NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
District Council 711, International
December 20, 2007
DECISION AND ORDER
By Members Schaumber, Kirsanow, and Walsh
On September 4, 2007, Administrative Law Judge John T. Clark issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed limited exceptions and a supporting brief, a brief in support of the judge’s decision, and an answering brief 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 exceptions1 and
briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the
recommended Order as modified and set forth in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, District Council 711, International Union of Painters and Allied
Trades, AFL–CIO,
1. Cease and desist from
(a) Unqualifiedly threatening to picket with the object of forcing Costanza Builders of New Jersey, Inc., to cease doing business with JC Two, Inc.
(b) Inducing or encouraging any individual employed by Costanza Builders of New Jersey, Inc., A.M.I. Concrete, Majek Fire Protection, Schindler Elevator, C.J. Mechanical, Nelson B. Cooney and Son, Inc., or any other person 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, load, unload, 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 Costanza or any other person to cease doing business with JC Two, Inc., or to force or require A.M.I. Concrete, Majek Fire Protection, Schindler Elevator, C.J. Mechanical, Nelson B. Cooney and Son, Inc., or any other person to cease doing business with Costanza, in order to force or require Costanza to cease doing business with JC Two, Inc.
(c) Threatening, coercing, or restraining Costanza Builders of New Jersey, Inc., A.M.I. Concrete, Majek Fire Protection, Schindler Elevator, C.J. Mechanical, Nelson B. Cooney and Son, Inc., or any other person engaged in commerce or in an industry affecting commerce, by picketing, where an object thereof is to force or require Costanza to cease doing business with JC Two, Inc., or to force or require A.M.I. Concrete, Majek Fire Protection, Schindler Elevator, C.J. Mechanical, Nelson B. Cooney and Son, Inc., or any other person to cease doing business with Costanza, in order to force Costanza to cease doing business with JC Two, Inc.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its union office in
(b) Sign and return to the Regional Director sufficient copies of the notice for posting by Costanza Builders of New Jersey, Inc., A.M.I. Concrete, Majek Fire Protection, Schindler Elevator, C.J. Mechanical, Nelson B. Cooney and Son, Inc., and JC Two, Inc., if willing, at all places where their notices to employees are customarily posted.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
Peter C. Schaumber, Member
Peter N. Kirsanow, Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Members
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
We will not unqualifiedly threaten to picket with the object of forcing Costanza Builders of New Jersey, Inc. to cease doing business with JC Two, Inc.
We will not induce or encourage any individual employed by Costanza Builders of New Jersey, Inc., A.M.I. Concrete, Majek Fire Protection, Schindler Elevator, C.J. Mechanical, Nelson B. Cooney and Son, Inc., or any other person 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, load, unload, 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 Costanza or any other person to cease doing business with JC Two, Inc., or to force or require A.M.I. Concrete, Majek Fire Protection, Schindler Elevator, C.J. Mechanical, Nelson B. Cooney and Son, Inc., or any other person to cease doing business with Costanza, in order to force Costanza to cease doing business with JC Two, Inc.
We will not threaten, coerce, or restrain Costanza Builders of New Jersey, Inc., A.M.I. Concrete, Majek Fire Protection, Schindler Elevator, C.J. Mechanical, Nelson B. Cooney and Son, Inc., or any other person engaged in commerce or in an industry affecting commerce, by picketing, where an object thereof is to force or require Costanza or any other person to cease doing business with JC Two, Inc., or to force or require A.M.I. Concrete, Majek Fire Protection, Schindler Elevator, C.J. Mechanical, Nelson B. Cooney and Son, Inc., or any other person to cease doing business with Costanza, in order to force Costanza to cease doing business with JC Two, Inc.
District Council 711, International
Bruce
G. Conley, Esq., for the General Counsel.
Robert
F. O’Brien, Esq. (O’Brien, Belland & Bushinsky, LLC), of
Marc
Furman, Esq. (Cohen, Seglias, Pallas, Greenhall & Furman, PC), of
decision
statement of the case
John T. Clark, Administrative Law Judge.
This case was tried in
On
the entire record, including my observation of the demeanor of the witnesses,
as well as my credibility determinations based on the weight of the respective
evidence, established or admitted facts, inherent probabilities, and reasonable
inferences drawn from the record as a whole and, after considering the briefs
filed by the counsel for the General Counsel,3
the Respondent, and the Charging Party, I make the following
Findings of Fact
i. jurisdiction
Costanza,
a
ii. alleged unfair labor practices
A.
Background
Costanza
is the construction manager for the construction of condominium and retail
units on the Lumberyards project in
B.
