Construction & General Laborers Union, Local 304, Laborers International Union of North America (Athejen Corporation)

National Labor Relations Board - Board Decisions

Mar 30, 1982

260 N.L.R.B. 1311 (N.L.R.B. 1982)

CONSTRUCTION & GENERAL LABORERS LOCAL 304
Construction & General Laborers Union, Local 304,
Laborers International Union of North America
and Athejen Corporation. Case 32-CC-433
March 30, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On August 17, 1981, Administrative Law Judge
Roger B. Holmes issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, but
not to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Construction & General Laborers Union, Local
304, 'Laborers International Union of North Amer-
ica, Emeryville, California, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual em-
ployed by Frank Electric, California Air, Asteeco
Steel, Kaiser Concrete, Jesto, Nelson Company, or
any other person engaged in commerce or in an in-
dustry affecting commerce, to engage in a strike or
a refusal in the course of employment to use, man-
ufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commod-
ities or to perform any services where an object
thereof is to force or require the said persons, or
any other person, to cease using, selling, handling,
transporting, or otherwise dealing in the products
of, or to cease doing business with, Athejen Corpo-
ration.
(b) Threatening, coercing, or restraining Frank
Electric, California Air, Asteeco Steel, Kaiser Con-
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings.
' In lieu of the Administrative Law Judge's recommended Order, we
will issue an Order which reflects more precisely the language tradition-
ally used in remedying the violations found herein.
260 NLRB No. 177
crete, Jesto, Nelson Company, or any other person
engaged in commerce or in an industry affecting
commerce, where an object thereof is to force or
require said persons to cease using, selling, han-
dling, transporting, or otherwise dealing in the
products of, or to cease doing business with, Athe-
jen Corporation.
2. Take the following affirmative action neces-
sary to effectuate the policies of the National
Labor Relations Act, as amended:
(a) Post at its office and meeting halls copies of
the attached notice marked "Appendix." 3 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 32, after being duly signed by its
authorized representative, shall be posted by Con-
struction & General Laborers Union, Local 304,
Laborers International Union of North America,
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where no-
tices to members are customarily posted. Reason-
able steps shall be taken by Construction & Gener-
al Laborers Union, Local 304, Laborers Interna-
tional Union of North America, to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Sign and return to said Regional Director
sufficient copies of the attached notice marked
"Appendix" for posting by Frank Electric, Califor-
nia Air, Asteeco Steel, Kaiser Concrete, Jesto, and
Nelson Company, if willing, in conspicuous places,
including all places where notices to their employ-
ees are customarialy posted.
(c) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
MEMBER JENKINS, dissenting:
Contrary to my colleagues, I would find that Re-
spondent did not violate Section 8(b)(4)(i) and
(ii)(B) of the Act by picketing, in the course of its
primary dispute with Athejen, the separate gate re-
served for employees of the subcontractors Athe-
jen had engaged to aid it in performing the con-
struction work it was obligated to complete. Ac-
cordingly, I would dismiss the complaint in its en-
tirety.
Athejen is engaged in the building and construc-
tion industry as a general contractor. At all times
relevant to this case, Athejen has been engaged in
3 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 L[ahor 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."
1311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the construction of a building for the Bank of
America in Emeryville, California. Athejen's own
employees-nonunion carpenters whose numbers
varied between three and six-performed certain
work on the building. All other work on the build-
ing, as well as the demolition of an old building ad-
jacent to the construction site and installation of a
parking lot in its place, was performed by approxi-
mately 25 subcontractors retained by Athejen.
On October 23, 1980,4 one of Respondent's rep-
resentatives indicated in conversation with Peter
Dayak, Athejen's field superintendent, that Re-
spondent intended to picket the jobsite. In re-
sponse, on October 24 Dayak installed two sepa-
rate gates at the construction site. Gate I was re-
served for Athejen's employees and suppliers; gate
2 was reserved for Athejen's subcontractors and
their employees and suppliers. At various times, as
set forth in the Administrative Law Judge's Deci-
sion, Respondent and other unions picketed both
gates. All of the picket signs utilized by Respond-
ent clearly indicated that the primary disputant was
Athejen. The Administrative Law Judge found,
and my colleagues agree, that Respondent's picket-
ing at gate 2 was secondary in nature and thus vio-
lative of Section 8(b)(4)(B) of the Act, relying on
Moore Dry Dock Company ' and Malek Construction
Co. 6
I continue to adhere to my view that General
Electric Company7 and Carrier Corporation8 require
the Board to apply the "related work" tests to
"separate gate" picketing on a common situs. As
Member Fanning and I have argued in our dissents
since Markwell and Hartz,9 the General Electric-
Carrier tests were intended by the Supreme Court
to be of general applicability to all industries, in-
cluding the construction industry. See Malek Con-
struction Co., supra (dissenting opinion), and cases
cited therein. As we stated in Malek Construction,
"[t]he tests enable the Board to distinguish between
primary picketing, which is protected by the provi-
so to Section 8(b)(4)(B), and secondary picketing
proscribed by that section." Id.
As was true in Malek Construction, there can be
no dispute but that Athejen was engaged in its
normal operations with employees from the build-
ing and construction trades, that Athejen subcon-
'Unless otherwise noted, all dates are 1980.
'Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547 (1950).
a Sacramento Area District Council of Carpenters. United Brotherhood of
Carpenters & Joiners of America, AFL-CIO (Malek Construction Co.), 244
NLRB 890 (1979).
