Unpublished Disposition, 908 F.2d 977 (9th Cir. 1988)

No. 87-7222.

United States Court of Appeals, Ninth Circuit.

Before BEEZER and KOZINSKI, Circuit Judges, and ROBERT C. BONNER, District Judge^* .

MEMORANDUM^** 

Petitioner, National Labor Relations Board ("NLRB"), objects to the Special Master's report concluding that respondents, Ironworkers Local 118, International Association of Bridge, Structural, and Ornamental Ironworkers, AFL-CIO ("Local 118") and its business agent, Walt Turner ("Turner"), were not in contempt of our October 29, 1987 Order prohibiting Local 118 and its agents from engaging in secondary boycott activities. For the reasons explained below, we conclude that Local 118 and Turner violated our Order and accordingly hold them in contempt.

Background

NLRB does not contest the Special Master's factual findings. The special master found in pertinent part as follows:

In July 1986, Local 118 picketed a California state prison construction project in Jamestown, California. On October 29, 1987, we enforced an NLRB order prohibiting Local 118, its officers, and its agents from

picketing at or near entrances to construction jobsites established and reserved for the use of neutral persons, their personnel, visitors, and suppliers, or in any other manner, or by any other means, inducing or encouraging any individual employed by any person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of his employment, to use, manufacture, process, transport, or otherwise handle or work on any articles, materials, or commodities, or to refuse to perform any other services, or coerce or restrain ... any ... person engged [sic ] in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require ... any ... person, to cease doing business with ... any other person.

F & H Construction, Inc. ("F & H") contracted with the State of California to build the prison facility. F & H subcontracted with Ron Regan Construction Company ("Regan") whereby Regan agreed to supply and erect six pre-fabricated metal buildings.

Regan subcontracted that steel erection work to Walker Construction Company ("Walker"). Neither Regan nor Walker had a collective bargaining agreement with Local 118.

Shortly after we issued our October 29, 1987 Order, Turner told Regan that there would be labor problems because Walker was non-union. Local 118 knew that its dispute was with Walker, not with Regan. On or about February 5, 1988, F & H set up a reserved, dual-gate system outside the prison walls.¹  Regan's name was included on the sign identifying the reserve gate, Gate No. 1, and the telegrams to Local 118 also stated that Regan would be using Gate No. 1.

Turner sought and obtained sanction from the Building Trades Council to picket Walker because Walker did not have an agreement with Union and was not hiring apprentices. On February 5, 1988, Local 118 began picketing the neutral gate, Gate No. 2. The picket signs read, "Ron Regan Unfair to Ironworkers."

No picketing occurred between February 6-22. On February 23, 24, 25, and 26, Local 118 picketed Gate No. 2 with signs that read, "Ron Regan Unfair to Ironworkers."

Jurisdiction

We had jurisdiction under 29 U.S.C. § 160(e) to issue our October 29, 1987 Order. We have jurisdiction in this contempt proceeding under our inherent authority to coerce compliance with our orders. McComb v. Jacksonville Paper Co., 336 U.S. 187, 194-95 (1949); Vuitton Et Fils S.A. v. J. Young Enterprises, Inc., 644 F.2d 769, 779 (9th Cir. 1981). The Special Master's report finally disposes of all the issues between the parties, and NLRB's objections to her report were timely filed.

Scope of review

A Special Master's findings of fact will not be disturbed unless clearly erroneous. Fed. R. Civ. P. 53(e) (2); Swoboda v. Pala Mining, Inc., 844 F.2d 654, 656 (9th Cir. 1988). Findings are not clearly erroneous unless the " 'reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (citation omitted); United States ex rel Leno v. Summit Construction Co., 892 F.2d 788, 791 (9th Cir. 1989).

A Special Master's conclusions of law receive "no deference," and are subject to de novo review. Swoboda, 844 F.2d at 656; NLRB v. FMG Industries, 820 F.2d 289, 291 (9th Cir. 1987).

The party asserting contempt must prove contempt by clear and convincing evidence. Balla v. Idaho State Board of Corrections, 869 F.2d 461, 466 (9th Cir. 1989); NLRB v. Sequoia District Council of Carpenters, 568 F.2d 628, 631 (9th Cir. 1977). In civil contempt proceedings the contempt need not be willful. McComb, 336 U.S. at 191; United States v. Laurins, 857 F.2d 529, 534 (9th Cir. 1988), cert. denied, 109 S. Ct. 3215 (1989). Nor must the contempt be willful in order to award fees and expenses. Perry v. O'Donnell, 759 F.2d 702, 704 (9th Cir. 1985).

