambled to get in front of
the camera,’’ which Powell related was on the Market Street
side of the building, adding that this ‘‘effectively blocked’’
one of the Market Street doors. Powell added that this oc-
curred between 10 a.m. and 10:30 a.m. and lasted 15 to 20
minutes.14 Powell had observed the activities at 1601 Market
Street on December 12 and 19, and although he indicated
that he observed the acts of members of Local 332 which
prevented individuals from entering or exiting the building,
he conceded that he did not observe any attempt to prevent
deliveries to the building. Powell testified that the matter had
been reported to the Civil Affairs Unit of the Philadelphia
Police Department, adding that he personally received anony-
mous calls from individuals identifying themselves as tenants
of the building, complaining about persons blocking their en-
trance. Powell also conceded that none of the building’s ten-
ants personally and identifiably notified him that they were
having problems with their clients or customers getting into
the building. Powell testified that after December 19, there
were no more marches, but that representatives of Local 332
continued handbilling at 1601 Market Street for approxi-
mately a week, after which it got ‘‘brutally cold.’’
The vice president and project manager for C.D.G. was
Timothy M. Booth, who testified that Canuso of Alternative
Ways contacted him in early November and indicated that
C.D.G. was the low bidder on the 10th and 24th floors of
1601 Market Street, and that C.D.G. would probably be
awarded the contract. In an apparent subsequent (yet early
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 A copy of this notice was admitted into evidence. Among other
things, C.D.G. is listed as the contractor and the notice indicates
there has been compliance with the city of Philadelphia asbestos
control regulations.
16 1601 Market Street sits on the corner of 16th and Market
Streets. Sixteenth Street runs south to north and Market Street runs
east to west. Thus, the building is on the western side of 16th Street
and the northern side of Market Street. The main entrance to the
building is on Market Street. There are two separate tenant areas or
spaces on the main floor of the building facing on Market Street and
located on both the eastern and western end of the building. Access
to these tenant spaces is through a single set of swinging doors lead-
ing into each tenant space. Access to the building proper and its ele-
vators from Market Street (the front) is through two revolving doors
and two swinging doors.
November) conversation, Booth testified that he talked with
Local 332 business representative Perry DeVirgillio regard-
ing work (asbestos removal) done on the 24th floor of 1601
Market Street. Booth indicated that at this time he offered
DeVirgillio a ‘‘50-50 work crew’’ (half from Local 332 and
half from the Carpenters’ District Council), to which
DeVirgillio replied ‘‘that is our work.’’ Booth indicated that
he disagreed with DeVirgillio, but they both agreed to meet
at 1601 Market Street and further discuss the matter. The
two met the following day, and according to Booth,
DeVirgillio ‘‘kept pounding home’’ the fact that the asbestos
removal was Local 332’s work, and that he (Booth) men-
tioned that he had an agreement with the Carpenters’ District
Council, and the conversation ended with DeVirgillio telling
him ‘‘FU, you’re not going to work in this city . . . .’’
Booth testified that the 1601 Market Street project began No-
vember 24 with some eight Laborers, but with the larger and
balance of the complement as Carpenters. Booth added that
as the project initially got started, C.D.G. ended up with ‘‘4
or 6’’ Laborers, with the balance of ‘‘20 or 26’’ from the
Carpenters Union. Booth testified that he notified the Air
Management Services of the Philadelphia Department of
Public Health regarding the 1601 Market Street project and
that he thereafter received a proper notice of such work,
which he had posted on the floor above and on the floor
below where the work was to take place.15 Booth added that
the notices are also posted in accordance with the directions
of a representative from Alternative Ways, as environmental
consultants, and the notices were also posted in the stairwells
or ‘‘stairtower’’ on the 24th floor. Booth indicated that in
late November he saw DeVirgillio, on the jobsite and as he
‘‘came popping out of the stairtower on the 24th floor.’’
