Electrical Workers IBEW Local 970 (Interox America)

National Labor Relations Board - Board Decisions

Jan 21, 1992

306 N.L.R.B. 54 (N.L.R.B. 1992)

54
306 NLRB No. 8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1990 unless stated otherwise.
2 Although the parties refer in their stipulation to an answer to the
complaint, there is no answer in the record before us.
International Brotherhood of Electrical Workers,
Local No. 970 and Interox America
United Association of Plumbers and Pipefitters,
Local No. 82 of the United Association of Jour-
neymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, AFL–CIO and Interox America. Cases
36–CC–908 and 36–CC–909
January 21, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Upon charges filed by Interox America (Interox) on
November 26, 1990,1 against International Brotherhood
of Electrical Workers, Local No. 970 (Local 970) and
on November 29 against United Association of Plumb-
ers and Pipefitters, Local No. 82 of the United Asso-
ciation of Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry of the United States and
Canada, AFL–CIO (Local 82, or, collectively with
Local 970, the Respondents), the General Counsel of
the National Labor Relations Board issued an order
consolidating cases and a consolidated complaint and
notice of hearing on December 13.
The complaint alleges that the Respondents violated
Section 8(b)(4)(i) and (ii)(B) of the Act on November
26 and 27 by picketing at the entrance to the access
road leading to the instant common construction site,
in disregard of a validly established system of reserved
primary and neutral gates on the site and in an appeal
to employees of neutral employers Interox and Marvin
Cole General Contractor, Inc. (Marvin Cole).
On March 14, 1991, the General Counsel, Interox,
and the Respondents filed a factual stipulation, in
which they waived a hearing and the issuance of a de-
cision by an administrative law judge, and submitted
the case directly to the Board for findings of fact, con-
clusions of law, and a decision. The parties also agreed
that the charges, the consolidated complaint, the an-
swer to the complaint,2 and the factual stipulation
would constitute the sole and complete record for pur-
poses of adjudicating the unfair labor practice charges.
On April 17, 1991, the Board issued an order ap-
proving the stipulations, granting the motion and trans-
ferring the proceeding to the Board. Thereafter, the
General Counsel, Interox, and the Respondents filed
briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the basis of the stipulated facts and the prin-
ciples of law discussed below, we find that the Re-
spondents have violated the Act as alleged.
On the entire record and the briefs, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Interox has been owned jointly
by Soltex Peroxygen, Inc. and LaPorte Peroxygen Inc.,
copartners doing business as and trading under the
name of Interox America, with offices and place of
business in Longview, Washington, where it is en-
gaged in the business of peroxide production.
During the 12-month period preceding the issuance
of the complaint, which period is representative of all
times material, Interox, in the course and conduct of
its business operations, (1) had gross sales of goods
and services valued in excess of $500,000; (2) sold
and shipped goods or provided services valued in ex-
cess of $50,000 from its facilities within the State of
Washington to customers outside that State, or to cus-
tomers within that State, which customers were them-
selves engaged in interstate commerce by other than
indirect means; and (3) purchased and caused to be
transferred and delivered to its facilities within the
State of Washington goods and materials valued in ex-
cess of $50,000 directly from sources outside that
State, or from suppliers within that State which in turn
obtained such goods and materials directly from
sources outside that State.
Marvin Cole is a State of Washington corporation,
with offices and place of business in Longview, Wash-
ington, where it is engaged in the business of general
construction. During the 12-month period preceding
the issuance of the complaint, which period is rep-
resentative of all times material, Marvin Cole, in the
course and conduct of its business operations, (1) had
gross sales of goods and services valued in excess of
$500,000 and (2) purchased and caused to be trans-
ferred and delivered to its facilities within the State of
Washington goods and materials valued in excess of
$50,000 directly from sources outside that State, or
from suppliers within that State which in turn obtained
the goods and materials directly from sources outside
that State.
We find that Interox and Marvin Cole are, and have
been at all times material, employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act.
We also find that Respondent Local 970 and Re-
spondent Local 82 are, and have been at all times ma-
terial, labor organizations within the meaning of Sec-
tion 2(5) of the Act.
55ELECTRICAL WORKERS IBEW LOCAL 970 (INTEROX AMERICA)
3 The November 21 picketing is not alleged to be in violation of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
Interox owns and operates an industrial facility man-
ufacturing hydrogen peroxide located in Longview,
Washington. This facility is located about 100 yards
north of Industrial Way (which runs east-west), ap-
proximately one half mile west of the intersection of
Industrial Way and Washington Way (which runs
north-south). Both Industrial Way and Washington
Way are major arterial streets.
Interox contracted with The Industrial Company
(TIC), TIC’s wholly owned subsidiary Associated In-
dustrial Constructors, Inc. (AICI), Marvin Cole, and
other building contractors to construct a plant expan-
sion on the east side of Interox’s facility. National In-
dustrial Constructors, Inc. (NIC) was Interox’s con-
struction manager on the project.