Events of December 19 and Establishment of the Reserve Gate System
During
the morning of December 19, Edward McDonald, an organizer for the Respondent,
and Michael Kisielewski, the Respondent’s business agent, arrived at Eattock’s
construction trailer on the site and introduced themselves to Eattock as representatives
of the
About
this same time Fray saw them on the site.
He knew them to be union representatives and asked what they
wanted. They mentioned that JC Two was
nonunion and that they wanted a union painter on the job or they were going to
picket. Fray said he would check with
his subcontractors. Fray recalled
nothing else about this conversation.
McDonald
admitted threatening to picket. McDonald
stated as Fray was saying that he would speak with his subcontractors, a woman
walked by and interjected “that there won’t be no union painters brought onto
this job or whatever.” McDonald
identified her as the owner of JC Two.
McDonald also stated that he, Kisielewski, and Fray talked about JC Two
not paying scale, “they’re a lower scale than we are.” McDonald claims to have told Fray that JC Two
was a mom and pop company.
In
response to the
Eattock
prepared two signs: one listing the union contractors (to be placed at the
Haddon Avenue gate, gate A) and another listing the nonunion contractors (to be
placed at the
The
larger yellow sign, approximately four square feet, gave instructions for
entering gate A with the names of the union contractors attached at the bottom:
GATE “A”
THIS ENTRANCE IS
RESERVED FOR ANY
PERSON(S) HAVING
BUSINESS WITH / OR
DELIVERIES FOR
THE FOLLOWING
CONTRACTORS
• C.J. Mech • Schindler Elev.
• Nelson Cooney
• Majek Fire Prot.
• A.M.I. Constr.
ALL OTHERS USE GATE “B”
(GC
Exh. 5.)
Eattock
prepared another sign listing the nonunion contractors, again in 2-inch lettering:
• Pentel • Coffey Bro. • AFA
• JC Two • Frontier • A+
•
RNR • East Coast
•
Crea • Mid-Atlantic
•
Becksted • TJ’S
•
Bryant • TC’S
(GC
Exh. 6.)
He
similarly attached this sign listing all nonunion contractors to another yellow
4-foot-by-4-foot sign. This larger sign
contained language identical to the yellow sign used at gate A, only replacing “gate
A” with “gate B.”
Eattock
told Fray to post the sign listing the union contractors at gate A (
On
December 20 at 7:29 p.m. the Charging Party faxed a letter to Kisielewski at
the Respondent’s office in Glassboro.
(GC Exh. 2.) The letter announced
the establishment of the reserve gate system and specifically identifies the
actions taken by the Charging Party.
McDonald denies receiving the fax.
The Charging Party faxed a similar letter to Cooney Electric, a union
contractor on December 20 at 7:32 p.m.
(GC Exh. 4.)
C.
The Picketing on December 21
Fray
testified that he arrived at gate A between 6:30 and 6:45 a.m. on December
21. Fray testified that the signs at
both gates were up because he had attached both signs the previous day. He noticed two people at the gate who were
unknown to him and who he assumed were pickets because of where they were standing. The security guard was at his post and the
gate was closed. At approximately 7 a.m.
Fray observed that the two men had picket signs and that McDonald had arrived. Fray told McDonald that the pickets were at
gate A and that they would have to move to gate B, the gate for the nonunion contractors,
located on
Fray
testified that he had given the guard at gate A a list of the contractors who
were permitted to use the gate A. He
also testified that during his periodic inspections of gate A he observed the
guard properly performing his duties.
Fray further testified that he never saw any improper use of the gate by
anyone, including JC Two employees. He
testified that no one, including McDonald, either picket, or the guard,
informed him of any improper use of gate A by any contractor, including JC Two.
Lee
arrived on site at approximately 6:45 a.m., as he drove past gate B he observed
two pickets. When he arrived at gate A
he observed one picket who was an older man with gray hair. His description matches that of Frederick
Macombe, who is the picket standing furthest to the right in GC Exh. 7(a). As he drove past the picket he told him that
he was at the wrong gate. The picket
told Lee that he would have to speak to his supervisor who would be arriving
soon. Shortly before 7 a.m. Lee saw
McDonald standing next to the two pickets.
The pickets had sandwich board signs hung from their necks with “JC Two
Painting unfair, does not meet area standards established by Painters DC #711,”
with the union logo beneath the writing.
Lee testified that he informed McDonald that a reserve gate system had
been established and that the Respondent was picketing the wrong gate. Lee testified that McDonald indicated that he
was aware that the pickets were at the wrong gate but he told Lee “You’ll have
to do what you have to do.” Lee took
pictures of McDonald and the pickets standing next to the sign at gate A. (GC Exh. 7.)
