Plumbers Local 388

National Labor Relations Board - Board Decisions

Sep 29, 1980

252 N.L.R.B. 452 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of
the United States and Canada, Local 388, AFL-
CIO and Charles Featherly Construction Co.
and Joseph Metz and Tyler Thomas, a co-part-
nership d/b/a Metz & Wieand Plumbing and
Heating
Michigan State Building and Construction Trades
Council, AFL-CIO and Charles Featherly Con-
struction Co. and Joseph Metz and Tyler
Thomas, a co-partnership d/b/a Metz &
Wieand Plumbing and Heating
International Union of Bricklayers, Masons and
Plasterers of America, Local 14, AFL-CIO and
Monolith Construction Co., Inc. Cases 7-CC-
1069(1), 7-CC-1071(1), 7-CC-1069(4), 7-CC-
1071(2), 7-CB-4621, and 7-CC-1072
September 29, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 3, 1980, Administrative Law Judge Jose-
phine H. Klein issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions.
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 has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to
adopt her recommended Order, as modified.'
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, as modi-
fied below, and hereby orders that the Respond-
ents, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada, Local 388,
AFL-CIO, and Michigan State Building and Con-
struction Trades Council, AFL-CIO, their officers,
I The General Counsel has excepted to the Administrative Law
Judge's recommended Order that Respondents cease and desist from con-
duct proscribed by Sec. 8(b)(4)(i) and (ii)(B) of the Act only at the con-
struction projects in question, rather than with Metz & Wieand generally.
We find merit in this exception. See Laborers International Union oflorth
America. Local 676 (E. B. Roberts Construction Company),. 232 NLRB 388
(1977).
In the absence of exceptions, we adopt pro forma the Administrative
Law Judge's finding that Respondents' picketing was violative of Sec
8(b)(4)(i) and (ii)(B) of the Act.
252 NLRB No. 62
agents, and representatives, shall take the action set
forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph 1:
"1. Cease and desist from threatening, coercing,
or restraining persons engaged in commerce or in
an industry affecting commerce, or inducing and
encouraging employees of persons engaged in com-
merce or in an industry affecting commerce, to
refuse in the course of their employment to per-
form services, where an object thereof is to force
or require such persons or employees to cease
doing business with Metz & Wieand."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIll. NOT, by picketing or otherwise:
I. Threaten, coerce, or restrain any person
engaged in any industry affecting commerce,
or
2 Induce or encourage any employee of
any person engaged in an industry affecting
commerce to refuse in the course of his or
her employment to work or perform serv-
ices,
Where an object of such conduct is to force or
require any person to cease doing business
with Metz & Wieand.
UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUS-
TRY OF THE UNITED STATES AND
CANADA, AFL-CIO
MICHIGAN STATE BUILDING AND
CONSTRUCTION TRADES COUNCIL,
AFL-CIO
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: This
case was heard before me in Detroit, Michigan, on De-
cember 20, 1979,1 pursuant to a consolidated complaint
issued on November 28, amended on December 3, upon
charges filed between November 7 and 23.2
i All dates are in 1979.
2 The charges are: Cases 7- CC-1069(1) and (4), November 7 and II
by Charles Featherly Construction Co, against Plumbers Local 388 and
Continued
452
PLUMBERS LOCAL 388
At the hearing, the parties were all afforded full op-
portunity to present written and oral evidence and oral
argument and to examine and cross-examine witnesses.
The parties waived oral argument. Post-hearing briefs
have been filed on behalf of the General Counsel and
Respondents Plumbers Local 388, a the Council, and
Bricklayers Local 14. Respondents duly filed answers.
Upon the entire record, careful observation of the wit-
nesses, and consideration of the briefs, I make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPI.OYERS INVOLVIED
The consolidated complaint (as amended at the hear-
ing) alleges, Respondents' answers (as amended at the
hearing) admit (at least for the purpose of this consoli-
dated case), and it is therefore found that:
A. Charles Featherly Construction Co. (Featherly) is a
Michigan corporation engaged in the construction indus-
try as a general contractor. At all times material herein,
Featherly has been the general contractor at the con-
struction site of the McPherson State Bank in Hartland,
Michigan, and has had subcontracts with other employ-
ees for the construction at the Hartland jobsite.
B. At all times material herein, Monolith Construction
Co., Inc. (Monolith), a Michigan corporation engaged in
the construction industry as a general contractor, has
been the general contractor at a construction project for
Radio Station WHMI in Howell, Michigan, and has been
a party to subcontracts with other employers for the per-
formance of building and construction services at said
jobsite.
C. Metz & Wieand Plumbing and Heating, a partner-
ship of Joseph C. Metz and Tyler Thomas, doing busi-
ness in Michigan as a contractor, has been engaged in
plumbing, heating, and cooling construction at the build-
ing sites in Hartland and Howell, Michigan, referred to
in paragraphs (A) and (B) above. During the calendar
year 1978, Metz & Wieand purchased goods and supplies
valued in excess of $50,000 which were delivered to lo-
cations in Michigan directly from points outside Michi-
gan.
D. Featherly, Monolith, and Metz & Wieand and their
subcontractors at the jobsites in Hartland and Howell,
Michigan, are employers and/or persons engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. 4
II. THE LABOR ORGANIZATIONS INVOLVED
A. The complaint alleges and the answers admit that
Respondents Plumbers Local No. 388 and Bricklayers
Local No. 14 are labor organizations within the meaning
of Section 2(5) of the Act. It is so found.
the Council, respectively; Cases 7-CC-1071(1) and (2), November 14, by
Metz & Wieand against Plumbers Local 388 and the Council, respective-
ly; Cases 7-CC-1072 and 7-CB-4621. November 15 and 23., respectively.
by Monolith Construction Co. against Bricklayers Local 14.
3 The General Counsel's motion to add Plumbers Local 388's answer
to the formal papers in the record is hereby granted and the answer is
received as G.C. Exh I(t)
4 National Labor Relations Act. as amended, 29 U S C 151, et eq.
B. The consolidated complaint alleges, but Respond-
ents deny, that the Michigan State Building and Con-
struction Trades Council, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act. Sec-
tion 2(5) of the Act, defining the term "labor organiza-
tion," reads:
The term "labor organization" means any organi-
zation of any kind, or any agency or employee rep-
resentation committee or plan, in which employees
participate and which exists for the purpose, in
whole or in part, of dealing with employers con-
cerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work.
In its brief, the Council states that it is "not a member-
ship organization" by which it is understood that Re-
spondent is contending that it does not meet the statu-
tory requirement that "employees participate" in an or-
ganization for it to be considered a "labor organization."
The Council's constitution and by laws provide, inter
alia:
ARTICLE III
Membership
Membership in this Council shall be confined to
Local Building Trades Councils, State Trade Coun-
cils, District Trade Councils or Conferences and
Local Unions whose members are tradesmen active-
ly engaged in the Building and Construction indus-
try and/or processing materials for the Building and
Construction industry, in good standing with Inter-
national Unions affiliated with the Building and
Construction Trades Department.
ARTICLE IV
Limitation of Authority
The Michigan State Building and Construction
Trades Council shall not be an employee member-
ship organization but shall be composed of affiliated
craft unions. The Council shall have no right to in-
terfere in any manner in any internal affair of any of
its affiliates or in any of its affiliates contractual re-
lationships with employers. The purpose of the
Council shall be to assist its affiliates in the direct
and indirect protection of Wages, Hours and Work-
ing Conditions of the affiliates members and to pro-
tect craft unionism from forces which would seek
to defeat the aims and apirations of unionism in gen-
eral. The Council shall promote those causes which
will be helpful to trade unionism.
ARTICLE X
Conventions
J . * . *
453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Delegates and alternates to the Convention shall be
journeymen commanding the current rate of wages
and members in good standing in their Local
Unions for a period of not less than two years.
ARTICLE XIII
Revenue
Each affiliated Local Union . . . shall pay to the
Michigan State Building and Construction Trades
Council a monthly per capita tax of two cents ($.02)
per hour for each hour worked by each member en-
gaged in building and construction work including
each and every phase thereof.