7 Local 761, Inrernational Union of Electrical, Radio & Machine Workers.
AFL-CIO [General Electric Company] v. N.LR.B., 366 U.S. 667 (1961)
' United Steelworkers of America, AFL-CIO, et al. [Carrier Corporation]
v. N.LR.B., 376 U.S. 492 (1964).
g Building and Construction Trades Council of New Orleans. AFL-CIO
(Markwell and Hartz Inc.), 155 NLRB 319 (1965).
tracted portions of the work involved to other em-
ployers in the construction trades, that the work
performed by employees of the 25 subcontractors
present at the site was closely related to Athejen's
"normal operations," and that the work of the sub-
contractors was such that Athejen's normal oper-
ations would be very shortly or immediately cur-
tailed if the subcontractors ceased work. Accord-
ingly, I would find that the General Electric "relat-
ed work" tests have not been met in this case, and
that Athejen's installation of separate gates may not
be used to bar appeals from Respondent to employ-
ees of Athejen's subcontractors for those employ-
ees to observe Respondent's picket line. In sum, I
find that Respondent's picketing is primary in
nature and protected by the proviso to Section
8(b)(4)(B) of the Act. Thus, I would dismiss the
complaint.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any indi-
vidual employed by Frank Electric, California
Air, Asteeco Steel, Kaiser Concrete, Jesto,
Nelson Company, or any other person en-
gaged in commerce or in an industry affecting
commerce, to engage in a strike or a refusal in
the course of employment to use, manufacture,
process, transport, or otherwise handle or
work on any goods, articles, materials, or com-
modities or to perform any services where an
object thereof is to force or require the said
persons, or any other person, to cease using,
selling, handling, transporting, or otherwise
dealing in the products of or to cease doing
business with, Athejen Corporation.
WE WILL NOT threaten, coerce, or restrain
Frank Electric, California Air, Asteeco Steel,
Kaiser Concrete, Jesto, Nelson Company, or
any other person engaged in commerce or in
an industry affecting commerce, where an
object thereof is to force or require said per-
sons to cease using, selling, handling, trans-
porting, or otherwise dealing in the products
of, or to cease doing business with, Athejen
Corporation.
CONSTRUCTION & GENERAL LABOR-
ERS UNION, LOCAL 304, LABORERS
INTERNATIONAL UNION OF NORTH
AMERICA
1312
CONSTRUCTION & GENERAL LABORERS LOCAL 304
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge: Based
upon an unfair labor practice charge filed on December
1, 1980, by Athejen Corporation, the General Counsel
issued on December 10, 1980, a complaint alleging viola-
tions of Section 8(b)(4)(i) and (ii)(B) of the National
Labor Relations Act, as amended, by Construction &
General Laborers Union, Local 304, Laborers Interna-
tional Union of North America.
The hearing was held on June 18, 1981, at Oakland,
California. The due date for the filing of post-trial briefs
was set for July 16, 1981.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Board's jurisdiction in this case is an issue to be
resolved. Athejen Corporation is engaged in the building
and construction industry as a general contractor. It has
an office in San Ramon, California. As will be discussed
more fully later herein, Athejen Corporation has been
engaged since mid-October 1980 in the construction of a
building for the Bank of America at 43d Street and San
Pablo Avenue in Emeryville, California. During Novem-
ber and December 1980, Athejen Corporation received
in excess of $50,000 from the Bank of America as partial
payment for its construction of a new bank building.
Bank of America is engaged in providing banking
services to its customers. The bank received revenues in
excess of $500,000 during the 12 months prior to the
hearing date, and the bank annually has transmitted
funds in excess of $1 million from its offices in California
to places outside the State. The Board previously has as-
serted its jurisdiction over the substantial operations of
the Bank of America. See, for example, Bank of America
National Trust and Savings Association, 196 NLRB 591
(1972). See also the Board's Decisions involving the same
bank reported at 174 NLRB 101 (1969) and 174 NLRB
298 (1969).
In view of the foregoing, and the entire record herein,
I find that Athejen Corporation meets the Board's indi-
rect outflow jurisdictional standard, and that Athejen
Corporation is an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act. Siemons Mailing Service,
122 NLRB 81 (1958).
The status of the Respondent Union as a labor organi-
zation within the meaning of Section 2(5) of the Act was
admitted.
II. ALLEGED UNFAIR LABOR PRACTICES
1. The witnesses and credibility resolutions
Two persons were called as witnesses during the hear-
ing of this proceeding. They are: Matthew J. Hansen,
who has been the president and the secretary of Athejen
Corporation for approximately 2 years, and Peter M.
Dayak, who has been the field superintendent of the em-
ployer for the past 4 years.
The findings of fact to be set forth herein will be
based upon the testimony given by Hansen, portions of
the testimony given by Dayak, and upon documentary
evidence introduced by the parties at the hearing. I
found both Hansen and Dayak to be credible witnesses,
notwithstanding the fact that the cross-examination of
Dayak by the attorney for Respondent revealed some
imperfections in Dayak's recollections on the witness
stand. Some of those matters will be discussed below.
However, as the counsel for the General Counsel points
out, Dayak's testimony stands on the record uncontra-
dicted and uncontroverted by any other witness. Dayak
was on the witness stand for the majority of the hearing
day, and his testimony covered numerous events. In
many instances, his answers to the questions being put to
him during cross-examination by the attorney for Re-
spondent were not responsive to the question being
asked, and that practice tended to prolong the duration
of his time on the witness stand. However, I do not be-
lieve that Dayak was fabricating his testimony, and I will
base many findings of fact upon the portions of his testi-
mony which appear to be accurate and reliable recollec-
tions of these past events. See, for example, the Board's
Decision in Krispy Kreme Doughnut Corp., 245 NLRB
1053, fn. 1 (1979).
During the course of his cross-examination, Dayak was
extensively questioned regarding his job diaries. Some of
those job diaries were introduced into evidence as Re-
spondent's Exhibits 3, 4, 5, and 6. At first, the documents
appeared to be inconsistent with portions of Dayak's tes-
timony, but his explanations regarding the nature of his
job diaries served to clarify the matter. He described his
diaries as being notes which he made on a daily basis.