Lee
spent 3 or 4 hours on the site during which time he was told by the operator
for Schindler Elevator, the union elevator contractor, that he would have to
leave and remain off the site as long as the picket line was up. He also spoke with other contractors, including
JC Two, to ensure that they understood the reserve gate system. While on the site Lee did not witness any
infractions of the reserve gate system, nor were any reported to him.
Eattock
testified that he was on the site from about 8 a.m. until 1 p.m. on December
21. When he arrived he saw two pickets
standing and walking in front of gate A, wearing sandwich board signs. Eattock’s office is adjacent to gate A and he
did not observe any irregularities at gate A, nor were any reported. He testified that only 4 of the 35–40
unionized employees scheduled to work on December 21, actually worked.
McDonald
testified that when he arrived at gate A on December 21, he met Macombe, the
picket line captain. The time was
between 6 and 6:15 a.m. He claims that
there was no sign posted at gate A.
McDonald met with the four union members and assigned two of them to
picket each gate. McDonald estimates
that the gate A sign was posted between 6:45 and 7 a.m. He admits that he read the sign and confirms
that JC Two was not written on the sign.
(Tr. 138–140.) He also states
that the picture of him and the two pickets standing next to the gate A sign
was taken between 6:30 and 6:45 a.m. (Tr. 153).
On cross-examination McDonald states that Lee took the pictures, and
that they were taken before he and Lee spoke (Tr. 157). McDonald’s statement on cross-examination
contradicts what he said on direct examination.
He stated on direct that Lee drove up to gate A between 7 and 7:30 a.m.
and that he was barely out of his car when he was screaming at McDonald that “he’s
not going to put up with this shit,” and that “I’ll fix this.” (Tr. 148.)
His testimony is further muddled by his acknowledgment that Lee was
approaching as he spoke to McDonald (Tr. 158) but that he does not recall if
the sign, which he admits he was standing next to in the pictures (GC Exh. 7),
was posted. He claims that his
recollection is impaired because Lee was screaming at him. (Tr. 158, 162.) I note that no one was screaming at him when
he testified that it was Lee who took the pictures and that he did so before
they spoke.
McDonald
said that Lee stated that “we don’t have no right to be here, to be on the
picket, to put this line here.” To which
McDonald replied, “we do” and “do what you got to do,” after which Lee went to
his office. A few minutes later five
police cars arrived and the police spoke to McDonald. When testifying about his conversation with
the police McDonald confirmed the testimony of the Charging Party’s witnesses’
that a guard was on duty at gate A (the guard can be seen at the far right of GC
Exh. 7(b)) and that gate A was locked.
When asked by the Respondent’s attorney the amount of time he spent at
the site that morning McDonald said, “I had a luncheon and I was out of there
by 11:30” (Tr. 140). His office lunch
was scheduled to begin at 11:30 a.m. in
Macombe
is a retired union member who claims to have been on hundreds of picket
lines. He testified that he arrived at
gate A some time before 6:30 a.m. on December 21. Macombe said that he was certain that there
was no sign on the gate.
Macombe
said that he took notes during the picketing, but that he did not need his recollection
refreshed because “there wasn’t much happening on the first day. Nevertheless, he was given his notes and he
identified them as his recopied notes of “what went on the first day we were
there” (R. Exh. 1). His notes indicate
that the picket line went up at 6:30 a.m.
At 6:45 a.m. about 35 union trades men refused to cross the picket
line. At 7:30 a.m. four painters crossed
the line. At 8:45 a.m. all union trades
left the site. The line came down at
2:30 p.m.
Regarding
the four painters Macombe stated that it was an employee of a union contractor
that alerted him to the men who were wearing “painter whites” and were
accompanied by a female, as they walked by.
The individual identified the female as the owner of the company. Macombe looked over and saw the painters
passing through the gate. Although
Macombe stated that McDonald left the site at about 11:30 there is no evidence
that he told McDonald that he saw the painters entering through gate A.
Macombe
initially stated that he was not asked to leave or move while he was
picketing. On cross-examination he
stated that he did not remember (Tr. 128).
He also stated that he did not remember Lee either speaking to him or
talking to McDonald. Macombe avers that
he did not see the sign at gate A and he reaffirms his denial after being shown
the picture of himself, McDonald, and Cobella, the other gate A picket. Macombe denies knowing Cobella’s name. Macombe does remember McDonald telling him to
take the line down at 2:30 p.m. and that the line is down until after the
holidays.
D. The Picketing on December 22
Fray
testified that when he arrived at 6:45 a.m. on December 22 the picket line was
setup. He testified that the picketing
began at around 6:45 a.m. with two pickets at each gate. Fray testified that the only person he
recognized was McDonald. Eattock
testified that he arrived around 8 a.m. and saw the same picket at gate A as
the day before. Both Fray and Eattock further
testified that no union contractors worked on December 22, except for A.M.I. Construction. Fray testified that the picketing concluded
at about noon.