Booth testified that on December 11 he arrived at 1601
Market Street at approximately 7 a.m. and immediately went
to the 24th floor. Booth indicated that at approximately 7:15
a.m. the building manager (one Mr. Olivia) came up to him
on the 24th floor, whereupon he (Booth) went downstairs
and saw laborers from Local 332 milling about in front of
the building, on the side of the building and on the con-
course level, where he observed about 50 to 60 laborers
‘‘milling about and talking in front of these doors, somewhat
blocking the entrances, handing out these little handbills to
anyone that would take them.’’ Booth added that, ‘‘There
was just too many of them to be in front of the doors, so
they would move out of the way when people would come
up but they would hand them a handbill.’’ On the concourse
entrance there are four separate doors, and according to
Booth these doors are double doors 6 feet wide and can
allow no more than two individuals to enter at a time. Booth
testified that he then went up to the lobby level where he
saw approximately 40 to 60 laborers outside on Market
Street handing out ‘‘leaflets,’’ adding that the laborers were
dressed in either red and blue jackets, or ‘‘white disposable
suits.’’ Booth indicated that these individuals were also
‘‘somewhat blocking’’ the entrance but they would also
‘‘move out of the way once someone would accept their
handbill.’’ According to Booth, before someone accepted a
handbill the laborers ‘‘would kind of try to scare them out
of going in.’’ Booth further testified that on the 16th Street
side of the building there were approximately 30 to 40 labor-
ers in front of the revolving door, and also approximately 15
laborers outside and near the revolving door on the plaza
side of the building. Booth further testified that at one point
he observed an older individual ‘‘get a little afraid because
he was getting papers shoved in his mouth . . . . I observed
his face and then he walked away.’’ According to Booth, by
approximately 11 a.m., all of the laborers had departed.
Booth testified that the following day (December 12) at
around 8:15 a.m., the laborers again showed up with ‘‘basi-
cally the same type of situation as what happened on the
11th . . . . Handing out the leaflets, blocking the doors.’’
Booth testified that at 8:15 a.m. on December 19, he at-
tended a ‘‘progress’’ meeting on the 22d floor, and that dur-
ing this meeting at about 9:15, he heard ‘‘a lot of roaring,’’
after which he went downstairs where he then saw 400 to
500 laborers marching south on 16th Street, and carrying
signs. Booth related that eventually, all of these marchers en-
circled the building. Booth indicated that he observed people
who tried to enter the 16th Street side, adding ‘‘they
couldn’t.’’ Booth testified that after about half an hour, all
the marchers converged in an area on the back side of the
building (plaza area), whereupon Local 332 Business Man-
ager Sam Staten Sr. commenced to address the crowd with
a ‘‘bullhorn’’ for about 15 to 20 minutes, after which the
crowd again began parading around the building, handing out
‘‘leaflets.’’ Booth related that he also saw the arrival of the
local television news crew in front of the Market Street en-
trance, adding that when the filming commenced, the march-
ers ‘‘started hamming it up . . . . They jumped in front of
the Market Street entrance . . . waving their signs, chant-
ing.’’ According to Booth, this lasted for about 7 minutes
and until the camera lights went out, after which the march-
ers moved away from the door. Booth testified that at ground
level and from the 16th Street side of the building, it is im-
possible to see anything taking place on Market Street.16
However, Booth added that this sight limitation was not from
the corner of 16th and Market Streets, but from a vehicle
which may be parked in the area of the revolving door on
16th Street. Regarding the rally that took place at approxi-
mately 10 a.m. on December 19, Booth clarified that it took
place on the Plaza (northern) side of the building fairly near
16th Street. Booth indicated that he was actually at the rally
which commenced at approximately 10 a.m., adding that the
participants spilled out into 16th Street, which the police had
blocked off. Booth testified that approximately 15 minutes
after Staten finished speaking at the rally, he proceeded to
walk around to Market Street where he observed the news
media (television) arrive. According to Booth, during the pe-
303LABORERS LOCAL 332 (C.D.G., INC.)
17 C.D.G. Project Manager Booth testified that from this vantage
point, an individual could not see around the building onto Market
Street.