Early in the implementation of the Taft-Hartley Act,
the Board definitively ruled that direct membership by
individual employees is not necessary to meet the em-
ployee participation aspect of the definition of a "labor
organization." See, e.g., Metallic Building Company, 98
NLRB 386 (1952), involving a council in the Metal
Trades Department of the AFL. The constitutional pro-
vision governing membership was substantively the same
as that in the present case. In holding that the metal
trades council was a labor organization, the Trial Exam-
iner said (at 395):
In short the contention of the Respondent is that,
since individual employees cannot become members
of the Council, it is not empowered under the Act
to represent them in collective bargaining.
The Board has consistently held to the contrary.
Local or county union councils with the same setup
as the Houston Metal Trades Council, AFL, have
been uniformly held to be recognized as labor orga-
nizations under the Act.
The Trial examiner then cited four earlier Board Deci-
sions. In expressly approving the Trial Examiner's hold-
ing, the Board cited three additional prior Decisions (98
NLRB at 387, fn. 3). As stated by the Board in St. Fran-
cis Hospital-Medical Center, 223 NLRB 1451 (1976), the
"employee members of each of the constituent locals
participate in the affairs of [the Council] through their
respective representatives."
The Council apparently also argues that it does not
"exist for the purpose, in whole or in part, of dealing
with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions
of work within the statutory definition of a "labor orga-
nization." Such contention is fully refuted by the pream-
ble to the Council's constitution and bylaws, which reads
in part:
The objectives for which the MICHIGAN STATE
BUILDING and CONSTRUCTION TRADES
COUNCIL has been organized:
1. To form building trades unions into compact
and practical working central bodies to be known as
Building and Construction Trades Councils.
2. To preserve and vigorously safeguard the tra-
ditional jurisdictional job rights of workers em-
ployed in the construction industry.
3. To assist and cooperate with all bona fide
labor organizations in order that we may present a
solid phalanx against injustice, non-union elements
and organizations.
4. To assist in having the hours of labor reduced
according to displacements caused by the introduc-
tion of improved methods of production and distri-
bution.
5. To urge the passage and enforcement of laws
beneficial to our people.
6. To preserve and protect the wages, hours and
conditions of employment of the members of our af-
filiates.
7. To organize the unorganized into the member-
ship of our affiliates.
It is difficult to understand how the Council could
safeguard jurisdictional rights of employees and protect
their wages, hours, and working conditions without deal-
ing with employees.
If the constitution and bylaws left any doubt, it would
be removed by the testimony of Leon Kinchloe, a field
representative of the Council. After testifying broadly
and glibly that his function was limited to public rela-
tions, "wining and dining" employers and employees,5
he was examined more closely, as follows:
"Q.... Say one of your affiliates is not being
paid the fringes he is supposed to be paid under the
contract?
A. We do ask them to-yes, we do go out and
that's one of the jobs I failed to mention. We do
check to make sure the fringes are paid up.
Q. What if the company hasn't paid up the
fringes?
A. Then we go to the builder and tell him that
this man's fringes are behind and we would like to
see if we can't do something to work something out
in order to keep the job going and get his fringes
paid up. First we have to find out why he doesn't
have his fringes paid up and after we find that out,
then we maybe go to the builder and maybe the
builder is holding his money up or whatever.
Q. When you refer to the builder, you are talking
about an employer who employs the employee
whose fringes aren't paid?
A. Right.
At another point Kinchloe testified that he "travel[s] all
over . . . and talk[s] to contractors that have contracts
with unions."
The Council argues that "[n]o act of Mr. Kinchloe
was probative of a representational organization." Pre-
sumably this statement means that the Council does not
engage in collective bargaining with employers. But it is
I Kinchloe's testimony as a whole was riddled with equivocations, un-
responsive replies to questions and self-contradictions. I found him an un-
reliable itness and credit his testimony only to the extent that it contains
admissions or declarations against interest, as exemplified in the text.
454
PI.UMBERS LOCAL 388
established that an organization need not engage in col-
lective bargaining in order to qualify as a "labor organi-
zation." As the Supreme Court said in .L.R.B. v. Cabot
Carbon Company and Cabot Shops, Inc., 360 U.S. 203,
210-211 (1959):
Section 2(5) includes in its definition of "labor or-
ganization" any "employee representation commit-
tee or plan ... which exists for the purpose, in
whole or in part, of dealing with employers concern-
ing grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work." (Em-
phasis supplied.) Certainly nothing in that section
indicates that the broad term "dealing with" is to be
read as synonymous with the more limited term
"bargaining with." . . . It is . . . quite clear that
Congress, by adopting the broad term "dealing
with" and rejecting the more limited term "bargain-
ing collectively," did not intend that the broad term
"dealing with" should be limited to and mean only
"bargaining with"....
The evidence establishes that the Council "deals with
employers" for the purpose, inter alia, "[t]o preserve and
protect the wages, hours and conditions of employment
of the members of our affiliates."
Accordingly, it is found that the Council is a labor or-
ganization within the purview of Section 2(5) of the
Act. 6
Ill. THE Al.I.EGED UNFIAIR ABOR PRACTICES
A. Setting and Issues
Metz & Wieand, a heating and plumbing company, is
nonunion. In November 1979 it worked at two construc-
tion sites: One for the McPherson State Bank in Hart-
dale, Michigan; the other for Radio Station WHMI in
Howell, Michigan. In both instances Metz & Wieand
worked under contracts directly with the owners, Feath-
erly was the general prime contractor on the Hartland
job and Monolith on the Howell job. Featherly and
Monolith were union companies, as were their subcon-
tractors. Picketing was instituted on November 5 and 6,
1979, at Hartland and Howell, respectively. At both job-
sites reserved entrances were established for Metz &
Wieand employees and persons dealing with that compa-
ny and for the secondary employers (Monolith and
Featherly) and persons dealing with them.
The basic question presented is whether the picketing
was lawful primary picketing against Metz & Wieand or
unlawful secondary picketing because it was intended, at
least in part, to enmesh secondary employers and their
employees, in violation of Section 8(b)(4)(i) and (ii)(B) of
the Act, as implemented and construed by the Board in
Sailors' Union of the Pacific, AFL (Moore Dry Dock Com-
6 In view of this conclusion. it is unnecessary to pass on the argument
in the General Counsel's brief that the Council is. in any event, an
"agent" of Local 388. an admitted labor organization. Cf. International
Longshoremen's Association, AFL-CIO. its affiliated Locals 799. 800. 805
and 1066 and its Boston District Council (Coldwater Seafood Corporation),
237 NLRB 538, 539 (1978), and Local 895 United Brotherhood of Carpen-
ters, AFL-CIO. et al. (George A. Fuller Company), 186 NLRB 152 153
(1979).
panrv), 92 NLRB 547 (1950), and subsequent cases. A
closely related issue is whether Featherly was threatened
with unlawful secondary conduct.
A preliminary issue arises out of the allegation that the
three Respondents (Plumbers Local 388, the Council.
and Bricklayers Local 14) were "engaged in a joint and
common undertaking" in the alleged unlawful secondary
picketing.
B. The Facts
1. The Hartland jobsite
The McPherson State Bank site was at the northeast
corner of the intersection of Highland Road (running
east and west) and Lakena Drive (north and south) in
Hartland, Michigan. There was one paved entrance to
the site from Highland Road and two from Lakena
Drive. Construction started in May with Featherly as the
general contractor and subcontractors under it. Around
July or August, Metz & Wieand began work at the site
under a direct contract with Radio station WHMI.
Donald Bergau, Featherly's job superintendent, testi-
fied that on November I Douglas W. Griffith, business
manager of Local 388, and Leon Kinchloe, a field repre-
sentative of the Council, visited the Hartland jobsite.
Bergau first spoke with Griffith, who said: "Do you real-
ize that you have got scab plumbers on the job?" Bergau
answered in the affirmative, since he knew that Metz &
Wieand, a prime contractor on the job, did not have any
union contract. Bergau said that the job would not be
shut down because of the presence of a nonunion con-
tractor. According to Bergau, Griffith said, "[w]e're
going to try and shut the job down." Bergau then spoke
alone with Kinchloe. who had been checking the union
cards of employees. So far as it appears, the extent of
Bergau's conversation with Kinchloe was the identifica-
tion of Kinchloe as a representative of the Council. Then
the three men spoke together briefly. Kinchloe asked if
Metz & Wieand was the only non union contractor on
the job. Bergau replied in the affirmative. Thereupon
Kinchloe said, "(w]ell, we're going to shut it down."
