Iron Workers Local 433 (Barry-Wehmiller Co.)

National Labor Relations Board - Board Decisions

May 31, 1991

303 N.L.R.B. 287 (N.L.R.B. 1991)

287
303 NLRB No. 38
IRON WORKERS LOCAL 433 (BARRY-WEHMILLER CO.)
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 In agreeing with the judge that the Respondent violated Sec. 8(b)(4)(i) and
(ii)(B) of the Act, we find it unnecessary to rely on the judge’s discussion
of the message on the picket signs and on the handbills distributed in conjunc-
tion with the picketing.
3 We agree with the judge that a broad order is warranted in this case be-
cause the Respondent has a ‘‘proclivity to violate the secondary boycott provi-
sions of the Act.’’ Iron Workers Local 433 (United Steel), 293 NLRB 621,
623 (1989), and Iron Workers Local 433 (Benchmark Contractors), 285 NLRB
1089, 1093 (1987).
1 Unless stated otherwise, all dates occurred in 1989.
International Association of Bridge, Structural and
Ornamental Iron Workers, Local No. 433,
AFL–CIO and Barry-Wehmiller Company.
Case 21–CC–3093
May 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On December 27, 1990, Administrative Law Judge
William J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in answer to the
Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Association
of Bridge, Structural and Ornamental Iron Workers,
Local No. 433, AFL–CIO, San Bernardino, California,
its officers, agents, and representatives, shall take the
action set forth in the Order.
Jean C. Libby, Esq., for the General Counsel.
David A. Rosenfeld Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Respond-
ent.
Peter Szabadi, Esq. (Raitt & Dobrin), of Los Angeles, Cali-
fornia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Los Angeles, California, on March 29,
1990. On January 18, 1990, the Regional Director for Region
21 of the National Labor Relations Board (the Board) issued
a complaint and notice of hearing, based on an unfair labor
practice charge filed on December 7, 1989,1 alleging viola-
tions of Section 8(b)(4)(i) and (ii)(B) of the National Labor
Relations Act, 29 U.S.C. § 151 et seq. (the Act). All parties
have been afforded full opportunity to appear, to introduce
evidence, to examine and cross-examine witnesses, and to
file briefs. Based on the entire record, upon the briefs that
were filed on behalf of the parties, and on my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACTS
I. JURISDICTION
Barry-Wehmiller Company is located in St. Louis, Mis-
souri, and engages in the business of manufacturing large
machinery for the brewing industry and of laying out design
and providing project management services for beverage
plants. On September 22, it received a contract in the amount
of $835,755 from Pepsi-Cola Metropolitan Bottling Com-
pany, Inc., to perform construction management and can line
and support equipment installation at Riverside, California,
where Pepsi-Cola would be constructing a beverage plant. In
turn, it subcontracted work to various contractors, including
pipefitting, to Southern Mechanical, Inc., rigging to Halbert
Brothers, Inc., and installation of machinery conveyors and
fabrication of platforms to Sentry Equipment Erectors, Inc.
The latter is located in the State of Virginia and the dollar
volume of its subcontract for work at the Riverside site was
approximately $140,000. The alleged unlawful conduct oc-
curred during the time that Sentry had been working at that
site. In light of the foregoing facts, I conclude that at all
times material, Barry-Wehmiller, Southern Mechanical,
Halbert Brothers, and Sentry Equipment have been persons
within the meaning of Section 2(1) of the Act and employers
engaged in commerce or in an industry affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, International Association of Bridge,
Structural and Ornamental Iron Workers, Local No. 433,
AFL–CIO (Respondent) has been a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The relevant background facts in this case, which allege
that unlawful secondary picketing occurred on December 7
and 8, are not disputed. Highway 215 is a main thoroughfare
running north and south in Riverside. One exit from it on,
at least, the west side is East Ridge Avenue. After having
departed Highway 215 at that exit and driving west on East
Ridge for approximately one-quarter to one-half mile, an
intersection with Sycamore Canyon Boulevard is reached.