However, he indicated that those notes were not com-
plete. For example, when he was questioned as to wheth-
er he had made entries in his job diaries regarding per-
sons who were picketing to show who was there, and
when they were there, Dayak explained: "Pretty much,
due to the fact, you know, in a job diary you can't write
everything down. I've got a job to run too. But to the
best of my knowledge, I try to at least make a little note
in there, two pickets one day, or whatever it is, one at
each gate or something of that nature." In addition,
Dayak indicated at the hearing that the pickets would
"drift" from one gate to another. Thus, even though his
job diary would indicate that a picket was at a certain
gate, that did not mean that the picket remained station-
ary throughout the workday at that particular gate. His
explanations in that regard seemed believable.
During the pretrial phase of the proceeding, Dayak
gave a total of 6 affidavits to various agents of Region 32
of the Board on different occasions. Two of those pre-
trial affidavits were introduced into evidence for im-
peachment purposes as Respondent's Exhibits I and 2.
The parties stipulated that in none of those six affidavits
did Dayak state that the pickets were employed by the
Respondent Union, Frank Savoy, or anyone else. I have
weighed that omission from his pretrial affidavits along
with the other matters mentioned herein.
At first, there was a conflict between Dayak's hearing
testimony and his pretrial affidavit which he had given
1313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on December 2, 1980. Dayak at first denied that a sub-
contractor named Nelson had told him that deliveries
could not be made without approval of the Teamsters
union. However, after he was confronted with his affida-
vit, Dayak acknowledged on the witness stand that
Nelson had so informed him.
Dayak also acknowledged that an error had been
made in the affidavit which he had given on December
11, 1980, to an agent for Region 32 of the Board. (See
Resp. Exh. 1.) In his affidavit, Dayak stated, "The text
of the sign at Gate #3 is attached and labeled Exhibit
#1." At the hearing, Dayak corrected that to state that
there was no gate number 3 at the jobsite. Apparently,
what had happened was that the numbers given in that
sentence of the affidavit were reversed. Exhibit 3 at-
tached to the affidavit purports to show the language on
the sign at gate number 1. Thus, the reference in the affi-
davit should have been to gate number 1 and Exhibit 3
attached to that affidavit.
In that same affidavit, there at first appeared to be a
conflict between the statement in the affidavit and
Dayak's testimony on the witness stand regarding the
cessation of picketing by persons who carried Laborers
union picket signs. In his affidavit, Dayak stated, "On
December 10, 1980, picketing of Gate #2 by persons car-
rying picket signs bearing 'Laborers Local 304' ceased."
At the hearing, Dayak testified that such picketing did
not cease on December 10, 1980. Upon reflection, how-
ever, what had initially appeared to be a conflict was ex-
plained by the fact that his affidavit had been given on
December 11, 1980. Thus, that statement in his affidavit
only covered the situation as it existed at that point in
time.
Dayak also acknowledged during cross-examination by
the attorney for the Respondent that there was an omis-
sion in his affidavit which he had given on December 16,
1980. The omission was the fact that the persons with
Laborers picket signs always had two signs.
With regard to the remarks which Dayak attributed to
one of the employer's attorneys about the NLRB, I be-
lieve that was simply a misunderstanding. It would seem
to be an unlikely and improbable misrepresentation by an
attorney in private practice. While Dayak maintained his
certainty of the remarks, I believe this was more likely
to be a failure of communication between the persons in-
volved.
During the cross-examination of Dayak by the attor-
ney for Respondent, Dayak revealed that another em-
ployee of Athejen was present when he had a conversa-
tion at the jobsite on October 23, 1980, with two persons
whom he believed to be representatives of the Respond-
ent Union. The conversation will be described in section
2 herein. The name of the Athejen employee is Charles
Copland. Copland was not called as a witness by any
party. In the circumstances presented here, I have decid-
ed not to apply what has been referred to as the "missing
witness" rule. See, for example, Martin Luther King, Sr.,
Nursing Center, 231 NLRB 15, fn. 1 (1977). As has been
pointed out above, Dayak's testimony was not contro-
verted by any other witness, and, thus, his version of the
events on October 23, 1980, remains undenied. In addi-
tion, Copland appears to fall into the category of a wit-
ness who would be available, by subpena if necessary, to
all parties. In Hitchiner Manufacturing Company, 243
NLRB 927 (1979), the Board held at 927:
At the outset, we note that the Administrative
Law Judge erred in drawing an adverse inference
against the General Counsel for not calling Schulte
as a corroborating witness. Thus, Schulte was
equally available to Respondent to refute Henning-
feld's testimony as she was to the General Counsel
to corroborate it, but Respondent also failed to call
the witness. In such circumstances, we have con-
cluded no inference should be drawn. See Atherton
Cadillac Inc., 225 NLRB 421, 422, fn. 3 (1976).
Having considered the foregoing matters, and the ar-
guments advanced by the attorneys, I have accepted
Dayak's testimony given at the hearing, and I will rely
upon portions of his testimony in making many of the
findings of fact.
2. The events prior to November 25, 1980
Some of the matters to be set forth in this section also
continued during the time period covered by section 3
since the building was still under construction until the
middle of March 1981. However, the date of November
25, 1980, provides a convenient reference point in relat-
ing the facts in view of the change in the location of gate
number 2 at that time, and the fact that the earliest date
on which the General Counsel alleges that unfair labor
practices occurred was on or about November 26, 1980.
As pointed out above, Athejen Corporation, which is
the primary employer herein, has been engaged in the
construction of a building for the Bank of America. The
jobsite is located at 43d Street and San Pablo Avenue in
Emeryville. Construction of the new structure began on
October 15, 1980, and the new building was not complet-
ed until mid-March 1981. In addition to constructing the
new bank building, the employer also has the job of re-
moving the old building adjacent to the construction job-
site, and putting in a parking lot where the old building
once stood. The general superintendent on the job is
Dayak, who usually works 5 days a week from 7:30 a.m.
to 4:30 p.m. Periodically during the construction of the
new building, Dayak left the jobsite at noon in order to
check on the progress of one or two other smaller con-
struction jobs which the Employer had undertaken.