McDonald
denies being at the site on December 22.
He admits that he is responsible for establishing picket lines and he
denies that there was any picket line on the site on December 22.
iii. legal principles
[W]here a union makes an unqualified threat to a neutral general contractor to picket a jobsite where an offending primary employer would be working, and has reason to believe that persons other than the primary would be at work on the site, it has an affirmative obligation to qualify its threat by clearly indicating that the picketing would conform to Moore Dry Dock standards or otherwise be in uniformity with Board law.
Teamsters Local 456 (Peckham Materials), 307 NLRB 612, 619 (1992) (citations omitted).
The Act draws a distinction between picketing directed at
a primary employer—an employer with whom the union has a labor dispute—and
picketing directed at neutral or secondary employers who have no dispute with
the union in order to force those employers to stop doing business with the
primary employer. Section 8(b)(4)(ii)(B)
“makes it unlawful for a labor organization or its agents to threaten, coerce,
or restrain any person engaged in commerce or in an industry affecting commerce,
where an object thereof is forcing or requiring any person to cease doing
business with any other person.” Teamsters Local 122 (August A. Busch &
Co.), 334 NLRB 1190, 1191 fn. 6 (2001), enfd. 2003 WL 880990 (D.C. Cir.
2003) (quoting Mine Workers (New
The picketing here occurred on a construction jobsite,
that was jointly occupied by the primary employer, JC Two, and by neutral
employers, including Constanza. When
analyzing union picketing at a “common situs,” the Board must give effect to
the “dual congressional objectives of preserving the right of labor
organizations to bring pressure to bear on offending employers in primary labor
disputes and of shielding unoffending employers and others from pressures in controversies
not their own.”
[P]icketing . . . is primary if it meets the following conditions: (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer’s premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer.
Sailors’ Union of
the Pacific (
The Supreme Court has approved the use of the reserve gate
system as a means to isolate the situs of a dispute on a common worksite. See Electrical
Workers Local 761 v. NLRB, 366
iv. discussion
The complaint alleges that on December 19, 2006, Kisielewski and McDonald threatened to picket the Lumberyards jobsite in violation of Section 8(b)(4)(i)(ii)(B) of the Act. Although the Respondent’s answer denies the allegation it made no effort to deny Eattock’s credible testimony regarding the threat at either the hearing or in its brief. Kisielewski did not testify and McDonald did not address this allegation in his testimony.
McDonald did address his conversation with Fray, and his testimony essentially admits that he made an unqualified threat to picket the site to Fray. Moreover, the Respondent does not contend otherwise in its brief. Based on the credited and undisputed testimony of Eattock and Fray, I find, that on December 19 shortly after Kisielewski and McDonald unsuccessfully sought the painting work that was assigned to JC Two, both men, during two separate conversations, made unqualified threats to picket the Lumberyards jobsite.
Accordingly, I find that the Respondent’s unqualified threat to picket the Lumberyards jobsite made by its admitted agents, Kisielewski and McDonald, violated Section 8(b)(4)(i)(ii)(B) of the Act, as alleged. E.g., Electrical Workers Local 98 (MCF Services), 342 NLRB 740, 749–750 (2004); Contra: Plumbers Local 32 v. NLRB, 912 F.2d 1108, 1110 (9th Cir. 1990) (denying enf. of a Board order because the Board could not presume that a union’s threat to picket is unlawful when the picketing may be conducted in a lawful manner); accord: Sheet Metal Workers Local 15 v. NLRB, 491 F.3d 429, (D.C. Cir. 2007).
The Respondent opines that there is conflicting testimony
as to when the gate signs were “posed” on the gates. In fact the record establishes that there is
no issue regarding the sign attached to gate B on
Regarding gate A, the neutral gate, the Respondent merely acknowledges that McDonald and Macombe contend that there was no sign at gate A when they arrived at the gate during the early morning hours of December 21. As will be seen the Respondent’s reticence is understandable. There are significant contradictions between Macombe’s and McDonald’s testimony, McDonald’s own testimonial inconsistencies, and the demonstrable inconsistencies between their statements and the testimony of other witnesses, and the photographic evidence.