During the time period involved in this case, the Re-
spondents were engaged in a labor dispute with TIC
and AICI and were not engaged in labor disputes with
Interox or Marvin Cole.
In the area immediately adjacent to the east side of
the plant expansion construction site, Interox estab-
lished a laydown area and a parking lot for the use of
suppliers, employees, agents, and visitors of contrac-
tors. The only possible access to this laydown area and
plant expansion construction site is a privately owned
road (the construction access road) leading from Wash-
ington Way west to the construction site. There is a
single entrance off of Washington Way to the con-
struction access road, just north of the intersection of
Washington Way and Industrial Way. The construction
access road (including the Washington Way entrance
to the road) is leased by Interox from Weyerhaeuser
Corporation. Weyerhaeuser owns the parcel of land be-
tween the Interox plant and Washington Way, and thus
owns the land north and south of the construction ac-
cess road. Weyerhaeuser has leased part of this prop-
erty to North Pacific Paper Company (NORPAC).
Weyerhaeuser and NORPAC have refused to lease to
Interox any property other than the construction access
road. Interox could not feasibly or lawfully create an
additional access road or a two gate system (neutral
and primary) on Washington Way itself.
Industrial Way is a four lane limited access road
running east-west along the south boundary of the
Interox facility and plant expansion construction site.
The posted speed limit on Industrial Way in the vicin-
ity is 45 miles per hour. There is no access for vehi-
cles or pedestrians from Industrial Way to the laydown
area and plant expansion site, because a water filled
ditch, a railroad line, a marshy area, and a fence sepa-
rate the road from the construction site.
The distance from the start of the construction ac-
cess road on Washington Way to the fence on the east
side of the construction site, where separate entrances
described later in this decision have been established
by Interox for neutral and primary employers, is be-
tween three-tenths and four-tenths of a mile.
On November 21, the Respondents picketed at the
Washington Way entrance to the construction access
road.3 At that time, a sign posted near that entrance
advised that all property behind the sign was Interox’s
private property, that only authorized and invited visi-
tors were permitted to proceed past the sign, that there
was no trespassing allowed, and that violators would
be prosecuted.
After November 21 and before November 26, both
Respondents received letters dated November 21 from
Interox advising them, inter alia, that Interox had
leased the construction access road and that under the
terms of that lease (a copy of which was attached to
these November 21 letters), Interox had the exclusive
right and authority to control entry onto and use of the
construction access road and to exercise all private
property ownership rights over it. The letters further
stated:
Interox and N.I.C. have set up a ‘‘three gate’’
system on the interior of this property. Each of
which is clearly marked on the attached map as
to authorized use. One gate (Gate #6) is reserved
for the exclusive use of the employees, suppliers
and visitors of neutral companies (such as union
companies). The second gate (Gate #7) is reserved
for the exclusive use of the employees, suppliers
and visitors of primary, picketable companies
(usually nonunion companies, such as T.I.C.,
against which your union is currently picketing).
The third gate (Gate #8) is reserved for deliveries
of materials and supplies purchased by Interox
America and delivered to Interox America, and
like Gate #6, is a neutral employer entrance.
Interox has taken appropriate steps to make
sure that only persons authorized to use the re-
spective gates do in fact enter or exit those gates.
Interox hereby invites your union to enter onto
its private property, as shown by the yellow col-
ored area on the enclosed map, along the access
road to the area immediately in front of the pri-
mary gate (Gate #7) used by T.I.C. and A.I.C.I.,
which is clearly marked, and to picket imme-
diately in front of that gate. This will allow the
union full legal access to its target primary com-
pany, at the closest point to the construction
project allowed by Interox without trespass.
Interox will not prosecute any trespass claim
against the union or its agents for entry along the
access road leading from Washington Way to the
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The location of the gates is shown on the map in App. A (Jt.
Exh. 1).
area immediately in front of the primary employer
gate, and within 20 feet on either side of such
gate. Interox considers your union and its agents
as its business invitees along the access road and
up to the point of the primary employer gate as
described above.
In light of this position of Interox, any union
picketing on Washington Way, or along the ac-
cess road from Washington Way to the primary
employer gate, or at the neutral employer gates,
would necessarily involve neutral employers, and
would therefore be a violation of federal sec-
ondary boycott laws. If the union refuses to con-
fine its picketing to the location as outlined in this
letter, Interox reserves all legal rights to take ap-
propriate action, including but not limited to an
unfair labor practice charge before the National
Labor Relations Board and accompanying injunc-
tion proceedings, and/or a lawsuit for damages
under Section 303 of the National Labor Relations
Act.
These November 21 letters were the first formal
written notice the Respondents received of the exist-
ence of a reserved gate system at the construction site,
and of Interox’s invitation to the Respondents to enter
onto the construction access road and to picket as
Interox’s business invitees on Interox private property.