Dayak said that the other jobs were about 10 minutes
away from the jobsite in question here, and he estimated
that he was away from the jobsite only about I percent
of his worktime.
Athejen had its own employees on the construction
site. They were a crew of carpenters, and their number
varied from three to six persons. It was admitted in the
pleadings that Respondent has been engaged in a primary
labor dispute with Athejen.
In addition to its own employees, Athejen subcontract-
ed various work to certain subcontractors. One of those
subcontractors was Frank Electric, which performed the
electrical construction work on the jobsite. Dayak ex-
plained, "They have to run the building. They have to
run all the lines, do all the conduits, build the panels, run
1314
CONSTRUCTION & GENERAL LABORERS LOCAL 304
light fixtures." Frank Electric's employees also installed
a temporary power pole on the jobsite. Dayak testified,
"Well the power poles were put out because [before] any
of the gates were even installed." (It seems logical from
the context that Dayak meant to say "before" rather
than "because" in that sentence.) Pacific Gas & Electric
Company, which is a public utility, furnished the electri-
cal current to the project. (See G.C. Exh. 6, which is
marked as to the location where the electrical power
enters the jobsite.) Dayak said, "At that time, it was way
before any pickets of any nature." Of the 25 subcontrac-
tors who worked on the project, Dayak estimated that
the majority of those subcontractors plugged into the
temporary power pole. Some of the subcontractors uti-
lized their own generating equipment.
Other subcontractors on the project included Califor-
nia Air, which did the sheet metal work; Asteeco Steel,
which performed the steel and rebar work; Kaiser Con-
crete, which supplied the concrete; Jesto, which did the
concrete finishing; Nelson, which did the lathing and
plastering, and ZZZ Sanitation, which supplied the sani-
tation facilities on the jobsite. With regard to the em-
ployees of ZZZ Sanitation, Dayak said that they came to
the project "maybe a couple of times" during the picket-
ing, and that they used gate number I. Dayak said that
the sanitation facilities were used by Athejen employees.
Those facilities were the only portable facilities on the
jobsite, and Dayak imagined that employees of subcon-
tractors were welcome to use those facilities, but he did
not know whether they did so. The old bank and a
nearby restaurant and service station also had restroom
facilities.
On October 23, 1980, Dayak was in Athejen's trailer at
the jobsite when he observed two men approach two
Athejen employees on the project. At that time Dayak
walked out of the trailer and went toward the men.
Dayak overheard the two men ask to see the cards of
the two Athejen carpenters. The carpenters responded
that the two men should see Dayak.
Dayak then asked the two men if he could help them,
and they replied that they were asking his employees for
their cards. Dayak told them, "We are a non-union
shop." Dayak once again asked the two men if he could
help them, and he also asked if they had a business card.
One of the two men said his name was Frank Savoy, and
he gave Dayak a business card.
A copy of the business card, which was given to
Dayak on that occasion by the person who had identified
himself to Dayak as being Frank Savoy, was introduced
into evidence as General Counsel's Exhibit 2. Among
other things, such as the Respondent Union's name, the
printing on the card shows, "Frank Savoy" and under-
neath that name, "President/Field Representative." In
addition to that business card, Dayak recalled at the
hearing that the person who identified himself as Frank
Savoy also showed another card to Dayak on that occa-
sion. The other card was covered in plastic. Dayak could
not recall the words on that card, but he said that the
card indicated that Frank Savoy was a union representa-
tive from Local 304. Furthermore, sometime earlier per-
haps as long as I or 2 years prior to October 23, 1980,
Frank Savoy had introduced to recall on the witness
stand the circumstances surrounding his earlier to Dayak
at that time at another jobsite location. Dayak was
unable to recall on the witness stand the circumstances
surrounding his earlier meeting of the man who had in-
troduced himself as being Frank Savoy.
Returning now to the conversation which took place
at the jobsite on October 23, 1980, the man who said he
was Frank Savoy asked Dayak why Dayak did not have
a laborer on the job. Dayak answered that the job was
too small to warrant a full-time laborer working on that
job, and that Dayak could not keep a laborer busy
enough to work a full day's job every day. The other
man identified himself as Henry Jones, and he informed
Dayak, "We'll see about that. We'll picket this job." The
man who had identified himself as Frank Savoy said,
"Yes, we will."
As a result of the foregoing conversation, Dayak in-
stalled two separate gates at the construction site on Oc-
tober 24, 1980. As mentioned above, Dayak had a trailer
at the jobsite. That trailer was situated in a parallel posi-
tion with 43d Street and about midway between the
bounds of the jobsite on 43d Street. Gate number I was
established on the jobsite at 43d Street about 30 feet
from the end of the trailer which was furtherest from the
intersection of 43d Street and San Pablo Avenue. Gate
number 2 was established on the jobsite at 43d Street
about 6 to 10 feet from the opposite end of the trailer
which was closest to the intersection of 43d Street and
San Pablo Avenue. The two gates were approximately
50 feet apart. Dayak testified that he and the Athejen
employees only used gate number I, and that the subcon-
tractors and their employees used gate number 2.
As will be described in the next section, the location
of gate number 2 was changed on November 25, 1980.
Subsequently, photographs were taken of both gates as
they existed on December 2, 1980. (See G.C. Exh. 4(a),
(b), and (c.).) The wording on the signs, which are de-
picted in the photographs, did not change, and the signs
remained for the duration of the picketing.
The wording on the sign at gate number 1 was:
NOTICE
GATE # 1
THIS GATE RESERVED FOR
THE EXCLUSIVE USE OF
ATHEJEN
CORP.
THEIR EMPLOYEES AND
SUPPLIERS ONLY
ALL OTHERS USE GATE #2
NO ACCESS WITHOUT WRITTEN
PERMISSION BY GEN. CONTRACTOR
CALL
The wording on the sign at gate number 2 was:
1315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTICE
GATE # 2
THIS GATE RESERVED FOR
THE EXCLUSIVE USE OF ALL
CONTRACTORS, SUBCONTRACTORS,
a THEIR EMPLOYEES & SUPPLIERS
EXCEPT FOR THE FOLLOWING
CONTRACTORS
ATHEJEN
CORP.
