San Francisco Building And Construction Trades Council

National Labor Relations Board - Board Decisions

Mar 27, 1991

297 N.L.R.B. 1050 (N.L.R.B. 1991)

1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
San Francisco Building and Construction Trades
Council and Goold Electric, Inc Case 20-CC-
3101
March 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 21, 1989, Administrative Law
Judge Earldean V S Robbins issued the attached
decision The Respondent filed exceptions and a
supporting brief and the Charging Party filed a
brief in response
The National Labor Relations Board has delegat
ed 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 bnefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, San Francis
co Building and Construction Trades Council, San
Francisco, California, its officers, agents, and repre-
sentatives, shall take the action set forth in the
Order
' The Respondent has excepted to the judge s finding that the Re
spondent picketed for several days in October 1988 with signs that failed
to disclose the employer with whom the Respondent had a dispute It
argues that It added the primary employer s name to the signs after a
Board agent Instructed it do so on October 21 Although the record mdi
cates that some of the signs may have named the primary employer the
evidence supports the finding that the Respondent picketed on October
19 20 21 24 25 and 31 with other signs that failed to name any em
ployer
Christine Rolls Erg, for the General Counsel
Allan C Davis Esq (Davis Reno & Courtney) of San
Francisco California for the Respondent
Frank P Sarro Esq and Mark R Thierman Esg (liner
man Cook Brown & Mason) of San Francisco Cali
forma, for the Charging Party
DECISION
STATEMENT OF THE CASE
EARLDEAN V S ROBBINS, Administrative Law Judge
This case was tried before me in San Francisco, Calder
ma, on December 13 14 and 15 1988 The charge was
filed by Goold Electric, Inc (Goold) and served on San
Francisco Building and Construction Trades Council
(Respondent), on October 19 1988 The second amended
complaint, which issued on November 25 1988 alleges
that Respondent violated Section 8(b)(4)(i) and (n)(B) of
the National Labor Relations Act The principal issues
herein are whether Respondents handbillmg picketing
and participation in or failure to disavow conduct
during the December 7 rally violates Section 8(b)(4)(0
and (n)(B)
On the entire record,' including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties I make the following
FINDINGS OF FACT
I JURISDICTION
At all times material Goold a California corporation
with an office and place of busmess in Pleasanton, Cali
forma has been engaged as an electrical subcontractor in
the building and construction industry in the San Fran
eisco Bay Area During the 12 month period preceding
the issuance of the second amended complaint, Goold, m
the course and conduct of the busmess operations pur
chased and received at its various projects located in
California products goods and materials valued in
excess of $50 000 directly from wholesalers, including
G E Supply located within the State of California each
of which wholesaler had the products, goods and mate
nals shipped directly from points outside the State of
California, to Goold s various projects in California
At all times material, Deleon Development a Cahfor
ma corporation (Deleon), with an office and place of
business in Hayward, California has been a general con
tractor in the construction industry and has been en
gaged as a general contractor on a construction project
located at 13th and Howard Streets m San Francisco,
California (the Project or the Deleon Project) At all
times material, Deleon has subcontracted work at the
Project to Goold and to C A Mechanical, and Regivig
Roofing Harold Concrete, Dayton Masonry and Cham
pion Plumbing each has performed work at the Project
under separate subcontracts with Deleon since on or
about October 27 1988 about mid October 1988, on or
about December 1 1988 and sometime in November
1988 respectively At all times material Deleon has sub
contracted work at the Project to the (the neutral sub
contractors) Lowery Paving Johnson Scaffolding, En
' Subsequent to the close of the hearing here Charging Party Goold
Electric moved for the reopening of the record for the purpose of remit,
mg into evidence the following proposed exhibits
C P Exh 4 Adjudication and Order in Civil Contempt in the related
10(1) proceeding
C P Exh 5 Findings of Fact and Conclusions of Law on Petition for
Adjudication of Civil Contempt
C P Exh 6 January 9 1989 Declaration of Stan R Smith
C P Exh 7 January 9 1989 Supplemental Declaration of Stan R
Smith
C P Exh 8 February 3 1989 Declaration of Stan R Smith
Respondent opposes the Charging Party s motion on the ground that
the contempt order and the underlying Findings of Fact and Conclusions
of Law are not relevant to this proceeding As to proposed C P Exhs 6
7 and 8 Respondent objects to their admission Into the record on the
grounds of hearsay I find that the Charging Party s proposed Exhs 6 7
and 8 are inadmissible hearsay and the Charging Party motion is denied
as to these exhibits As to the Charging Party s proposed Exhs 4 and 5 I
find that they are relevant to Charging Party s position as to remedy and
I take official notice of the Adjudication and Order in Civil Contempt
and the supporting Findings of Fact and Conclusions of Law According
ly the Charging Party s motion to reopen the record is granted for the
limited purpose of receiving into evidence C P Exhs 4 and 5
297 NLRB No 177
SAN FRANCISCO BUILDING TRADES COUNCIL (GOOLD ELECTRIC) 1051
terprise Roofing, Eandi Metal Works, Goldman Mechan-