Analysis

The Special Master specifically found: that Local 118's dispute was with Walker, M.R. at 4, and that Local 118 and Turner knew of our October 1987 Order, M.R. at 2;²  that on February 5, and again on February 23-26, 1988, Local 118 picketed the jobsite with picket signs identifying Regan as the company with which Local 118 had a labor dispute, M.R. at 4, 6-7; and that Turner was in charge of the daily picketing, M.R. at 5. Implicit in these findings is the fact that Turner, and hence Local 118, knew the picket signs identified Regan, a neutral employer. Moreover, the Special Master found that Turner and Local 118's object was to put pressure on Regan, a neutral employer, and rejected Union's claims to the contrary as not credible. M.R. at 5-6, 16-17.

The central issue--viz., whether Local 118 and Turner violated our Order by pressuring a neutral employer--was, in the proceeding before the Special Master, overshadowed by the questions whether Local 118 and Turner violated the Order by picketing a properly established neutral gate and whether certain statements by Turner and a picketer were threats of action against neutral employers. We need not reach those issues, because if the picketing was directed at a neutral employer for the purpose of pressuring that employer, the picketing violated our Order whether or not separate primary and neutral gates existed or were properly established or maintained.

As the Special Master found, the only purpose in picketing Regan was to pressure it to cease using a non-union company (Walker) to which Regan had subcontracted the labor for steel erection work at the jobsite. The Special Master made no conclusion regarding whether this specific conduct violated our Order. Rather, the Special Master concluded that because the general contractor, F & H, had named Regan in its gate sign for the primary gate and in the telegrams to Local 118, NLRB could not complain of picketing directed at Regan. M.R. at 17. The Special Master's findings make no suggestion that Local 118 was confused on this point. Rather, the Special Master specifically found that Local 118 knew its dispute was with Walker, and the evidence supports that finding. Indeed, Turner sought from the Building Trades Council authority to picket Walker, not Regan, and the Special Master found "not credible" Local 118's testimony that it thought its dispute was with Regan.

Given the fact that Local 118 knew Regan was a neutral employer before and during its picketing, there is no factual or legal support for the Special Master's conclusion that NLRB is estopped from asserting that Local 118's conduct violated our Order. Her conclusion in this regard is unsupported by law or logic, and we reject it.³ 

For these reasons, we conclude that Local 118 and Turner violated our Order, and we hold them in contempt.

Remedies

The Special Master did not consider proposed remedies. However, proposed remedies are purely questions of law, and we can resolve them. E.g., Nixon v. Fitzgerald, 457 U.S. 731, 743 n. 23 (1982). The following remedies are appropriate, and we, therefore, order Local 118, its officers, agents, employees, and representatives, including Turner, to:⁴ 

1. Fully comply with and obey our October 29, 1987 Order and the provisions of the NLRB's order thereby enforced, and not in any way, by action or inaction, engage in, induce, or encourage any violation of those orders.

2. Refrain from inducing or encouraging, by picketing or any other acts or conduct, F & H, Regan, or any other individual employed by any person engaged in commerce, or in an industry affecting commerce, to engage in a strike or refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities, or to refuse to perform any services, or sanction, support, or promote any such conduct, where an object thereof is to force or require, directly or indirectly, those persons to cease doing business with Walker or with any other person.

3. Immediately duplicate at their own expense and post in conspicuous places where notices to employees and member are customarily posted, for a period of sixty consecutive days, copies of this Order and of an appropriate notice ("Notice") in the form prescribed by the NLRB, signed by Turner and by appropriate officers on behalf of NLRB, stating that they have been adjudged in civil contempt of this Court for violating and disobeying this Court's October 29, 1987 Order, and that they will undertake the action in purgation directed by this Court. Further, Local 118 and Turner must maintain such copies and notices in clearly legible condition throughout the sixty-day posting period and ensure that they are not altered, defaced, or covered by any other material.

4. Sign, duplicate, and mail at their own expense, copies of this Order and the Notice to all members of Local 118, and submit a list of those members, officers, agents, and representatives, and their addresses, to the NLRB Regional Director, together with proof of mailing.

5. Have the Notice read by an appropriate officer of Local 118 at the next regularly scheduled meeting of its membership following the entry of this Order. Respondents shall give the Director of NLRB's Thirty-second region at least two weeks' written notice of such meeting, and the Regional Director may permit an NLRB agent to attend that meeting.

6. Publish said notice, in a format approved by NLRB's Regional Director, in the next issue of Local 118's newsletter.

7. Turner shall signify in writing and under oath that he has been furnished a copy of this Order and of this Court's October 27, 1987 Order; that he understands those Orders and shall conduct himself in all respects consistently with them; and will not, by action or inaction, commit, engage in, induce, encourage, permit, or condone any violation or violations of these Orders. Turner shall furnish copies of that acknowledgement with NLRB's Regional Director.

8. Refrain from authorizing or permitting any of Local 118's members, representatives, or agents to picket unless and until Local 118 has conferred with those members, representatives, or agents and determined that the objects and manner of the proposed picketing are consistent this Order and this Court's October 27, 1987 Order.