THEIR EMPLOYEES AND
SUPPLIERS MUST USE
GATE # I ONLY
NO ACCESS WITHOUT WRITTEN
PERMISSION OF GEN. CONTRACTOR
CALL
3. The events on November 25, 1980, and thereafter
On November 25, 1980, Athejen relocated gate
number 2 from 43d Street to a location on San Pablo
Avenue near the wall of the old bank building. (See the
diagram of the construction site which was introduced
into evidence as G.C. Exh. 6. See also the photographs,
which were referred to in sec. 2 herein, and which were
introduced into evidence as G.C. Exhs. 4(b) and 4(c).)
The reason for moving the location of gate number 2 to
San Pablo Avenue was to make feasible the pouring of
concrete for the sidewalk at the project.
Gate number 1 remained in the same location which
has been described in section 2 herein. The Athejen trail-
er also remained in the same location as was described
earlier. There was no change in any gate location after
November 25, 1980, but a cyclone wire fence was in-
stalled about November 25, 1980, around the perimeter
of the construction project. As a result, gate number 1
had a swinging fence gate approximately 20 feet long,
and gate number 2 had a swinging fence gate approxi-
mately 10 feet long.
During the first week after November 25, 1980, Dayak
again observed the person, who had identified himself to
Dayak as Frank Savoy, at the jobsite. At that time
Dayak saw that person talking with people at the jobsite
who were carrying picket signs with Respondent's name
on the signs. Dayak said that the person whom he be-
lieved to be Frank Savoy visited the jobsite "periodical-
ly" until the construction was completed in mid-March
1981. (The General Counsel does not allege that any
unfair labor practices were committed after March 13,
1981.)
Commencing on December 10, 1980, persons who car-
ried picket signs with the Carpenters union's name ap-
peared at the jobsite. According to Dayak, their picket
signs stated, "Athejen failed to pay wages and benefits
established in this area, Carpenters Local 194." In con-
trast, Dayak said the picket signs with Respondent's
name on them said, "Athejen unfair, Laborers Local
304." At one time Dayak also saw picket signs without
any union's name or number on the signs. Dayak ac-
knowledged at the hearing that on some days, when it
rained, there were no persons walking with picket signs
at the jobsite, but he said that sometimes he saw persons
sitting in a car with a sign tied to the front of the car.
Sometimes Dayak also observed that picket signs had
been placed on safety cones and positioned next to the
fence at the jobsite. Sometimes he saw picket signs tied
onto barricades.
The job diaries maintained by Dayak have previously
been referred to in section 1. (See the findings of fact
therein which need not be repeated here.) Although his
job diaries indicate that pickets were at certain gates,
Dayak said that pickets would "drift" from one gate to
another. For example, Dayak said with regard to picket
signs he observed at gate number 2, "Well, at times
when at Gate number 2, when anybody approached,
they would go down there to Gate number 2. Sometimes
put them in a cone, tied them to a fence, whatever was
necessary." Dayak also stated, "Any time a subcontrac-
tor was approaching Gate number 2 to come through the
neutral gate, they would run down there and approach
them, either say something to them verbally, or conduct
waving or standing in front of them so they couldn't
come on to the project." As indicated before in section 1
herein, I found Dayak's explanation regarding the entries
in his job diaries to be believable, and that his notations
in his diaries did not mean that the pickets remained all
day at a particular gate.
At the hearing, Dayak was questioned extensively
with regard to his job diary entries on specific dates, and
his recollections regarding those dates. With regard to
November 25, 1980, Dayak said that there was one
picket at gate number 1 and one picket at gate number 2.
He acknowledged that there was no reference in his job
diary as to whether those pickets were carrying Laborers
picket signs or Carpenters' picket signs, but, as indicated
above, the persons who carried Carpenters picket signs
did not commence picketing until December 10, 1980.
With regard to November 26, 1980, Dayak observed
two persons with picket signs with the Respondent's
name on them. They were standing at the corner of 43d
Street and San Pablo Avenue. They walked "almost all
the way to the Gates." A copy of his job diary for No-
vember 26, 1980, was introduced into evidence as Re-
spondent's Exhibit 6. It indicates, "pickets all day, stand-
ing at corner of 43rd Avenue, not near any Gates." The
two persons told Dayak that they were employed by
"Frank Savoy, Laborers Union."
On December 3, 1980, there were pickets at both gate
number I and gate number 2. However, employees of
Asteeco Steel, who were ironworkers, entered the jobsite
through gate number 2.
On December 9, 1980, Dayak noted in his diary that
there was one picket with a Laborers sign at gate
number I.
On December 11, 1980, Dayak noted one Laborers
picket at gate number I and Carpenters picket at gate
number 2. He further noted that the Carpenters business
agent visited the jobsite on that date.
On December 15, 1980, Dayak noted that there was
one Laborers picket at gate number I and a Carpenters
picket at gate number 2. He said at the hearing that a Pa-
cific Gas & Electric Company employee delivered a new
1316
CONSTRUCTION & GENERAL lABORERS LOCAL 304
cover for a gas box on that date and that the employee
left it outside the construction project.
With regard to December 16, 1980, Dayak acknowl-
edged at the hearing that he had noted in his job diary
that there was one Laborers picket at gate number I
only. However, he testified that, while the Laborers
picket started at gate number I on that day, the picket
"drifted" to gate number 2. In his pretrial affidavit,
which he had given on December 23, 1980, Dayak
stated:
Beginning Tuesday, December 16, 1980, Laborers
304 has had pickets and signs at Gate no. I and a
sign leaning against Gate no. 2. When a supplier ar-
rives, the pickets walk from Gate #1 to #2.