McDonald avers that he is positive that the sign appeared on gate A sometime after the picket line went up. He claims that the sign was not up when he arrived at 6:15 a.m. The security guard is the only other person in the photograph (GC Exh. 7 (b)), of McDonald and the two pickets. There is no evidence that the photograph is not authentic or that it has been altered, and the Respondent does not argue otherwise. McDonald testified that picture was taken between 6:30 and 6:45 a.m. and that he read the sign. It is also evident by the way the men are focused on the photographer that there are no other distractions in the vicinity. The sign is clearly visible. Yet when asked if his testimony was that he did not see the sign McDonald answers, obliquely, that the sign was not there when he arrived in the morning. When asked if he knows when the sign was appended to gate A he states “No, I don’t,” (Tr. 162). Surely a 4-by-4 foot sign could not have been surreptitiously attached to the gate. Moreover, even assuming that the sign was attached during the 15-minute window between when the picket line went up and the photograph taken, McDonald made no mention of this to Macombe. Macombe was tasked as the Respondent’s scribe, as well as the picket line captain. McDonald read the sign and presumably knew its significance. It would seem that he would want to memorialize when he first observed that the Charging Party was establishing a reserve gate system.
McDonald contradicts himself when testifying about the point in time that Lee took the pictures at gate A. He initially testifies that Lee got out his car screaming at McDonald, went inside his trailer, and shortly thereafter the police arrived (Tr. 148–151). He is then asked if he had anymore conversations with Lee, he twice answers “No.” But he then claims that Lee came “back out with a camera taking pictures” (Tr. 152). When asked once again if he was certain that it was Lee or someone else, he answers that it was either Lee “or the other guy” (Tr.152). He then states that he is “not too positive” who took the pictures. When asked about the time when the pictures were taken, McDonald responds 9 or 9:30. The only other pictures in evidence are pictures of the individual signs. Those pictures were taken during daylight hours in April and are clearly marked as such (GC Exhs. 5 and 6). I believe McDonald was attempting to identify those pictures, until council directed him to the pictures taken on December 21, and stressed to McDonald that “it’s dark.” McDonald replies “Well, I don’t know about these pictures, I just know about the time that he’d come out, the other guys come out with a camera” (Tr. 153). His inability to recall the photographer is difficult to believe because in both pictures he and the pickets are looking directly at the photographer (GC Exh. 7). The three men in the picture do not appear to have had anyone recently screaming at them. Notwithstanding his failure, at that point, to be able to identify the photographer, McDonald still insists that the sign attached to the gate in the picture, was attached after the picket line went up, which he claims was between 6:30 and 7 a.m.
On cross-examination McDonald is asked if he recalls Lee taking the pictures on the morning of December 21. He answered “Yeah, I remember some flashes going off.” When asked if the pictures were taken before or after Lee allegedly yelled at him, he answers “before.” (Tr. 157–158.) Thus, his testimony on cross-examination is inconsistent with what he said on direct. On direct he claimed that Lee drove to the gate between 7 and 7:30 a.m. (which is later than when he claims the pictures were taken), and that Lee was screaming at him while he was getting out of his car. McDonald never mentioned pictures or a camera during his initial testimony. It was not until the police departed that McDonald claims that Lee, or other guys, came out of the trailer and took pictures. Thus, it appears that McDonald is possibly confused about the identity of the photographer. If he does believe that Lee is the photographer, he appears confused about whether Lee took the pictures immediately after getting out of his car, but before he started to scream at him, or if Lee came out later and took the pictures. In any case McDonald attributes Lee’s screaming as the reason he did not notice the sign that is clearly visible in the picture of him and the pickets.
Macombe’s testimony regarding the sign on gate A, although more consistent, is no more credible than that of McDonald’s. Notwithstanding Macombe’s proximity to the sign he insists that he did not see it until December 28. Notwithstanding, Macombe staring directly at the camera, behind which Lee is standing, Macombe claims that he does not remember ever seeing Lee before the hearing. His denial is contradicted by Lee, who testified that he told Macombe he could not picket at gate A as he drove pass him. And it also is inconsistent with McDonald’s testimony about his dealings with Lee at gate A.
Although some confusion might be expected from all witnesses, McDonald’s testimony is replete with contradictions and inconsistencies. He clearly is of the belief that there is no reason to give a direct answer, if an indirect answer will suffice. One example is his response to the question if he recalls Lee taking the pictures, he responds “Yeah, I remember some flashes going off,” (Tr. 157).
Based on my observations of Lee, I find McDonald’s version of their encounter implausible and incredible. Lee did not appear to have the demeanor of a person prone to anger. Moreover, this was the first time Lee had met McDonald, increasing the implausibility of McDonald’s statement. Unlike McDonald and Macombe, I was impressed by Lee’s favorable testimonial demeanor. He appeared to be doing his best to give an accurate and truthful account of what occurred. Accordingly, I fully credit Lee’s testimony that the sign on gate A was posted when he arrived at the gate on the morning of December 21. I note that his testimony is consistent with and corroborated by Fray. I find that Lee told Macombe that he was at the gate reserved for union contractors. I find that Lee later told McDonald that a reserve gate system was established and that he was picketing at the wrong gate. I also find that McDonald corroborated Lee’s testimony insofar that Lee told him that he was at the wrong gate and that there was another gate.