ical, Golden West Concrete and Olea Plastering, Cleve-
land Wrecking Company, Cal-Veda Drywall, and All
Cal Insulation
The complaint alleges, and I find, that at all times ma-
terial Goold Electric, C A Mechanical, Regivig Roof-
ing, Dayton Masonry, Harold Concrete, Delcon, and the
neutral subcontractors each has been an employer and/or
person engaged in commerce and in operations affecting
commerce within the meaning of Section 2(1), (2), (6),
and (7) and Section 8(b)(4)(B) of the Act
H THE LABOR ORGANIZATION
The complaint alleges and the record establishes that
Respondent is an umbrella organization composed of
various constituent labor organizations, including the
Plumbers Union, Laborers Union, and Electrical Work-
ers Union, which exists for the purpose of representing
such constituent labor organizations in dealing with em-
ployers concerning labor disputes and in bargaining col-
lectively with the employers regarding wages, rates of
pay, hours of employment, and other terms and condi-
tions of employment The constituent labor organiza-
tions, including the Plumbers Union, Laborers Union,
and Electrical Workers Union each, individually, are or-
ganizations in which employees participate and which
exist in whole or in part for the purpose of dealing with
employers concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of
work
Respondent contends that it is not a labor organization
within the meaning of the Act because no employees
participate in its activities and it does not deal with em-
ployers concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of
work I find this argument unpersuasive Employees do
participate in Respondent through their elected dele-
gates Respondent's constitution provides that an affili-
ated union may refer to Respondent's grievances with
employers or employees which the affiliate has been
unable to resolve Respondent engages in area standards
picketing and negotiates project agreements with devel-
opers and/or contractors to ensure that building projects
will be 100 percent union projects These agreements in-
corporate, by reference, the collective-bargaining agree-
ments of Respondent's constituent labor organizations
Thus, the record here clearly establishes that although it
does not enter into collective-bargaining agreements, Re-
spondent deals withemployers with respect to labor dis-
putes and conditions of work Accordingly, I find that at
all times material Respondent has been a labor organiza-
tion within the meaning of Section 2(5) and Section
8(b)(4)(0(n)(B) of the Act Omaha Building Trades Coun-
cil (Crossroads Joint Venture), 284 NLRB 328 (1987) (8th
Or 1988), Wyoming Valley Building Trades Council (Alte-
mose Construction Associates), 211 NLRB 1049 (1974)
III THE ALLEGED UNFAIR LABOR PRACTICES
A Introduction
The Delcon Project is located on approximately 4
acres at 13th and Howard Streets in San Francisco The
work involves the renovation of existing buildings and
the construction of new buildings for use by an automo-
bile dealership DeIcon, the general contractor at the
Project, has collective-bargaining agreements with three
unions affiliated with Respondent—the Carpenters, La-
borers, and Ironworkers In September 1988 a prejob
conference regarding the Project was held at Respond-
ent's office at which time Ben Gysbers, Delcon's general
superintendent, gave a list of subcontractors on the
Project to Stanely M Smith (S M Smith) secretary/-
treasurer and business representative of Respondent
After noting that four of the subcontractors on the list,
including Goold, were not signatories to collective-bar-
gaining agreements with any unions, S M Smith told
Gysbers there would be problems and requested another
meeting to try to resolve the problems 2 Gysbers said
that a further meeting would not be useful because of the
personal relationship between the owners of Goold Elec-
tric and Deleon
According to S M Smith, after the prejob conference
the union representative participants discussed the con-
ference and decided to attempt to determine whether the
nonunion subcontractors were going to abide by San
Francisco area standards To this end, on September 28,
1988, Respondent sent letters to Dayton Masonry, Goold
Electric, C A Mechanical, and Pacific Architectural
Glass, which stated Respondent's belief that the subcon-
tractor was not observing the area standards under the
industry collective-bargaining agreement The letter also
stated that unless the contractor could provide Respond-
ent with evidence by October 3, 1988, that its employees
are provided with total economic benefits commensurate
with those enjoyed by employees working under the col-
lective-bargaining agreement, Respondent would adver-
tise to the public, suppliers, ana cther uric s their failure
to observe standard union conditions _ tie letter dis-
claimed any recognitional or organizational objective
and further stated that any picketing would be in protest
of the failure to comply with area standards C A Me-
chanical was the only subcontractor to respond to the
letter Thereafter, Respondent's board of business repre-
sentatives decided to establish informational area stand-
ard picketing at the Project
B The Picketing from October 19 to November 11
and the Establishment of the Dual Gate System
Picketing commenced at the Project on October 19
At a approximately 6 50 a m that day 25 to 30 people,
including S M Smith, commenced picketing at the en-
trance to the Project located on Howard Street 3 The
picket signs read
2 The four nonunion subcontractors were Goold Electric, C A Me-
chanical, Dayton Masonry, and Pacific Architectural Glass