A three gate system on the plant expansion construc-
tion site, as described in the above November 21 let-
ters to the Respondents, was established and main-
tained in effect by Interox at all material times.4
The message on the signs on gates 6 (neutral em-
ployers), 7 (primary employers), and 8 (suppliers) were
the same, and read as follows:
NIC-INTEROX PROJECT
EXCLUSIVE USE SIGN
GATE 6
[or 7, or 8, as appropriate]
THIS GATE RESERVED FOR
THE SOLE & EXCLUSIVE USE OF
THE BELOW-LISTED CONTRACTORS,
THEIR EMPLOYEES, SUPPLIERS,
VISITORS & MATERIALMEN.
ALL OTHER COMPANIES & THEIR
EMPLOYEES OR VISITORS
MUST USE THEIR DESIGNATED GATES
ONLY
[Companies listed on the sign at gate 6.]
Marvin Cole
Reidel International
[Companies listed on the sign at gate 7.]
NIC
TIC
AICI
[No companies were listed on the sign at gate
8.]
The distance between gates 6 and 7 is approximately
200 feet. The distance between gates 7 and 8 is ap-
proximately 100 feet. There are no obstructions to visi-
bility between the gates.
At material times, another sign at gate 6 said, ‘‘Re-
ceiving gates 7 and 8,’’ and showed a black arrow
pointing toward gates 7 and 8. Also, a sign located at
the interior end of the construction access road, where
it opens onto the construction site, about 200 feet east
of gate 6, said, ‘‘Attention—please use appropriate
gates.’’
The distance from Industrial Way at a point directly
south of gate 7 to gate 7 itself is approximately 400
to 500 feet. Had the Respondents picketed adjacent to
gate 7, passers-by in vehicles on Industrial Way could
have seen persons near gate 7 engaging in picketing,
but could not have read any of the text on the picket
signs. Such picketing would not have been visible to
traffic or pedestrians on Washington Way.
On November 26, starting at approximately 6 a.m.,
agents of Local 970 again picketed at the Washington
Way entrance to the construction access road. By this
date, the ‘‘private property’’ sign at that location had
been removed, and was not replaced at any material
time. Also by November 26, Local 970 agents had re-
viewed the November 21 letter from Interox and had
no reason to question Interox’s assertions in the third
paragraph excerpted above.
Also on November 26, a lunch meeting was held be-
tween Ed Rheaume, business manager of Local 970,
several officials of other local construction unions (not
including Jack Duran, business agent of Local 82), and
Interox and NIC officials. The topic of discussion was
the picketing. Ed Rheaume on behalf of Local 970
took the position that a union could not lawfully be
compelled under any circumstances to picket on pri-
vate property, whether invited or not by the authorized
owner or lessee.
Picketing by Local 970 at the Washington Way en-
trance to the construction access road continued on
November 27. On both November 26 and November
27 Local 970’s picket signs read as follows:
57ELECTRICAL WORKERS IBEW LOCAL 970 (INTEROX AMERICA)
5 The parties stipulated to the following facts: that Marvin Cole is
a construction contractor operating under labor contracts with var-
ious craft unions which allow Marvin Cole employees to refuse to
cross a picket line; that the Respondents were aware of the unionized
status of Marvin Cole prior to engaging in the picketing at the
Interox plant expansion construction project; and that at no time ma-
terial did either Respondent have any labor dispute, issue, or griev-
ance with Marvin Cole that would have justified picketing against
that company.
The Industrial Company
DOES NOT HAVE
CONTRACT WITH
L.U. 970
IBEW
SANCTIONED
PICKET
LONGVIEW A.F.L.–C.I.O.
KELSO
On November 27, agents of Local 82 also picketed
at the Washington Way entrance to the construction
access road. By this time, Local 82 agents had re-
viewed the November 21 letter from Interox and had
no reason to question Interox’s assertions in the third
paragraph excerpted above.
Local 82’s picket signs read as follows:
The Industrial Company
DOES NOT HAVE
CONTRACT WITH
UA
LOCAL 82
SANCTIONED PICKET
LONGVIEW A.F.L.–C.I.O.
KELSO
The employees of Marvin Cole did not come to
work on November 26 and 27 because of these picket
lines.5
The Respondents did not engage in any picketing at
any location against any company involved in the
Interox plant expansion at any material time after No-
vember 27.
B. Stipulated Issues
The parties stipulated that the legal issues to be re-
solved in this case are:
1. Whether, under the facts presented, the Respond-
ents had a right to picket under the Act and/or the First
Amendment at the Washington Way entrance to the
construction access road.
2. Whether Interox’s invitation to picket on private
property, as communicated in its November 21 letters,
infringed on any union right to station neutral gate ob-
servers at gates 6 and 8, and/or to picket at gates 6 and
8 in the event the neutrality of those gates was im-
paired, and therefore justified the Respondents’ pick-
eting at the Washington Way entrance to the construc-
tion access road.