McDonald’s evasive and defensive response to questioning
is best illustrated by the colloquy between McDonald and the Charging Party’s
attorney concerning when McDonald learned that the site had two gates (Tr.
168–171). The following exchange occurs
after Macombe’s notes have been admitted—clearly indicating that there are two
gates at the site, and Macombe has testified that he was aware of both gates
because McDonald said “two men on this gate [gate A] and ‘I’m putting two men
on the other gate,’” (Tr. 118). Even
after admitting that Macombe acknowledges, both in his written report and his
testimony, the existence of a second gate, McDonald refuses to acknowledge that
he knew that gate B was located on
A similar dialogue transpires over McDonald’s alleged knowledge of the wages JC Two was paying its employees. Initially he denies making any inquiries because “we already knew what the rates were.” When asked specifically if he knew that the Lumberyards was a prevailing rate project, he once again evades the question and replies “we already knew what their rates were.” He next responds that he knew what the rates were suppose to be. As counsel for the Charging Party continues to press for a response to this basic question McDonald retorts, “I don’t understand what you’re getting at.” Eventually he comes full circle and states “we just know from past dealings,” and admits that he made no inquiries as to the JC Two pay rates.
Based on the foregoing I find that the Respondent failed to make any inquiry, let alone a “reasonable inquiry” concerning the wage rates paid by JC Two to its employees working on the Lumberyards project. Accordingly, I conclude that the Respondent’s purported area standards picketing was a pretext from which an inference of unlawful secondary motive may be found. E.g., Carpenters Local 1622 (Iacono Structural Engineer), 250 NLRB 416 (1980).
All three of the General Counsel’s witnesses, Lee, Eattock, and Fray exhibited impressive testimonial demeanor coupled with extremely thoughtful, detailed recollection of the events. Moreover, the testimony of the three witnesses is very similar. I have previously credited Lee’s testimony that he told Macombe, and later McDonald, that they were picketing the wrong gate and that the reserve gate system was established. I also credit Fray’s testimony that he specifically told McDonald that he was picketing gate A and that they would have to picket the nonunion gate, which was B on Collins Avenue. I also find that McDonald told them that the pickets would remain where they were and that the Charging Party would have to do what it had to in order to get them to move from gate A.
The Respondent contends that because the letter notifying
that the Charging Party had established a reserve gate system was faxed after
business hours, and not to the picket organizer, the pickets had not been
notified of the reserve gate system until the afternoon of December 21. The fax notifying the Respondent of the
reserve gate system was transmitted at 7:29 p.m. on December 20. It was faxed to the attention of Kisielewski,
the Respondent’s business agent, at the Respondent’s office in Glassboro. McDonald works in the same office. It is undisputed that Kisielewski was acting
in his official capacity when, on December 19, he threatened Eattock that the
Respondent would picket the Lumberyards project. The fax was received at the Glassboro office
by at least 7:14 a.m., when an unidentified individual forwarded it to Peter
Cipparulo at his
The picket line most likely went up before 7:14 a.m. Based on the credited testimony of Fray,
however, he went to McDonald as soon as he saw that the men at gate A had
picket signs. Fray informed McDonald of
the establishment of the reserve gate system and told McDonald that he was at
gate A and that he would have to picket at the nonunion gate, which was B on
I also find that the Respondent’s nonchalant response to receipt
of the Charging Party’s notification that it had established a reserve gate
system, is additional evidence of its unlawful secondary intent. There was no attempt to convey the substance
of the Charging Party’s letter to either McDonald or Kisielewski. Both men had gone to the Lumberyards jobsite
on December 19 and threatened to picket the site. McDonald states that he was on the road and
thus was unaware that the fax had arrived.
Kisielewski did not testify. It appears
that no attempt was made to discover who in the Respondent’s Glassboro office
forwarded the fax to Cipparulo, and why.
Certainly McDonald, the person who was in charge of instituting the
picket line, should have kept his office informed of his whereabouts and
activities. If nothing else McDonald
testified that he was going to call Macombe from
Cipparulo states that he received the fax between 8:45 and 9 a.m., shortly after his office opened. Cipparulo had authorized area standards picketing at the jobsite, based on a request by McDonald. Although Cipparulo testified that he was “quite surprised” that the fax was addressed to Kisielewski, he took absolutely no action to attempt to contact Kisielewski or McDonald. In fact Cipparulo apparently thought so little of the substance of the letter that he decided to wait until he met McDonald at lunch to tell him about it, and even then he did not bring the letter with him to show McDonald.