Between Highway 215 and that intersection, at the time ma-
terial to this proceeding, there were some commercial build-
ings on the northside of East Ridge and a substation under
construction on the southside. However, the land west of the
intersection was undeveloped and, from the intersection, East
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Of course, the system would not be tainted by neutral contractor usage of
the East Ridge gate. NLRB v. Broadcast Employees Local 31, 631 F.2d 944,
952 (D.C. Cir. 1980). Nor would the system be tainted through neutral gate
use by suppliers of support services, such as sanitation services, to all contrac-
tors, including Barry-Wehmiller and Sentry, on the site. See, e.g., Iron Work-
ers Local 433 (Chris Crane), 294 NLRB 182, 183–184 (1989), and cases cited
therein.
Ridge was an unpaved gravel road that continued for ap-
proximately 600 feet further west. Similarly, Sycamore Can-
yon was an unpaved gravel road, with no development or
businesses fronting on it to the north or south of the intersec-
tion.
In 1989 Pepsi-Cola commenced constructing its bottling
plant on the southwest corner of that intersection. Thus, the
northside of Pepsi-Cola’s lot was bordered by the unpaved
gravel portion of East Ridge and the eastside of that lot was
bordered by that portion of Sycamore Canyon south of the
intersection. No other businesses or, so far as the evidence
discloses, construction existed west of that lot on East Ridge
nor on Sycamore Canyon Boulevard south of Pepsi-Cola’s
lot.
As noted in section I, supra, Pepsi-Cola awarded the con-
tract to Barry-Wehmiller for can line and support equipment
installation. The latter named Joe Wilhelm as its project
manager for that project. Although he first reported to River-
side on November 6, it is not disputed that in October, while
still in St. Louis, he received a telephone call from Respond-
ent’s business agent, Bobby R. Harmon, who introduced
himself and inquired about the identities of the subcontrac-
tors and the work that they would be performing for Barry-
Wehmiller at the Riverside site. Wilhelm explained that both
union and nonunion subcontractors had been awarded con-
tracts for work at the site, but declined to disclose the sub-
contractors’ identities.
Sentry commenced working at the Pepsi-Cola site for
Barry-Wehmiller on November 6 and worked there continu-
ously for the remainder of the year, as well as during early
1990. Its workers are not represented by a labor organization.
On November 21, picketing by four or five individuals oc-
curred in the intersection of East Ridge and Sycamore Can-
yon. There is no allegation that this activity violated the Act.
However, it led Wilhelm to erect three reserved gates on No-
vember 29. Only one of those gates was located at an en-
trance on East Ridge, approximately 500 feet west of the
intersection. At that location, Wilhelm posted a sign reciting
that the gate was reserved for the exclusive use of employees
and suppliers of Barry-Wehmiller and Sentry and, further,
that all others must enter the site from Sycamore Canyon
Boulevard.
On Sycamore Canyon, approximately 350 feet south of the
intersection, an entrance was designated as the reserved gate
for employees, suppliers, and subcontractors of the construc-
tion contractor for the project, Al Shankle Company. Another
entrance was established further south on Sycamore Canyon
and was designated, on a sign erected there, as the gate re-
served for employees and suppliers of Halbert Brothers and
Southern Mechanical. That sign further directed employees
and suppliers of Barry-Wehmiller and Sentry to enter the
project from the gate on East Ridge Avenue.
Notice of creation of this reserved gate system was pro-
vided by telegram sent, inter alia, to Respondent on Novem-
ber 29. In pertinent part, that telegram recites:
A SEPARATE GATE HAS BEEN SET UP: GATE ‘‘A,’’ LO-
CATED ON EAST RIDGE AVENUE AT THE JOBSITE FOR
THE EXCLUSIVE USE OF SENTRY AND BARRY-
WEHMILLER, ITS SUPPLIERS, DELIVERIES AND PER-
SONNEL. ALL OTHER CONTRACTORS, THEIR PERSONNEL
AND SUPPLIERS ARE PROHIBITED FROM USING THIS
GATE AND ARE REQUIRED TO USE GATES ‘‘B’’ & ‘‘C’’
LOCATED ON SYCAMORE CANYON BLVD AT THE JOB-
SITE. NO SUPPLIERS OR PERSONNEL OF SENTRY OR
BARRY-WEHMILLER SHALL BE PERMITTED TO USE GATES
‘‘B’’ & ‘‘C.’’ ALL OF THE GATES HAVE BEEN POSTED
REFLECTING THESE RESTRICTIONS AND THE RESERVED
GATE SYSTEM WILL BE STRICTLY ENFORCED.