Bergau requested that the threatened shutdown be post-
poned until Monday, November 5, so that repair of the
bank's vault could be completed. No answer was forth-
coming. However, there was no picketing until Monday,
November 5.
At 7:45 a.m. on Monday, Bergau saw Griffith in his
car on the Highland Road entrance road and Kinchloe in
his car on one of the Lakena Drive entrance roads. The
cars had identical picket signs on them, reciting that
Metz & Wieand had wages and working conditions infe-
rior to those provided in Local 388's contracts. 7 The
signs appeared to be professionally printed in black on
white with the name of the Union printed in red and the
name of Metz & Wieand inserted by hand in very light,
faded-looking, red ink. While the professionally printed
parts of the sign would be clearly visible from a consid-
erable distance, one would have to approach fairly close
in order to make out the company's name.
7 All the picket signs used at either site read-
455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WAGES-HOURS
AND
WORKING CONDITIONS
OF
METZ & WIEAND
ARE SUB-STANDARD
TO THE WAGES, HOURS
& WORKING CONDITIONS
NEGOTIATED Y THE
PLUMBERS & FITTERS
L. U. 388
IN THE AREA
Bergau convened the Featherly employees and as-
signed them to other jobs away from the Hartland site.
Bergau testified that when he left the jobsite at or about
1:30 p.m., Griffith was still picketing, but Kinchloe had
been present only intermittently during the morning.
Featherly also testified to seeing Griffith and Kinchloe
sitting in their cars at the Highland Road entrance and at
one of the Lakena Drive entrances on the morning of
Monday, November 5. Charles Featherly testified that he
asked Griffith what the problem was, to which Griffith
replied: "You know what the problem is, that Metz and
Wieand are a scab outfit." Featherly explained that Metz
& Wieand had a direct contract with the building owner
and was not a subcontractor of Featherly. Griffith con-
tinued, saying that Featherly "should not lower [himself]
to work with an outfit like that."
Griffith testified: "[A]s soon as I had realized that
there was--that Metz & Wieand were on the job, I start-
ed picketing." But he also testified that he went to the
Hartland site on November I because he "wanted to
make sure that Metz & Wieand were on the job," since
he knew the company was nonunion. It was then that he
learned of Metz & Wieand's presence by seeing its em-
ployees working on the site. Then he spoke with three of
the employees on their coffee break in a restaurant near
the Hartland site. At the time he did not know anything
about Metz & Wieand's wages and working conditions,
but learned in his conversation with the three employees
that the company's wages were "substandard" with the
journeymen hourly rate being $4 less than the union rate.
Griffith did not mention having had any conversation
with Bergau or Featherly. Since he was not specifically
questioned about any such meeting, he did not deny
having made the statements attributed to him by the
company's representatives.
Like Griffith, Kinchloe was called by the General
Counsel and examined under Rule 61 I1(c) of the Federal
Rules of Evidence. He was not specifically questioned
concerning any conversations with Bergau or Featherly.
However, he perhaps impliedly denied having had any
such conversation when he testified that it is not his job
to talk to employers. When pressed, however, as set
forth above (sec. 11, B), he conceded that he does speak
with employers in dispute situations, such as occasions
when employees are not receiving their contractual
fringe benefits. I find that Kinchloe was an unreliable
witness and I discredit his testimony except to the extent
that it constitutes admissions or declarations against in-
terest. This credibility determination is based primarily
on his demeanor and the obviously advertent equivoca-
tion and unresponsiveness pervading his testimony. Addi-
tionally, in most respects his testimony was implausible.
For example, although he had been a field representative
of the Council for 6 months, an industry steward with
the Detroit Carpenters District Council, a constituent
body of the State Building and Construction Trades
Council for 4 years, and a union member for almost 25
years, he disingeniously disavowed having knowledge of
the workings of the Council and of the union or non-
union status of employees within its jurisdiction. He re-
peatedly protested that he did not have "authority" to
shut jobs down. And he went so far as to say that he did
not care if jobs were not 100 percent union-a statement
he effectively later retracted.
Featherly testified that after he first saw the picketing
he sought advice from the Michigan Chapter of the As-
sociated General Contractors of America and was in-
structed as to how to establish reserved gates. Under
date of 12:30 p.m., November 5, Featherly wrote to Grif-
fith referring to the picketing and stating that: "Because
Metz & Wieand are not our subcontractors, a two gate
job entrance system will be put into effect as soon as
possible." Griffith testified that, because his office was
about 50 miles from the Hartland site, he did not visit
the office or receive Featherly's letter for several days.
He did not state when or how he learned of the mail-
gram.
Featherly prepared signs and Bergau posted them that
day at or about 4:30 p.m., an hour after the end of the
working day. The Highland Road entrance was posted
for the exclusive use of Featherly's employees and sup-
pliers and those of Featherly's subcontractors, whose
names were listed. One of the two entrances on Lakena
Drive (No. 3)8 was posted for the exclusive use of the
employees and suppliers of Metz & Wieand.
Bergau testified that he arrived at the Hartland site at
or about 6:45 a.m. on Tuesday, November 6. At 8 a.m., a
laborer and an electrician began to work and continued
to work until 8:30 a.m. when Bergau left the premises.
Upon returning to the site at about 9 a.m., Bergau saw
pickets. When he attempted to speak to a picket standing
beside a car parked in the drive at entrance No. I (the
Featherly entrance) on Highland Road, he was referred
to Kinchloe, who was at the unmarked entrance (No. 2)
on Lakena Drive. Bergau testified that he asked Kinch-
loe how long the picketing would last and Kinchloe re-
plied that, "if Metz and Wieand was off the job, it would
probably be over by now." At or around 10 or 10:30
a.m., Bergau saw Griffith at entrance No. 1, along with
the unidentified picket who had been there earlier in the
day. The two men were still picketing at entrance No. 1
when Bergau left at or about 11:30 a.m. According to
Bergau's undisputed testimony, the three workmen who
I Bergau, who did the actual posting, and Tyler Thomas, a partner in
Metz & Wieand, identified the southerly entrance on Lakena Drive (No.
3) as the one marked for Metz & Wieand. Featherly, however, indicated
that the northerly Lakena Drive entrance (No. 2) was marked for Metz
& Wieand. I find that Bergau and Thomas were correct and Featherly
was in error on this point.
456
PLUMBERS LOCAL 388
had begun work at 8 a.m. quit when the pickets arrived. 9
There is no evidence of any picketing at the Metz &
Wieand entrance.
Griffith testified that he had lunch at a restaurant
across the road from the Hartland site on November 6.
He stopped at the site for a moment when he saw a "car
picketing" with a sign. He testified that he asked the
pickets "if they really knew what they were doing" and
told them that he "thought they were probably breaking
the law."
There was no picketing at the Hartland site after No-
vember 6. However, Featherly credibly testified that on
November 7 he saw Kinchloe sitting in a car in the
Featherly entrance (No. 1) and a little later driving on
Lakena Drive in the vicinity of the unmarked entrance
(No. 2). The two men had a brief, apparently friendly,
conversation. Featherly testified that he asked what
Kinchloe was doing and Kinchloe "indicated . . . that
he was supportive of the Plumbers actions."
2. The Howell jobsite
Monolith had a prime contract for a construction pro-
ject for Radio Station WHMI in Howell, Michigan.
Around September 1979 Metz & Wieand started to work
on the project under a direct contract with WHMI. The
building site fronts on West Grand River, which runs
east and west. On November 5, Metz & Wieand sent a
mailgram to Local 388 stating that two separate en-
trances had been established at the site.'° Both entrances
were on West Grand River, the only direction from
which access was possible. Entrance No. 1, toward the
east, was about 30 feet wide. Entrance No. 2, toward the
west, was indicated by two 3-inch pipes, standing about
40 inches high and about 20 feet apart. The distance be-
tween the western boundary of Entrance No. I and the
eastern boundary as Entrance No. 2 was about 65 feet.