9. At the outset of any future picketing by Local 118's members, representatives, or agents, Local 118 and Turner shall give each picket a copy of this Order and this Court's October 27, 1987 Order, together with written instructions consistent with the terms of those Orders; and will require all persons assigned to picket line duty to sign a receipt indicating the date on which he or she picketed and that he or she has received, read, understands, and will comply with those Orders; and will submit such acknowledgements to NLRB's Regional Director.

10. File a sworn statement with the Clerk of this Court, and a copy with the NLRB's Regional Director showing that steps have been taken to comply with this Court's directives. Such statements shall be filed fifteen days after the entry of the adjudication of contempt and again at the expiration of the sixty-day posting period.

The NLRB will be allowed $5,000 for attorneys' fees in connection with initiating, preparing, and presenting the contempt proceeding. Local 118 and Turner are jointly and severally liable for payment. Said amount shall be paid within thirty days of the filing of this Order.⁵ 

In order to ensure that Local 118 and Turner comply with the terms of this Order, we impose a prospective non-compliance fine of $10,000 against Local 118 for each and every future violation of this or our October 27, 1987 Order; and we impose a further prospective fine of $1,000 per day for each day we conclude the violations have occurred; and we impose a prospective fine of $1,000 per violation against Turner and each officer, member, picket, agent, representative or other person who, in active concert and participation with Local 118 or Turner, violates the terms of this Order or our October 27, 1987 Order with knowledge of that Order.⁶ 

We enter such prospective fines fully cognizant of the Fifth Circuit's observation that " [t]he imposition of prospective fines is an extraordinary remedy to be imposed only where violations have been flagrant and lesser remedies appear to fail." NLRB v. Trailways, Inc., 729 F.2d 1013, 1023 (5th Cir. 1984). That observation is consistent with the "doctrine that a court must exercise ' [t]he least possible power adequate to the end proposed.' " Shillitani v. United States, 384 U.S. 364, 371 (1966) (citation omitted). In the case before us, the Special Master found that both Union and Turner knew the dispute was with Walker; accordingly, their violation was "flagrant." Moreover, lesser remedies have not been effective.

Conclusion

For the foregoing reasons, we adjudge Local 118 and Turner in contempt of our October 27, 1987 Order, and impose the remedies described above.

IT IS SO ORDERED.

SPECIAL MASTER'S FINDINGS OF FACT AND CONCLUSIONS OF LAW

CLAUDIA WILKIN, United States Magistrate.

STATEMENT OF THE CASE

In July of 1986, Ironworkers Local 118, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO ("Union") picketed a state prison construction project located near Jamestown, California. An Administrative Law Judge found that the Union had engaged in unlawful secondary activity, and on April 21, 1987, the National Labor Relations Board ("Board") affirmed that finding. The Board's decision prohibited the Union from engaging in secondary boycott activities in violation of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, 29 U.S.C. Section 158(b) (4) (i) and (ii) (B). In an October 29, 1987 order, the Ninth Circuit Court of Appeals enforced the Board's decision. The Board now petitions the Court of Appeals to find the Union and Walt Turner, the Union's Business Agent, in contempt of the Court's order. The matter was referred to the undersigned to conduct an evidentiary hearing and to make proposed Findings of Fact and Conclusions of Law.

The Board contends that the Union violated the Court's order by again engaging in secondary boycott activity, picketing the prison project of February 5, 23, 24, 25 and 26, 1988, with an object of enmeshing F&H Construction, Inc. ("F&H") and Ron Regan Construction Company ("Regan"), neutral contractors, in the Union's labor dispute with Ron Walker Construction ("Walker"), a non-union employer.

FINDINGS OF FACT

Respondents Union and Walt Turner knew of the judgment and order of the Court of Appeals prohibiting the Union from engaging in secondary boycott activity.

On October 6, 1987, F&H entered into a contract with the State of California to build support facilities at the Jamestown prison, the same prison involved in the original case which gave rise to the Court order the Union is now accused of violating. On October 21, 1987, F&H, the general contractor on the site, entered into a subcontracting agreement with Regan, whereby Regan agreed to supply and erect six pre-fabricated metal buildings. Regan subcontracted the erection work on the buildings to Walker. Neither Regan nor Walker has a collective bargaining agreement with the Union.

Each of these three companies (F&H, Regan and Walker) were separately owned, managed and directed and had no connection with each other aside from a contractual relationship.

During the relevant time period hearing, F&H, Regan and Walker were all employers engaged in commerce or in industries affecting commerce.

Shortly before initial work on the project was scheduled to begin in November 1987, a pre-job conference was held between F&H and the business agents of the unions representing various trades scheduled to work on the project. Present at the meeting, amont others, were F&H prison project superintendent Warren Snodgrass, F&H project engineer Eugene Hayes, and Local 118 Business Agent Walt Turner. In response to inquiries by Turner concerning who would be performing the erection of the metal buildings, Snodgrass replied that Regan was F&H's subcontractor and that Regan was negotiating with union contractors to do the actual erection work.