There is no contention of impropriety in this telegramic noti-
fication to Respondent concerning creation of the reserved
gate system. Cf., NLRB v. Iron Workers Local 433, 850 F.2d
551 (9th Cir. 1988).
On December 5 Wilhelm had erected on the northwest
corner of the intersection a large ‘‘directional sign.’’ Accom-
panied by directional arrows, it recited that gate A was for
Barry-Wehmiller and Sentry, that gate B was for Halbert
Brothers and Southern Mechanical, and that gate C was for
‘‘AL SHANKLE CONSTR. CO. EMPLOYEES [&] SUPPLIERS.’’ Re-
spondent argues that the directional sign is not adequate as
a reserved gate sign, because it omits mention of suppliers
for Barry-Wehmiller and Sentry. In addition, while it does
not challenge the propriety of Barry-Wehmiller’s creation of
a reserved gate system and does not contest the adequacy of
the signs that were placed at the reserved entrances, Re-
spondent contends that the location of the primary gate, on
East Ridge Avenue, ‘‘was placed at a location so as to
render Respondent’s picketing totally ineffectual to bring its
message to the public.’’
After November 29 no picketing occurred at the site until
the morning of December 7, when four pickets appeared in
the intersection. Although there is some evidence of alter-
ations having been written on the Al Shankle gate sign, by
person or persons unknown, and while some evidence was
adduced regarding particular persons who may have used the
various gates, Respondent does not contend that the reserved
gate system was tainted through usage of the Sycamore Can-
yon gates by employees, customers, or suppliers of Barry-
Wehmiller or of Sentry.2 Instead, it argues that on December
7 there was no reserved gate sign at the East Ridge entrance
to the site. In this respect, it is not disputed that by that date
the perimeter fence for the site had been taken down to allow
paving work on the site to be performed. Although Harmon
testified that the East Ridge reserved gate sign had been
taken down as well, Wilhelm denied that the sign had been
taken down that day.
Undisputed is the evidence that from early morning until
approximately 2 p.m. on December 7 the four pickets had
been posted in the intersection. They carried signs asserting
that Barry-Wehmiller and Sentry were performing work
below standards established by Respondent. In addition, they
distributed handbills stating, in pertinent part:
GOOD UNION MEMBERS RESPECT PICKET
LINES
289IRON WORKERS LOCAL 433 (BARRY-WEHMILLER CO.)
A good union member is extremely careful when
confronted with a picket line situation. WHEN A
PICKET LINE IS ESTABLISHED on a job where he
is working:
1. He LEAVES. He DOES NOT TALK—JUST
LEAVES.
A GOOD UNION MEMBER KNOWS HIS RIGHTS
A. He has the right NOT to work behind ANY Pick-
et Line
B. He has the right to decide for himself whether to
walk off a job being picketed.
D. He knows that a two gate system means a PICK-
ET LINE and he has the RIGHT NOT TO WORK, no
matter how many gates that employer sets up.
Though scheduled to work that day, employees of South-
ern Mechanical declined to cross the picket line, by pro-
ceeding through the intersection to travel south on Sycamore
Canyon to the entrance reserved for them. Moreover, several
subcontractors of Al Shankle Company made that identical
choice with the result that sprinkler fitting, tile work and
electrical work was not performed on December 7. In addi-
tion to arguing that it was allowed to picket in the intersec-
tion that day because no reserved gate sign existed at the
East Ridge entrance to the site, Respondent also contends
that its picketing that day ‘‘was at an intersection removed
somewhat from the construction site,’’ with the result that it
was allowed to picket there ‘‘with a sign advising the public
of its dispute.’’