3 The entrance gate was on Howard Street between 12th and 13th, ap-
proximately 120 feet from 12th Street and approximately 400 to 500 feet
from 13th Street The pickets walked along 13th Street and Howard
Street
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
San Francisco Building and Construction
Trades Council Notice to Public
work planned or being performed
on this jobsite is NOT 100%
Union Non union Building
Trade Workers are employed by
Under substandard working conditions
which undermine prevailing area
standards
S R Smith (S R Smith), Delcon s job superintend
ent spoke to a picketer who identified himself as John
Walsh, business representative for International Brother
hood of Electrical Workers, Local 6 According to S R
Smith, he asked Walsh what the picketing was about and
Walsh said it was a sanctioned picket against all trades 4
S R Smith then called Gysbers and Informed him of
the situation Gysbers instructed him to call Goold Elec
tric and to establish a two gate system When he called
Goold Electric he spoke to someone who said he would
call Goold s attorney and probably have the attorneys
send a telegram He then telephoned the other subcon
tractors scheduled to work that day all of whom were
union except C A Mechanical
On the afternoon of October 19 S R Smith posted a
sign at the entrance gate on 13th Street which stated
Gate #1
STOP READ
is gate is reserved for the exclusive
use of personnel visitors and suppliers
of the contractors listed below
Goold Electric, Inc
C A Mechanical
All others must use Gate No 2
The sign which measured 3 1/2 feet wide by 2 feet tall
was placed on a sawhorse on the left side of the en
trance approximately 20 feet inside a gate located on
13th Street 5
At approximately 4 p m Goold s attorney sent a tele
gram to Respondent which stated
PLEASE BE ADVISED THAT A TWO GATE SYSTEM
HAS BEEN ESTABLISHED AT THE JOBSITE LOCATED
ON HOWARD AND 13TH GATE NUMBER 1 IS RE
SERVED FOR THE EXCLUSIVE USE OF GOOLD ELEC
TRIC ITS EMPLOYEES AND SUPPLIERS ONLY GATE
NUMBER 1 IS LOCATED ON 13TH STREET GATE
NUMBER 2 IS LOCATED ON HOWARD STREET, IT IS
RESERVED FOR ALL OTHER EMPLOYERS PLEASE
CONFINE YOUR PICKETING TO GATE NUMBER 1
ONLY
4 Walsh did not testify
5 According to S R Smith despite the lack of identification of any
subcontractor on the picket signs he listed Goold and C A Mechanical
on the gate sign as they were the only nonunion contractors an the
Project at that time Neutral union subcontractors scheduled to work on
the Project that day were Lowery Paving Cleveland Wrecking C,ompa
fly Eandi Metal Works Olea Plastenng Cal Veda Drywall All Cal In
sulation Golden West Concrete Goldman Mechanical Johnson Scaffold
mg and Enterpnse Roofing
According to S M Smith the telegram was received in
Respondent s office on October 20 but because he was
picketing at the Project that day he did not actually see
the telegram until October 21
On the morning of October 20 prior to the com
mencement of the workday S R Smith posted a gate
sign at the Howard Street entrance to the Project which
read
Gate #2
STOP READ
This gate may not be used by personnel
visitors or suppliers of the contractors
listed below
Goold Electrical Inc
C A Mechanical
All others must use this gate
Despite the establishment of the dual gate system, on Oc
tober 20 and 21 more than 15 persons picketed at gate 2
and a few picketed at gate 1 S M Smith picketed on
both dates Neutral subcontractors Lowery Paving
Golden West Cpncrete, Eandi Steel, and Johnson refused
to work on the Project on October 20 and 21 because of
the picketing Picketing continued at gate 2 on October
24 and 25 with signs which failed to name any employer
However, accordmg to S R Smith there was one sign
at gate 2 with the following legend
San Francisco Building and
Construction Trades Council
NOTICE TO PUBLIC
Work planned or being
performed on this job site is
NOT 100% UNION
Non union Building Trades
Workers are employed by
Gomm ELEC
under SUBSTANDARD WORKING
Conditions WHICH UNDERMINES
prevailing area standards
There were one or two pickets at gate 1 for a short
time on October 21 and 25 On October 26 there were
pickets at gate 2 with signs naming Dayton Masonry
According to S R Smith on October 26 he approached
Walsh and asked why Dayton Masonry was named on
the sign Walsh said they were doing work S R Smith
said Dayton Masonry had never worked on the Project
and even though they had given an estimate to do work,
Delcon had no contract with Dayton Masonry Walsh
suggested that S R Smith talk to some of the nonunion
trades on the job and have them sign an agreement
S R Smith admits he did not add Dayton Masonry to
any of the gate signs on that day Dayton Masonry re
mamed on the picket signs on October 27, 28, and 29
On October 27 nonunion subcontractor Regivig Roof
mg began working on the Project and Harold Concrete
also a nonunion subcontractor began work on the
Project on an occasional basis at the end of October On
October 31 some of the picket signs named Regivig
SAN FRANCISCO BUILDING TRADES COUNCIL (GOOLD ELECTRIC) 1053
Roofing and other picket signs listed no employer
About midmorning S R Smith added Regivig Roofing
to the employers listed on the gate 1 and 2 signs and in-
structed Delcon's attorney to send a telegram to Re-
spondent On November 1, Respondent's attorney sent a
telegram to Respondent, which reads
PLEASE BE ADVISED THAT THE TWO GATE SYSTEM
ESTABLISHED AT RON GREENSPAN'S AUTO DEALER
JOBSITE HAS BEEN EXPANDED, A SECOND INITIAL
GATE #2 IS BEING ERECTED ON 13TH STREET, 40
FEET WEST OF GATE #1 ALSO, REGIVIG ROOFING IS
NOW ADDED TO THE PRIMARY GATE AND WILL USE
ONLY GATE #1 .