In early December 1987, Turner telephoned Regan and spoke to Regan's vice president, Gary Todd. Todd told Turner that he intended to subcontract the erection work to PB Erectors, a signatory to Local 118's collective bargaining agreement.

PB Erectors was to commence on or about February 1, 1988. On or about January 29, 1988, PB Erectors informed Todd that it would not perform the erection work. Regan eventually entered into a contract with Walker, a non-union erector.

Around the same time, Todd spoke to Turner about the change in subcontractors, and Turner told Todd that he knew of other union subcontractors who were interested in bidding. Todd explainted that there was no time to get bid proposals from them. Turner replied that there would be a problem on the job because Walker was non-union, and that he would have to check with the Union's main office in Sacramento about what to do.

Todd told Eugene Hays, the F&H prison project engineer, who notified Carl Fregien, F&H Secretary-Treasurer, that Turner said there might be some labor problems. F&H decided to set up a reserve gate system, and had gate signs printed. The signs stated that Gate No. 1 was for the use of Ron Regan Contruction, Inc., their employees, suppliers and customers, and Gate No. 2 was for all other persons. The signs did not mention Walker, nor its suppliers. the signs were improper; the primary gate should have been disignated for use by Walker and its employees, suppliers and customers, not for Regan. The Union's dispute was with Walker because he used non-union employees, not with Regan.

On February 1, 1988, the gates were both established inside the main entrance to the prison property. At the time the gates were established, F&H sent a telegram to the Union's office notifying the Union that Regan employees were to use Gate No. 1 and all others were to use Gate No. 2. No mention was made in the telegram of Walker or of which gate the Regan suppliers would use.

From approximately 6:30 A.M. until noon on February 3, 1988, four to six people picketed at the main entrance to the prison property. The picketing was repeated on February 4. These two days of picketing are not in issue.

The picketing was authorized by the Union's Business Manager Max Sturgis; Turner was in charge of daily picketing. Sturgis instructed Turner to put Regan's name on the picket signs, based on the fact that his name appeared on the gate signs. The picket signs at all times read, "Ron Regan Unfair to Ironworkers," and did not include Ron Walker's name.

Turner had requested and received sanction from the Building Trades Council to picket Walker because he did not have an agreement with the Union and was not hiring apprentices. The Union's claim that it had a dispute with Regan because Regan did not insure that Walker had applied to the Joint Apprenticeship and Training Committee ("JATC") to arrange for apprentices to work on the state-funded project is not credible. California state law requires all contractors hired for state-funded projects to insure that their subcontractors apply for certification to hire apprentices. The Union could have filed a complaint with the Joint Apprenticeship and Training Committee ("JATC"), but it did not. The Union never informed Regan of its complaint, nor did the Union picket signs reflect the dispute.

In fact, Todd, a Regan employee, asked Walker to apply for certification to hire apprentices. Walker attempted to apply for certification, but did an inadequate job; he mailed the application to the wrong office and never again inquired about the application.

Sometime on February 4, 1988, the State Director of Jamestown prison informed Hayes that picketing on state property was illegal. By 3:30 or 4:00 that afternoon the gate signs were removed from inside the prison grounds and placed outside on the main road. The Gate No. 2 sign was placed at the main entrance to the prison. The Gate No. 1 sign was relocated about one quarter miel southwest of the main entrance pasture. Gate No. 1 could not be seen from Gate No. 2 and vice versa. The dirt road through Gate No. 1 was narrow, rough, and lined by large oak trees. There was one sharp turn in the road. It was not suitable for trucks with semi-trailers.

F&H Sent a telegram to the Union informing it of the change in gates. It was delivered by telephone at 9:44 A.M. on February 5. The telegram stated in part as follows:

". . . This jobsite has two entrances. Gate No. 1 is for Ronald Reagan (sic) Construction Company, Inc. Gate No. 2 is for all others, their employees and supplies (sic). . . ."

17. On February 5 at 6:30 A.M. the Union began

picketing Gate No. 2, the neutral gate located at the main entrance to the prison. At approximately 7:00 A.M. Fregien visited the prison site. He told Cecil Atkinson, a Union picketer, that he was picketing the wrong gate and asked Atkinson to call Turner. About one hour later, Fregien returned and Atkinson told him that he had called Turner, that they didn't care, that they were going to picket there anyway and that they were going to shut F&H down.