At the time this affidavit is being taken, there are
two pickets at Gate no. 1. One for the Laborers and
one for the Carpenters. There is a Laborers picket
sign at Gate #1 and a Carpenters sign at Gate #2.
Subsequently in that same affidavit, Dayak also stated,
"The Laborers and Carpenters have been picketing Gate
no. 2 at different times so far this week."
On December 19, 1980, Dayak noted in his job diary,
"Picket at Gate #1. Signs at both Gates." Above the
word "Picket" is written in different ink the word "La-
borer." Dayak said that the latter notation was made the
same day in his diary. (See Resp. Exh. 3.)
On December 22, 1980, Dayak noted that the person
carrying a Laborers picket sign was at gate number 1.
On December 23, 1980, Dayak noted that there was a
Laborers picket at gate number I and a Carpenters
picket at gate number 2.
On December 24, 1980, Dayak noted that there was
one Laborers picket at gate number 1, and no other pick-
ets that day.
On December 26, 1980, Dayak noted that there were
no pickets. He said at the hearing that Athejen's six em-
ployees were the only ones who were working on the
jobsite that day.
On December 29 and 30, 1980, and on January 5, 6, 7,
8, and 9, 1981, Dayak noted each day in his diary that
there was one Laborers picket at gate number I and one
Carpenters picket at gate number 2.
On January 10, 1981, Dayak noted that there were no
pickets on that Saturday, although one person worked
on the jobsite.
On January 12 and 13, 1981, Dayak noted each day
that there was one Laborers picket at gate number I and
one Carpenters picket at gate number 2.
On January 14, 1981, Dayak noted that there was one
Laborers picket at gate number 1, and that the Carpen-
ters picket left gate number 2 at 8:30 a.m. and moved
their sign to gate number 1.
On January 15, 1981, Dayak noted that there was a
Laborers picket at gate number I only, and that there
were two Carpenters pickets at gate number I and gate
number 2.
On January 16, 1981, Dayak noted that there were no
Laborers pickets at all that day, and that there were only
Carpenters pickets at gate number 1 and gate number 2.
On January 19, 1981, Dayak noted that there were
two Carpenters pickets-one at gate number I and one
at gate number 2.
On January 23, 1981, Dayak noted "two Carpenter
pickets in cars. Signs on each Gate, number I and 2.
Pickets taking pictures of everyone coming into project."
There was no mention in his job diary of Laborers pick-
ets that day.
On January 26, 1981, Dayak noted that there was one
Laborers picket at gate number I only, and there was
one Carpenters picket at gate number I only.
During the period of time from January 28, 1981,
through February 4, 1981, Dayak observed persons with
the Respondent's picket signs at gate number I and "pe-
riodically at Gate number 2." He also noted that a Car-
penters picket was at gate number 2, and that Carpenters
business agents visited the jobsite and talked to some em-
ployees on both February 3 and 4, 1981.
On February 5, 1981, Dayak noted that there was one
Laborers picket at gate number 1.
On February 9, 1981, Dayak noted that there was one
Laborers picket at gate number I only, and that there
was one Carpenters picket at gate number I only.
On February 10, 1981, Dayak noted that there was
one Laborers picket at gate number 1, and that there
were two Carpenters pickets at gate number 1.
On February 11, 1981, Dayak noted that there were
two pickets at gate number I. He acknowledged at the
hearing that there was no entry in his job dairy for that
date regarding a Laborers' picket.
On February 12, 1981, Dayak noted that there were
no pickets at gate number 2.
On February 13, 1981, Dayak noted that there were
two pickets all day at gate number 1.
On February 17, 1981, Dayak noted that there were
two pickets all day at gate number I, and he acknowl-
edged at the hearing that there was no entry in his diary
for that date with regard to picketing at gate number 2.
On February 19, 1981, Dayak noted in his diary that
there was: "I-Labor 194" and "l-Picket Carp. walking
to San Pablo side again." (See Resp. Exh. 4. Note also
that the local number stated is the number of the Carpen-
ters local.)
On February 20, 1981, Dayak noted that there was
one Laborers picket and one Carpenters picket at gate
number 1.
On February 25, 1981, Dayak noted, "I-Carp. 304
Local" and also "Labor I-Pickets Gate #1, 194 Local."
Also, he noted, "(Carp.) left Wed. after off job." The
words "off job" are in a different ink or pencil. (Note
that the local numbers were reversed in the dairy en-
tries.)
On February 26, 1981, Dayak observed some law en-
forcement officers at the jobsite. He also saw a person
with Respondent's pickets sign at gate number 2 that
day. Dayak overheard a conversation between those two
persons near gate number 2 that day. Dayak said that he
was there "throughout the whole day."
On February 27, 1981, Dayak observed Laborers
picket signs at gate number 2, and he overheard persons,
who had Laborers picket signs with them at gate number
1317
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
2, speak to a driver in a delivery truck. He heard them
tell the truckdriver that he could not come onto the
project, or he would be fined. Dayak identified the
driver as being from the bank vault installation company.
Dayak said that the driver did not enter the jobsite.
On March 2, 1981, Dayak noted in his job diary,
"didn't see him myself today (Labor)."
111. CONCLUSIONS
Respondent urges that the General Counsel's three
amendments to his complaint during the hearing were
untimely made. (See, for example, the post-trial brief
filed by the attorney for Respondent.) As the attorney
for Respondent correctly points out, the General Coun-
sel's complaint in this case had issued on December 10,
1980, which was more than 6 months prior to the hear-
ing of June 18, 1981. The two lawyers differ, however,
in their recollections as to whether written notice had
been given, about 8 days prior to the hearing, with
regard to the General Counsel's intention to move to
amend his complaint regarding alleged commerce facts
and Frank Savoy's alleged union office and agency
status. The attorney for Respondent requests in his post-
trial brief that the rulings allowing the General Counsel
to make the three amendments be reversed, and that the
amendments not be allowed.
