Local 18, Operating Engineers

National Labor Relations Board - Board Decisions

May 18, 1978

236 N.L.R.B. 199 (N.L.R.B. 1978)

LOCAL 18. OPERATING ENGINEERS
Local 18, International Union of Operating Engineers,
AFL-CIO and Dodge-Ireland, Inc. Case 9 CC- 915
May 18, 1978
DECISION AND ORDER
BY CHIAIRMAN FANNING ANt) MFMBI:RS JEfNKINS
ANt) Pi:NI .I.I O
On January 10, 1978, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed a limited cross-exception and an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Local 18, International
Union of Operating Engineers, AFL CIO, its offi-
cers, agents, and representatives, shall take the action
set forth in the said recommended Order.
I Relsing in part on lfississippi Gulf (Coast Building and ('onsirution
Trades Council. ei al (Ro C(. 4nderson. Jr, Inc ,. 222 NLRB 649 ( 1976i the
Administrative Law Judge found that the picketing at gates reserved for
neuiral emplohers here was in violation of Sec 8ihb)4t(i) and (ii)ub) ,of the
Act Chairman Fanning. who dissented in 'Misitssipp (Gu/l (Coa.t, finds that
case distinguishable. and agrees with the resu!l reached bh the Administra-
tive t.aw Judge. In itsirsissppi Gulf Coasr. employees of the prilnar, em-
ployer. including its vice president general manager. disregarded the reserve
gate system which had been established. and used the gates which had been
set aside for the emploces and suppliers of the neutral emplohsers on num-
erous occasions. In the instant case. the evilence shows that the primary
and neutral employers toiok esers reasonahle precaution to assure the inleg-
rity oef he resere gate system, and the few inltances of misuse olf . neutral
gate by suppliers of the primar ermplo.er sere not sufficient to justify
Respondent's picketing of the neutral gates In addition, in finding the vio-
lation herein. Chairman Fanning places no reliance on the finding of the
majority in Local Union N, 369. Inllernational Brotherhood s, Elec its.al
4'rkers, '. . C(10 (Ciarst-Recereur (Consiructrin C'omripian, s /t i. 229
Nl.RB 68 (1977). in which he dissented
DECISION
STAITEMENT OF THE CASE
DAVID S DAVIDSON, Administrative Law Judge: The
charge in this case was filed on August 4, 1977, and the
complaint issued on August 22. 1977. The complaint alleg-
es that in furtherance of a primary dispute with Jack Conie
Sons, Inc., Respondent, sometimes referred to herein as the
Union, picketed at gates to a common situs which were
reserved for the employees and suppliers of Dodge-Ireland
and employers other than Conie, thereby violating Section
8(b)(4)(i) and (ii)(B) of the National Labor Relations Act,
as amended. Respondent denies the commission of any' un-
fair labor practices.
A hearing was held before me on September 27, 1977, at
Columbus, Ohio. At the close of the hearing the parties
waived oral argument. All parties have filed briefs.
Upon the entire record in this case and from my obser-
vation of the witnesses I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYERS INVOLVED
Dodge-Ireland, Inc., and Jack Conie Sons, Inc., are Co-
lumbus. Ohio. based contractors in the building and con-
struction industry. During a representative 12-month pe-
riod each had direct inflow in interstate commerce in
excess of $50,000. I find that each is an employer engaged
in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
I1 THE L ABOR ORGANIZATION INVOLVED
Local 18, International Union of Operating Engineers,
AFL.-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
iI1 tHE AtI. GED UNFAIR LABOR PRACTICES
A. The Facts
I. Introduction
The work involved in this proceeding was performed on
a tract of approximately 1,600 acres in Franklin and Dela-
ware counties. Ohio, being developed for sale by a limited
partnership known as Muirfield Limited.
During July' and August 1977,1 Conie, Dodge-Ireland,
Dublin Building Systems. Columbus and Southern Ohio
Electric Company, The Ohio Bell Telephone Company,
and various subcontractors were engaged in work on sev-
eral projects within the overall confines of the Muirfield
Limited tract.
Conie and Dodge-Ireland both employed heavy equip-
ment operators on the tract who were covered by contracts
All dates below were in i977 unless otherwise indicated.
236 NLRB No. 36
199
DECISIONS OF NATIONAl I.ABOR RELATIONS BOARD
with the Union. Conie's agreement had expired on April
30, and the parties continued negotiations until early July.