Fregien then telephoned Turner and told him that Atkinson had said that he was going to picket the wrong gate. Fregien told Turner that that was illegal, that the gates were established and they were good gates. Turner said he didn'g care and that he was "going to shut that job down." (While the Board elicited testimony that Turner did not disavow Atkinson's statements, Fregien did not state clearly what statements of Atkinson's he quoted to Turner.) Turner asked Fregien if Atkinson had given him a slip of paper directing him to call the Union's attorney for information. Upon hearing that he had not, Turner told Fregien to call the attorney and hung up. Turner did not recall this conversation. the picketing continued at Gate No. 2. No pickets were at Gate No. 1, the Regan gate.

No picketing occurred after February 5 until February 23, 1988. On February 23, 24, 25 and 26 the picketing resumed at Gate No. 2, the main gate. The Union did not picket Gate No. 1 except for one hour on February 24.

Sometime during the morning of February 23, the old gate signs were replaced with new gate signs that read as follows:

Reserved Gate No. 1.

This Gate is reserved for the Exclusive Use of Ron Regan Construction, Inc.

Ron Walker Construction

Their Employees, Suppliers and Subcontractors.

All Others Must Entrance [sic] Located Off O'Byrnes Ferry Road

The new Gate No. 2 sign read:

Reserved Gate No. 2

This Gate is reserved for the Exclusive Use of All Persons Except

Ronald regan Construction

Ron Walker Construction

Their Employees, Suppliers and Customers Must Use Entrance Located on O'Byrnes Ferry Road

Shortly after 11:00 A.M., F&H sent a mailgram to the Union informing it that the reserved gates had been reestablished. This mailgram identified Gate No. 1 as reserved for Regan, Walker, and their employees, subcontractors and suppliers, and Gate No. 2 for all others. A letter containing the same information was hand-delivered to the Union office in Stockton at 1:00 P.M. on February 23.

In addition to the two roads with marked gates, there was a third road that led into the prison property, which was called the George Reed road. From the main road, O'Byrnes Ferry road, it was not apparent that the George Reed road led into the prison facility. While Fregien did not know of the George Reed road or of use of it, F&H Project Engineer Hayes saw a delivery of Walker's supplies made by that road, and F&H Project Supervisor Snodgrass also knew that deliveries for Walker were made by that road. Will Reed, the project supervisor employed by Regan, told Leotice Wood, Walker's foreman, that the semi-trucks would use the George Reed road. Reed showed Wood where the George Reed road was located.

Regan and Walker employees usually used Gate No. 1 to enter and exit the prison project. On several occasions, however, these employees used the george Reed road. On one accasion, when the Gate No. 1 road was made impassable by mud, Walker's foreman drove a forklift out by way of the George Reed Road. Turner's testimony that Walker employees used Gate No. 2 is not credible.

Nate's Trucking delivered two shipments of prefabricated metal buildings to the prison project in February. Its owner, Nathan Inman, testified that on February 9 he personally made a delivery through Gate No. 2, the main gate, even though Regan had instructed him not to use the main gate. An unidentified person at the Regan site showed him two roads by which he could exit the project: the Gate No. 1 road and the George Reed road. After examining both roads in a pick-up truck, Inman exited via the George Reed road because the Gate No. 1 road was too narrow. Inman instructed his driver, Mr. Moore, to use the George Reed road to make the next delivery, which was done on February 19.

CONCLUSIONS OF LAW

A. Jurisdiction.

During the relevant time period, F&H, Regan and Walker were all employers engaged in commerce or industries affecting commerce. This Court's jurisdiction to enforce its prior order is not contested.

B. The Contempt Standard.

To meet its burden of proof in this proceeding, the Board must prove by clear and convincing evidence the the Union and Turner violated a Court order. NLRB v. Sequoia District Council of Carpenters, 568 F.2d 628, 631 (9th Cir. 1977). The Board need not prove that Respondents acted wilfully. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949). The Court order here was valid, in full force and effect, and Respondents had knowledge of it.

C. The Law Governing Secondary Boycott Activity.

Section 8(b) (4) (B) of the National Labor Relations Act, 29 U.S.C. Section 152(b) (4) (B) ("the Act") makes " [t]hreats, picketing, and other economic pressure directed at a neutral employer . . . illegal secondary activity when . . . an object is 'forcing or requiring any person * * * to cease doing business with any other person.' " NLRB v. Local 85, International Brotherhood of Teamsters, etc., 454 F.2d 875, 878 (9th Cir. 1972). The term "cease doing business" under the Act and the judgment "must be construed broadly." International Brotherhood of Electrical Workers, Local 134, 179 N.L.R.B. 202, 205 (1969), enf'd 433 F.2d 302 (7th Cir. 1970), cert. denied 402 U.S. 906 (1971). Unions will not normally admit that their object in picketing is to bring pressure to bear on secondary employers. See, Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Accordingly, the trier of fact "is free to draw inferences from all the circumstances, and need not accept self-serving declarations of intent, even if they are uncontradicted." NLRB v. Warren L. Rose Castings, Inc., 587 F.2d 1005, 1008 (9th Cir. 1978).