3. Whether the signs posted at gates 6, 7, and 8
complied with applicable standards under the Act for
a legally cognizable reserved gate system.
C. Contentions of the Parties
The General Counsel and Interox contend that
Interox established and maintained a lawful system of
reserved gates; that it notified the Respondents of the
existence, designations, and locations of the gates; that
the language and directions on the gate signs were
clear and unambiguous; and that the integrity of the re-
served gate system was not violated. Thus they con-
tend that the Respondents’ failure to picket at the re-
served primary gate, and their picketing instead at the
Washington Way entrance to the construction access
road, which was the only possible entrance through
which all entrants onto the site, primary and neutral
alike, necessarily had to pass, raised the presumption
that the Respondents were picketing with an intent to
enmesh neutral employees in the Respondents’ dispute
with primary employers.
The Respondents contend that their picketing at the
Washington Way entrance to the construction access
road was lawful because picketing at the interior re-
served primary gate effectively prohibited the Re-
spondents from reaching the public with their ‘‘no con-
tract’’ picketing message. Thus, the Respondents con-
tend that their refusal to picket at the reserved primary
gate is of no particular significance by itself, and that
under the unique circumstances presented here, pick-
eting at the Washington Way entrance was reasonably
close to the situs of the dispute.
The Respondents also contend (1) that Interox’s
‘‘limited invitation, coupled with its threat to bring
trespass charges, impermissibly restricted the Respond-
ents’ right to station neutral gate observers and to pick-
et at the neutral gate in the event the reserved gate sys-
tem became polluted,’’ and (2) that the reserved gate
signs were ambiguous, invalidating the reserved gate
system.
D. Analysis and Conclusions
1. Applicable principles
In this case, we confront the recurring problem of
determining the lawfulness of picketing at a common
situs, i.e., one which is jointly occupied by several em-
ployers, some of whom (primary employers) are at the
time engaged in labor disputes with a union, while oth-
ers of whom (secondary employers) are not. In the
case at hand, the Respondents’ picketing at the Wash-
ington Way entrance to the construction access road is
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Sec. 8(b)(4)(i) and (ii)(B) states in pertinent part that it shall be
an unfair labor practice for a labor organization or its agents:
(4)(i) to engage in, or to induce or encourage any individual
employed by any person . . . to engage in, a strike . . . or (ii)
to threaten, coerce, or restrain any person . . . where in either
case an object thereof is:
. . . .
(B) forcing or requiring any person . . . to cease doing busi-
ness with any other person . . . Provided, That nothing con-
tained in this clause (B) shall be construed to make unlawful,
any . . . primary picketing . . . .
7 Sailors Union (Moore Dry Dock), 92 NLRB 547, 549 (1950).
8 See, e.g., Retail Clerks Local 1017 (Crystal Palace), 116 NLRB
856 (1956), enfd. 249 F.2d 591 (9th Cir. 1957).
9 Electrical Workers IBEW Local 761 (General Electric) v. NLRB,
366 U.S. 667, 672–-674 (1961); Electrical Workers IBEW Local 501
(C. W. Pond) v. NLRB, 756 F.2d 888 (D.C. Cir. 1985).
10 See, e.g., Crystal Palace Market, supra.
11 See, e.g., Iron Workers Local 433 (United Steel), 293 NLRB
621, 622 (1989), and cases cited therein.
12 Electrical Workers Local 761 (General Electric) v. NLRB, supra.
13 See, e.g., Plumbers Local 398 (Robbins Plumbing), 261 NLRB
482, 486 (1982), and cases cited therein.
14 Our focus in the instant case is whether the Respondents’ pick-
eting conformed to the third Moore Dry Dock standard, i.e., whether
the Respondents’ picketing was reasonably close to the location of
the situs of the primary dispute. The General Counsel concedes that
there is no dispute that the Respondents’ picketing conformed to the
other three Moore Dry Dock standards.
15 Iron Workers Local 433 (Robert E. McKee, Inc.) v. NLRB, 598
F.2d 1154, 1159 (9th Cir. 1979), enfg. in pertinent part 233 NLRB
283 (1977), quoting Ramey Construction Co. v. Painters Local 544,
472 F.2d 1127, 1131 (5th Cir. 1973).
alleged to have been in violation of Section 8(b)(4)(i)
and (ii)(B) of the Act.6
In Denver Building Trades Council v. NLRB, 341
U.S. 675, 692 (1951), the Supreme Court pointed out
that in cases involving the lawfulness of picketing at
common sites, the Board is required to 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 dis-
putes and of shielding unoffending employers and
others from pressures in controversies not their
own.