On July 13 Conie's operators did not appear for work, and
Conie continued to work with men who were available at
the jobsite. As described in more detail below, on the fol-
lowing morning the Union started to picket at the jobsite.
2. The work being performed at the Muirfield Limited
jobsite
All work involved in this proceeding was located within
what may be roughly described as a rectangle bounded by
Glick Road on the north, Dublin-Bellepoint Road on the
east, Brand Road on the south, and Avery Road on the
west. The rectangle is bisected from north to south by
Muirfield Drive which intersects Glick Road on the north
and Brand Road on the south. The distance between Glick
Road and Brand Road along Muirfield Drive is approxi-
mately a mile and three quarters.
A portion of the tract lying in the southeast quadrant
known as Phase I had been developed into residential lots
of which a number had been sold, and there were 90 occu-
pied residences in Phase I as of July and August. This
residential area is reached by Memorial Drive which runs
east from Muirfield Drive and intersects Muirfield l)rive
approximately three-quarters of a mile north of Brand
Road. In the southeast quadrant of the rectangle there is
also a golf course which was in operation at the time of the
events here involved but on which some work remained.
The golf course is also reached by Memorial Drive.
On the west side of Muirfield Drive. about midway be-
tween Glick and Brand Roads, there is a tennis facility
which was close to completion by mid-July. It is reached
by Muirfield Drive.
In the northeast quadrant of the tract lies acreage known
as Phase 7 or Muirfield 7. which was in the preliminars
stages of development at the time of the exents herein. I he
northern boundary of Phase 7 lies several hundred feet
south of C(lick Road and parallel to it. Phase 7 abuts Muir-
field Drive on the west, and it:. southern boundarx inter-
sects Muirfield D;ive somewhat to the north of the ternnis
facility which is on the opposite side of Muirfield [)rive.
As of mid-July, Conie was the general contractor for
Muirfield lIimited to install underground sewer water and
storm sewer lines in Phase 7. Before mtidal-Juls nd afier
August 30, Conie also performed work installilg sewei
lines on Muirfield Drive, but Conie's work was confined to
Phase 7 before July 14 and it remained so confined until
the end of August because Muirfield Limited was awVare
that Conie was having union problems and wanted ('Coni
isolated in the event of a strike and picketing.:
In July and August. Dodge-Ireland was doing excava-
tion and grading work on the south bound lanes of Muir-
field Drive between Glick Road and Memorial Drive 3 as a
general contractor and in Phase 7 as a subcontractot to
I here Is e aidence that (onie ailso perfortled ismic 's.rk hcl, cn .1h 11 1I4
and August 10 ini .Inther section of the tract known II.. Ph.als 6 hih l ,l
reached from Duhblin -Bellepoint Road That work aindi :ni dpckcli 11 L:
nlrictlio n rth i! i [i4t clelvat to this proceel in.n
IThe north 1,ullld lianes had been completed nlrl lusll
Conie. Dodge-Ireland was also cleaning out a lake for the
Muirfield golf course and was moving fill dirt from Phase 7
and locations along Muirfield Drive to the golf course.
During this period Dublin Building Systems was under
contract to complete the tennis facility, anId Dodge-Ireland
was performing grading operations at that facility as a sub-
contractor for Dublin. The tennis facility was scheduled to
open on August 8, 1977, with a tennis tournament.4
In July and August the work being performed on Phase
7 could be reached by two access roads. One, known as
Drake Road, runs from Glick Road to the Phase 7 acreage.
The other access was a gravel road which runs east from
Muirfield Drive into the acreage and which intersects
Muirfield Drive approximately 700 feet south of the inter-
section of Muirfield Drive with Glick Road. For purposes
of convenience in this proceeding the parties have referred
to the intersection of Drake Road and Click Road as gate
A, the intersection of Glick Road and Muirfield D)rive as
gate B. and the intersection of Brand Road and Muirfield
Drive as gate C. They have referred to the intersection of
Muirfield Drive and the unnamed gravel road which leads
into Phase 7 as the D-I entrance.
Before July 14. Conic's employees as well as those of the
other contractors used Muirfield Drive to reach their job-
sites entering through gates B and C'. Employees of Conie
and Dodge-Ireland entered Phase 7 from Muirfield Drive
through entrance D-I and the unnamed gravel road.