The reserve signs, 3 feet by 4 feet, were placed at the
western boundary of entrance No. I' and the eastern
boundary of entrance No. 2. The signs for entrance No.
I (eastern) read: "This entrance is to be used by employ-
ees, suppliers, visitors and other subcontractors of Mono-
lith Construction Co. All other persons may not use this
entrance." The sign for entrance No. 2 (Western) read:
"This entrance exclusively for employees of Metz &
Wieand Plumbing and Heating. All other persons may
not use this entrance."
Early on the morning of November 6, Griffith, who
has been business agent of Local 388 for some 17 years,
arrived at the building site. He parked his car near the
Monolith entrance (No. I) and placed a picket sign on
the car bumper. Shortly thereafter about 15 to 20 addi-
tional men arrived. One of these men also had a picket
sign, which was placed next to the Metz & Wieand en-
trance (No. 2).
9 This testimony was not objected to although it probably W:as hearsay.
since Bergau was not on the site when the pickets arrived.
") The mailgram said that the east entrance (No I) was "for the exclu-
sive use of employees. suppliers, subcontractors and visitors of
Monolith" and the west entrance (No. 2) was "for the exclusive use of
employees suppliers and visitors of. Metz and 'Wieand "
I The evidence does not disclose how the reserve sign was displayed
at the entrance No I However. there is no suggestion that it was not
readily visible.
Griffith testified that, when he started to picket, he did
not know that Metz & Wieand employees would be
working at the site that day. He saw Metz & Wieand em-
ployees arrive after he had set up the pickets. A chain
had been strung between the posts marking entrance No.
2. When the Metz & Wieand employees arrived on the
morning of November 6, they removed the chain, placed
the reserve sign leaning on the westerly post, and en-
tered the site.
The pickets proceeded to walk back and forth between
the two entrances. Although they appear generally to
have kept between the eastern boundary of the Metz &
Wieand entrance and the west boundary of the Monolith
entrance, Thomas credibly testified that he had been
present until about 9:30 a.m. and had seen the pickets
cross the Monolith entrance 2 or 3 times. He recognized
some of them as members of Local 388. Thomas also tes-
tified that at or about 8 a.m. one of the picketers spoke
to an arriving Monolith employee, who thereupon
picked up his tools and left the site. The roofing contrac-
tor also arrived and entered through the Monolith en-
trance. Some of the pickets stopped walking and went to
talk to him. Thereupon he got his tools and left the site.
When the paving foreman arrived with considerable
equipment, he called his office to see if he should pro-
ceed with the scheduled paving work. When he finished
his call, he spoke to the pickets and "pulled off the job-
site with his crew." The same general pattern was reen-
acted when another, unidentified, employee arrived and
entered through the Monolith entrance.
At or about 8:30 or 9 a.m., Kinchloe arrived. He re-
mained about 15 or 20 minutes, during which time he
spoke with Griffith.
Thomas drove by the site at or about 1:30 p.m. the
same day. There were several picketers then present,
their cars parked on the ground between the roadway
and the sidewalk between the two entrances, but some-
what closer to that for Metz & Wieand. One of the cars
belonged to Griffith and had a picket sign attached to its
bumper. Two or three people were standing on the
sidewalk between the two entrances.
On November 7, at or about 8:30 or 8:45 a.m., Thomas
saw about 15 pickets, including Griffith, standing "right
at the edge" of the east side of the Metz & Wieand en-
trance. A picket sign was on one car and another identi-
cal sign was carried by a picket. When Thomas left the
site at or about 9:30 a.m., the pickets were between the
two entrances. They walked to the edge of, but did not
cross, the Monolith entrance. They did cross the Metz &
Wieand entrance.
When Thomas arrived at the site at or about 8:30 or 9
a.m. on November 8, there were about 10 pickets, in-
cluding Griffith, at the site. At or about 9:30 or 10:30
a.m., when Thomas left, there were seven or eight pick-
ets, but the number decreased as the day wore on. On
Friday, November 9, Griffith and about seven other
pickets were present with the number reduced to about
five by around 9:45 a.m. On both the 7th and 8th Kinch-
loe was present for about 10 to 15 minutes, but apparent-
ly did not visit on Friday, November 9.
457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Thomas. the general pattern was the
same on Tuesday through Friday. The only day the
pickets crossed the Monolith entrance was the first day,
Monday, November 5.
The foregoing factual summary is based primarily on
Thomas' credited testimony, which was generally uncon-
tradicted. However, Griffith did indicate that there were
fewer pickets than Thomas testified to, particularly after
the early morning hour when most of the pickets left to
report for work at a nearby jobsite. The precise number
of pickets is not crucial since there is no allegation or
suggestion that Respondents engaged in unlawful mass
picketing.
On Thursday or Friday, November 7 or 8, Detroit
Edison Company excavated a strip from around the
western boundary of entrance No. 2 running westerly for
about 60 feet. Because of this excavation, the Metz &
Wieand reserve sign was taken up and relocated in the
pile of excavated dirt about 20 to 30 feet west of the
western boundary of entrance No. 2.
On Saturday and Sunday, November 10 and 11, Metz
& Wieand's employees worked at the site. Subcontrac-
tors of Detroit Edison' 2 also worked there that week-
end. However, no employees of Monolith were working.
There was no picketing on those 2 days. Griffith testified
that during a large part of those days he, accompanied
by another man, sat in his car parked in a church parking
lot across from the jobsite. He did not explain why no
picketing was undertaken at that time when he knew
that Metz & Wieand was working. He testified that on
Saturday, November 10, he saw Metz & Wieand employ-
ees enter the site through the Monolith entrance.
At the conclusion of Griffith's testimony, Thomas was
recalled and testified that, before the reserve gates were
established and notice was sent to Local 388, an employ-
ee meeting was called and all of Metz & Wieand's em-
ployees were given specific instructions that they were
to use only the entrance posted for them. Thomas also
testified that on Saturday he had gone to and departed
from the site with the four Metz & Wieand employees
who worked that day and that none of them had used
the Monolith entrance. 3
Joseph C. Metz, the other partner in the company, tes-
tified that, so far as he knew, no employee had ever used
the Monolith entrance. However, he had not had as
much opportunity to observe as Thomas had. In the con-
flict between Griffith and Thomas on the matter, I credit
Thomas. His testimony was always direct and forthright,
even when it was essentially against his interests. His de-
meanor was that of a person conscientiously attempting
to answer questions truthfully to the best of his ability.
On the other hand, while I should not describe Griffith's
demeanor as generally unsatisfactory, it was clear that he
was somewhat more interested in supporting Respond-
ents' position than in imparting information. That desire
12 here is no evidence as to whether Detroit Edison was a prime
contractor or a subscontractor under Monolith. Although there was testi-
mony that the sign reserving he Monolith entrance listed the subcontrac-
tors. Ihere is no picture of he sign in evidence and the subcontractors
were neer identified by testimony.
1 Hei also testified that he arrived at the jobsite with his employers
every morning and on several occasions drove them out at 4 pm
led him into some self-contradiction, as shown above in
connection with the Hartland situation. 4 For the fore-
going reasons, coupled with Griffith's failure to give any
reason for sitting across the street from the Howell job-
site on November 10 and 11, I credit Thomas' testimony
that Metz & Wieand's employees did not use the Mono-
lith entrance. 5
Griffith further testified that twice he saw a man enter
through the Monolith gate and then talk with Thomas at
length. When recalled, Thomas identified the man as
probably being the project architect. Obviously, the ar-
chitect would have occasion to talk to all contractors
and subcontractors on the site, but he would undoubted-
ly feel most "related to" Monolith, the major prime con-
tractor.
Griffith also testified that on Thursday or Friday, No-
vember 8 or 9, he saw plumbing inspectors enter the job-
site through the Monolith entrance. At that point he tes-
tified that the Metz & Wieand sign was "taken down
. . . [t]hat weekend," yet at another point he testified
that the posts marking that entrance had been removed
on "the third day," which would be Friday, November
8. t6 Thomas credibly testified that the Metz & Wieand
sign was removed at the end of Sunday, November 11,
when the company withdrew from the job for some time
and so advised Local 388.