Two of the General Counsel's proposed amendments
were made at the outset of the hearing proceedings and
before any evidence was presented. Those amendments
pertained to commerce data and Frank Savoy. The third
amendment was proposed by the counsel for the General
Counsel later that morning of the hearing day during his
direct examination of his principal witness, Dayak.
Originally, the General Counsel in paragraph 2(c) of
his complaint had alleged commerce facts regarding Ath-
ejen based on an indirect inflow theory for asserting the
Board's jurisdiction over the Employer. That allegation
had been denied by Respondent, who indicated in the
answer that Respondent was without knowledge of those
alleged facts. At the hearing, counsel for the General
Counsel moved to amend paragraph 2(c) of his com-
plaint to allege facts based on an indirect outflow theory
for asserting the Board's jurisdiction over the employer.
That amendment was granted over the objection of Re-
spondent, and the new allegation was also denied. Subse-
quently, the parties did reach agreements on stipulations
regarding certain facts pertaining to the business oper-
ations of the Bank of America and the amounts of money
received by the employer from services provided for the
Bank of America.
The second amendment proposed at the hearing by the
counsel for the General Counsel pertained to Frank
Savoy, whom the General Counsel alleged to be the
president of Respondent and an agent of Respondent.
During the discussion of that proposed amendment, the
attorney for Respondent stated, among other things, "I
have no objection to the amendment." The General
Counsel's motion was granted to add that new allegation
as paragraph 5(c) to his complaint. Respondent also
denied that allegation.
As indicated above, the General Counsel's third
amendment to his complaint came later during the morn-
ing of the hearing day. The proposed amendment fol-
lowed after an objection was made by the attorney for
Respondent to a question by the counsel for the General
Counsel which related to a time period from February
26 to mid-March 1981. Paragraph 8 of the General
Counsel's complaint had read, in part, "Since on or
about November 26, 1980, and continuing to date ... ."
I agreed with Respondent's literal reading of that time
frame in the allegation. That is, both the attorney for Re-
spondent and I read the words "to date" in the com-
plaint to be the date on which the complaint had been
issued. That date was December 10, 1980. That apparent-
ly prompted the counsel for the General Counsel to
move to amend his complaint to substitute "thereafter"
in place of "to date." That request was granted over Re-
spondent's objection. Subsequently, the counsel for the
General Counsel made it clear that March 13, 1981, was
the last date on which the General Counsel alleges that a
violation occurred.
Although Respondent initially indicated that the Gen-
eral Counsel's amendments to his complaint made neces-
sary a continuance to afford Respondent time to prepare
its defense, I did not grant a continuance at that point,
but instead indicated that we would first listen to the
General Counsel's evidence. For example, with regard to
the commerce facts amendment, I stated, "So, let's see
what the proof is, and then we will see what you want
to do about defense with regard to the evidence." With
regard to the amendment pertaining to Frank Savoy, I
stated, "We will certainly give you an opportunity to be
heard on that after you have heard his evidence, and see
what he is going to put on with regard to Mr. Savoy.
Then we will give everybody a chance to assess the situ-
ation and make whatever arguments they would like to
make." With regard to the third amendment to the Gen-
eral Counsel's complaint, I stated, "Here again, with
regard to the other amendment, we will see what the
evidence is, and at that point, after we have heard the
evidence, and after Respondent has heard the evidence,
we will entertain any motions and give the positions of
the parties. At this point, I don't know whether that is
going to entail a great deal of evidence or, perhaps, not
much evidence. So, that is why I say at this point I don't
know whether a continuance would be warranted.
Maybe it will be. I certainly will listen to the evidence
and see what the positions of the parties are after we-."
After the General Counsel had presented all of his evi-
dence and had rested his case, Respondent decided not
to present any evidence at the hearing, and at that point
Respondent did not renew his motion for a continuance.
After considering all of the foregoing, I have decided to
adhere to the rulings made at the hearing, which permit-
ted the General Counsel to make the three amendments
to his complaint. In particular, with regard to the first
amendment, the parties were able later in the hearing
day to arrive at stipulations concerning certain com-
merce facts. With regard to the second amendment, an
objection was not voiced at the time to permitting the
amendment. More significantly, however, with regard to
all three of the General Counsel's amendments, after Re-
spondent heard all of the General Counsel's case, no evi-
1318
CONSTRUCTION & GENERAL LABORERS LOCAL 304
dence was offered to dispute or contradict any of the
evidence which the General Counsel had presented in his
case-in-chief
In reaching conclusions based upon the findings of fact
set forth in the earlier sections herein, it is well to keep
in mind that none of the assertions made by Dayak on
the witness stand were contradicted by the testimony of
any other witness. Nevertheless, a question arises as to
whether Respondent is responsible for any of the picket-
ing which took place at gate number 2 on and after No-
vember 26, 1980. Without repeating all of the findings of
fact previously made, I conclude that the General Coun-
sel has made out a prima facie case that Respondent was
responsible for some of the picketing at gate number 2
on various dates between November 26, 1980, and
March 13, 1981. In particular, the General Counsel has
shown: (1) that Respondent has had a primary labor dis-
pute with Athejen; (2) that Respondent's name appeared
on some of the picket signs carried by pickets at the job-
site; (of course, there were other signs with the Carpen-
ters union name and some signs without any union's
name, which were displayed by others, but Respondent
is not charged with being responsible for those); and (3)
the conversation described in section 2 herein involved
the person identified to Dayak as being Frank Savoy,
president of Respondent. Note also that the person iden-
tified to Dayak as being Frank Savoy was later observed
talking with pickets who were carrying picket signs with
Respondent's name.