Conie's suppliers for the most part entered Phase 7 through
gate A using Drake Road, but on occasion they also en-
tered through entrance D-I depending upon the portion of
Phase 7 they were trying to reach. (omnie's employees on
Phase 7 were scheduled to start work at 8 a.m. but often
arrived at the jobsite as early as 7 a.m. and by 7:30 a.m.
started engines of Conie's heavy equipment, greased their
machines. and prepared for work. Dodge-Ireland employ-
ees started work at 7 a.m.
3. 'Ihe picketing at the jobsite
On the morning of July 14, 1977, at approximately 7
a.m. some of Conie's striking operators appeared and pick-
eted at the intersections of Muirfield Road with Gilick
Road and Brand Road identified above tas gates B and C.
The pickets' signs bore a preprinted legend stating that Op-
erating Engineers Local I1 was on strike Below that the
name Jack Conie & Sons was handprinted with a black
marking advice. The preprinted material was in larger let-
ters than the handprinted material and could be read at a
greater distance. 5 Employees of Columbus and Southern
Ohio Electric Compan) and Dodge-lIreland did not cross
the picket line to work that morning, and Dodge-Ireland's
operators did not work for the entire da. ('onie continued
its operations on Phase 7 on that dtay with whatever per-
sonnel was present.
That morning Robert Dodge. picsidient of )od-e-lre-
land. arrived at the jobsite between 7:30 and 8 a.m After
4 l,.ldge-l-lch iid tarted Sirk tn t he lenlls f.1 cl l,, after Jult 4 riid fin-
ished oin Auilll 5 ir 6
Piiul SWc; llzer. di lC tor ht ,la relations lot the (}it () 'illatiirs -s5c-
oaltili cstl:llitcd that the preprlicd male'crial 'ldui he read t a . l 1 iiLC ,If
l[ feet [ ind t h. It lidprinted illnierln lll A i dtl i cc f 2< feet
200
LOCAL 18, OPERATING ENGINEERS
discovering that none of his employees were at work, he
went to a restaurant on Glick Road where he found his
employees. He asked them why they did not go to work.
and they replied that it was because of the pickets. Dodge
said that the picket line was for Conic and not for them.
They replied that in order to work they had to cross the
picket line because of its location and they could not cross
it.
During the day on July 14 Erwin Madison. field super-
visor for Muirfield Limited, telephoned Union Agent Jake
Buckles and told him that Muirfield Limited had no prob-
lem with the Union striking Conie if it so desired but that
Muirfield Limited objected to the location of the pickets
because they were stopping others from working on pro-
jects that Conie was not involved in. In response Buckles
said in effect that Madison could resolve the problem by
getting Conic back into good standing with the Union or
getting Conic off the job. Madison replied that Muirfield
Limited had a contract with Conie which was signed when
Conic was apparently in good standing with the Union and
that it had no means of not utilizing Conie.
The same morning Dodge called Ohio Contractors Asso-
ciation representative Sweitzer. told him what had hap-
pened, and asked him to come to the jobsite. While Sweit-
zer was at the jobsite near gate B several Dodge-lreland
operators told him that they would not work behind the
picket lines. While there Sweitzer met with Dodge and
Madison. and they decided to establish reserved gates at
gates A. B. and C, to have Madison obtain signs, and to
put them in place as quickly as possible.
Later that day Sweitzer spoke to Buckles by telephone
and advised him that separate gates were going to be estab-
lished. Buckles replied that his lawyer had approved the
language on the picket signs and that they would stay in
place until his lawyer advised him about the reserved gates.
However. Buckles also said that the Union was not inter-
ested in stopping Dodge-lreland's work and was only inter-
ested in picketing Conie.
4. The establishment of the reserved gates and the
cessation of picketing at gates B and (
On July 15. Madison arrived at thejobsite before 7 a.m.
and installed signs at gates A. B and (C. The sign at gate A
was as follows:
Gate ~-I Attn: Non-IUnion Firms
This gate reserved for the following firms, their sub-
contractors, their employees. suppliers and material
handlers:
1. Jack Conie & Sons 4. Fleetwavs
2. Rennance Universal 5.
3. Anderson 6.
No unauthorized persons allowed on this jobsite,
without the written permission of the owner and or
the general contractor. Violators will be prosecuted to
the fullest extent of the law.
, Madison testified thai he poste ipni a it B d (h.au, thiuat as
wherre tile pi :ket, h;d been the pir-eius duI
Signed Muirfield Ltd
(Owner and/or General)
NOTE: All Union Firms Use Gate #2 Located at:
Muirfield Dr.