In seeking to accommodate these sometimes con-
flicting objectives, the Board, with judicial approval,
has established the following guidelines to aid in deter-
mining whether picketing at a common situs is lawful
primary picketing or unlawful picketing with a pro-
scribed secondary object:
[P]icketing of the premises of a secondary em-
ployer is primary if it meets the following condi-
tions: (a) The picketing is strictly limited to times
when the situs of dispute is located on the sec-
ondary 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.7
In developing and applying these standards, the con-
trolling consideration has been to require that the pick-
eting be conducted so as to minimize its impact on
neutral employees insofar as this can be done without
substantial impairment of the effectiveness of the pick-
eting in reaching the primary employees.8
The controlling factor is not the effect of the pick-
eting, but its object—or more precisely, whether it has
a proscribed secondary object.9 If the Moore Dry Dock
picketing standards are complied with, the picketing is
presumed to be lawful, and any incidental impact on
the employees of neutral employers at the common
situs will not render the picketing unlawful.10 On the
other hand, although failure to comply with any of the
Moore Dry Dock standards does not constitute a per se
violation of the Act, the failure does create a rebuttable
presumption that the picketing had an unlawful sec-
ondary purpose.11
In order to preserve the right of neutral employers
to avoid becoming enmeshed in labor disputes involv-
ing primary employers at a common situs, the Supreme
Court has approved the so-called reserved gate system
as a means of isolating or localizing the situs of a pri-
mary dispute on a common situs.12 Under a reserved
gate system, one entrance, or gate (the primary gate)
onto the common situs is reserved for the exclusive
use of the primary employers, their employees, sup-
pliers, etc., and other gates (neutral gates) are reserved
for the use of neutral employers, their employees, sup-
pliers, etc. Under a reserved gate system, primary em-
ployers are usually expressly forbidden to use the neu-
tral gates. If the integrity of a reserved gate system has
been maintained, and the primary employers or their
employees or suppliers have not used or attempted to
use one of the neutral gates, then picketing of the pri-
mary employer must be confined to the area reason-
ably close to the reserved primary gate, and cannot be
conducted at the neutral gates. If picketing is not con-
fined to an area reasonably close to the reserved pri-
mary gate, then the union is presumed to be pursuing
an unlawful secondary objective.13
The territorial limits of permissible picketing at or
reasonably close to a reserved primary gate must ulti-
mately be decided on a case-by-case basis, taking into
account all the relevant circumstances.14 However, the
underlying rule—that the involvement of neutral em-
ployers in primary disputes not their own be kept to
an absolute minimum—remains constant. Thus, ‘‘a
heavy burden [is placed] on the picketing union to
convince the trier of fact that the picketing was con-
ducted in a manner least likely to encourage secondary
effects.’’15
59ELECTRICAL WORKERS IBEW LOCAL 970 (INTEROX AMERICA)
16 Sec. 8(b)(7)(C) provides in pertinent part that:
It shall be an unfair labor practice for a labor organization or
its agents—
. . . .
(7) to picket . . . any employer where an object thereof is
forcing or requiring an employer to recognize or bargain with
a labor organization as the representative of his employees
. . . .
. . . .
(C) where such picketing has been conducted without [a
representation petition being filed within 30 days from the
start of the picketing] . . . Provided further, That nothing in
this subparagraph (C) shall be construed to prohibit any pick-
eting . . . for the purpose of truthfully advising the public (in-
cluding consumers) that an employer does not . . . have a
contract with, a labor organization, unless an effect of such
picketing is to induce any individual employed by any other
person in the course of his employment, not to pick up, deliver
or transport any goods or not to perform any services [second
emphasis added].
Nothing in this paragraph (7) shall be construed to permit any
act which would otherwise be an unfair labor practice under this
section 8(b).
The parties have stipulated that the picketing at the Washington
Way entrance to the construction access road by Local 970 on No-
vember 26 and 27, and by Local 82 on November 27, had precisely
the above-proscribed effect of inducing the employees of neutral em-
ployer Marvin Cole not to perform any services on the Interox job
on those dates. Implicitly acknowledging this, the Respondents argue
that it is irrelevant whether the picketing actually complied with Sec-
tion 8(b)(7)(C)—no violation of that section was alleged here—and
that that section is significant to this case because it underscores the
Respondents’ legitimate interest in communicating its ‘‘no contract’’
message to the public.
17 Electrical Workers IBEW Local 332 (Lockheed Missiles), 241
NLRB 674, 679 (1979).
2. Unusual determinative facts
As previously noted, the stipulated facts of this case
are unique: First, the only possible access to the con-
struction site is down a one-third-of-a-mile long road
off of a major arterial street, Washington Way. Sec-
ond, Interox could not feasibly or lawfully create either
an additional access road or an additional reserved gate
system on Washington Way. Third, picketing activity
at the established reserved primary gate on the con-
struction site would not have been visible to vehicular
traffic or pedestrians on Washington Way, and al-
though the act of picketing itself would have been visi-
ble to vehicular traffic on Industrial Way, about 400–
500 feet away, the messages on the picket signs would
not have been readable at that distance. Thus, the
Washington Way entrance, which of necessity was
used by all primary and neutral employers, their em-
ployees, and their suppliers, was also the only entrance
to the construction site at which the Respondents’ ‘‘no
contract’’ picket sign messages could be read by the
passing public.