18 Officer Lipsey filed a handwritten report as a result of his obser-
vations of the march and rally on December 19, and that report was
admitted into evidence. The subject title reads ‘‘Demonstrations/Or-
ganization,’’ and as the ‘‘Reason for Protest’’ it recites ‘‘To protest
the use of unqualified workers in the removal of asbestos from 1601
Market Street.’’ Under a category ‘‘Signs,’’ there appears ‘‘You
have a right to know,’’ ‘‘Our lives depends on it,’’ and ‘‘Asbestos
kills, know what you are doing.’’
riod that the news media was present on Market Street, the
marchers started ‘‘chanting and started throwing the signs up
in the air, in front of the two revolving doors on Market
Street.’’ Booth testified that at one point, ‘‘young females in
the lobby area, complain[ed] about the picket line . . . .’’
Booth testified that on all 3 of the days involved (December
11, 12, and 19) he had conversations with someone from the
Civil Affairs Unit of the Philadelphia Police Department, in
part because he feared that C.D.G.’s future work as a con-
tractor at 1601 Market Street was in jeopardy, adding ‘‘It’s
my reputation that these people were playing havoc with.’’
Thomas R. Lipsey testified as an officer of the Philadel-
phia Police Department, which he had been with for 25
years. He had been in the Civil Affairs Division for 9 years.
Officer Lipsey arrived at 1601 Market Street at about 9:10
a.m. on December 19 with the marchers, who he had caught
up with after they had departed from ‘‘Broad and Wallace
at about 8:40 a.m.’’ He was in a marked police car and trav-
eling at the rear of the group. Officer Lipsey testified that
it was his job to ‘‘monitor the march and rally at 1601 Mar-
ket Street . . . . And also to insure that no one’s rights were
violated.’’ Lipsey indicated that the overall march lasted ap-
proximately 10 blocks and involved some 200 participants,
adding that the march was ‘‘orderly,’’ that the marchers did
not harass or threaten individuals, and that he did not ob-
serve the marchers preventing people from either entering or
exiting the building at 1601 Market Street. Lipsey testified
that when the marchers came south on 16th Street and hit
Market Street, they proceeded to ‘‘march around the build-
ing, one time . . . . And then they gathered in the courtyard
area, breezeway area, between 1601 Market . . . [and] No.
Four Penn Center, to have a rally.’’ According to Lipsey,
some of the marchers then went around the building a second
time, arriving back at the rally where the assembled group
was being addressed by ‘‘Sam, Sr. and Sam, Jr. and another
union member . . . .’’ Lipsey again related that the march-
ers arrived at 9:10 a.m., but by about 9:45 a.m. they had all
departed except approximately 20, which split up into three
other groups, with one group going to ‘‘the door’’ on Market
Street, another group going to the corner of 16th and Market
Streets, and the last group ‘‘stood’’ by the door on 16th
Street, ‘‘handing out fliers.’’ Lipsey testified that after the
rally, the marchers were 6 to 8 feet away from the door,
‘‘just walking around handing out these fliers to people who
were walking by and mainly the people who were going in
and out of the building . . . . But they did not block to [sic]
prevent anybody from going in or out.’’ Lipsey also added
that he, personally, received no complaints from anyone, and
did not see any of the marchers involved in any activity that
he had to correct. Lipsey testified that when he arrived at
1601 Market Street, he was parked ‘‘in the middle of the
building’’ on 16th Street, and from that point he observed
the marchers proceeding around the building.17 Lipsey added
that the marchers were not in a ‘‘solid line,’’ were walking
in a ‘‘haphazard manner,’’ and that people were ‘‘going be-
tween the marchers and going into the building.’’ Lipsey tes-
tified that he ‘‘saw no picketing,’’ but that the marchers were
carrying signs that ‘‘dealt mainly with a health hazard situa-
tion, referring to asbestos removal,’’ adding that there were
‘‘numerous’’ signs. Lipsey also testified that he did not see
anybody ‘‘threatened or coerced,’’ but conceded that he did
not know the definition of ‘‘threaten’’ or ‘‘coerce’’ under the
National Labor Relations Act. During cross-examination,
Lipsey indicated that he was in an ‘‘unmarked’’ police vehi-
cle, contrary to his earlier testimony.18 Further, during cross-
examination, Officer Lipsey testified that his definition of
blocking an entrance to a building involved a ‘‘human bar-
rier that would prohibit people from entering or exiting’’ a
building, adding that a ‘‘human barrier’’ would be a ‘‘solid
wall of humanity.’’ Officer Lipsey conceded that in his defi-
nition, anything short of a ‘‘solid wall of humanity’’ would
not be blocking. Lipsey further testified that the ‘‘demonstra-
tors were not going up to people and intimidating them ver-
bally . . . [or] physically . . . . The picketers or demonstra-
tors were . . . going up to people and attempting to hand
them a flier.’’ Lipsey added that some people would accept
the fliers, and others would just ‘‘shake their head and keep
on going.’’ At the end of his testimony, Officer Lipsey
viewed the video tape or film clip of the some of the events
on December 19, after which he confirmed that the tape ac-
curately portrayed the scene at 1601 Market Street after the
march and rally had ended. Lipsey added that when the
march was taking place on the sidewalk, they were three and
four abreast, and that during the rally there was approxi-
mately 8 feet between the marchers’ outer parameter and the
16th Street entrance to the building, thus resulting in no
blockage that prevented people from entering or leaving the
building.