Thereafter, according to S R Smith, whenever a new
name was added to the picket sign he added that em-
ployer's name to the gate sign if the employer was work-
ing on the Project Picketing with signs naming Regivig
Roofing continued on November 1 On November 2
picket signs at gate 2 identified Harold Concrete as the
primary employer S R Smith added Harold Concrete
to the gate sign and asked Delcon's attorney to notify
Harold Concrete that it must use gate 1 Nevertheless,
Respondent continued to picket at gate 2 with Harold
Concrete picket signs on November 2, 3, 4, 7, 8, 9, and
10 On November 6-11 some of the picket signs at gate 2
named Champion Plumbing as the Primary employer 6
According to S R Smith, he added Champion Plumb-
ing to the gate sign but is uncertain as to the exact date
C The alleged Pollution of the Neutral Gate
Respondent does not deny the picketing at gate 2
Rather, it contends that the neutral gate 2 was polluted
and thus picketing at gate 2 was permissible The only
witness to testify in this regard was S M Smith How-
ever, he offered no direct testimony that the reserved
gate system was breached Rather, S M Smith testified
he had no knowledge as to whether the primary employ-
ers were using gate 2 but knew they were not using gate
1 because gate 1 was locked during the period October
21-25 Again, he offered no direct evidence that the gate
was locked When questioned as to how he knew it was
locked, he answered merely "Because pickets were on
that side" He did testify that he saw a Regivig Roofing
truck go through gate 2 on October 26 He admits he did
not thereafter personally see a Regivig truck go through
gate 2, but claims that a picket, who he believes was Ron
Kyles, did see a Regivig truck enter gate 2 Kyles did
not testify S M Smith also testified that on Saturday,
October 29, about 9 a m He went around to the 13th
Street side and observed that the 13th Street gate was
locked On November 1, according to S M Smith,
Kyles reported to him that Champion Plumbing used
gate 2
John Reynolds, one of the pickets, testified that it ap-
peared to him that every vehicle that came on the jobsite
went through gate 2 because he went over and looked at
gate 1 and it was locked He testified that he picketed for
2 days in October and that he saw the Regivig Roofing
truck go through gate 2 on both days and also saw Regi-
vig employees enter on foot through gate 2 Reynolds
was also at the Project on November 14, 15, and 16 Ac-
cording to him, he observed Harold Concrete Saw
trucks driving in and out of gate 2 on at least three occa-
sions on November 14, at least twice on November 15
He is not sure, however, that Harold Concrete used gate
2 on November 16 Reynolds further testified that he
picketed at gate 2 because that was where the other
picketers were picketing and that was where S M
Smith instructed him to picket
Goold's foreman, Robert Johnson, testified that he en-
tered the Project on October 20 through gate 1 The
gate was shut but it was not locked According to him,
the entryway through gate 1 was not driveable for 10 to
14 days after October 19 On the second or third day of
the picketing one of the Goold trucks got stuck entering
through gate 1 From that point on Goold made no at-
tempts to drive through gate 1 Instead, the Goold em-
ployees walked through gate 1 until 10 to 14 days after
the establishment of the gate when Deleon brought
equipment in and graded the area S R Smith admits
that on November 14 he observed a Harold Concrete
Saw employee dnve through gate 2 When the employee
came into the trailer, Smith told him he had entered
through the wrong gate and asked if he had seen the
gate sign The employee said he had seen the sign but
did not see that Harold Concrete Saw was listed Smith
admits that it was dark
S R Smith testified that the gate sign was placed 15
feet inside the gate primarily to keep anyone from tam-
pering with it He admits, however, that there is no par-
ticular reason he did not put the sign at a level higher
than 3 feet from the ground According to Smith, gate 2
was the only gate open at 6 30 a m He opens gate 1
about 6 50 a m When the employee left the trailer,
Smith unlocked gate 1 and the employee exited the
Project through gate 2 and reentered through gate 1
Smith further testified that although he did not see the
employee exit gate 2 and then enter through gate 1, as he
was going to unlock gate 1, he observed that the em-
ployee's truck was not on the site and after he returned
to his trailer he could see the employee dnvmg on the
other side of the jobsite 7
D The Alleged Picketing Following the November 10
Injunction and the December 7 Rally
On November 10, the Board was granted an injunction
prohibiting 8(b)(4)(1) and (n)(B) conduct by Respondent
at the Projeat Thereafter, a Board agent informed S M
Smith that he could not picket gate 2 On November 11,
the pickets patrolled at gate 2 with handwritten signs
beanng the legend "Workers Take Handbills" They also
distnbuted handbills to persons entering gate 2, which
contained the same information that was on the preprint-
ed picket signs used pnor to the injunction On Monday,
November 14, picketers again appeared at gate 2 carry-
6 From October 19 to November 10 there was picketing at gate 2 on 7 The account of this incident in Smith's affidavit does not state that
the employee exited gate 2 and reentered through gate 1everyday that work was performed at the Project
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing the Workers Take Handbills signs and distributing
handbills to persons who entered gate 2 At least one of
the signs at gate 2 bore the legend No Scabs in San
Francisco on November 14 15 and 16, according to
Reynolds some pickets carried signs which read Scabs
Go Home and Don t Work Behind a Two Gate Line
On November 14 immediately after the Harold Con
crete incident Deleon sent a telegram to Respondent
which states
WE HEREBY DENY THAT THERE HAS BEEN ANY POL
LUTION OF THE GATES AT THE JOBSITE AT 1675
HOWARD STREET NONE THE LESS WE HEREBY RE
ESTABLISH THE GATE #1 AS DESIGNATED ON THE
SIGNS GATE #1, LOCATED ON 13TH STREET, IS RE
SERVED FOR THE EXCLUSIVE USE OF HAROLD CON
CRETE SAWING GOOLD ELECTRIC C A MECHANICAL
REGIVIG ROOFING B C M SERVICE AND ENGINEER
ING AND THEIR EMPLOYEES AND SUPPLIERS GATE
#2, LOCATED ON HOWARD STREET IS RESERVED
FOR ALL OTHERS, THE EMPLOYEES AND SUPPLIERS
OF HAROLDS CONCRETE SAWING HAVE BEEN RE IN
STRUCTED TO USE GATE #1 EXCLUSIVELY, FAILURE
TO CONFINE YOUR PICKETING TO GATE #1 WILL
LEAD TO ALL NECESSARY LEGAL ACTION
The telegram was received by Respondent on November
15
According to S R Smith, off and on after November
10, some of the picketers carried signs with the legends
No Scabs In San Francisco, It s a strong union town
and it s going to stay that way The handbills that were
distributed stated
SAN FRANCISCO BUILDING AND
CONSTRUCTION TRADES COUNCIL
NOTICE TO WORKERS
WORK PLANNED OR BEING
PERFORMED ON THIS JOB SITE IS
NOT 100% UNION
NON UNION BUILDING TRADES WORKERS
ARE EMPLOYED UNDER SUBSTANDARD
WORKING CONDITIONS WHICH
UNDERMINE PREVAILING AREA
STANDARDS
Despite the Injunction pickets have handbilled and pa
trolled at gate 2 from November 11 to the date of the
hearing During the week of December 5, flyers signed
by The Watchdog Committee were posted on the
building located on the Project at the corner of 13th and
Howard Streets The flyer states inter aim
Deleon is doing a major Two Gate job right in
downtown San Francisco at Howard and 13th St
The word was that no building trades union would
dispatch workers to this job until it went 100%
union The building Trades Council has a picket
line at the union gate as part of their attack on the
anti union contractors
The following trades have crossed the picket line
to work at 13th and Howard
Union Lathers working for Olea Plastering
Union Laborers working for Deleon
If you know any union members working at Deleon
tell them to get off the job—they are a disgrace to
the building trades!