3. Discussion
The Respondents assert that although ‘‘no contract’’
picketing like they were engaged in here has a recog-
nitional and bargaining object, aimed at the primary
employer(s), that picketing also has a public compo-
nent and is protected by the second proviso to Section
8(b)(7)(C) of the Act.16 Thus, the Respondents contend
that picketing at the Washington Way entrance to the
construction access road was legitimized by the fact
that picketing there was as close to the location of the
primary dispute as the Respondents could reasonably
place their pickets while still effectively commu-
nicating their dispute to the passing public. In sum, the
Respondents argue that no unlawful object can be de-
duced from a union’s refusal to picket at a location
which totally denies it the opportunity to reach one of
its target groups with its message.
We find the Respondents’ argument in this regard to
be unpersuasive under the unusual facts in this case.
If the Respondents had picketed at the reserved pri-
mary gate, both Congressional objectives of (1) pre-
serving the right of labor organizations to bring pres-
sure on employers in primary labor disputes and of (2)
shielding neutral employers from pressures in con-
troversies not their own would have been satisfied. But
by picketing at the entrance to the construction access
road, the Respondents have totally defeated the second
of those objectives.
Under the unusual circumstances here, where the
only entrance to the construction site at which the Re-
spondents’ message arguably could be communicated
to the public was also the only entrance at which em-
ployees and suppliers of neutral employers could not
avoid being confronted by that picketing, the Respond-
ents’ interest in communicating its message to the
passing public must yield to the attainment of the Con-
gressional objective of shielding neutral employers and
their employees from enmeshment in the Respondents’
dispute with primary employers. This is particularly so
in this case, where (1) there is no showing that the re-
served gate system at the construction site was unrea-
sonable, or established in bad faith, and (2) where both
Congressional objectives could have been accommo-
dated if the Respondents had picketed at the reserved
primary gate on the construction site itself.
Thus, the Respondents’ inability to communicate its
‘‘no contract’’ picketing message to the passing public
from the reserved primary gate on the construction site
itself is not evidence that the reserved gate system is
invalid, and does not legitimize the Respondents’ pick-
eting at the entrance to the construction access road.
Where, as here, separate gates are designated and le-
gitimately maintained, a union must confine its picket-
ing activities to the primary gate and avoid implicating
neutrals by picketing at neutral gates.17 And this prin-
ciple applies with particular force in this case, where
the Respondents’ picketing away from the primary
gate was conducted beyond the adjacent neutral gates,
off of the construction site altogether, approximately a
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 See id.
19 As a general rule, a reserved primary gate on a public road is
not improperly established simply because there is little traffic by
the general public at that gate. Electrical Workers IBEW Local 501
(C. W. Pond Electric), 269 NLRB 274 (1984), enf. denied and re-
manded for factual resolution 756 F.2d 888 (D.C. Cir. 1985). See,
e.g., Carpenters Local 33 (CB Construction), 289 NLRB 528, 529
(1988), enfd. 873 F.2d 316 (D.C. Cir. 1989); Carpenters Local 354
(Sharp & Tatro), 268 NLRB 382 (1983). In such cases, the Board
has found that even though communication of the picketing message
to the public was limited by the location of reserved primary gate,
alternative picketing at neutral gates was unlawful. See, e.g., Car-
penters Local 33 (CB Construction), supra; Electrical Workers IBEW
Local 501 (C. W. Pond), supra; Carpenters Local 354 (Sharp &
Tatro), supra; Electrical Workers IBEW Local 323 (Renel Construc-
tion), 264 NLRB 623 (1982); Electrical Workers IBEW Local 903
(Hinton Commercial), 230 NLRB 1017 (1977), enfd. 574 F.2d 1302
(5th Cir. 1978). The Board previously has not reached the issue of
picketing at a neutral gate if the location of the primary gate com-
pletely eliminated the possibility of communicating with the general
public. But see Electrical Workers IBEW Local 453 (Southern Sun),
237 NLRB 829 (1978) (picketing away from primary gate found to
be lawful where reserved gate system was ‘‘improperly established’’
and would have unjustly impaired the effectiveness of the picketing
to reach the primary, its suppliers, and the general public).
20 Cf. Electrical Workers IBEW Local 453 (Southern Sun), supra,
in which the Board found the gate system was improperly estab-
lished.