Griffith also testified to an aborted delivery to the job-
site. He could not date the event and had "no idea"
whether it occurred after Metz & Wieand had notified
him that it was leaving the jobsite. He testified that he
was within 5 or 10 feet of the Metz & Wieand gate when
a delivery truck appeared. Before entering the jobsite,
the driver called to Griffith from a distance of some 50
feet, asking "if that was a picket sign." When Griffith an-
swered in the affirmative, the driver turned around and
left without ever having entered the premises. Griffith
testified that he did not know which entrance the driver
had planned to use.
As they were leaving on Sunday, November 11, Metz
& Wieand's employees removed the signs from the en-
trances and they did not work on Monday. Metz &
Wieand sent a mailgram to Local 388 saying that the
company was leaving the jobsite and would not return
until December 4. That mailgram was received by the
Union at 12:21 p.m. on Monday.
Thomas testified that he drove by the site at or around
9:30 a.m. and again sometime during the afternoon on
14 He said he started the picketing as soon as he knew "that Metz &
Wieand were on the job," but the picketing did not start until 4 days
after he first visited the site. And he also mentioned that the picketing
was merely to give information concerning Metz & Wieand's "substan-
dard" wages and working conditions, yet he further testified that, when
he went to the jobsite "looking for" Metz & Wicand, he knew nothing
about its wages and working conditions.
'" Thomas testified that during that weekend he worked both inside
and outside the building under construction. When working outside, he
was around the western portion of the premises
r His testimony on cross-examination by Local 388's counsel was:
A. The two posts on the west end of the jobsite both remained
there about 3 days. The third day, Edison made an excavation in that
area and they lost the poles, the posts. They were completely gone
and I don't believe it was ever retracted [sic). As a matter of fact. I
still think there is one post here
458
PLUMBERS LOCAL 388
Monday, November 12. In the morning he saw Griffith
and about six or seven additional pickets with one sign,
and in the afternoon he saw a jeep parked between the
two entrances with a sign stuck on a tire. Then, on the
morning of November 13. Thomas again drove by and
saw Griffith and three or four other pickets, with one
sign, in front of the site, between the two entrances. For
the next few days Thomas was away. However, during
the week beginning November 19 he drove by the site
on four mornings and saw Griffith and one or two other
pickets with one sign. Sometimes the pickets were inside
the car and at other times they were outside.
On Monday, November 26, having learned that it
would be needed earlier than originally anticipated. Metz
& Wieand telegraphed Local 388 that the company
would return to the site the next day. The company re-
turned to work on November 27. Thomas did not know
if there was any picketing on November 26, but there
was picketing on November 27, 28, and 29. On each day
there were around five pickets, in addition to Griffith, in
the morning, with the number declining until about 1:30
or 2 p.m. when picketing ended.
C. Discussion and Conclusions
1. BricklaPrers Local 14
There is no question that the basic labor dispute was
between Plumbers Local 388 anc Mletz & Wieand, since
that company's employees performed the same type of
work as do Local 388's members. The complaint, how-
ever, alleged that Bricklayers Local 14 joined Plumbers
Local 388 in a "joint and comr( n undertaking." The
complaint further alleged that, in frtherance of the dis-
pute with Monolith, Bricklayers I. ical 14, through Busi-
ness Manager Joseph E. Wojto ,:z, induced one of its
members not to work at the Howell jobsite by threaten-
ing ,o bring internal union charges against him if he did
work at the Howell jobsite.
After counsel for the eneral Counsel had rested,
counsel for Local 14 moved for dismissal of the com-
plaint so far as t was directed against that union. At that
point counsel ior the General Counsel conceded that
"the only evidence that was presented was the Bricklay-
ers [business manager's] own testimony that he was pres-
ent on the jobsite while there was picketing going on."' 7
While I indicated that such evidence would be insuffi-
cient to warrant a finding that Local 14 had violated the
Act, I reserved ruling on the motion to dismiss. I now
grant the motion and dismiss the complaint so far as it is
directed against Local 14.
2. The Council
As stated above, on November 1, Kinchloe and Grif-
fith together spoke to Bergau about Metz & Wieand's in-
volvement in the Hartland construction on November 1.
l After conulting the Regional Director. counsel fr the General
Counsel moved for adjournment of the hearing so that further atempts
could be made to subpena ti a witness w hom the General Counsel had
prexiously and unsuccessfull attempted to serse. The motion for ad-
journment as denied as untimely In her brief, counsel for the General
Counsel does not renew the request for adjournment and presents no ar-
gument concerning Local 14s role in the matters here in,olved.
Kinchloe threatened to shut down the Hartland job.
Thereafter, Kinchloe participated sporadically in the
picketing at both jobsites. Despite his testimony that he
had never carried a picket sign, I credit Bergau's testi-
mony that he saw Kinchloe carrying a picket sign at the
Hartland jobsite on November 5. I further credit Ber-
gau's testimony that, at the site on November 6, a picket
refused to talk to Bergau but rather referred him to
Kinchloe. That fact shows that Kinchloe was recognized
as a leader in the picketing.
Despite his customary equivocation and evasiveness,
Kinchloe revealed that before the picketing began Ray
Wallace, president and owner of Monolith, permitted
Kinchloe to see an apparently confidential list of con-
tractors and subcontractors on the Howell job, from
which list Kinchloe definitely learned of the presence of
nonunion Metz & Wieand. Kinchloe also reluctantly ac-
knowledged that he and Wallace had talked together
about the picketing. 8 He further testified that he did not
see a delivery truck drive up to the jobsite since he
"didn't pay any attention because [he] would be having a
conversation with some of the people that were on the
picket line or whatever. That would be all."
I" The general nature of his testimony can be gleaned from the ftillos.-
Ing excerpts
Q Do you remember any time when Ray Wallace asked )ou w. hat
he could do to get the picketing stopped?
A. He has no reason to ask me because it wasn't my sat I have no
say I didn't carry lno signs I neser carried a sign on Ray) Wallace's
lob
Q Did you have an5 discussions ilh Ray Wallace about the
picketing at all'
A Beftire he picketing Ray and I talked quite a bit, that', about
all.
Q. What about during the picketing?
A I had ery little to say to Ray
Q Did he hasve any thing to say It you?
A No
Jrnxil K N I'm not sure I understood your answer Did
you discuss the picketing with him at any time?
THI: WNtiSS Before or after'
JI x;,t Ki i iN: At any time I am asking
Til WiNI ss: No
Jt IXl Ki IIN: You never discussed the picketing with Rax Wal-
lace either before, during or after?
Iiti wit NiSS: No
Q Did you discuss the possibility of picketing with Ra) Wallace
or Mike Wallace before the picketing?
A. Ray brought the question up of picketing because of this Metz'
Q When as this?
A I couldn't give you the time
Q Was it before the picketing?
A Before, somewhere in there
Q Well, do you remember. was it before?
A I don't remember
Q Where did you talk to Ray
A On the johsile
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On all of the evidence, there is no room for doubt that
Kinchloe, the Council's field representative, actively as-
sisted and participated in the picketing involved. Such
conduct was manifestly in pursuance of the Council's ob-
jectives, as set forth in its constitution and bylaws.
Accordingly, I find and conclude that, as alleged in
the complaint, Local 388 and the Council were "engaged
in a joint and common undertaking" in connection with
a labor dispute with Metz & Wieand.