At locations B and C identical signs were erected which
read:
Gate t: 2 Attn: Union Firms
This gate reserved for the following firms, their sub-
contractors, their employees. suppliers and material
handlers.
1. Dodge-Irelan 4. Martin Paint
2. Peterson Fence 5. C & Soe
3. Decker-Paving 6.
No unauthorized persons allowed on this jobsite
without the written permission of the owner and/or
general contractor. Violators will be prosecuted to the
fullest extent of the law.
Signed Muirfield Ltd
(Owner and/or General)
NOTE: All Non-lUnion Firms Use Gate # I Located
at:
DRAKE ROAD
About 7 a.m. pickets again appeared and took positions
at gates A, B, and C, and Dodge-Ireland's employees did
not start work at their customary starting time. Sweitzer
arrived at the jobsite shortl? after 7 and found a group of
Dodge-lreland employees gathered near the D-I entrance
to Phase 7. Sweitzer spoke to them, and they told him that
the: did not care to work behind the picket lines even
though reserved gates had been established.
Around 8 a.m. Sweitzer left the jobsite and went to the
Union's office where he spoke to Buckles and Hartman,
another union representative. Sweitzer told them that the
reserved gates had been established and that the continued
picketing at gates B and C would probably be construed as
a secondary boycott. Sweitzer said that Dodge-Ireland em-
plosces were refusing to work because of the pickets at
gates B and C and that Dodge-Ireland was ready to file
charges. Buckles. llartman. and Sweitzer then drove to the
jobsite where they spoke with Dodge. Buckles told Dodge
that he had no problem with Dodge-Ireland, that all he
wanted to do was picket Conie, and that he did not want to
stop Dodge-lreland's work. Buckles said he would cooper-
ate and would remove the pickets from gates B and C and
would continue to restrict the picketing as long as Conie
did not violate gates B and C. Buckles said that he would
have people watching gates B and C and would inform
Dodge through Sveitzer as soon as possible if he had infor-
mation that the gates were being violated.
After the pickets were removed from gates B and C.
those Dodge-Ireland employees who had remained at the
jobsite started to work at the tennis facility and the Muir-
field Drive extension. Dodge-Ireland employees who had
left the jobsite before the pickets were removed from gates
B and ( did not return to work that day. No Dodge-Ire-
land emploees worked on Phase 7. and on that day as well
as the day before Dodge-lreland employees told Dodge
that thes would not w'ork on Phase 7 with Conie.
201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the reserved gate signs were posted, Madison
spoke to Conie management and asked it to restrict their
personnel and suppliers to gate A. Richard Conie, vice
president of Conie, spoke to Conie's employees and con-
tacted all suppliers to tell them that they were to enter and
leave the premises only through gate A. From July 15 until
August 3 the Union continued to picket at gate A from
Monday through Friday. It did not picket on Saturdays
when Conie was not scheduled to work but when Dodge-
Ireland often did.
5. The reinstitution of picketing at gates B and C
Around July 19 Buckles telephoned Sweitzer and told
him that he had reports that gates B and C had been vio-
lated by employees of Conie and that if the separation of
the gates was not observed the pickets would be put back
on those gates. Buckles did not give further detail as to the
nature of the alleged violations. Sweitzer immediately in-
formed Dodge of his conversation with Buckles and sug-
gested that Dodge contact Madison to reinforce the neces-
sity that Conie and its employees respect the reserved
gates. As a consequence Madison again spoke to Conie
management.
On July 25 Buckles or Hartman told Sweitzer that an
employee of Carr's Equipment and "pipe people" had not
used the gate reserved for Conie. Again no further details
were given. Sweitzer again informed Dodge and told him
that it appeared that the Union was attempting to police
the reserved gates and that unless they were honored pick-
eting could resume. He suggested again that Dodge work
through Madison to make sure that Conie employees and
suppliers used the proper gate, and again as a result Madi-
son spoke to Conie.
On one other occasion between July 15 and August 2 at
a semisocial gathering between the members of the Ohio
Contractors Association Negotiating Committee and union
representatives, Buckles again told Sweitzer that Conie em-
ployees and/or suppliers were not observing the reserved
gates but gave no further specifics. In that conversation,
Buckles again indicated to Sweitzer that he was not inter-
ested in stopping Dodge-Ireland from working but that he
wanted Conie to honor the reserved gates.