21 Thus, our holding here would not control a case involving a
similar private property gate system in which the allegedly neutral
gates were tainted and the picketing union reasonably feared that
picketing the tainted gates would make the picketers vulnerable to
arrests for trespass.
third of a mile away from the location of the situs of
the primary dispute.18
Arguably picketing away from the primary gate may
be lawful where compliance with the reserved gate
system would substantially impair the effectiveness of
the picketing in reaching the employees of the primary
employer and its suppliers or the general public.19 It
is clear that in the instant case, compliance by the Re-
spondents with the instant reserved gate system would
not have had any negative impact on the effectiveness
of such picketing in reaching the employees of the pri-
mary employers and their suppliers. However, in the
instant case, the location of the reserved primary gate
does completely eliminate the possibility that picketing
at that gate will be effectively visible to the public. As
noted, there is no evidence that Interox set up the re-
served gate system in order to inhibit the Respondent’s
ability to communicate its message. Rather, the geo-
graphical limitations detailed earlier in this decision
greatly restricted the options available in erecting the
gate system.20 Optimally, a reserved gate system will
provide some means of communication with all a
union’s legitimate target audiences. Nevertheless, on
the particular facts of this case, we find that the dual
Congressional objectives of preserving the right of
labor organizations to bring pressure to bear on em-
ployers in primary labor disputes and of shielding neu-
tral employers and others from pressures in controver-
sies not their own are more nearly attained by barring
the Repondents from picketing at the Washington Way
entrance than they would be if we allowed such pick-
eting to occur.
We are also not persuaded by the Respondents’
other arguments in support of their contention that the
instant system of reserved gates was improperly estab-
lished and, therefore, that they did not have to limit
their picketing to the reserved primary gate.
First, the Respondents contend that Interox’s No-
vember 21 invitation to the Respondents to picket at
the reserved primary gate at the construction site itself,
on Interox’s private property, implicitly prohibited the
Respondents from placing nonpicketing observers at
the neutral gates to ensure the continued integrity of
those gates. More specifically, the Respondents assert
that Interox’s express promise not to prosecute any
claim for trespass for picketing activity within 20 feet
of the primary gate constitutes an implied threat of a
trespass action for nonpicketing observation activity
away from the reserved primary gate, at the two neu-
tral gates, 100 to 200 feet away on either side of the
primary gate.
We find no such implied threat in Interox’s Novem-
ber 21 letter. The focus of the letter is its explanation
of where the Respondents may picket and where they
may not. The letter clearly and fully expresses
Interox’s invitation to the Respondents to picket at the
primary gate, and just as clearly expresses Interox’s
denial of permission to the Respondents to picket at
the neutral gates, and also expresses the intention to
seek sanctions against the Respondents if their pick-
eting is conducted at the neutral gates. We cannot rea-
sonably infer from these statements that Interox would
also take legal action against nonpicketing observers at
the neutral gates.
The Respondents also assert that they were prohib-
ited by the terms of the letter from picketing at the
neutral gates in the event the neutrality of those gates
was breached. The letter contains no express prohibi-
tion against picketing at the neutral gates in the event
they become tainted, nor do we find that any such pro-
hibition is reasonably implied by the failure of the let-
ter expressly to grant the Respondents permission to
picket at the neutral gates in the event they become
tainted.21
Finally, the Respondents assert that the reserved gate
system, although superficially precise, was ambiguous
because, inter alia, no employers were listed on the
sign at neutral gate 8, and thus an employee of a pri-
mary employer or one of its suppliers could erro-
neously conclude that it was appropriate for him to
enter the construction site through that gate, rather than
through the reserved primary gate.
61ELECTRICAL WORKERS IBEW LOCAL 970 (INTEROX AMERICA)
22 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor 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.’’
We find that the reserved gate system was not am-
biguous. First, the wording on the sign at gate 8 stated
that it was for the sole and exclusive use of the
‘‘below listed contractors, their employees, suppliers,
visitors & materialmen,’’ and that all other companies
must use their designated gates. In this case, nobody
was listed at the bottom of the gate 8 sign. Contrary
to the Respondents, we do not find that the absence of
names on the gate 8 sign had the reasonable potential
effect of duping a confused employee of a primary em-
ployer or supplier into believing that he was permitted
to enter through neutral gate 8, even though the name
of his company was not listed on it as one of those
for whom that gate was reserved.
Accordingly, we find that the Respondents’ pick-
eting at the Washington Way entrance to the construc-
tion access road violated Section 8(b)(4)(i) and (ii)(B)
of the Act.
CONCLUSIONS OF LAW
1. Interox and Marvin Cole are employers engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Respondent Locals 970 and 82 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By picketing at the Washington Way entrance to
the construction access road in furtherance of their dis-
pute with The Industrial Company (TIC) and TIC’s
wholly owned subsidiary, Associated Industrial Con-
structors, Inc. (AICI) with an object of forcing neutral
persons, such as Marvin Cole, to cease doing business
with TIC and AICI, the Respondents have engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(b)(4)(i) and (ii)(B) and Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices in violation of Section 8(b)(4)(i)
and (ii)(B) of the Act, we shall order them to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that
A. Respondent International Brotherhood of Elec-
trical Workers, Local No. 970, AFL–CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Inducing or encouraging any individual em-
ployed by Marvin Cole, or other persons engaged in
commerce or in an industry affecting commerce, to en-
gage in a strike or refusal in the course of employment
to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or
commodities or to perform any services, where an ob-
ject thereof is to force or require Marvin Cole, or any
person engaged in commerce or in an industry affect-
ing commerce, to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of, or to
cease doing business with, The Industrial Company
(TIC) and its wholly owned subsidiary, Associated In-
dustrial Constructors, Inc. (AICI).