3. Governing legal authority
While the Act does not restrict the employees' right to
refuse to work for and to picket an employer with whom
they have a labor dispute (the "primary" employer), it
does prohibit their unnecessarily involving employers
with whom they do not have a labor dispute ("second-
ary" employers). In order to avoid violating Section
8(b)(4) of the Act, picketing at a site where both the pri-
mary and secondary employees are working must be
"engaged in so as to have as little impact on neutral em-
ployers and employees as possible" General Teamsters,
Warehouse and Dairy Employees Union Local 126, affili-
ated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Ready
Mixed Concrete, Inc.), 200 NLRB 253, 256 (1972). Early
in the enforcement of Section 8(b)(4), the Board issued
its Decision in Sailor's Union of the Pacific, AFL (Moore
Dry Dock Company), 92 NLRB 547, containing guide-
lines for minimizing the impact of common situs picket-
ing "on neutral employees insofar as this can be done
without substantial impairment of the effctiveness of the
picketing in reaching the primary employees." Retail
Fruit & Vegetable Clerks' Union Local 117, and Retail
Clerks International Association, AFL-CIO (Crystal Palace
Market), 116 NLRB 856, 859 (1956), enfd. 249 F.2d 59
(9th Cir. 1957). Moore Dry Dock sets forth four criteria to
be met by the union in common situs picketing (1) the
primary employer is present on the site; (2) the primary
employer is engaged in his normal business; (3) the pick-
eting is confined to places reasonably near the situs of
the dispute; and (4) the picketing clearly identifies the
primary employer with whom the union has a labor dis-
pute. To call the Moore Dry Dock criteria into play, the
employers may establish at the common jobsite a sepa-
rate gate or entrance reserved for the exclusive use of
the employees of and persons dealing with the primary
employer. Picketing at such reserved gate meets the
Moore Dry Dock requirement that it be condcuted rea-
sonably close to the situs of the dispute.
Some Board and court decisions appear to suggest that
compliance with Moore Dry Dock establishes on a per se
basis the lawfulness of any common situs picketing. See
International Association of Bridge, Structural and Orna-
mental Iron Workers, Local No. 433 [Robert E McKee,
Inc.] v. N.L.R.B., 598 F.2d 1154, 1157 (9th Cir. 1979),
discussing Linbeck Construction Corporation v. XL.R.B.,
550 F.2d 311 (5th Cir. 1977), and West Kentucky Building
& Construction, Trades Council, AFL-CIO (Daniel Con-
struction Co., Inc., d/b/a Daniel Construction Company of
Kentucky), 192 NLRB 272 (1971). However, it is now
well settled that Moore Dry Dock does not establish sub-
stantive standards to be applied mechanically in deter-
mining the lawfulness of specific common situs picketing.
Rather, Moore Dry Dock merely provides evidentiary
tools "to be employed in the absence of more direct evi-
dence of the intent and purposes of the labor organiza-
tion." N.L.R.B. v. International Hod Carriers, Building
and Common Laborers' Union of America, Local 1140,
AFL-CIO, 285 F.2d 397, 401 (8th Cir. 1960), cert. denied
366 U.S. 903, quoted in Ready Mixed Concrete, supra at
254. Thus, common situs picketing may be found to be
violative of Section 8(b)(4) of the Act even if it conforms
to the Moore Dry Dock standards. See, e.g., International
Brotherhood of Electrical Workers, Local Union No. 11 (L.
G. Electric Contractors, Inc.), 154 NLRB 766 (1965); In-
ternational Association of Bridge, Structural and Ornamen-
tal Ironworkers, Local No. 433, AFL-CIO (Robert E.
McKee, Inc.), 233 NLRB 283, 287 (1977), enfd. in perti-
nent part 598 F.2d 1154. Since picketing "must be re-
stricted so as to affect only primary employees" (598
F.2d at 1159), there is "a heavy burden on the picketing
union to convince the trier of fact that the picketing was
conducted in a manner least likely to encourage second-
ary effects." Ibid, quoting Ramey Construction Company,
Inc., et al. v. Local Union No. 544, Painters, Decorators
and Paperhangers of America, et al., 472 F.2d 1127, 1131
(5th Cir. 1973).
The Board has held that in determining the lawfulness
of picketing it is "irrelevant" that the employees of a sec-
ondary employer walk off the job in response thereto.
Construction, Building Materials and Miscellaneous Driv-
ers, Local No. 83, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America (Allied Concrete, Inc.), 231 NLRB 1097, 1098
(1977), enforcement denied 607 F.2d 827 (9th Cir. 1979).
However, consideration has apparently been given to the
fact that employees of neutral employers have failed to
report to work after they have been spoken to by repre-
sentatives of the picketing union. Ironworkers, Local 433,
233 NLRB at 287, and 598 F.2d at 1159.
Frequent breach of the neutrality of the gate reserved
for the secondary employers will justify the picketing
union in not observing the reservation of the gates. Local
Union 323, International Brotherhood of Electrical Workers
(J. F. Hoff Electric Co.), 241 NLRB 694 (1979). Howev-
er, common situs picketing may be found violative of the
Act even where the reservation of the primary employ-
er's gate is not precisely correct in all respects (Iron-
workers, Local 433, 233 NLRB at 287-sign did not refer
to primary employer's suppliers) and where there have
been isolated breaches of the neutral gate (Local Union
No. 369, International Brotherhood of Electrical Workers,
AFL-CIO (Kelley Electric Co. Inc.), 216 NLRB 141
(1975); United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, Local 48 (Calvert General
Contractors, Inc.), 249 NLRB 1183, fn. 2 (1980)).
Directly involved in the present case is the Moore Dry
Dock requirement that the picketing be restricted to
places reasonably close to the situs of the dispute. The
Board has held that the trucks of a primary employer
may be picketed on a common situs. But the Ninth Cir-
cuit disagreed. Allied Concrete, supra. The picketing at
460
PLUMBERS I.OCAL 388
the "portion of the construction project closest to where
the primary employer's employees were working" meets
the relevant Moore Dry Dock requirement. Local Union
323, (J. F Hoff Electric Co.), supra, fn. 1. However, no
case has been cited which purports to set general territo-
rial limits of permissible picketing where there are gates.
That question must be decided on an ad hoc basis under
the underlying rule that involvement of secondary em-
ployers must be kept to an absolute minimum.
Finally, it does not appear that the Board has had oc-
casion to announce any general rule for answering the
question, raised by Local 388, as to the physical facts
necessary to create a reserve gate. Local 388 cites Local
453, International Brotherhood of Eletrical Workers, AFL-
CIO (Southern Sun Electric Corp.), 237 NLRB 829
(1978), in which it was held that gates had not been
properly established so as to impose the Moore Dry Dock
tests on the picketing union. In that case the primary em-
ployer was located in a large shopping center. Between
the two entrances to the shopping center's parking lot,
abutting the main highway, a sign was posted stating that
"the entrance" was to be used by all persons other than
employees, suppliers, and visitors of the primary employ-
er. The "gate" for the primary employer consisted of a
sign "placed in an alley at the rear of the shopping prem-
ises and barely visible, if at all," from the highway in
front of the shopping center. In holding the posting to be
ineffective, the Board said (237 NLRB at 830):
Although picketing at locations other than a
properly marked primary gate may indicate non-
compliance with Moore Dry Dock standards, this is
not so where observance of the separate entrances
established would substantially impair the effective-
ness of the picketing in reaching the primary em-
ployees and suppliers.
It was found as a fact that the posting in that case
"would unjustly impair the effectiveness of Respondent's
lawful picketing to convey its message to [the primary's]
personnel, suppliers, visitors, and the general public."
This statement is perhaps the closest one can come to
setting standards for reserved gates.
4. The Howell jobsite
Local 388 argues that "no proper reserve gate was es-
tablished at the Howell jobsite" because there was no
paved or marked roadway for separate access by Metz &
Wieand and persons dealing with that company. There is
neither authority nor sound rationale for requiring
Monolith to engage in the expensive and time-consuming
operation of road construction in order to protect its
rights and those of other secondary employers during the
temporary periods in which Metz & Wieand would be
doing the plumbing and heating work on the building.
The purpose of a reserved gate can be served by any
means of clearly indicating where access may be had by
and to the primary employer and/or a readily visible no-
tification of the place where access can be had to the
secondary employers and persons dealing with them.
This consideration is particularly applicable where, as
here, the situation is purely temporary and, equally im-
portant, the general public would have little or no occa-
sion to come onto the premises.
The signs were large and clear and so located that
anybody intending to use the paved Monolith entrance
would of necessity see the reserve sign before actually
entering the premises. There is not a scintilla of evidence
that anyone was confused or misled by the fact that en-
trance No. 2 was not a paved road. Nor does it appear
that ingress through that entrance was difficult. Al-
though the curb was not cut away, it was Thomas' un-
disputed testimony that [t]here is hardly any curb" at the
location of entrance No. I and there is direct access to
the parking lot over excavated dirt. The present case
thus involves a situation entirely different from that in
Southern Sun Electric, supra, upon which Local 388
relies.