The essential question in any case involving secondary boycotting is to determine the object of the union's activities. International Association of Ironworkers, Local 433 v. NLRB, 598 F.2d 1154, 1158 (9th Cir. 1979). The inquiry is whether an object of the picketing is to force a neutral employer to cease doing business with a primary employer. Constar, Inc. v. Plumbers Local 447, 568 F. Supp. 1440, 1449 (E.D. Cal. 1983), aff'd 748 F.2d 520 (9th Cir. 1984).

In In the Matter of Sailors Union of the Pacific and Moore Dry Dock Co., 92 N.L.R.B. 547, 549 (1950) the Board set forth criteria to be applied when picketing occurs at a site used by more than one employer, to distinguish between lawful picketing directed solely at the primary employer, i.e., the employer with whom the union has a dispute, and unlawful secondary picketing which at least in part is intended to appeal to neutrals. Picketing is presumptively lawful if it meets these criteria, as summarized by the Supreme Court:

(1) that the picketing be lmited to times when the situs of dispute was located on the secondary premises, (2) that the primary employer be engaged in his normal business at the situs, (3) that the picketing take place reasonably close to the situs, and (4) that the picketing clearly disclose that the dispute was only with the primary employer.

Local 761, International Union of Electrical Workers v. NLRB, 366 U.S. 667 (1961). The Moore Dry Dock rules are an evidentiary tool to assist the trier of fact in ascertaining intent. Constar, Inc. v. Plumber Local 447, 568 F. Supp. at 1447. A court may infer from other evidence that the union had an imporper purpose despite compliance with the Moore Dry Dock criteria, or that its picketing had a proper purpose despite a violation of one or more of the Moore Dry Dock criteria. Id. at 1445.

When more than one employer occupy the same site, a reserved gate system may be set up; this entails creating one entry gate for neutral employees and suppliers and a second gate for the employees and supplies of the primary employer. The reserved gate system should put the union on notice regarding the area where it can effectively restrict its appeal to the primary employee and suppliers without enmeshing neutrals in its dispute. Allied Concrete, Inc. v. NLRB 607 F.2d 827, 831 (9th Cir. 1979).

Once the reserved gate system is created, the neutral employer "must, in some fashion, give notice to the union of the existence of the reserved gate system." Constar, Inc. v. Plumbers Local, 568 F. Supp. at 1448-1449, citing International Assn of Ironworkers, Local 433 v. NLRB, 598 F.2d at 1158. The signs on the gate must clearly direct employees and suppliers to the proper gate.

The employer has a duty to "provide the union with truthful information, or the employer may not rely on the reserved gate system." Constar, Inc. v. Plumbers Local 447, 568 F. Supp. at 1449. The gates cannot be so located as to impair the effectiveness of a union's lawful picketing to convey its message to the public, in the case of area wage standards picketing, or to the employees, suppliers and visitors of the primary employer. Local Union No. 501, International Brotherhood of Electrical Workers v. NLRB, 756 F.2d 888, 895-896 (D.C. Cir. 1985).

On the other hand, the union has "a duty to picket with restraint, to minimize its impact on neutral employers and employees." Local Union No. 76 of the International Brotherhood of Electrical Workers v. NLRB, 742 F.2d 498, 502, (9th Cir. 1984). The union must conduct its picketing "in a manner least likely to encourage secondary effects." Allied Concrete v. NLRB, 607 F.2d 827, 830 (9th Cir. 1979), citing Ramey Constr. Co. v. Local 544, Painters, 472 F.2d 1127, 1131 (5th Cir. 1973). The union has a duty to take the necessary precautions, including making sufficient investigations, to ensure that the neutrals are protected. See, Retail Fruit & Vegetable Clerks Union, Local 1017 and Retail Grocery Clerks Union, etc. and Crystal Palace Market, 116 N.L.R.B. 856, 858-859 (1956), enf'd 249 F.2d 591 (9th Cir. 1957), cited with approval in Local 761, International Union of Electrical Workers v. NLRB, 366 U.S. 667, 678-679 (1961).

When the reserved gate system breaks down because the neutral gate has been "polluted," i.e., used by the primary employer, the union may disregard the system and picket the neutral gate until the gate is reestablished. Constar, Inc. v. Plumbers Local 447, 568 F. Supp. at 1448-9. Thus, "where the union cannot know that the 'primary' employees and the primary employer's suppliers will only utilize the reserved gate, it is free to picket wherever those proper objects of its measures can 'reasonably' be believed to be found, including the 'neutral gate.' " Id. at 1448.