Between July 15 and August 3 Richard Conie was told
that his suppliers and employees had left the jobsite
through entrance D-l, and thereafter he made it a point to
sit at entrance D-l from 4:15 until 5 p.m. but he observed
no one leaving through that entrance to Phase 7. On one
occasion Madison told him that a supplier had entered and
left through the wrong gate, and on one occasion, on a
Saturday morning when no pickets were present, Conie's
supervisors intercepted a pipe truck which had entered gate
C destined for Phase 7. They directed it out gate B and into
Phase 7 through gate A.
Late in the afternoon on August 2 Sweitzer received a
message that he should call Buckles. 7 He attempted to do
so, and in Buckles' absence spoke with another union
7Although there is some confusion in the testimony as to this date. it
appears that the picketing at gates B and C resumed on August 3 and that
Sweitzer received the message on the previous afternoon.
agent, Ramey, who told him that he knew why Buckles was
trying to reach Sweitzer and said that the Union was going
to resume picketing at gates B and C the next morning
because the reserved gates had not been observed by Conie
employees and/or suppliers. Ramey supplied no further
detail as to the nature or circumstances of the violations.
After speaking with Ramey, Sweitzer told Dodge about
the call. Dodge called his foremen and told them that they
could use an abandoned farm lane that ran from Avery
Road to the tennis facility to enter on the next morning so
that they would not have to use Muirfield Drive. The next
morning the Dodge-Ireland operators met on Avery Road
and entered by way of the farm lane.
On August 3, at 7 a.m., picketing at gates B and C re-
sumed, and it continued on a daily basis excluding Satur-
days and Sundays until August 11. Each day the pickets
stayed at gates B and C from about 7 to 9 or 9:30 a.m. On
August II picketing at gates B and C stopped and in late
August or early September all picketing stopped.
On August 3 the Dodge-Ireland operators entered the
work site through the farm lane and they worked that day.
When they learned that there were pickets at gates B and
C, they told Dodge they would not enter again by way of
the farm lane. On August 4, some of the Dodge-Ireland
employees did not report for work although several did and
worked at the lake, on the Muirfield Drive completion
project, and on the tennis facility. On August 5 some
Dodge-Ireland employees worked on the lake and Muir-
field Drive, but not at the tennis facility which was essen-
tially completed.
Dodge-Ireland supervision did not instruct any employ-
ees to work on Phase 7 because on July 14 and 15 they had
told their foremen they could not work there because of
Conie, and as Robert Dodge put it "there was no point in
pursuing a dead horse." For the duration of the picketing
all those who reported for work worked on Dodge-Ire-
land's other projects on the Muirfield Limited tract. °
The only direct evidence of violation of the restrictions
placed on the gates, other than the Saturday morning inci-
dent described by Richard Conic, came from Michael Bel-
cher who picketed at the jobsite on most days that the
pickets were present. On August 2, while picketing at gate
A, he climbed a small hill nearby and at 2 p.m. saw,
through binoculars, an Anderson concrete truck go
through gate B to entrance D-I and into the Phase 7 site,
complete its delivery, and leave through gate A. The same
afternoon Belcher saw a pipe truck enter Phase 7 through
gate A, complete its delivery, and leave through entrance
D-I and gate B. Belcher reported these incidents to the
union hall.
After picketing resumed at gates B and C, on one occa-
sion when Belcher was picketing at gate B at 7 or 7:30 a.m.,
a laborer employed by Conic came up Muirfield Drive
from gate C, exited through B, and went to gate A where
he entered the Phase 7 jobsite. On two other occasions, I to
3 days apart, Belcher saw an employee of Carr Equipment
who serviced Conie's equipment, enter and leave the Phase
7 jobsite through gate B and entrance D-I. Belcher believed
After August 4 at least one Dodge-lreland operator. Buckles' son,
stopped reporting for work. It is not clear whether others refused to work at
all on the Muirfield lIimited site
202
LOCAL 18, OPERATING ENGINEERS
one of these occasions was in the afternoon. He initially
placed these incidents at the end of July but later testified
that he was uncertain whether they occurred before or after
August 5.
B. Conclusions
The complaint alleges that Respondent violated Section
8(b)(4)(i) and (ii)(B) of the Act by picketing at the gates
which were reserved for the use of neutral employers and
from which Conie's employees and suppliers had been
barred. Respondent contends that the resumption of pick-
eting at gates B and C was lawful because the restrictions
on their use had been violated and that in any event there
is no evidence that Respondent's intent was to engage in
secondary picketing. The General Counsel and the Charg-
ing Party contend that the misuse of gates B and C was de
minimis and insufficient to justify resumption of picketing
at these gates.