Officer Albert A. Tenuta testified as a member of the
Philadelphia Police Department, where he had worked for 20
years. He had been assigned to the Civil Affairs Unit for ap-
proximately 6 years. Tenuta testified that on December 11,
he responded to Local 332’s union hall where he stayed until
the ‘‘marchers were prepared to leave . . . and . . . actually
were in line and marched to Broad Street,’’ after which he
drove ahead to 1601 Market Street, where he then informed
the building security that in about half an hour they could
expect ‘‘a couple hundred Laborers outside.’’ Tenuta related
that he thereater observed approximately 200 to 250 ‘‘union
members walking on the sidewalk from J.F.K. westbound to
16th Street, where they filed across the Market Street en-
trance or the Market Street side of the building, as well as
(sic) 16th Street side of the building.’’ Tenuta testified that
this activity was accomplished in an orderly fashion, adding
that although he did not receive any complaints, the people
inside of the building were ‘‘concerned’’ about the activity.
Further, and regarding December 11, Tenuta testified that
when he Local 332 members arrived at 1601 Market Street,
they began ‘‘handbilling the public,’’ adding that there were
approximately eight members at each entrance, with the bal-
ance walking around and talking to each other . . . mostly
on the curb side of the building.’’ Tenuta indicated that he
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Admitted into evidence are a series of five police reports or
daily complaint summaries of the Civil Affairs Unit, commencing at
11 p.m. on December 10 and ending on December 14 at 10:55 p.m.,
and further commencing on December 18 at 11 p.m. and ending De-
cember 19 at 10 p.m. Contained in these reports are numerous nota-
tions about the activities at 1601 Market Street during the 3 days
in question. For example, it is noted at 12:10 p.m. on December 11
as follows: ‘‘C-112 reports from 1601 Market St. the pickets have
left with out incident.’’ At 6:35 a.m. on December 11, it is noted
as follows: ‘‘Information received from Sam Staten Laborers Union
Loc. 332 a March from Ridge & Wallace to Broad & Wallace st,
an informational demonstration agaings (sic) CDG Contractors.
Aprox 200-300 expected.’’
20 Only one union member or officer testified in the case. Samuel
Staten Jr. testified only that he was secretary-treasurer of Local 332,
and that Samuel Staten Sr. was his father and the business manager.
Alton El testified only as an ‘‘employee’’ of Local 332, and there
is no evidence that he was a union member, or was directly privy
to Local 332’s plans and actions in dispute herein.