Where the primary employer has taken reasonable recautions to establish and maintain a neutral gate, however, its integrity is not diminished by a showing of isolated or de minimis instances of use of the gate by the employees and suppliers of the primary employer. See, Local 761, International Union of Electrical Workers v. NLRB, 366 U.S. at 682. Rather, picketing the neutral gate can be justified only if there has been "a pattern of destruction of the 'reserve' gate [system]." Local Union 369, International Brotherhood of Electrical Workers, 216 N.L.R.B. 141, 144, (1975), enf'd 528 F.2d 317 (6th Cir. 1976); Local 76, International Brotherhood of Electrical Workers v. NLRB, 742 F.2d 498, 501 (9th Cir. 1984).

D. Who is the Primary Employer?

Our inquiry is whether an object of the Union's picketing was to force a neutral employer to cease doing business with the primary employer. The Board contends that the Union violated Section 8(b) (4) by enmeshing both the neutral general contractor F&H, and its subcontractor, Regan,in its dispute with Walker, the primary employer. The Board supports its contention with regard to Regan by noting that the Union picketed with signs bearing Regan's name rather than Walker's name, and arguing that the Union did not have a primary dispute with Regan, but only with Walker.

The Union disputes the Board's contention that Regan was a neutral employer. The Union asserts that it had a dispute with Regan because Regan did not insure that Walker sought certification to hire apprentices, as is required for any contractor and subcontractor working on a public works project, under California law. California Labor Code Sec. 1777.5. The statute places an affirmative duty on the contractor to insure that any subcontractor apply for certification. There is no requirement that the employers hire apprentices. The Union thus contends that it had a right to picket Regan for failing to insure that Walker applied correctly for certification.

In view of the totality of the circumstances, it is clear that Regan's failure to insure that Walker got certification for apprentices was of minor importance to the Union and played an insignificant role, if any, in the Union's decision to pickett. The Union had alternative means of expressing its displeasure. Turner, the Union's Business Agent, sat on the JATC and was well aware that the Union could have filed a complaint with the JATC. If the Union was truly interested in insurint that Walker complied with the apprentice rules, it could have so informed Regan and Walker. Both Todd, Regan's supervisor, and Walker testified that the Union never made any demands about hiring apprentices. In fact, Regan told Walker to apply for certification and Walker made an effort to apply for certification, but filed to follow the directions on the application packet. Consequently, the undersigned does not credit the Union's assertion that its motive in picketing Regan was Regan's failure to insure that Walker recieved certification for apprentices.

This conclusion is buttressed by the fact that Turner predicated trouble on the job long before he was aware of Walker's lack of certification. Turner testified that when he spoke with Todd and learned that Regan would use a non-union subcontractor to erect the buildings, he told Todd that there would be a problem on the job because Walker was non-union. Furthermore, the Union sought sanction from the Building Trades Council to picket Walker, not Regan.

Regan is not a primary employer with whom the Union had a dispute. The Union had no right to picket Regan, and by placing Regan's name on its picket signs it violated the fourth Moore Dry Dock criterion.

As noted above, however, violation of a Moore Dry Dock criterion, however, does not in itself warrant the conclusion that the Union had an improper purpose. F&H contributed to the error by placing Regan's name on the signs that it posted on the reserved gates. The gate signs were created before any picketers arrived at the job site. The Union made its decision to put Regan's name on the picket signs after the reserved gate system was set up. When the gate signs were changed on February 23 to add Walker's name, they still included Regan's name as a user of the primary gate. Neigher F&H, Regan nor Walker protested the content of the picketers' signs.

F&H also contributed to the error by sending faulty telegrams to the Union notifying it of the reserved gate system. The telegrams sent in early February noted that Regan and its employees were to use Gate No. 1, but did not mention Walker or which gate the supplisers were to use. the February 23 mailgram identified both Regan and Walker as users of the primary gate.

Considering F&H's role in announcing Regan as the primary employer on its signs and in its telegrams, the Board will not be heard at this time to protest the use of Regan's name on the picket signs. Thus, the Union will only be found in contempt if it was attempting to enmesh F&H in its dispute with Walker.

D. What Was the Object of the Picketing?

1. Threats to Shut Down the Site.

The Board contends that on February 5, the Union threatened to close down F&H, based onthe statements by Atkinson and Turner to Fregien. The Board argues that Atkinson, as a picketer, was "cloaked with the apparent authority to speak for the Union with regard to their picketing." International Brotherhood of Electrical Workers, Local 6 and Intercontinental Hotels Corporation, 286 N.L.R.B. No. 60, 128 L.R.R.M. (BNA) 1094, June 16, 1987. Statements made by the picketers during the course of the picketing may be used as evidence to ascertain the object of the Union's picketing. Carpenters Union Local No. 1622 and Joiners of America and Robert Wood & Associates, Inc., 262 N.L.R.B. 1211, 1217-18, n.26 (1982), enf'd 768 F.2d 309 (9th Cir. 1986).