LET S FINISH THE JOB WE STARTED ON RAT
MONDAY
AND MAKE THIS CITY 100% UNIONI
SHOW UP AT 13TH AND HOWARD ON DEC 8 AT 7 AM
TO RUN THE RATS OUT OF TOWN'
See You There
THE WATCHDOG COMMITTEE
S M Smith admits he saw the flyer on December 3 at
his office but denies he ever saw the flyer at the Project
He also admits that the only steps he took to disavow
the statements in the flyer was his statement at a meeting
that he was unaware of who had put the handbill out
According to him a week or two prior to December 7
he was informed by the rank and file committee 8 that the
rally would be held Although the flyer stated that the
rally would be held on December 8 It was in fact held
on December 7 S M Smith denies any involvement in
the organizing of the rally and picketing on December 7
He admits, however that he was at the site for 2 1/2 or
3 hours during the picketing and that the picketing con
tmued for most of the day
There were more than a hundred pickets at the
Project on December 7 They carried picket signs which
read variously No Scabs In San Francisco Beware of
the Two Gater Scabs Go Home San Francisco Is
A Strong Union Town Going To Stay That Way
Some of the pickets also carried Workers Take Hand
bill signs and distributed handbills Smith admits that a
number of the picketers were members of Respondent s
Board of Business Representatives and that some dele
gates to Respondent were present at the rally 9
On December 8 there were approximately 25 picketers
at gate 2 carrying signs, which read variously No Two
Gates, Two Gater Go Home' I Do Not Work
Behind Two Gates Union Proud Of It, Wake Up
America Live Better Work Union Two Gates
Low Pay Rate Rats Go Home Duo Gate System
Is Bad Smith patrolled with the pickets but did not
himself carry picket signs He admits he made no effort
to separate himself from any other persons patrolling
around gate 2 On December 7 and 8 neutral subcontrac
tors Golden West Concrete Olea Plastering and Cal
Veda Drywall refused to work on the Project because of
8 According to S M Smith the rank and file committee is a group of
individual union members with a very loose organizational structure who
take It upon themselves to fight the evils of the duo gate system
9 Respondent Is governed by a Council comprised of elected delegates
from each of the more than 30 unions affiliated with Respondent The
Council which meets twice a month elects Respondent s officers All
full time business representatives of Respondent s affiliates form a board
of representatives which meets weekly Actions of the Board are subject
to approval by the delegates
SAN FRANCISCO BUILDING TRADES COUNCIL (GOOLD ELECTRIC) 1055
fecting commerce, where in either case an object
thereof is
the picketing After December 8 the pickets carried the
"Workers Take Handbills" signs as they patrolled and
distributed handbills in front of gate 2
IV CONTENTION OF THE PARTIES
The General Counsel contends that an unlawful sec-
ondary object has been shown by Respondent's failure to
identify the primary employer on its picket signs, the
failure to confine its picketing reasonably close to the en-
trance reserved for the primary employers, and the pick-
eting at a time when the primary employer was not on
the site Also indicative of an unlawful secondary object,
according to the General Counsel, is the picketing after
the injunction issued on November 11 In that regard,
the General Counsel contends that the "Please Take
Handbill" picketing coupled with the language of the
handbills constitutes an unlawful inducement to employ-
ees within the meaning of Section 8(b)(4)(1)(B) and re-
straint and coercion within the meaning of Section
8(b)(4)(1) and (n)(B) General Counsel also contends that
Respondent is responsible for the picketing by the rank-
and-file committee and/or the Watchdog Committee
since those picketers intermingled with picketers who
were admittedly agents of Respondent and Respondent
failed to take positive steps to disavow the conduct of
the committee Further, the handbilling was accompa-
nied by mass picketing on December 7 and 8
Respondent contends that it was ,engaged in classic
and permissible "area standards" picketing from October
19 until November 6, when it ceased all picketing activi-
ty In this regard, Respondent argues that the reserve
gate system was continuously polluted through use by
the primary employers Therefore, it was permissible to
picket the gate designated for neutral employers As to
its conduct after November 6, Respondent contends it
was merely engaging in lawful handbillmg activity Re-
spondent also argues that it is not a labor organization
since no employees participate m its activity nor does it
deal directly with employers with regard to the working
conditions of any employees Respondent further argues
that it cannot be held responsible for the actions of un-
identified protesters at the Project since it neither author-
ized nor ratified their conduct
V CONCLUSIONS
A The Applicable Legal Principles
Section 8(b)(4)(0 and (n)(B) of the Act, provides, in
relevant part
(b) It shall be an unfair labor practice for a labor
organization or its agents—
(4)(0 to engage in, or to induce or encourage any
individual employed by any person engaged in com-
merce 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 serv-
ices, or (n) to threaten, coerce, or restrain any
person engaged in commerce or in an industry af-
(B) forcing or requiring any person to cease
doing business with any other person
However, a proviso to Section 8(b)(4)(B) exempts from
its ambit primary picketing and a further proviso makes
an exemption for "publicity, other than picketing," if the
publicity is for the purpose of truthfully advising the
public, including consumers and members of a labor or-
ganization, that the picketed person distributes products
obtained from an employer with whom the labor organi-