21 The General Counsel, in his brief, argues that Local 332’s ac-
tions at 1601 Market Street constituted ‘‘picketing,’’ citing Service
Employees (Burns Detective Agency), 136 NLRB 431 (1962). That
case involved a trade show where union members in groups of 20
to 70 ‘‘marched in an elliptical path’’ immediately in front of the
main (and only) patron entrance to an arena. The Board held that
such ‘‘patrolling’’ did not violate Sec. 8(b)(4)(i)(B) of the Act be-
cause the union did not seek strike sanctions, but that it did violate
Sec. 8(b)(4)(ii)(B) of the Act because the patrolling constituted har-
assment and restraint on persons seeking to attend the exhibit, and
the purpose and intended impact of such conduct was to ‘‘threaten,
coerce or restrain’’ the exhibits firm with the object of forcing it to
cease doing business with the guard firm it had employed. Counsel
for C.D.G., in their brief, argue that handbilling in such large num-
bers as in this case was so intimidating as to amount to mass pick-
eting, citing Carpenters (Reeves, Inc.), 281 NLRB 493 (1986).
Counsel’s reliance here is misplaced. In that case, there was actual
mass picketing, the blocking of ingress and egress, and threats of un-
specified reprisals.
never observed any entrances being blocked, adding that he
left the scene at approximately 11:15 a.m. on December
11.19 Tenuta testified that he arrived at 1601 Market Street
at approximately 8:45 a.m. on December 12, and departed at
10:30 a.m., adding that there were ‘‘no problems.’’ Tenuta
indicated that he was not on the scene at any time during
December 19. In cross-examination, Tenuta related that Oli-
ver Realty’s Senior Project Manager Powell, on December
11, was ‘‘quite concerned . . . that the public and the people
who occupy the offices there were not going to be . . .
inconvenience[d] . . . .’’ Tenuta testified that Local 332’s
Business Manager Staten had designated some union mem-
bers to be ‘‘marshalls’’ to keep an eye on the other members
involved in the march on December 11, which he described
as a large group of people walking down the sidewalk from
the union hall.
Alton El testified as an ‘‘employee’’ of Local 332, and
was once director of the Laborers’ ‘‘training facility.’’ Ac-
cording to El, the training facility was for the ‘‘training and
upgrading of Laborers,’’ including the area of asbestos re-
moval. El described the asbestos training as a four-stage pro-
gram, which includes instruction on safety regulations and
‘‘health effects,’’ and participants receive an ‘‘EPA’’ ap-
proved certification. El added that Laborers Local 332 has
traditionally done the asbestos abatement work in the Phila-
delphia area.
C. Analysis of Law and Evidence
The complaint first charges that on December 11, 12, and
19, Local 332 engaged in ‘‘picketing’’ at 1601 Market Street
which induced or encouraged employees of tenants, and
‘‘other persons,’’ to cease performing services at the build-
ing, in violation of Section 8(b)(4)(i) of the Act. The com-
plaint additionally charges that on the same dates, and by its
picketing, Local 332 threatened, coerced, or restrained ten-
ants (and other persons) to force or require them to cease
doing business with Prudential, and for Prudential (and other
persons) to cease doing business with C.D.G., in violation of
Section 8(b)(4)(ii)(B) of the Act. The heart of the alleged
violations is the coercion of so-called secondary or neutral
parties to obtain a certain desired result.
Local 332’s actual dispute was only with C.D.G., and was
jurisdictional in nature. Simply put, I find that Local 332
wanted C.D.G. to either hire and use only Local 332 mem-
bers at area standard wages, or for Oliver Realty, on behalf
of Prudential, to cease doing business with C.D.G. I further
find that Local 332’s alleged safety motive for its actions in
this case was a pretext, in an attempt to maintain its tradi-
tional monopoly over the asbestos removal business in Phila-
delphia. Aside from lower wages, there is absolutely no evi-
dence or testimony in the record to support any safety defi-
ciencies or lack of compliance with any laws or regulations
on the part of C.D.G. On the contrary, four of Local 332
members worked on the jobsite for C.D.G., apparently with-
out complaint.20 Having failed in its prebid pressure, Local
332 resorted to handbilling by a large number of its mem-
bers, and finally to handbilling and picketing, while hoping
to add legitimacy to its scheme by first parading with proper
permits. Given the above findings regarding Local 332’s true
and actual motive, it is yet further necessary to analyze the
law in light of the specific facts to determine whether the
violations in the complaint were proven by a preponderance
of the evidence.