While conceding that "this is not dispositive of the
issue," Local 388 argues that "the use of the improper
gate by visitors when coupled with the use of the im-
proper gate for an entire weekend . . . goes a long way
to establish that no Moore Dry Dock violation occurred."
This argument is based on a factual contention which has
been rejected. I have previously credited Thomas' testi-
mony that during the weekend of November 10 and 11
no Metz & Wieand employees used entrance No. 1. That
weekend is of particular significance since Respondents
chose not to picket although Metz & Wieand's employ-
ees were present with nobody else except for one em-
ployee of a Detroit Edison subcontractor on Saturday.
In contrast, Respondents later picketed after having been
notified that Metz & Wieand would not be at the job and
the Metz & Wieand sign was removed.
Local 388 also refers to the fact that the sign posted at
entrance No. 2 referred to Metz & Wieand's "employees
and suppliers," but did not mention "visitors." As Local
388 concedes, such imperfection in a reserve sign does
not give a union carte blance to engage in secondary
picketing. Respondents could not be prejudiced because
access through entrance No. I was expressly prohibited
for all persons other than "employees, suppliers, visitors
& other subcontractors of Monolith." Thus, whatever
the sign on entrance No. 2 said, Wieand's visitors were
excluded from entrance No. . Whether or not the sign
on entrance No. 2 referred to Metz & Wieand's "visi-
tors" Respondent Unions were at liberty to picket there.
Respondents apparently contend that the neutral gate
was misused by the project architect, who spoke with
Thomas of Metz & Wieand, after entering through Mon-
olith's entrance. Manifestly, the architect must have had
frequent occasion to visit and confer with representatives
of several contractors and subcontractors. Basically, his
responsibility would be to Monolith as the overall gener-
al contractor. Although Metz & Wieand was a prime
contractor rather than a subcontractor of Monolith, the
plumbing was but one of many elements of the construc-
tion as to which the overall responsibility was Mono-
lith's. It would be most reasonable for him to enter the
premises through the general contractor's entrance.
The second supposed breach of the Monolith gate was
a visit by plumbing inspectors. It can hardly be main-
tained that the visit by a public employee to a worksite
461
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
in the course of his official duties can serve to compro-
mise the neutrality of employers on the job. "The objec-
tives of any picketing include a desire to influence others
from withholding from the employer their services or
trade." Local 761, International Union of Electrical Radio
and Machine Workers, AFL-CIO [General Electric Com-
pany] v. N.L.R.B., 366 U.S. 667, 673 (1961). But it does
not necessarily follow that a union may assert its right by
impeding a public officer's performance of his duties. In
any event, the plumbing inspector's visit to the premises
was isolated and, as set forth above and conceded by
Local 388, isolated misuse of a reserved gate does not
deprive secondary employers of their statutory protec-
tion from secondary picketing.
Local 388 also states that "there is serious doubt and
question as to whether reserved gates would be proper in
any case as Metz & Wieand was a prime contractor"
rather than a subcontractor. In its brief Local 388 ex-
plains this contention as stemming from the fact that
Featherly and Monolith were "not using, selling, han-
dling, transporting or dealing or doing business with
Metz and Wieand, as Metz and Wieand was a separate,
independent contractor on the jobsite." It is true that, as
a direct, prime contractor, Metz & Wieand would prob-
ably have no contractual relationship with "Monolith.
However, they necessarily had to coordinate their oper-
ations. For example, when Metz & Wieand left the
Howell jobsite on November II, it was anticipated that
the company would not return until December 4, but it
then actually returned on November 27 because it was
then needed. The need for cooperation on the project
manifestly entails "dealing" among the various contrac-
tors. There is no authority or apparent reason for limit-
ing the prohibitions of Section 8(b)(4) to contractor-sub-
contractor situations. Indeed, the necessity for such pro-
tection of secondary employers would be greater when
both the primary and secondary employers are prime
contractors since they would have less ability to influ-
ence each other than would a contractor and a subcon-
tractor.
Local 388's ultimate position appears to be that it en-
gaged in only lawful informational picketing. This con-
tention is not supported by the evidence. As set forth
above, Griffith testified that he decided to picket the
Hartland jobsite as soon as he learned that Metz &
Wieand were on the job, at which time he knew nothing
about the company's wages and working conditions. At
no time did Respondents' representatives ever seek infor-
mation from Metz & Wieand's representatives.
Despite Kinchloe's initial statement that he did not
care whether a job was "100% union" (later retracted),
the constitution and by-laws of the Council set forth
among its objectives:
3. To assist and cooperate with all bonafide labor
organizations in order that we may present a solid
phalanx against injustice, non-union elements and
organizations.
* * *
7. To organize the unorganized into the member-
ship of our affiliates.
These are longstanding union goals. Unions cannot be
satisfied with having nonunion employers provide wages
and working conditions meeting union standards. Indeed,
reaching any such objective would seriously weaken
unions.
The fact is that Respondents wanted Metz & Wieand
off the Howell job because the company was nonunion.
The question is whether Respondents exceeded permissi-
ble bounds in attempting to achieve their objective. The
answer to that question must be in the affirmative. This
conclusion is based on several facts.
First, Respondents picketed the Howell site after being
informed that Metz & Wieand would not be present.
That was a clear breach of one of the Moore Dry Dock
requirements, which in itself would establish a violation
of Section 8(b)(4) of the Act.
Consideration next should be given to the Moore Dry
Dock requirement that the picketing be conducted rea-
sonably close to the situs of the dispute. On the first day
of the picketing the pickets actually crossed the secon-
daries' gate. That manifestly violated the Act. Even if it
were to be held that such conduct would not warrant a
remedial order because it was never repeated, it would
not necessarily follow that Respondents thereafter con-
formed to the Moore Dry Dock standard. The evidence
shows that most of the ensuing picketing was conducted
in the 65 feet between the two entrances, with the pick-
ets going to the very edge of the secondaries' entrance.
It would be impossible to know from the location of the
pickets what company was involved in the labor dispute.
So far as the position of the pickets is concerned, all em-
ployers on the job were subjected to the same pressure.
There may, of course, be situations in which it is phys-
ically impossible to picket only at the primary employ-
er's entrance. But that was not true at the Howell site
here involved. The pickets could easily have remained
within the 20 feet width of entrance No. 2 without ob-
structing traffic or endangering themselves. At the least,
they could have limited their picketing to a small area at
the edges of the entrance. Further, as a result of the ex-
cavation performed by Detroit Edison around November
9, the Metz & Wieand reserve sign had been moved to a
point some 30 feet west of entrance No. 2; i.e., farther
away from the secondaries' entrance. If Respondents se-
riously wanted to limit the picketing to Metz & Wieand,
the logical place to picket was at entrance No. 2. If a
larger area was deemed advisable, the picketing should
have extended west toward the Metz & Wieand sign,
rather than to the east toward the Monolith entrance.
It is not a sufficient answer to point to the fact that the
picket signs identified Metz & Wieand as the target. 9
The four criteria in Moore Dry Dock are in the conjunc-
tive; all four must be met.
I" Although it has been noted above that the identification of Metz &
Wieand on the picket signs was less readily legible than the rest of the
signs, it is here assumed that the identification was adequate to meet the
Moore Dry lDckA requirement.
462
PLUMBERS LOCAL 388
Moore Dry Dock would he virtually nullified if unions
were free to picket at any part of a jobsite other than the
one gate reserved for the primary employer. Moore Dry
Dock must be construed in the light of the union's over-
all obligation to conduct its activities with the minimum
possible effect on the secondaries. By picketing along an
unposted area up to the very edge of the secondaries'
gate, Respondents clearly violated that underlying obli-
gation.
On all the evidence, I find and conclude that on and
after November 6 Respondents engaged in unlawful sec-
ondary picketing at the Howell. Michigan, jobsite.