(b) Threatening, coercing, or restraining Marvin
Cole, or any other persons engaged in commerce or in
an industry affecting commerce, where an object is to
force or require Marvin Cole, or any other persons en-
gaged in commerce to cease using, selling, handling,
transporting, or otherwise dealing in the products of, or
to cease doing business with, TIC and AICI.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its office and meeting halls copies of the
attached notice marked ‘‘Appendix A.’’22 Copies of
the notice, on forms provided by the Regional Director
for Region 19, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily post-
ed. Reasonable steps shall be taken to ensure that the
notices are not altered, defaced, or covered by any
other material.
(b) Deliver to the Regional Director for Region 19
signed copies of the notice in sufficient number for
posting by Marvin Cole, if willing, at all places where
notices to employees are customarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
B. Respondent United Association of Plumbers and
Pipefitters, Local No. 82 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL–CIO, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Inducing or encouraging any individual em-
ployed by Marvin Cole, or other persons engaged in
commerce or in an industry affecting commerce, to en-
gage in a strike or refusal in the course of employment
to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or
commodities or to perform any services, where an ob-
ject thereof is to force or require Marvin Cole, or any
person engaged in commerce or in an industry affect-
ing commerce, to cease using, selling, handling, trans-
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 See fn. 22, supra.
porting, or otherwise dealing in the products of, or to
cease doing business with, The Industrial Company
(TIC) and its wholly owned subsidiary, Associated In-
dustrial Constructors, Inc. (AICI).
(b) Threatening, coercing, or restraining Marvin
Cole, or any other persons engaged in commerce or in
an industry affecting commerce, where an object is to
force or require Marvin Cole, or any other persons en-
gaged in commerce to cease using, selling, handling,
transporting, or otherwise dealing in the products of, or
to cease doing business with, TIC and AICI.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its office and meeting halls copies of the
attached notice marked ‘‘Appendix B.’’23 Copies of
the notice, on forms provided by the Regional Director
for Region 19, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily post-
ed. Reasonable steps shall be taken to ensure that the
notices are not altered, defaced, or covered by any
other material.
(b) Deliver to the Regional Director for Region 19
signed copies of the notice in sufficient number for
posting by Marvin Cole, if willing, at all places where
notices to employees are customarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
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 rep-
resentatives, business agents, or anyone acting for us,
whatever his title may be, induce or encourage any in-
dividual employed by Marvin Cole, or other persons
engaged in commerce or in an industry affecting com-
merce, to engage in a strike or refusal in the course
of employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services,
where an object thereof is to force or require Marvin
Cole, or any person engaged in commerce or in an in-
dustry affecting commerce, to cease using, selling,
handling, transporting, or otherwise dealing in the
products of, or to cease doing business with, The In-
dustrial Company (TIC) and its wholly owned sub-
sidiary, Associated Industrial Constructors, Inc. (AICI).
WE WILL NOT threaten, coerce, or restrain Marvin
Cole, or any other persons engaged in commerce or in
an industry affecting commerce, where an object is to
force or require Marvin Cole, or any other persons en-
gaged in commerce to cease using, selling, handling,
transporting, or otherwise dealing in the products of, or
to cease doing business with, TIC and AICI.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL NO. 970,
AFL–CIO
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
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 rep-
resentatives, business agents, or anyone acting for us,
whatever his title may be, induce or encourage any in-
dividual employed by Marvin Cole, or other persons
engaged in commerce or in an industry affecting com-
merce, to engage in a strike or refusal in the course
of employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services,
where an object thereof is to force or require Marvin
Cole, or any person engaged in commerce or in an in-
dustry affecting commerce, to cease using, selling,
handling, transporting, or otherwise dealing in the
products of, or to cease doing business with, The In-
dustrial Company (TIC) and its wholly owned sub-
sidiary, Associated Industrial Constructors, Inc. (AICI).
WE WILL NOT threaten, coerce, or restrain Marvin
Cole, or any other persons engaged in commerce or in
an industry affecting commerce, where an object is to
force or require Marvin Cole, or any other persons en-
gaged in commerce to cease using, selling, handling,
transporting, or otherwise dealing in the products of, or
to cease doing business with, TIC and AICI.
UNITED ASSOCIATION OF PLUMBERS
AND PIPEFITTERS, LOCAL NO. 82 OF THE
UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING
AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL–
CIO