Although the record is not absolutely clear, it appears that
on each day in question (December 11, 12, and 19), the
morning’s activities started with a parade or, as Local 332
claims, an ‘‘informational march’’ from its union hall to
1601 Market Street, the site of primary concern here. How-
ever, the testimony and evidence reflects that on December
11 and 12, there was no actual ‘‘picketing’’ at the site, only
handbilling, and I so find.21 I find the same to be true on
December 19, before and after the march around the building
and rally. I further find that during said handbilling ingress
and egress to the building was not blocked. C.D.G.’s sec-
retary-treasurer Gallagher was only present on December 12,
saw the handbilling, and testified that it was ‘‘disrupting pa-
trons.’’ Oliver Realty’s senior project manager Powell was
present on all 3 days, but described only handbilling on De-
cember 11 and 12, and neither he nor Gallagher described
any actual blockage of doors during the handbilling.
C.D.G.’s vice president and senior project manager Booth
was also present on all 3 days, and described only
handbilling on December 11 and 12. Booth described the
handbillers as ‘‘milling about and talking . . . somewhat
blocking the entrances’’ but added that ‘‘they would move
out of the way when people would come up but they would
hand them a handbill.’’ Police Officer Tenuta observed
handbilling only on December 11 and 12, did not see any
305LABORERS LOCAL 332 (C.D.G., INC.)
22 The film clip admitted into evidence confirms such activity. One
picket sign read:
Our Mothers and Fathers deserve:
1. Fare Wages!
2. A Safe Work Environment!!
3. Competitive Fringe Benefits!!
4. State of the Art Equipment!!
23 Officer Lipsey viewed the film clip and testified that it was an
accurate portrayal of the Market Street (main) side of the building
after the march and rally had ended.
24 To reiterate, C.D.G.’s secretary-treasurer Powell estimated 500
members, 7 or 8 abreast, forming a ‘‘human caterpillar’’ around the
building, affecting deliveries, tenant and customer ingress and egress.
Police officer Lipsey estimated 200 marchers and Officer Tenuta es-
timated 200 to 250. Both officers testified that the marchers (pickets)
were orderly. Lipsey testified there was no blockage but conceded
his definition of blockage was a ‘‘solid wall of humanity.’’ In my
opinion, officers Lipsey and Tenuta minimized the situation, and
Powell maximized the situation. I find that the number of marchers
was between 300 and 400.
entrances being blocked, and added that there were ‘‘no
problems.’’
On December 19 there was a considerably different situa-
tion at 1601 Market Street. The morning started off with ini-
tially less handbillers at the site, but with considerably more
marchers from the union hall to the site at 1601 Market
Street. Additionally, the marchers carried picket signs, which
remained with them when they reached the building, where
they marched around the building and held a rally. Accord-
ing to Powell, there were some 500 marchers forming a
‘‘human caterpillar’’ around the building 7 to 8 abreast,
blocking entrance to the building. Booth put the number at
400 to 500 marchers, who encircled the building carrying
‘‘signs,’’ and blocking entrances for about half an hour. Ac-
cording to Booth, they then converged on the back side of
the building, were addressed by Local 332 Business Manager
Staten with a bullhorn for 15 to 20 minutes, and began pa-
rading around the building, handing out ‘‘leaflets.’’ Booth
further indicated that with the arrival of a local television
film crew, some of the picketers ‘‘started hamming it up . . .
waiving their signs [and] chanting.’’22 Officer Lipsey esti-
mated some 200 participants who marched 3 or 4 abreast
around the building in a ‘‘haphazard manner,’’ and gathered
for a rally, after which approximately 20 remained ‘‘handing
out fliers.’’ Lipsey again indicated that the participants were
orderly and did not block doors, but conceded that his defini-
tion of blocking was a ‘‘human barrier’’ or a ‘‘solid wall of
humanity.’’23
Section 8(b)(4)(i) of the Act proscribes inducing or en-
couraging ‘‘employees’’ of the secondary employer to strike.