Apart from the issues arising from the reservation of the
gates the General Counsel and Charging Party also con-
tend in their briefs that all picketing at gates B and C was
unlawful under Moore Dry Dock standards.9 because these
gates were not reasonably close to the situs of Conie's oper-
ations. The Charging Party further contends in its brief
that the signs carried by the pickets failed to disclose ade-
quately that the dispute was only with Conie.,
I am not persuaded that the contentions unrelated to the
reservation of the gates are raised by the complaint or were
fully litigated before me. The complaint does not allege
that the location of the picketing was improper apart from
reservation of the gates or that the signs were inadequate.
While the various means of access were described fully on
the record, that description was as essential to the reserved
gate contention as to the additional contention raised in
briefs as to the location of the pickets. Except for testi-
mony that Muirfield Drive was on a dedicated right of
way, there is no evidence to show whether or not the land
at entrance D-l was public or private and whether pickets
could have been stationed there. While Madison testified
that he placed the reserved gate signs at gates B and C
because that was where pickets appeared on July 14, the
final paragraph on the signs conveyed the impression that
those locations were the entrance to the jobsite and that no
one was allowed beyond those points without authoriza-
tion. If that impression was wrong, neither Madison nor
anyone else said anything to the union representatives be-
fore or after the signs were posted to indicate that absent
reservation of the gates picketing at gates B and C was
improper because these locations were too remote from
where Conie was working. Further evidence might well
have made it clear that Muirfield Drive either was or was
not a public road open to all in July and August, but such
evidence was not adduced, and I conclude that this issue
was not fully litigated and is not properly before me.
With respect to the adequacy of the signs, the only evi-
dence is that the name of the Union was larger and blacker
than the name of Conie and that the union name could be
9 Sailors' Union of the Pao ific, 4 FL (fMoLVr'e Drr Dock) (C orpanty. 92 N L.RB
547. 549 ( 1950)
seen from a distance of 100 feet while Conie's name could
be seen only from 25 feet. Neither the signs nor any clear
picture of them was offered in evidence, although they
might well have been had this issue been clearly raised by
the complaint. On the evidence before me I would be in-
clined to dismiss this contention as without merit, but I
conclude in any event that it was not fully litigated and is
also not properly before me.
In support of its contention that the picketing was at all
times primary Respondent seeks to analogize the picketing
at gates B and C after August 3 to ambulatory picketing
found lawful in Construction, Building Materials & Miscel-
laneou.v Drivers, Local No. 83., affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpcrs of America (Allied Concrete, Inc.), 231 N LRB 1097
1977). In that case the Board majority held that the estab-
lishment of a reserved gate and ambulatory picketing are
not mutually exclusive and that the requirement that pick-
eting be reasonably close to the primary situs is not vio-
lated when pickets follow a primary employer's truck
through a reserved gate and picket the truck. There, the
striking union at no time picketed at the entrances reserved
for neutral employees and picketed away from the reserved
gate only when the primary employer's truck was actually
on the premises making a delivery. The Board majority
pointed out that resolution of the issue in that case was not
to be determined by mechanical application of reserved
gate picketing rules but by analysis of the nature of the
picketing to determine whether it was primary picketing
with lawful secondary effects or secondary picketing with
an object of enmeshing of neutral employers in disputes
not their own. In the cited case the Board concluded that
picketing of a type found primary under International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Truck Drivers and Chauffeurs, Local
LUtion No. 807 (Schultz Refrigerated Service, Inc.), 87
NILRB 502 (1949), does not become secondary because of
efforts by the primary employer to confine picketing to a
site remote from the site of actual delivery through estab-
lishment of reserved gates.
Here the facts are not analagous. The Union did not
seek to follow Conie's employees or suppliers through any
gate to picket at the site where they were actually engaged
in their work. The issue is whether use by primary employ-
ees and suppliers of reserved gates established by a neutral
employer was such that picketing at those gates at times
when none of Conie's employees or suppliers were present
remained primary despite the reservation of the gates.
If Conie's employees as a regular matter had ignored the
reservation of gate A for their use and had entered through
gates B and C, the Union's resumption of picketing at gates
B and C would have been as lawful as if no attempt had
ever been made to segregate use of the gates, for an em-
ployer may not by the mere posting of signs convert pri-
mary picketing into secondary activity. On the other hand,
an isolated breach of restrictions over a period of time
would not justify resumption of picketing at reserved gates.