In regard to the question concerning the identity of
Frank Savoy, I conclude that the General Counsel has
made out a prima facie showing that the person who
identified himself to Dayak as being Frank Savoy was, in
fact, Frank Savoy. That conclusion is based upon: (1)
Dayak's earlier meeting of the same person on another
occasion, and (2) Savoy's business card and other identi-
fication shown to Dayak during their conversation on
October 23, 1980, at the jobsite. Respondent did not seek
to rebut the testimony given by Dayak by calling Savoy
or anyone else to deny Dayak's assertions. The same
thing holds true with respect to the General Counsel's
prima facie case concerning Respondent's picketing at
gate number 2. The General Counsel's prima facie case
stands unrebutted.
The record discloses that I of the 25 subcontractors on
the project, Frank Electric, installed a temporary power
pole on the construction site. However, that job was ac-
complished prior to any picketing at the jobsite by Re-
spondent. With regard to the employees of Pacific Gas &
Electric Company, Dayak indicated that they did not
come on the jobsite even when they delivered a gas box
cover. With regard to ZZZ Sanitation, those employees
utilized gate number I as a supplier of services to Athe-
jen. I conclude that none of the foregoing matters justi-
fied Respondent's picketing at gate number 2, which had
been reserved for neutral employers and their suppliers.
N.L.R.B. v. Denver Building and Construction Trades
Council, 341 U.S. 675 (1951).
In his post-trial brief, counsel for the General Counsel
urges that he is not seeking a finding that Respondent
picketed on each working day during the period between
November 26, 1980, and mid-March 1981. Instead, coun-
sel for the General Counsel argues that "it is clear that
Respondent picketed at gate 2 on many days during that
period of time." (See G.C. br.) I find that the evidence
supported the argument advanced by the General Coun-
sel. Without repeating the earlier findings concerning
Dayak's job diaries, I conclude that his notations in his
diaries do not completely reflect all that transpired. As
indicated previously, I found his explanation regarding
his entries in his job diaries to be believable. Also believ-
able was Dayak's testimony regarding the fact that a Re-
spondent's picket would "drift" from gate number I to
gate number 2 at various times when persons approached
the later gate to enter the jobsite. In addition, there were
the times which Dayak described when Respondent's
pickets would place Respondent's signs on safety cones
and barricades and on the jobsite fence. Even though the
picket signs were stationary on those occasions, such ac-
tions have been found to constitute a form of picketing.
In Local 182, International Brotherhood of Teamsters
(Woodward Motors Inc.), 135 NLRB 851 (1962), the
Board stated in footnote I: "We agree with the Trial Ex-
aminer that the act of placing the usual picket signs in
the snowbank abutting Employer's premises constituted
picketing within the meaning of the Act. These signs
were watched by Respondent's agents from a car parked
on the shoulder of an adjacent highway to make sure
they were not removed or destroyed during the entire
working day." See also United Furniture Workers of
America, AFL-CIO (Jamestown Sterling Corporation), 146
NLRB 474 (1964).
Of course, Respondent was free to picket at gate
number 1, which had been reserved for the use of Athe-
jen's employees and suppliers. As noted earlier, Respond-
ent had a primary labor dispute with Athejen. However,
the record does not reveal evidence that Respondent had
a labor dispute with any other employer on the jobsite.
Those neutral employers and their employees and suppli-
ers had gate number 2 reserved for them. Respondent's
picketing at gate number 2 suggests that an object of
such picketing was to enmesh neutral employers in Re-
spondent's labor dispute with Athejen, and to cause, or
attempt to cause, those neutral employers to cease doing
business with Athejen. See the Board's Decision in Sail-
ors' Union of the Pacific, AFL (Moore Dry Dock Compa-
ny), 92 NLRB 547 (1950). In its decision in Sacramento
Area District Council of Carpenters, United Brotherhood of
Carpenters & Joiners of America, AFL-CIO (Malek Con-
struction Co.), 244 NLRB 890 (1979), the Board held at
890: "Like the Administrative Law Judge, we find that
Respondent Union's picketing was for the purpose of in-
ducing neutral employees not to perform services for
their neutral employers and constituted coercion of those
nine employers, thereby violating Section 8(b)(4)(i) and
(ii)(B) of the Act. Respondent Union's dispute was with
Malek, the general contractor, yet it picketed at the gate
reserved for the contractors. Under these circumstances
the picketing was clearly secondary and for illegal pur-
poses." That holding by the Board appears to be equally
true here.
Finally, based upon Dayak's testimony, I conclude that
Frank Electric, California Air, Asteeco Steel, Kaiser
1319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concrete, Jesto, and the Nelson Company are neutral
employers and persons who are engaged in an industry
affecting commerce. As indicated previously, there is no
evidence that Respondent had any labor dispute with
those employers. As subcontractors on the construction
project, those employers were engaged in the building
and construction industry. It is well established that the
building and construction industry is an industry affect-
ing commerce.
After considering all of the foregoing, and the argu-
ments persuasively advanced by the two attorneys, I
conclude that a preponderance of the evidence estab-
lishes that Respondent has engaged in unfair labor prac-
tices in violation of Section 8(b)(4)(i) and (ii)(B) as al-
leged in the General Counsel's complaint.
CONCI.USIONS Oi LAW
1. Athejen Corporation is an employer engaged in
commerce and in an industry affecting commerce within
the meaning of Sections 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By inducing or encouraging individuals employed
by Frank Electric, California Air, Asteeco Steel, Kaiser
Concrete, Jesto, Nelson Company, and other persons en-
gaged in an industry affecting commerce, to engage in a
strike, or refusal in the course of their employment to
perform services; and by threatening, coercing, or re-
straining the employers named above, and other persons
engaged in an industry affecting commerce, with an
object of forcing or requiring any such person to cease
doing business with Athejen Corporation, the Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B) of the Act.
4. The unfair labor practices set forth above affect
commerce within the meaning of Sections 2(6) and (7) of
the Act.
THE REMEDY
Since I have found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(b)(4)(i) and (ii)(B) of the Act, I shall recommend to the
Board that Respondent be ordered to cease and desist
therefrom, and that Respondent take certain affirmative
action in order to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
1320