Regarding said ‘‘employees,’’ the complaint makes reference
to ‘‘individuals employed by Bell of Pennsylvania, Meridian
Bank and other persons.’’ In his brief, the General Counsel
argues it is well established that a labor organization induces
or encourages individuals to strike where it engages in pick-
eting aimed at individuals in their employment status. I am
aware of the fact that the words ‘‘induce and encourage’’ are
broad enough to include in them forms of influence and per-
suasion other than pure or traditional picketing. Electrical
Workers v. NLRB, 341 U.S. 694 (1951). I am also mindful
of the principal that the test of inducement or encouragement
does not turn on success or failure. Yet I note that there is
no evidence of any interruption of employment in or deliv-
eries to 1601 Market Street during any of the handbilling.
The handbills in this case (and on December 19 the picket
signs) contained no written material urging employees or
others not to enter the premises or not to perform services
therein. No such oral appeals were ever made. No strike
sanctions from other labor organizations were sought, and
there is no evidence that any employees (out of some 2000)
in the building were represented by any labor organization,
except for C.D.G. As indicated earlier, I find that Local
332’s object was to force Oliver Realty (and Prudential) to
cease doing business with C.D.G., or for C.D.G. to hire only
Local 332 members, at area standard wages. Accordingly, I
find that on December 11, 12, and 19, 1989, Local 332 did
not violate Section 8(b)(4)(i) of the Act. I further find that
Local 332’s handbilling on December 11, 12, and 19 was
peaceful and not threatening or coercive, and thus not viola-
tive of Section 8(b)(4)(ii)(B) of the Act. See DeBartolo
Corp. v. Florida Gulf Coast Building Trades Council, 485
U.S. 568 (1988).
Given Local 332’s object and intent as above found, the
actions and events of December 19 present a different situa-
tion when evaluated in light of Section 8(b)(4)(ii)(B) of the
Act. On this date there was picketing around the entire build-
ing during early morning business hours, ending with a large
rally on one side of the building, all of which preceded the
normal handbilling. Many more members were involved.24
Section 8(b)(4)(ii)(B) makes it unlawful to ‘‘threaten, coerce,
or restrain’’ any person where an object is forcing or requir-
ing any person to cease doing business with any other per-
son, or where an object is forcing or requiring an employer
to recognize or bargain with a labor organization. Thus, there
remains to be decided here whether Local 332’s marching,
‘‘patrolling,’’ and picketing around 1601 Market Street was
threatening, coercive, or restraining. DeBartolo, supra, held,
inter alia, that Section 8(b)(4) of the Act could not constitu-
tionally ban peaceful handbilling not involving nonspeech
elements, such as ‘‘patrolling.’’ The Supreme Court had ear-
lier held that Section 8(b)(4)(ii)(B) does not prohibit all
peaceful picketing at secondary sites, but only the ‘‘isolated
evil’’ of the use of such picketing ‘‘to persuade the cus-
tomers of the secondary employer to cease trading with him
in order to force him to cease dealing with, or to put pres-
sure on the primary employer.’’ NLRB v. Fruit Packers (Tree
Fruits), 37 U.S. 58 (1964). In NLRB v. Retail Clerks Local
1001 (Safeco Title), 447 U.S. 607 (1980), the Supreme Court
held that consumer picketing urging a general boycott of a
secondary employer aimed at causing him to sever relations
with the union’s real antagonist was coercive and forbidden
by Section 8(b)(4)(ii)(B) of the Act. In DeBartolo, supra, the
Court in commenting on its decision in Safeco, and Justice
Stevens’ concurring opinion therein, stated that picketing is
a mixture of conduct and communication and the conduct
element often provides the most persuasive deterrent to third
persons about to enter a business establishment. As Justice
Frankfurter stated in Hughes v. Superior Court of California,
339 U.S. 460 (1950), ‘‘while picketing is a mode of commu-
nication it is inseparably something more and different . . .
[it] is more than free speech, since it involves patrol of a
particular locality and since the very presence of a picket line
may induce action of one kind or another, quite irrespective
of the nature of the ideas which are being disseminated.’’
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
26 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
National 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.’’
The Court in Safeco, supra, noted that the picketing there
actually threatened the neutral with ruin or substantial loss.