In determining at what point resumption of picketing at
reserved gates become permissible, it is necessary to look
not only at the evidence of misuse of the gates, but also at
the evidence as to the efforts to enforce the restrictions on
203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
use of the gates, the relationship of the resumed picketing
to the breaches which occurred, and any other evidence as
to the Union's object.l°
The evidence adduced as to actual misuse of the gates is
slight. The Saturday incident described by Richard Conie
occurred when pickets were not present and was not likely
to have been known to the Union. Moreover, Conie suc-
cessfully intercepted the truck, and while it traversed Muir-
field Drive, it did not enter Phase 7 from Muirfield D)rive
but entered through gate A, where pickets could have been
present. Similarly, the single instance in which a Conie em-
ployee was observed passing through gate B did not in-
volve his entry into Phase 7 from Muirfield Drive but his
apparent use of Mluirfield Drive as a means to reach gate A
and enter through it. Neither of these incidents may be
considered a breach of restrictions.
There are only four incidents which remain, two on the
afternoon of August 2 and the others on unspecified dates
with at least one of them also in the afternoon. In two of
the instances, the drivers of suppliers either entered or left
through gate A and did not avoid it entirely. In none of the
instances was gate C used.
The evidence shows that while the Union complained to
Sweitzer several times about abuse of the gates before pick-
eting was resumed, these complaints contained few specif-
ics as to the time or nature of the breaches or the identity
of the offending parties. In the light of the information
transmitted to them, it appears the neutral employers and
Richard Conie made reasonable efforts to see that the re-
strictions were enforced.
When the picketing resumed, it was not responsive to the
observed breaches in two respects. Picketing was resumed
at gate C, despite the absence of any observed breach of
restrictions there, and picketing at gates B and C lasted
from 7 to 9:30 a.m. each day, despite the fact that at least
three and possibly all four observed breaches at gate B
occurred in the afternoon.
The evidence of object apart from the picketing is mixed.
On the first day of the strike Buckles told Madison that he
could resolve the problem by getting Conie back in good
standing with the Union or getting Conie off the job.''
However, at other times thereafter, including times when
Buckles complained of violations of the reservations on use
of gates B and C, he stated that he did not want to stop
Dodge-lreland's employees from working.
Despite Buckles' assurances given after the first day of
the strike, I find the evidence persuasive that the picket-
I. See "rnited A...sciaiaon of Journeymen and .4Apprenrices of the Plirhiming
Pipe Filting Industry of the United Slates and Canada. Lo(ial Unitn Vio, iA
.4FI (10 i(Ci rle, Inc.). 202 NLRB 99 (1973): ULnited Brotherhood l C(alr-
penterv and Joinerr of America. .4 Fl CIO. L ocal Vo. h69 and Sumniti, Icdti
no & Portage C(oun/et.v District C(ouncil of Carpenters (A4nerca on Atl dilar
(orporaltionl, 203 NL RB 1112 (1973); Lovcal Union N'o h69. Inlrnrtionai
Brotherhood of Elet irical RWorkers, AFL (10 (tKel(, Eletrric ( o . Itol 261
NILRB 141 (1975). enfd. 528 F.2d 317 (C.A. 6, 1976). Inrernatrional I it ol
Operating Engineers. Local Union No. 450, A FL (10 Il.inheck (; ornriu, tno
('orporation), 219 NLRB 997 (1975). affd 550 F.2d 311 (Ci 4. 1977):
Mitsisrippi (;llf ('rolst Building and Construction Trades (C;ouni(i, e il (RmI
C. .4rldcion. Jr. Inc), 222 NLRB 649 (1976).
'' See .Loal Inion No t69, International Brotherhood of Elec trrl, I1 ,)r -
ers. 4 FlC ('10 IGarst-Reeeveur ('onstrucrion Companv. In .). 229 Nl.RB 68
(1977).
ing at gates B and C starting on August 3 was unlawful.
The misuse of the reserved gates was not substantial. Conie
made reasonable efforts to inform his employees and sup-
pliers about the restrictions on the gates in response to the
information he received as to violations, and perhaps most
important, the resumption of picketing at gate C and the
timing of the picketing at both neutral gates each day indi-
cates that the picketing of these gates was not aimed at
reaching those whose misuse of the gates had been ob-
served, allegedly causing its resuniption.