zation has a primary labor dispute
There are essentially two elements to an 8(b)(4)(0 and
(n)(B) violation One, there must be conduct which en-
gages in, induces, or encourages individuals to engage in
a strike or refusal to perform their employment duties or
which threatens, coerces, or restrains any person Two,
the object of that conduct must be to force or require
any person to cease dealing with or doing business with
any other person However, it is clear that a violation of
Section 8(b)(4) cannot be based on the desire or hope of
a labor organization that its picketing will influence indi-
viduals to withhold their services nor on the effect that
picketing has had in that regard Electrical Workers IUE
Local 761 v NLRB, 366 U S 667, 673-674 (1961)
A determination as to a secondary object is particular-
ly difficult where a primary employer shares a common
situs with neutral employers In such situations "picket-
ing must be conducted so as to minimize its impact on
neutral employers insofar as this can be done without
substantial impairment of the effectiveness of the picket-
ing in reaching the employees of the primary employer"
Nashville Building Trades Council (H E Collins Con-
tracting Co), 172 NLRB 1138, 1140 (1968), enfd 425
F 2d (6th 1970) It is well settled that the legality of
picketing at a common situs, as in the construction indus-
try, must be determined under the Moore Dry Dock
standards Sailors Union (Moore Dry Dock), 92 NLRB 547
(1950), Sacramento Area District Council of Carpenters,
244 NLRB 890 (1979), Nashville Building Trades Council
(Markwell & Hartz), 164 NLRB 280 (1967), enfd 387
F 2d 79 (5th Cir 1967)
In Moore Dry Dock, the Board held that in disputes in-
volving a common situs neither the right of the union to
picket nor the right of the neutral employer to be free
from picketing is absolute In such situations, the picket-
ing is primary and, therefore, legal, if the following cnte-
na are met
(1) the picketing is strictly limited to times when
the situs of the dispute is located on the secondary
employer's premises,
(2) at the time of the picketing the primary em-
ployer is engaged in its normal business at the situs,
(3) the picketing is limited to places reasonably
close to the location of the situs, and
(4) the picketing discloses clearly that the dispute
is with the primary employer
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
However the Moore Dry Dock standards are only
guidelines not to be mechanically applied Rather the
Board has indicated they are to be applied with common
sense and with a view to the dual congressional objec
byes of preserving the right of labor organizations to
bring pressure to bear on primary employers and of
shielding secondary employers and others from pressures
in controversies not their own NLRB v Denver Build
mg Trades Council 341 U S 675 692 (1955) Operating
Engineers Local 450 (Linbeck Construction), 219 NLRB
937 998 (1975) enfd 550 F 2d 311 (5th Cir 1977)
Therefore, while compliance might give rise to a rebutta
ble inference of primary picketing the totality of the evi
dence may reveal an underlying secondary objective and
overcame the presumption
Here the picketing clearly failed to conform with
three of the four standards Thus, Respondent picketed
on October 19, 20, 21, 24, 25, and 31 with signs that
failed to identify the employer with whom Respondent
had a dispute It consistently picketed at gate 2 the gate
reserved for the neutral subcontractors Further on Oc
tober 26, S R Smith told Walsh a member of Respond
ent s board of business representatives that Dayton Ma
sonry was not working on the Project and had never
worked on the Project Yet picketing continued with
Dayton Masonry signs on October 26 27, and 28 Such
conduct evidences an intent to enmesh the neutrals in a
dispute not their own
As set forth above Respondent attempts to justify its
picketing of the neutral gate by arguing that the gate
was polluted by the primary employers use of the gate
However, Respondent s principal argument in this regard
is essentially based on conjecture Thus S M Smith tes
tified he did not know whether the primary employers
were using the neutral gate but knew they were not
using the primary gate from October 21-25 because the
primary gate was locked Yet according to his testimo
fly, he observed that the 13th Street gate was locked on
only one occasion—on Saturday, October 29 about 9
a m Reynolds testified that it appeared to him that every
vehicle that came on the jobsite went through gate 2 be
cause he went over and looked at gate 1 and it was
locked He did not testify as to the date and hour of this
incident nor did he testify as to any other occasion when
he found gate 1 locked Goold s foreman Robert John
son credibly testified that the gate was closed not
locked, and since the entryway through gate 1 was not
driveable until it was graded some 10 to 14 days after the
picketing commenced he and other Goold employees
parked offsite and walked through gate 1 Thus, the evi
dence as to the alleged taint of the dual gate system is at
best vague and since Respondent has the burden of justi
fying its disregard of the reserve gate system any ambi
guities must be resolved against Respondent Operating
Engineers Local 12 (McDevitt & Street), 286 NLRB 1203
(1987)
As to evidence of specific incidents of alleged viola
tion of the integrity of the dual gate system S M Smith
testified that he saw a Regivig Roofing truck go through
gate 2 on October 26 However, prior to October 31 Re
givig was not identified as an employer with whom Re
spondent had a dispute According to S M Smith one
of the picketers told him a Regivig truck entered the
project through gate 2 He did not testify as to whether
this occurred before or after October 31 Picketer John
Reynolds testified that he observed Regivig trucks and