The General Counsel alleges that the picketing as well as
the handbilling, because it had been conducted in conjunction
with that picketing, on December 7 violated the Act. Since
it also is undisputed that picketing, though no handbilling,
occurred on December 8, the General Counsel further alleges
that the Act had been violated on that date, as well. How-
ever, that allegation is premised on the factual assertion that
picketing had been conducted in the intersection on Decem-
ber 8. Respondent denies having picketed in the intersection
on that date, contending that it had picketed only at the East
Ridge Avenue entrance on December 8.
For the reasons set forth post, I conclude that the evidence
is insufficient to establish that picketing occurred in the
intersection on December 8. In contrast, a preponderance of
the credible evidence supports the allegation that picketing,
and ancillary handbilling, had been conducted there on De-
cember 7 and that it had been aimed at all employees and
suppliers scheduled to work that day at the Pepsi-Cola bot-
tling plant construction site, thereby violating Section
8(b)(4)(i) and (ii)(B) of the Act.
B. Findings of Fact
The primary dispute in this case is whether or not the re-
served gate sign at the East Ridge Avenue entrance had re-
mained standing on December 7. The only evidence that it
had not was supplied by the testimony of Harmon. But his
testimony to that effect was not advanced convincingly, was
not supported by any other evidence, and tended to be con-
tradicted by other testimony that he provided, as well as by
certain other evidence. Accordingly, I do not credit his testi-
mony that there had been no reserved gate sign at the East
Ridge Avenue entrance on December 7.
Harmon admitted that on every occasion when he had vis-
ited the site after November 29, including on December 6,
the reserved gate sign had been standing at the East Ridge
Avenue entrance. Yet, when he initially was, as it were,
walked through his actions upon arriving at the site at 5 or
5:30 a.m. on December 7, his unaided account showed that
Harmon had directed picketing at the intersection without re-
gard to the presence or absence of a reserved gate sign at
the East Ridge entrance:
Q. And what did you first do when you arrived at
the job site?
A. I got out of my car.
Q. And then what?
A. I went over and talked to my pickets.
Q. Then what?
A. Then I put a picket line up.
Q. And where did you put the picket line up?
A. On the 7th, right on front of where it says Gate
A, B and C.
JUDGE PANNIER: The directional sign, in other
words.
THE WITNESS: Yes.
Not until the subject was suggested to him did Harmon
abruptly, and unconvincingly, add that, yes, he had checked
at the East Ridge entrance before having directed the pickets
to patrol at the intersection.
Respondent’s unconcern with the presence or absence of
a reserved gate sign at the East Ridge Avenue entrance on
December 7 is further demonstrated by a conversation that
morning between Harmon and Robin Pikey, Barry-
Wehmiller’s project engineer. When, with reference to the
intersection picketing and handbilling, the latter asked what
was the problem, Harmon told her that it could be solved by
‘‘Getting Respondent a signature from Sentry.’’ It is not dis-
puted that Pikey then showed Harmon a copy of the above-
partially quoted November 29 telegram and said ‘‘that he
was welcome to move his pickets to gate A which is estab-
lished for Barry-Wehmiller and Sentry Equipment.’’ How-
ever, Harmon did not reply by pointing out that there was
no reserved gate sign at that location, as he might have been
expected to do were that a fact. Instead, so far as the evi-
dence shows, he replied merely, ‘‘Okay.’’ Where the location
of his pickets was being questioned, his failure to claim that
he had not stationed them elsewhere because of a purported
deficiency that day in the reserved gate system is strong evi-
dence that, in fact, no such deficiency existed.
Significantly, when he testified, Harmon appeared to be
especially concerned about the absence of perimeter fencing
at the site on December 7. Thus, at one point, he testified:
‘‘They were doing work all through here and on the 7th
when I came out—like that, all this was tore down, the fence
was gone, whatever was there. I turned around in this en-
trance way right here and backed out and there was no gate,
no nothing there at that time then—.’’ Later, he repeated that
point, in the process explicitly pointing out that the absence
of a fence, to him, meant that no reliably designated ‘‘gate’’
could exist:
Across here and down through here—you see
there—there’s no fence, no nothing, no sign pointed out
down here, sir.