5. The Hartland jobsite
a. The threat
I have previously credited Bergau's testimony that on
November I Griffith stated that the Union was going to
try to close the job down because of the presence of
"scab plumbers" and Kinchloe said that they would shut
the job down because of Metz & Wieand's presence.
Bergau then asked Griffith and Kinchloe to withhold
such action until Monday, November 5. Although Grif-
fith and Kinchloe made no reply, picketing did not com-
mence until Monday morning. At that time Bergau reas-
signed his employees to another jobsite.
Griffith did not content himself with saying that he in-
tended to picket Metz & Wieand. Had that been the case,
Featherly would at least have had the option to protect
the job by establishing reserve gates, as it eventually did
after picketing commenced on November 5. The brief
history of the matter warrants the inference of a mutual
understanding that Griffith was threatening shutdown of
the job by whatever action, fair or foul, was necessary.2 0
It is a fair inference that Bergau withdrew Featherly's
employees from the job on November 5 in return for Re-
spondents' having postponed the picketing to that date
upon Featherly's request.
Accordingly, I find that on November I Griffith
threatened Featherly with future action for the purpose
of causing Featherly to cease doing business with Metz
& Wieand. There was no indication that Respondents in-
tended to limit their activity to primary picketing of
Metz & Wieand.
The complaint alleges that Griffith and Kinchloe
"threatened . . . that Respondents would picket the
Hartland jobsite." Notice of intention "to picket" would
not in itself necessarily violate the Act, since it might
well be presumed that the Respondents would engage in
lawful picketing and were merely giving Featherly an
opportunity to restrict the picketing by establishing a re-
served gate for Metz & Wieand. However, a threat to
try to close the job down without specifying the means
to be employed could not be construed in such a limited
way.
2D Local 388 recognizes the important difference between a threat to
picket and one to shut a job doswn In its brief, it states "There is no
doubt that where picketing is i technical compliance ith More Dry
Dock, an unlawful object may still he disclosed by statements of union
agents or other probative evidence In the instant case. with regard to the
Howell jobsite there were no threats to shut down the jobsiie"
But the allegation of the complaint, though inadequate,
was sufficient to put Respondents on notice that Grif-
fith's and Kinchloe's statements at the Hartland jobsite
on November I were in issue. The threat was fully liti-
gated. Thus, I find that Local 388 and the Council vio-
lated the Act by threatening to close the Hartland job
down because of Metz & Wieand's presence.
b. The picketing
The picketing at the Hartland site on November 5 pre-
ceded the establishment of reserved gates. Although, as
previously noted, the picket signs left something to be
desired, they did identify the primary employer. While
Bergau did keep Featherly employees off the job on that
day, it cannot be said that such action was coerced by
threats or requests by Respondents' representatives. In
the absence of reserved gates, it cannot be found that the
picketing on November 5 violated the Act.
The complaint also alleges that the Act was violated at
the Hartland site on November 7. However, there is no
evidence of any picketing on that day. The only relevant
evidence is Featherly's testimony that he saw Kinchloe
in his car at the Featherly entrance (No. 1) and later on
the road in the vicinity of the unmarked entrance (No.
2). It does not appear that there was any picket sign on
the car, or that Kinchloe left his car or spoke to any em-
ployees or other persons connected with the construc-
tion. Accordingly, I find that the General Counsel has
failed to establish any violation at the Hartland jobsite on
November 7.
The evidence, however, clearly establishes a violation
on November 6. Bergau credibly testified that he had
seen Griffith and another picket at entrance No. 1, which
was reserved for neutrals. Indeed, Griffith in effect con-
ceded that the picketing on November 6 was unlawful.
testifying that he so indicated to the pickets. So far as it
appears, however, Griffith did not order the pickets to
cease picketing and the picketing continued.
Because the picketing was minor on November 6 and
there was none thereafter, it might well be considered
"isolated" and thus not to warrant a remedial order.
However, it must be viewed along with Respondents'
other conduct, namely, its picketing at the Howell site at
the same time, and in connection with the same labor
dispute with Metz & Wieand. Accordingly, I find that
the picketing at the Hartland site on November 6 violat-
ed Section 8(b)(4) of the Act.
CONCLUSIONS OF LAW
1. Metz & Wieand is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
and Section 8(b)(4) of the Act.
2. United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United
States and Canada, Local 388, AFL-CIO, Michigan
State Building and Construction Trades Council, AFL-
CIO (the Council), and International Union of Bricklay-
ers, Masons and Plasterers of America, Local 14, AFL-
CIO, are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By threatening on November 1, 1979, to shut down
a construction job for the McPherson State Bank in
Hartland, Michigan, in furtherance of a dispute with
Metz & Wieand, Plumbers Local 388 and the Council
violated Section 8(b)(4)(i) and (ii)(B) of the Act.
4. By picketing on November 6, 1979, at an entrance
reserved for Charles Featherly Construction Co. and its
employees, suppliers, subcontractors, and visitors at a
construction job for the McPherson State Bank in Hart-
land, Michigan, Plumbers Local 388 and the Council vio-
lated Section 8(b)(4)(i) and (ii)(B) of the Act.
5. By picketing on and after November 6, 1979, at an
entrance reserved for Monolith Construction Co., Inc.,
and its employees, suppliers, subcontractors and visitors,
at a construction job for Radio Station WHMI in
Howell, Michigan, in furtherance of a dispute with Metz
& Wieand, Plumbers Local 388 and the Council violated
Section 8(b)(4)(i) and (ii)(B) of the Act.
6. The aforesaid violations of the Act are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. It has not been shown that International Union of
Bricklayers, Masons and Plasterers of America, Local 14,
AFL-CIO, has engaged in any unfair labor practices.
THE REMEDY
Having found that Plumbers Local 388 and the Coun-
cil have engaged in and are engaging in unfair labor
practices in violation of Section 8(b)(4)(i) and (ii)(B) of
the Act, I shall recommend that they be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
In addition to a general cease and desist order prohib-
iting Respondents from engaging in threatening, coer-
cive, and restraining conduct, the complaint requests that
Respondents be prohibited from:
For a reasonable period of time, picketing at or
in the vicinity of the premises of the Howell jobsite
or Hartland jobsite, or at or in the vicinity of the
premises of any other person engaged in commerce
The statute, however, expressly reserves to unions the
fundamental right to engage in primary picketing. It
need not be decided here whether, as part of a remedial
order, unions and/or employees may lawfully be denied
such right. Suffice it to say that, while it has here been
found that Plumbers Local 388 and the Council have en-
gaged in unlawful secondary picketing, their misconduct
has not been so egregious or pervasive as to warrant the
drastic remedy of a prohibition of lawful picketing. The
remedy so sought would give both the primary and the
secondary employers complete immunity from being
picketed without any requirement that they take neces-
sary steps to protect their own interests. Accordingly, I
shall limit my recommended Order to the type usually
issued. It will be patterned on that issued in Plumbers
Local 48 (Calvert General Contractors, Inc.), 249 NLRB
1183, the most recent board Decision under Section
8(b)(4) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2
The Respondents, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, Local 388, AFL-
CIO, and Michigan State Building and Construction
Trades Council, AFL-CIO, their officers, agents, and
representatives, shall:
1. Cease and desist from:
Threatening, coercing, or restraining persons engaged
in commerce or in an industry affecting commerce, or in-
ducing and encouraging employees of persons engaged
in commerce or in an industry affecting commerce to
refuse in the course of their employment to perform
services, where an object thereof is to force or require
such persons or employees to cease doing business with
Metz & Wieand at construction projects for the McPher-
son State Bank in Hartland, Michigan, and for Radio
Station WHMI in Howell, Michigan.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Post at their business offices and meeting halls
copies of the attached notice marked "Appendix." 22
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by Plumb-
ers Local 388's and the Council's authorized representa-
tives, shall be posted by Respondents immediately upon
receipt thereof, and be maintained by them for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondents
to ensure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is dismissed insofar as it alleges unfair labor prac-
tices committed by International Union of Bricklayers,
Masons and Plasterers of America, Local 14, AFL-CIO.
I2 In the event no exceptions are filed as prvided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
22 In the event that 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 Pursu-
ant to a Judgment of the United States court of Appeals Enforcing an
Order of the National Labor Relations Board."
464