employees enter the Project through gate 2 in October
Again there is no testimony as to whether this was
before or after the use of the Regivig picket signs In any
event Respondent was notified on November 1 that the
reserved gate system had been expanded to include Regi
vig Roofing at gate 1 Reynolds also testified that Harold
Concrete used gate 2 on November 14 and 15
S R Smith admits that a Harold Concrete employee
entered the Project through gate 2 on November 15 Ac
cording to him he instructed the driver not to use gate
2 Thus, the only breach of the reserved gate system was
by Harold Concrete on November 14 and 15 However,
illegal picketing cannot be justified by after the fact vio
lations of the neutral gate by employees of primary em
ployers Operating Engineers Local 12 (McDevitt & Street)
supra Nashville Trades Council (H E Collins Co),
supra Therefore, since Respondent had picketed the
neutral gate on a continuous basis for more than 3 weeks
prior thereto I conclude that the picketing of the neutral
gate was not at any time in response to the Harold Con
crete breaches Accordingly I find contrary to Re
spondent s urgmg that the reserve gate system was not
sufficiently compromised so as to excuse Respondent s
otherwise unlawful picketing In these circumstances, I
find that Respondent violated Section 8(b)(i) and (u)(B)
by picketing with signs that faded to identify the em
ployer with whom Respondent had a dispute, by picket
mg with Dayton Masonry signs at a time when Dayton
Masonry had no presence at the Project and by picketing
prior to November 11 at the neutral gate
Respondent argues that commencmg with November
11 it ceased picketing at the Project and only engaged in
lawful handbillmg In support thereof Respondent relies
on DeBartolo Corp v Florida Gulf Coast Building Trades
Council 108 S Ct 1392 (1988) affg 796 F 2d 1328 (11th
Or 1986) in which the Supreme Court affirmed the
lower court s denial of enforcement of a Board Order
finding peaceful handbillmg directed toward consumers
was proscribed by Section 8(b)(4)(n) That case is map
posite In denymg enforcement the Court concluded
that there is no clear indication in the relevant legislative
history that Congress intended Section 8(b)(4)(n) to pro
scribe peaceful handbillmg unaccompanied by picketing
urging a consumer boycott of a neutral employer Here
the handbillmg of the neutral gate was accompanied by
picketmg and it vas directed at employees of neutral em
ployers not at consumers
Thus the picket signs, admittedly carried at the re
quest of Respondent read Workers Take Handbills
and the handbills stated that work planned or being per
formed on this jobsite is not 100 percent union Also,
other picket signs carried the legend No scabs in San
Francisco' and It's a strong union town and it s going
to stay that way Further on December 7 and 8 there
were numerous picket signs with varying legends attack
mg the use of nonunion labor on the Project Neither the
picket signs nor the handbills identified the primary em
SAN FRANCISCO BUILDING TRADES COUNCIL (GOOLD ELECTRIC) 1057 ■
ployer Respondent denies responsibility for any picket
signs other than the one urging workers to take hand-
bills However, some of the persons picketing with these
other signs were delegates to Respondent and members
of Respondent's board of business representatives S M
Smith patrolled with these picketers but did not carry a
picket sign No effort was made by Respondent to dis-
avow either the picketing or the message on flyers
posted at the Project, which vilified the union members
who continued to work on the project and identified
their union trades and their neutral subcontractor em-
ployers 1°
In these circumstances, I conclude that Respondent
cannot divorce itself from the totality of the picketing of
the neutral gate I therefore find that Respondent con-
duct went beyond that of mere handbillmg and that it
failed to comply with its obligation to avoid enmeshing
neutral employers in its dispute with other emiiloyers
See Service Employees Local 87 (West Bay Maintenance),
291 NLRB 82 (1988) Accordingly, I find that on No-
vember 11, and thereafter, Respondent engaged in pick-
eting at the neutral gate designed to enmesh the neutral
employers in a dispute not their own I further find that
such conduct was violative of Section 8(b)(1) and (n)(B)
of the Act Painters 48 (Hamilton Materials), 144 NLRB
1523, 1524, (1963), enfd 340 F 2d 107 (9th Cir 1965),
cert denied 381 U S 914 (1965), Los Angeles Trades
Council (Sierra South), 215 NLRB 288, 290 fn 4 (1974),
Nashville Building Trades Council (Castner-Knott Dry
Goods Store), 188 NLRB 470 (1971)
CONCLUSIONS OF LAW
1 Goold Electnc, C A Mechanical, Regivig Roof-
ing, Dayton Masonry, and Harold Concrete are employ-
ers and persons engaged in commerce or in an industry
affecting commerce within the meaning of Section 2(1),
(2), (6), and (7), and Section 8(b)(4)(1) and (n)(B) of the
Act
2 Delcon Development, Lowery Paving, Johnson
Scaffolding, Enterprise Roofing, Eandi Metal Works,
Goldman Mechanical, Golden West Concrete, Olea Plas-
tering, Cleveland Wrecking Company, Cal-Veda
Drywall, and All Cal Insulation are persons engaged in
commerce or in an industry affecting commerce within
the meaning of Section 2(1), (6), and (7) and Section
8(b)(4)(1) and (u)(B) of the Act
3 The Respondent is a labor organization within the
meaning of Section 2(5) of the Act
4 By picketing with signs failing to disclose the name
of the primary employer, Respondent violated Section
8(b)(4)(1) and (n)(B) of the Act
5 By picketing at gates reserved for neutrals at the
Delcon Project, prior to November 11, 1988, Respondent
violated Section 8(b)(4)(0 and (n)(B) of the Act
6 By picketing and handbillmg at the gate reserved
for neutrals at the Delcon Project commencing on No-