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I did not know where Gate A was but you could go
around this building and post a gate anywhere down on
this other side. So I took myself and put it at the point
where it says Gate A that way, taking myself—when
they put up a gate I would go to it. They did not have
a gate up at the entry way where you say Gate A.
As the last portion of his quoted remark shows, it was the
presence of a gate, as opposed to a sign, that had concerned
Harmon on December 7. His testimony appeared to be pre-
mised on the belief, at least as of December 7, that no valid
reserved gate system could exist without actual gates in pe-
rimeter fencing, because of the possibility of primary entry
and exit at points along the perimeter other than a designated
primary entrance: ‘‘Well, I think if you could look at it
you’ll see there wouldn’t be no fence up there if they walked
out of their trailers.’’
Of course, as a matter of law, perimeter fencing with ac-
tual gates is not a necessary prerequisite for establishing a
valid reserved gate system. To the contrary, a valid system
of reserved entrances to unenclosed premises suffices, so
long as those entrances are observed and there is no im-
proper entry and exit occurring at other points along the pe-
rimeter. See discussion, Carpenters (Malek Construction),
244 NLRB 890, 894–896 (1979). Having apparently later
been apprised of that aspect of the reserved gate doctrine, it
appeared that, when testifying, Harmon attempted to con-
struct a legally legitimate defense for the intersection pick-
eting on December 7, claiming instead that no reserved gate
sign had remained erect at the East Ridge Avenue entrance
on December 7. I do not credit that testimony and, con-
sequently, conclude that there had been a reserved gate sign
at the East Ridge entrance on that date.
In contrast to the dispute concerning its presence or ab-
sence on December 7, there is no dispute that there was a
valid reserved gate sign at that entrance on the following
day. Harmon acknowledged that fact, testifying that after
having ascertained as much when he had arrived at the site
early on December 8, he had stationed his pickets at that en-
trance. Harmon denied that there had been any picketing in
the intersection that day. However, the General Counsel al-
leges that picketing did occur there that day, at least during
the early morning hours.
To support that allegation, the General Counsel presented
only the testimony of Nick Padilla, the individual in charge
of Southern Mechanical’s pipefitting crew. However,
Padilla’s unsupported testimony was hardly a model of reli-
ability with respect to the specifics of what he had done and
seen that morning. In fact, he freely admitted that his recol-
lection was uncertain concerning the events of December 8.
Thus, when asked initially if he had seen pickets on Decem-
ber 8, Padilla replied that he had, but, ‘‘I believe they moved
to the farther gate, at the East Ridge entrance.’’ Asked then
if he had seen picketing at the intersection that day, Padilla
responded, ‘‘I’m not sure. I can’t really remember.’’ In the
final analysis, Padilla never really did testify that he had ac-
tually observed picketing in the intersection on December 8,
despite various different approaches tried by counsel in an
effort to ascertain if he would do so.
For example, he testified that he could not see the East
Ridge entrance from the point at which he turned off High-
way 215 onto East Ridge and, further, he initially testified
that he had been able to see the pickets immediately after he
turned off Highway 215 on December 8. But the latter asser-
tion was contradicted almost immediately by the very next
question and answer:
Q. So as you turned off the highway on December
8th, 1989, in the morning you saw the pickets?
A. Yeah, within a block or—you know, after I
turned I could see the pickets and see that it was going
on, yes. [Emphasis added.]
In fact, without regard to his own location when he first saw
the pickets that morning, he earlier testified specifically that
he believed that the pickets had been at the East Ridge en-
trance when he had first seen them that morning:
Q. And where did you see the picketers [sic]?
A. I believe they moved to the farther gate, Gate A.
Q. When you first saw them where were they?
A. I’m not really sure, to tell you the truth. I’m not
sure if they were—I’m pretty sure they were at Gate A.
I—you know, I’m not sure. I can’t really remember.
THE WITNESS: Yeah, my best memory is that they
were at Gate A.