I find the Respondent’s conduct after receipt of the Charging Party’s notification that it had established a reserve gate system supports an inference that it never intended to abide by the reserve gate system. McDonald read the sign at gate A to ensure that he was setting up the picket line at the correct gate—to enmesh neutral employers. As Macombe stated “we put the line up early to catch them.”
Accordingly, based on all the foregoing and the record as a whole, I find that the Respondent violated Section 8(b)(4)(i)(ii)(B) of the Act by picketing at the gate reserved for neutrals at the Charging Party’s Lumberyards project in Collingswood, New Jersey on December 21.
The Respondent contends that its picketing of the neutral gate was justified because the gate was tainted when the employees of JC Two entered the site through gate A. The Respondent’s contention is based solely on the statement of Macombe. Macombe is the individual standing next to the gate A sign who testified that he did not see that sign on December 21.
Macombe testified that he has been a union member for 26 years. Macombe has been retired for 7 years and during that time he has been a picket, picket line captain, and observer hundreds of times for the Respondent. Macombe testified that he makes notes of the things that happen while he is on picket duty. He indicated that he understood the importance of his notes because he rewrites them to make sure they are legible and he gives them to the union office for safe keeping and, apparently, to refresh his recollection during unfair labor practice hearings. He identified his notes as “what went on the first day we were there” (R. Exh. 4).
His notes for December 21 indicate that he reported at
some unspecified time to the
Based on the contents of his notes, or more accurately the lack of content, I had reservations concerning the thoroughness and probity of Macombe’s note taking even before he testified about the painters entering gate A. His testimony about that alleged incident further damaged his credibility. Macombe was asked about two significant events, the alleged tainting of the gate by the painters and if the picket line was up on December 22. My sense when listening and observing him testify was that his testimony was scripted, but that he did not have immediate recall of all his lines.
After several questions by the Respondent’s counsel it was clear from Macombe’s testimony that four men dressed in painter whites walked up to the guard at gate A who let them in. Counsel, however, was not satisfied and asked if they had any equipment with them. Macombe responds with what sounds like a generic description of painter jeans and the possible equipment they might carry. In the middle of his statement he abruptly changes course and inexplicably starts the scenario from the beginning. This time he provides that he was talking with two electricians, who were waiting to see if they could cross the picket line. One says “Freddy, them 4 guys that just went by, they’re the painters on the job. A matter of fact, that’s the girl. She’s the owner of the company.” (Tr. 111.)
Both his demeanor and the inherent implausibility of the
scenario leads me to conclude that it did not occur. Macombe fails to explain why he had to be
alerted to four men in painter whites, and a women, going toward the one area
on which his attention should have been focused. He fails to explain why he did not record
that the owner of the company also crossed the picket line, or even mention
that she did in his initial version. It
is significant that McDonald, who was still at gate A at that time, was not
asked to corroborate Macombe’s testimony.
Nor was Cobella, Macombe’s fellow picket at gate A, called to
corroborate his account. I also note
Macombe’s tendency to prevaricate set out above, as well as his testimony that
he did not see the sign on gate A on which he was almost standing. Had the incident happened I would still be
disinclined to find that the reserve gate system was tainted. The record establishes that the Charging
Party took every reasonable precaution to ensure the integrity of the reserve
gate system, and I would not find that one instance of misuse would be
sufficient to destroy the reserve gate system.
Operating Engineers Local 18
(Dodge-Ireland), 236 NLRB 199 (1978).
Moreover, illegal picketing cannot be justified by after-the-fact violations
of the neutral gate by employees of a primary employer.
Macombe’s testimony regarding ingress and egress at gate A is also at odds with the testimony of other, credited, witnesses. Thus, Macombe denies seeing anyone exit through gate A while he was there. That statement is in conflict with Lee who testified that he left the site between 10 and 11 a.m. and Eattock who testified that he left the site at approximately 1 p.m. I also note, above, that Lee and Eattock parked and entered through gate A. Macombe also denies that any vehicles crossed the picket line. That statement is disputed by Fray who credibly testified that trucks were being permitted and denied access through the gate (Tr. 81).
Macombe’s attempt to support the Respondent’s contention that it did not picket the site at all on December 22, because the Respondent was closed for the holidays not only fails, but it contradicts McDonald’s testimony concerning the incident. Macombe is asked how long he left the line up on December 20 and he says 2:30. He is asked why he left it up until 2:30 and he replies: “Ed McDonald had to go back to the union hall for a luncheon so he told me ‘Freddy, take the line down at 2:30.’ So I said, ‘all right I’ll go over and let the other two people know later.’” Counsel asks if McDonald said anything else and Macombe answers “No, he said as far as the line, the line is down until after the holidays. Once again Macombe’s statements are disjointed and lack the ring of truth. Macombe then states that he told the other two pickets that the line is dead until after the holidays and he reaffirms this statement after council asks if he repeated, to the other people, what he was told by McDonald. And yet none of the other pickets testified.