In these circumstances, I conclude that Respondent's re-
sumption of picketing to gates B and (' was not a lawful
extension of primary picketing directed at employees and
suppliers of Conie but was an attempt to take advantage of
isolated observations of misuse of gates B and C to picket
at locations not reasonably close to the situs of the primary
dispute to induce or encourage the employees of Dodge-
Ireland to withhold their services with an object of forcing
Dodge-Ireland and Muirfield Limited to cease doing busi-
ness with Conie, thereby coercing and restraining the neu-
tral employers with the same objective. Accordingly. I con-
clude that Respondent by its resumed picketing at gates B
and C on and after August 3 violated Section 8(b)(4)(i) and
(ii)(B) of the Act.'12
IV THE REMIDI)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
CON(I LSIONS Of LAW
I. Dodge-Ireland. Inc., and Jack Conie Sons, Inc., are
employers engaged in commerce or in an industry affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Local 18, International Union of Operating Engi-
neers, AFL CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By inducing or encouraging individuals employed by
persons engaged in commerce, or in an industry affecting
commerce, to engage in a strike or refusal to perform ser-
vices, and by coercing or restraining persons engaged in
commerce, or in an industry affecting commerce, with an
object of forcing or requiring Dodge-Ireland, Inc., and
Muirfield Limited to cease doing business with Jack Conie
Sons, Inc., Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(b)(4)(i) and (ii)(B) of
the Act which affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the basis of the above findings of fact and conclu-
sions of law and the entire record in this case and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following recommended:
1 I find inapposite Respondent's cintentiin that Dodge-Ireland's em-
plit ee hiad a right ito t lhhld ervices frn ri their emplo Cr the ssue
raised h, the complaint is whether the C Union ;iolated the Alt h: its picket-
ing. not whether the enplohsees of )todge- rchilnd engaged in unprotected
Ilcllilzv hv their conduct
204
LOCAL 18, OPERATING ENGINEERS
ORDER 13
The Respondent, Local 18, International Union of Op-
erating Engineers, AFL-CIO, its officers, agents, and rep-
resentatives, shall:
1. Cease and desist from inducing or encouraging any'
individual employed by Dodge-Ireland, Inc., or any other
person engaged in commerce or in any industry affecting
commerce to engage in a strike or refusal in the course of
their employment to use, manufacture, process, transport,
or otherwise handle or work on any goods. articles, mate-
rials, or commodities, or to perform any' services: or threat-
ening, coercing, or restraining said employers or any other
person engaged in commerce or in an industry affecting
commerce where in either case an object thereof is to force
Dodge-Ireland, Inc., or Muirfield Limited to cease doing
business with Jack Conie Sons, Inc.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its business office and meeting halls copies of
the attached notice marked "Appendix." 1 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent Union's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Sign and mail sufficient copies of said notices to said
Regional Director for posting by each of the Employers
named in the preceding paragraphs, if willing, at all places
where notices to their respective employees are customarily
posted.
(c) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps have been
taken to comply herewith.
'i In the event no exceptions are flied ais provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclils.ions, and the recommended Order herein shall, as provided in Sec
10248 of the Rules and Regulatione, he adopted by the Board and become
its finding. , onclusioins. and Order. and all objections thereto shall he
deemed wed .Ic for a;ll purposes
"4 In the event that this Order is enforced bh a Judgment of a United
States Court of Appeals, the ivords in the notice reading "Posted hy Order
of the NaIsn;lal I abor Relations Board" shall read "Posted Pursuant to a
Judgment of the I nited States ( o'urt of Appeals Enforcing an Order of the
National I.ahbor Reliations Boaird"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NAIIONAt LABOR RELATIONS BOARD
An Agency of the United States Government
WEc WILL NOr induce or encourage any' individual
employed by Dodge-Ireland, Inc., or any other person
engaged in commerce or in any industry affecting
commerce to engage in strikes or refusals in the course
of their employment to use. manufacture, process.
transport. or otherwise handle or work on any goods,
articles, materials, or commodities, or perform any
services: and AWE Wsiili NOT threaten, coerce, or restrain
the above-named employers or any other person en-
gaged in commerce or in an industry affecting com-
merce: where in either case an object thereof is to
force Dodge-Ireland, Inc., or Muirfield Limited, to
cease doing business with Jack Conie Sons, Inc.
L(X AI 18, INTERNATIONAi LUNION OF OPFRATING
EN(mINhI RS AFI. CIO
205