During the course of a somewhat different approach to
eliciting his testimony about the location of pickets on De-
cember 8, Padilla admitted that prior to the hearing he had
told counsel for the General Counsel that he had seen pickets
in the intersection on December 8. However, when asked
why his testimony differed from what he earlier had told
counsel, Padilla explained:
Because I’m not really sure about—I— you know, I
forget. I remember there was picketers. I can’t remem-
ber if they were at Gate A or right at the front roadway
on that—on Friday which—that was Friday. And I
can’t really remember exactly—I know they did move
down to Gate A and I’m for sure it was Monday, but
on Friday I can’t remember—I mean, I can’t say they
were in the front, I can’t say they weren’t. I’m not sure.
I—you know, it’s been a long time— you know, I can’t
remember.
No prehearing affidavit had been taken from Padilla. No evi-
dence was offered regarding the precise questioning that had
led to his prehearing remarks about the pickets’ location on
December 8. Nor, in contrast to his testimony at the hearing,
is there evidence that Padilla had been under oath when he
made his prehearing remarks. Consequently, there is no basis
for according greater weight to Padilla’s unsworn and
unparticularized prehearing remark than to his sworn testi-
mony that he simply did not recall having seen picketing at
a location other than the East Ridge entrance on December
8.
In evaluating Padilla’s testimony regarding what he had
seen on December 8, it cannot be said that he was attempting
to testify in a manner that would favor Respondent. For he
freely described the December 7 picketing in a fashion that
supported the complaint’s allegation concerning Respond-
ent’s conduct that day. Furthermore, two objective consider-
ations completely undermine any possibility of relying on his
uncertain recollection as a basis for concluding that intersec-
tion picketing had occurred on December 8. First, in contrast
291IRON WORKERS LOCAL 433 (BARRY-WEHMILLER CO.)
to what had occurred on December 7—when intersection
picketing had led employees of at least some subcontractors
not to report for work at the site—there is no evidence that
employees of any contractors other than Southern Mechan-
ical had not reported for work on December 8.
Second, an even stronger indication that no intersection
picketing had occurred on December 8 is provided by a com-
parison of Padilla’s account with that of Wilhelm. The
former testified that he had waited at the project until his
crew had arrived at 7 a.m. on December 8 and, after a dis-
cussion with them about whether or not to work, ‘‘By 7:30
I was a goner.’’ Yet, Wilhelm testified that he had ‘‘arrived
at 7:00 o’clock’’ on December 8, but had seen picketing at
no location other than at the East Ridge entrance. There is
no evidence that the pickets had changed the location of their
patrolling after they had begun picketing on December 8.
Consequently, Wilhelm’s testimony tends to flatly contradict
any account that intersection picketing had occurred during
the morning on December 8.
In light of the foregoing considerations, I conclude that
Padilla’s testimony is not sufficiently reliable to support a
conclusion that picketing occurred at any location other than
at the East Ridge entrance on December 8.
C. Analysis
Not only are labor organizations under ‘‘a duty to picket
with restraint, to minimize its impact on neutral employers
and employees,’’ but where ‘‘an established reserved gate
system provides a reasonable alternative for effective com-
munication with the primary employer and its employees,
that system must be respected.’’ Electrical Workers Local 76
v. NLRB, 742 F.2d 498, 502 (9th Cir. 1984). As set forth in
subsection III,A, supra, Respondent contends that its pick-
eting in the intersection on December 7 had been lawful be-
cause there had been no reserved gate sign at the East Ridge
entrance that day. However, as set forth in subsection III,B,
supra, I do not credit the testimony advanced to support that
particular contention. Instead, a preponderance of the cred-
ible evidence shows that the sign remained erect at the East
Ridge entrance throughout that day, as it had on previous
and subsequent days.
Certainly the absence of a perimeter fence that day made
it theoretically possible for employees and suppliers of
Barry-Wehmiller and Sentry to enter and exit the site at any
point along East Ridge, as well as along Sycamore Canyon
for that matter. However, there is no evidence of even a sin-
gle instance of such entry or exit at perimeter points other
than at the East Ridge entrance on that or on any other day.
Nor is there any evidence of other activity that could serve
to taint the reserved gate system and allow Respondent to ig-
nore its obligation to respect it when picketing on December
7.