When McDonald is asked if he left any instructions for the pickets before he left for his luncheon he answers “I told Freddy if anything changes I’ll call you.” “And I got a hold of him and told him to—after I talked to [Cipparulo] and he said to take it down in the afternoon.” Several questions later counsel repeats the question about leaving instructions for Macombe and McDonald repeats his answer about taking the line down at 2:30. Counsel, perhaps recognizing that subtlety is not working, asks McDonald if he left Macombe with any instructions when it was going back up. McDonald answers “And it wasn’t going to go back up until after the holidays.” When asked if he told Freddy he replies “Yes, sir ‘cause I didn’t know nothing until I got to the luncheon. (Tr. 140–141.) Cipparulo supports McDonald’s statements that it was he who told him to take the line down for the holidays. Aside from the fact that McDonald keeps saying that he “left instructions” with Macombe to take the line down when he testified that he later “called” Macombe there was only one other Freudian slip. McDonald responds “Take it down for the weekend—I mean for the holiday’s” after being asked if Cipparulo told him to move the line to the right location or simply to take it down. Cipparulo admitted that he did not know for a fact that the picket line was not up on December 22. I find that Macombe and McDonald’s testimony was contrived and inconsistent with each other. Contrary to their exceedingly poor testimonial demeanor, Eattock and Fray both exhibited the demeanor of honest witnesses who also had excellent recall of the events. I fully credit their testimony that the Respondent picketed each gate on December 22 and the pickets were wearing the same signs. As a result of the picketing most of the employees of the union contractors refused to cross the picket line.
The Respondent’s final attempt to avoid an adverse ruling is that the Respondent’s conduct at the neutral gate on December 21 does not fall under the legal definition of “picketing” because merely holding banners does not amount to “threat, coercion or restraint.”
The photographs show the pickets at gate A standing, wearing
sandwich board picket signs. Eattock
credibly testified, without refutation, that he observed the pickets walking
back and forth in the driveway of gate A (Tr. 59). In any case “[t]he important feature of
picketing appears to be the posting by a labor organization . . . of
individuals at the approach to a place of business to accomplish a purpose
which advances the cause of the union, such as keeping employees away from work
or keeping customers away from the employers business. Lumber
& Sawmill Workers Local
The sandwich boards are tantamount to the traditional picket sign attached to a stick, and the pickets patrolled across the driveway at gate A. It is clear that this case does not involve bannering or leafleting and as such removes the Respondent’s conduct from the purview of Edward J. DeBartolo Corp. v. Florida Gulf Coast Building Construction Trades Council, (DeBartolo II), 485 U.S. 568, 571 (1988). Absent the protection elucidated in (DeBartolo II), the Respondent’s argument fails.
Accordingly, based on the foregoing and the record as a whole I find, as alleged in the complaint that the Respondent violated Section 8(b)(4)(i)(ii)(B) of the Act by threatening to picket with the object of forcing Costanza, to cease doing business with JC Two and by picketing at gate A, a gate reserved for neutral employers.
Conclusions of Law
1. By unqualifiedly threatening to picket with the object
of forcing Costanza
Builders of New Jersey, Inc., to cease doing business with JC Two, Inc., at its
Lumberyards jobsite in
Collingswood, New Jersey, the Respondent, District Council 711, International Union of Painters and
Allied Trades, AFL–CIO, has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(b)(4)(i)(ii)(B) and Section 2(6) and
(7) of the Act.
2. By picketing and patrolling at the gate reserved for neutrals at the Lumberyards jobsite the Respondent has violated Section 8(b)(4)(i)(ii)(B) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended5
ORDER
The Respondent, District
Council 711, International Union of Painters and Allied Trades, AFL–CIO,
1. Cease and desist from
(a) Unqualifiedly threatening to picket with the object of
forcing Costanza
Builders of New Jersey, Inc., to cease doing business with JC Two, Inc.
(b)
Threatening, coercing, or restraining Costanza Builders of New Jersey, Inc., by
picketing, where an object thereof is to force or require Costanza Builders of
New Jersey, Inc., to cease doing business with JC Two, Inc.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its union office in
(b) Within 14 days
after service by the Region, sign and return to the Regional Director
sufficient copies of the notice for posting by Costanza Builders of New
Jersey, Inc., and JC
Two, Inc., if willing, at all
places where their notices to employees are customarily posted.
(c) Within 21 days
after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Members
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not unqualifiedly threaten to picket with the object
of forcing Costanza
Builders of New Jersey, Inc. to cease doing business with JC Two, Inc.
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