I have considered that fact as applied to this case, and I have
further considered the fact that the picketing in this case on
December 19 lasted for only some 30 minutes. In my opin-
ion, the Court in Safeco did not indicate that proof of pos-
sible or imminent ‘‘ruin or substantial loss’’ was required as
an absolute prerequisite to finding a violation of Section
8(b)(4)(ii)(B). Regarding the length of time of the picketing,
in my opinion, the adage that one bite of the poison apple
will kill as certain as the entire apple, applies here.
I find and conclude that the picketing by Local 332 at
1601 Market Street on December 19, 1989, was threatening
and coercive, and violated Section 8(b)(4)(ii)(B) of the Act,
as alleged in paragraph 6(b)(2) of the complaint.
CONCLUSIONS OF LAW
1. That the Charging Employer, C.D.G., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. That the Respondent Union, Local 332, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. That the Respondent Union, on December 19, 1989, by
marching, patrolling, and picketing around and at the com-
mercial office building located at 1601 Market Street, Phila-
delphia, Pennsylvania, threatened and coerced Oliver Realty
and Prudential with the object of forcing them to cease doing
business with C.D.G., Inc., in violation of Section
8(b)(4)(ii)(B) of the Act.
4. That the Respondent Union has not otherwise violated
the Act, as alleged in the complaint herein.
5. That the actions found to be violative of the Act in
paragraph 3, above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent Union has engaged in
an unfair labor practice, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Counsel for C.D.G. requests a broad ‘‘cease and desist’’
order in this case, applying to any jobsite at which C.D.G.
is performing work, or may in the future perform said work.
The General Counsel makes no such request, and asks for a
general but narrow ‘‘like or related’’ order. The question,
perhaps more accurately posed, is whether the narrow injunc-
tive language, ‘‘in any like or related manner,’’ should be
expanded to include other present or future jobsites where
C.D.G. is performing asbestos removal. In Carpenters
(Reeves, Inc.), 281 NLRB 493 (1986), the Board chose no
such expansion. I shall recommend the same narrow and
unexpanded injunctive language. My conclusion in this re-
gard is based on the record as a whole, which in my opinion
does not reflect that a similar violation in the future is immi-
nent, or that a future violation should be anticipated from the
course of Local 332’s conduct in the past, together with
other factors weighed by the judge in Carpenters (Reeves,
Inc.), supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended25
ORDER
The Respondent, Laborers International Union of North
America, Local 332, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Threatening, coercing, or restraining Prudential Insur-
ance Company of America, Prudential Property Company,
Oliver Realty, or any other person, by picketing at 1601
Market Street, Philadelphia, Pennsylvania, where an object
thereof is to force or require the companies to cease doing
business with C.D.G., Inc.
(b) In any like or related manner threatening, coercing, or
restraining Prudential Insurance Company of America, Pru-
dential Property Company, Oliver Realty, or any other per-
son, where an object thereof is to force or require the compa-
nies to cease doing business with C.D.G., Inc.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its offices and meeting places copies of the at-
tached notice marked ‘‘Appendix C.’’26 Copies of the notice,
on forms provided by the Regional Director for Region 4,
after being signed by the Respondent Union’s authorized rep-
resentative, shall be posted by the Respondent Union imme-
diately on receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by the Respondent Union to ensure that the notices are
not altered, defaced, or covered by any other material.
(b) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Prudential Insurance Com-
pany of America, Prudential Property Company, or Oliver
Realty, at or in 1601 Market Street, if willing, at places
where notices to tenants and their customers are customarily
posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
307LABORERS LOCAL 332 (C.D.G., INC.)
WE WILL NOT threaten, coerce, or restrain Prudential In-
surance Company of America, Prudential Property Company,
Oliver Realty, or any other person, by picketing at 1601
Market Street, Philadelphia, Pennsylvania, where an object
thereof is to force or require the companies to cease doing
business with C.D.G., Inc.
WE WILL NOT in any like or related manner threaten, co-
erce, or restrain Prudential Insurance Company of America,
Prudential Property Company, Oliver Realty, or any other
person, where an object thereof is to force or require the
companies to cease doing business with C.D.G., Inc.
LABORERS INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL 332