As set forth in subsection III,A, supra, Respondent further
argues that the East Ridge entrance had been so located that
it prevented Respondent from effectively conveying its mes-
sage to the general public. To support that argument Re-
spondent points principally to the doctrine enunciated in
Electrical Workers IBEW Local 453 (Southern Sun), 237
NLRB 829, 830 (1979). In that case, to the extent pertinent
here, the Board concluded that labor organizations are re-
lieved of their normal obligation to comply with a reserved
gate system whenever,
the entrances reserved for the primary Employer would
unjustly impair the effectiveness of [a labor organiza-
tion’s] lawful picketing to convey its message to [the
primary employer’s] personnel, suppliers, visitors, and
the general public.
Yet, subsequent cases involving application of that limita-
tion to the reserved gate doctrine have explained that, with
reference to ability to appeal to the general public when
picketing at the reserved gate, ‘‘the union’s right is only to
picket where it finds the primary employer—and not, if the
two are in different places, where it finds the general pub-
lic.’’ Carpenters Local 33 (CB Construction) v. NLRB, 873
F.2d 316, 320 (D.C. Cir. 1989). That conclusion serves to re-
inforce interpretation of the Southern Sun limitation in the
underlying decision in which the Board stated that its own
‘‘precedent does not require primary reserved gate place-
ments calculated to maximize a picket’s chances to reach
members of the public.’’ Carpenters Local 33 (CB Construc-
tion), 289 NLRB 528 532 (1989). As a result, the Southern
Sun limitation to the reserved gate doctrine requires no more
than that primary gates permit picketing labor organizations
to be ‘‘able to convey [their] message effectively to ’all
within the legitimate direct appeal of [their] picket sign[s].’’’
Iron Workers Local 433 v. NLRB, 598 F.2d 1154, 1160 fn.
8 (9th Cir. 1979).
Here, the primary gate had been located on one of the two
principal roadways bordering the bottling plant construction
site. There is no evidence that relocation of the primary en-
trance to Sycamore Canyon would have better enabled Re-
spondent to legitimately publicize its dispute. Furthermore,
there is no evidence of restricted public use of East Ridge
west of the intersection. Nor is there any evidence that the
reserved gate entrance had been created on that avenue as
some sort of ploy to frustrate Respondent’s ability to com-
municate its message effectively to all those to whom its
pickets could appeal legitimately: that the East Ridge en-
trance had been situated to create the type of confusion in-
herent in the purported primary gate that had been erected
in Southern Sun. In these circumstances, there is no basis in
this record for concluding that picketing at the East Ridge
entrance would preclude Respondent from conveying its
message ‘‘to all within the legitimate, direct appeal of its
picket sign.’’ Southern Sun, supra.
Respondent’s remaining two arguments require no ex-
tended discussion. It hardly can be maintained with persua-
sion that the intersection is removed, even ‘‘somewhat,’’
from the bottling site project. After all, it adjoins the north-
east corner of that site.
Nor can it be persuasively argued, at least without sup-
porting evidence, that omission of the word ‘‘suppliers’’
from the Sentry portion of the directional sign both rendered
that sign invalid as a reserved gate sign and, also, caused
confusion fatal to the entire reserved gate system. The direc-
tional sign was no more than an aid for locating the separate
entrances for primary and neutral employers. Gate signs had
been erected at each of those separate entrances and Re-
spondent has not challenged their adequacy as reserved gate
signs. Further, Respondent has adduced no evidence that the
reserved gate signs at those entrances did not clear up any
confusion that the directional sign might have caused for a
particular supplier. Indeed, Respondent presented no evi-
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. l02.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. l02.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
4 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
dence of even a single instance of such confusion caused to
a supplier as a result of the wording on the directional sign
and, more significantly, no evidence of even a single instance
where a supplier to Barry-Wehmiller or Sentry entered or
exited the site from Sycamore Canyon Boulevard.
In sum, while a preponderance of the evidence does not
establish that picketing occurred at any location other than
the East Ridge entrance on December 8, it does establish that
picketing had been conducted in the intersection on Decem-
ber 7, despite the continued presence of a reserved gate sign
at the East Ridge entrance on that date. Although the picket
signs referred to employment standards, Respondent has nei-
ther contended nor shown that employment terms of Barry-
Wehmiller or Sentry were substandard. Consequently, both
the implied message of the picketing, and the explicit mes-
sage of the above-quoted portion of the handbills distributed
as part of the picketing, demonstrate that Respondent in-
tended by its December 7 intersection picketing to cause a
work stoppage by employees of neutral employers scheduled
to work at the adjoining bottling plant construction site,
thereby violating Section 8(b)(4)(i) and (ii)(B) of the Act.