" The record does not establish Respondent's responsibility for the
flyer posted on the building I therefore find that Respondent did not vio-
late Sec 8(b)(4)(0 and (n)(B) by posting the flyer However, I find that
Respondent's failure to disavow the message of the flyer is further inch=
of Respondent's unlawful object
vember 11, 1988, Respondent has violated Section
8(b)(4)(0 and (n)(B) of the Act
7 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has violated Section
8(b)(4)(0 and (n)(B) pf the Act, I shall recommend that it
be ordered to cease and desist therefrom and that it take
such affirmative action necessary to effectuate the pur-
poses of the Act '1
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, San Francisco Building and Con-
struction Trades Council, its officers, agents, and repre-
sentatives, shall
1 Cease and desist from
(a) Inducing or encouraging any individual employed
by Delcon Development, Lowery Paving, Johnson Scaf-
folding, Enterprise Roofing, Eandi Metal Works, Gold-
man Mechanical, Golden West Concrete, Olea Plaster-
ing, Cleveland Wrecking Company, Cal-Veda Drywall,
and All Cal Insulation, or any other persons engaged in
commerce or in an industry affecting commerce, to
engage in a strike or refusal in the course of his employ-
ment to use, manufacture, process, transport, or other-
wise 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 same persons, or any
other persons, to cease using, selling, handling, transport-
ing, or otherwise dealing with the products of, or to
cease doing business with, each other and/or with
Delcon Development in order to force or require Delcon
Development to cease doing business with Goold Elec-
tric, C A Mechanical, Regivig Roofing, Dayton Ma-
sonry, Champion Plumbing, and/or Harold Concrete
(b) Threatening, coercing, or restraining Delcon De-
velopment, Lowery Paving, Johnson Scaffolding, Enter-
prise Roofing, Eandi Metal Works, Cleveland Wrecking
Company, Cal-Veda Drywall, All Cal Insulation, Gold-
man Mechanical, Golden West Concrete, and Olea Plas-
tering, or any other person engaged in commerce or in
an industry affecting commerce, where an object thereof
is to force or require the persons to cease using, selling,
handling, transporting, or otherwise dealing with the
products of, or to cease doing business with, each other
and/or with Delcon Development in order to force or
require Delcon Development to cease doing business
"The Charging Party has requested an order prohibiting Respondent
from picketing any employer in the San Francisco Bay Area with an un-
lawful secondary object I find that the circumstances here do not war-
rant a remedial order of such broad scope See Ironworkers Pacific North-
west Council (Hoffman Construction), 292 NLRB 562 (1989)
12 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with Goold Electric C A Mechanical Regivig Roof
mg Dayton Masonry Champion Plumbing, and/or
Harold Concrete
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its offices and meeting halls copies of the
attached notice marked Appendix 13 Copies of the
notice on forms provided by the Regional Director for
Region 20, after being signed by the Respondent s au
thonzed representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to members of its affiliated locals are cus
tomanly posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered de
faced or covered by any other material
(b) Deliver to the Regional Director for Region 20
signed copies of the notice in sufficient number for post
ing by the employers involved here they being willing,
at all locations where notices to their employees are cus
tomanly posted
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply
13 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 Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE TO 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
violated the National Labor Relations Act and has Or
dered us to post and abide by this notice
WE WILL NOT nor will our officers business repre
sentatives business agents or anyone acting for us, what
ever his title may be, engage in or induce or encourage
any individual employed by Lowery Paving Johnson
Scaffolding Delcon Development Enterprise Roofing
Eandi Metal Works Goldman Mechanical Olea Plaster
mg Golden West Concrete Cleveland Wrecking Corn
pany Cal Veda Drywall All Cal Insulation or any
other person engaged in commerce or in an industry af
fectmg commerce to engage in a strike or refusal in the
course of his employment to use, manufacture, process
transport or otherwise handle or work on any goods ar
tides, materials or commodities or to perform any serv
ices where an object thereof is to force or require the
persons to cease using selling handling, transporting or
otherwise dealing with the products of or to cease doing
busmess with each other and/or with Delcon Develop
ment m order to force or require Delcon Development
to cease doing business with Goold Electric, C A Me
chamcal, Regivig Roofing, Dayton Masonry, Champion
Plumbing and/or Harold Concrete
WE WILL NOT threaten coerce or restrain Delcon De
velopment, Lowery Paving, Johnson Scaffolding, Enter
pnse Roofing Eandi Metal Works Goldman Mecham
cal Olea Plastering, Golden West Concrete, Cleveland
Wrecking Company Cal Veda Drywall and All Cal In
sulation or any other person engaged in commerce or in
an industry affecting commerce where an object thereof
is to force or require those persons to cease using, sell
mg handling, transporting, or otherwise dealing with the
products of, or to cease doing business with each other
and/or with Delcon Development in order to force or
require Delcon Development to cease domg business
with Goold Electric C A Mechanical Regivig Roof
mg, Dayton Masonry, Champion Plumbing, and/or
Harold Concrete
SAN FRANCISCO BUILDING AND CON
STRUCTION TRADES COUNCIL