CONCLUSION OF LAW
By inducing and encouraging individuals employed by
Southern Mechanical, Inc., Halbert Brothers, Inc., and other
persons engaged in commerce or in an industry affecting
commerce, to engage in a strike or refusal in the course of
their employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials,
or commodities or to perform services, and by threatening,
coercing, and restraining the above-named persons, and other
persons engaged in commerce or in an industry affecting
commerce with an object of forcing or requiring the above-
named persons to cease doing business with Barry-Wehmiller
Company and/or Sentry Equipment Erectors, Inc. and with
each other at the bottling plant construction site at East
Ridge Avenue and Sycamore Canyon Boulevard on Decem-
ber 7, 1989, International Association of Bridge, Structural
and Ornamental Iron Workers, Local No. 433, AFL–CIO has
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(b)(4)(i) and (ii)(B) Section and 2(6)
and (7) of the Act.
REMEDY
Having found that International Association of Bridge,
Structural and Ornamental Iron Workers, Local No. 433,
AFL–CIO has engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B) of the Act, I shall
recommend that it be ordered to cease and desist therefrom
and that it take such affirmative action as will effectuate the
purposes of the Act. Specifically, in light of past instances
of similar violations of that subsection of the Act, I shall rec-
ommend that a broad order issue.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The International Association of Bridge, Structural and Or-
namental Iron Workers, Local No. 433, AFL–CIO, San
Bernadino, California, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Inducing or encouraging any individual employed by
any person engaged in commerce or in an industry affecting
commerce to engage in a strike or a refusal in the course of
his employment to use, manufacture, process, transport or
otherwise handle or work on any goods, articles, materials or
commodities or to perform any services where an object
thereof is to force or require the said person to cease using,
selling, handling, transporting or otherwise dealing in the
products of, or to cease doing business with, any other per-
son.
(b) In any manner threatening, coercing, or restraining any
person engaged in commerce or in an industry affecting com-
merce where an object thereof is to force or require said per-
son to cease using, selling, handling, transporting, or other-
wise dealing in the products of, or cease doing business with,
any other person.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its office and meeting halls copies of the at-
tached notice marked ‘‘Appendix.’’ 4 Copies of said notice,
on forms provided by the Regional Director for Region 21,
after being duly signed by its authorized representative, shall
be posted by International Association of Bridge, Structural
and Ornamental Iron Workers, Local No. 433, AFL–CIO im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by it to ensure that
said notices are not altered, defaced or covered by any other
material.
(b) Deliver to the Regional Director for Region 21 signed
copies of said notice in sufficient number for posting by
Barry-Wehmiller Company, Southern Mechanical, Inc.,
Halbert Brothers, Inc. and Sentry Equipment Erectors, Inc.,
they being willing, at all locations where notices to their em-
ployees are customarily posted.
(c) Notify the Regional Director for Region 21, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
293IRON WORKERS LOCAL 433 (BARRY-WEHMILLER CO.)
WE WILL NOT, nor will our officers, business representa-
tives, business agents or anyone acting for us, whatever his
title may be, engage in or induce or encourage any individual
employed by any 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, manufacture, process,
transport or otherwise handle or work on any goods, articles,
materials or commodities, or to perform any services where
an object thereof is to force or require that person to cease
using, selling, handling, transporting or otherwise dealing in
the products of, or cease doing business with, any other per-
son.
WE WILL NOT threaten, coerce or restrain any person en-
gaged in commerce or in an industry affecting commerce
where an object thereof is to force or require that person to
cease using, selling, handling, transporting or otherwise deal-
ing in the products of, or cease doing business with, any
other person.
INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL AND ORNAMENTAL IRON WORK-
ERS, LOCAL NO. 433, AFL–CIO