Although Atkinson made the statements attributed to him, he did not have authority to speak for the Union. Fregien was told that he should not speak with the picketers and that an attorney was available to answer his questions. Atkinson was instructed not to talk with anyone. He was given slips of paper to pass out in response to any inquiry. Thus, when he spoke with Fregien, it was without Union authorization. In light of the Union's instructions, the undersigned is not convinced that Atkinson's statement amounted to a "threat" within the meaning of Section 8(b) (4), nor that it is determinative of the Union's intent.

Turner, on the other hand, had authority to speak for the Union. However, it is not clear that the statement he made -- that he was going to shut "that job" down -- referred to F&H's job, which would be a threat of secondary activity. Rather, it could have been an expression of an allowed purpose to shut Walker's job down. See, NLRB v. Ironworkers Local 433, 850 F.2d 551, 556-57 (9th Cir. 1988); NLRB v. Local 825, A,B,C,D, International Union of Operating Engineers, 659 F.2d 379, 385 (3d Cir. 1981).

2. Failure to Picket at the Primary Gate.

The employees of both Regan and Walker generally used the proper gate, Gate No. 1, in entering and exiting the job site. The Union, however, failed to picket at the Regan gate except for approximately one hour on February 24. The Union is expected to wish to deliver its message to both the employees and suppliers of the primary employers. That the Union only minimally picketed the primary gate suggests that the Union's picketing was really intended to appeal to the neutral parties present during its picketing. See, e.g., Bexar Plumbing Co. Inc. v. NLRB, 536 F.2d 634, 637 (5th Cir. 1976); NLRB v. Northern California District Council of Hod Carriers, 389 F.2d 721, 726 (9th Cir. 1968) ("Had [the Union's] object been truly primary it would at least have added a picket at the special gate [reserved for the primary employer's use] so that [the primary employer's] own employees would be informed of the labor dispute. . . .") Thus, this factor weighs in favor of a finding of secondary intent.

3. Claims of Pollution of the Neutral Gate.

No reliable evidence was presented of actual pollution of the neutral gate by primary employees or suppliers, except the single incident when supplier Nate Inman entered through it. Had the reserved gate system been validly established, this single instance would have been de minimis and would not have justified picketing a neutral gate.

4. The Unmarked Road.

The Board argues that the use of an unmarked third entrance to the site does not destroy the legitimacy of the reserved gate system. While entry or exit from a job site via an unmarked route may justify picketing the unmarked route, "it would not justify the picketing of the gate reserved for neutrals unless there is evidence that its neutrality has been compromised." International Union of Operating Engineers, Local No. 12 and McDevitt & Street Company, 286 N.L.R.B. No. 114, 127 L.R.R.M. (BNA) 1122, April 29, 1987. In that case, primary employees used an unmarked entrance from the main highway to enter the job site on four of the five days of picketing. The Board found that this behavior did not justify picketing the properly designated neutral gate.

Similarly, in Nashville Building & Construction Trades Council and H.E. Collins Contracting Company, Inc., 172 N.L.R.B. 1138, 1140 (1968), enf'd 425 F.2d 385, 391 (6th Cir. 1970), the court found that entry to the job site by employees of the primary employer through an unauthorized, unmarked, unfenced area between the two reserved gates did not justify picketing the neutral gate. In neigher case, however, did the entrances through unmarked areas raise any inference that the neutral gate was tainted, although they did deny the unions the opportunity to deliver their messages to their legitimate audiences.

On the other hand, in the instant case, an inference of taint did arise from the use of an unmarked entrance. At prisons, unlike other job sites, security is paramount and entrances are generally secured. The area around the prison was fenced in. The Union did not know that there was a third, unmarked road leading into the prison, nor did it have reason to believe that there was any entrance other than the two gates. The Union did believe that it was physically impossible for semi-trucks to navigate the road leading from the Regan gate. Both Nate Inman, the truck driver, and Leotice Wood, Walker's foreman, as well as Turner, testified that the road was too narrow. Semi-trucks were used to transport the pre-fabricated metal buildings, and the Union knew that buildings had been delivered, even though it did not observe the actual delivery. consequently, it inferred that the semi-trucks must have used the neutral gate, as there was no other way to make a delivery. On the basis of this situation, the Union justifiably believed the neutral gate was tainted and that the reserved gate system could not function properly.

The Board argues that a union's subjective but mistaken belief that the neutral gate is tainted will not justify picketing it. However, the situation here was not that the gate system was invalidated by pollution of the neutral gate, but rather that F&H failed to establish a proper reserved gate system. The road it designated for use by Regan was physically inadequate to accommodate the suppliers' trucks. When the road proved to be unusable, F&H allowed the suppliers to use an unmarked road without informing the Union, thereby circumventing the Union and undercutting its right to deliver its message to suppliers. Thus, F&H failed in its duty properly to inform the Union of its distribution system. While Fregien did not know of the use of the George Reed road, F&H's Hayes and Snodgrass did, as did Regan's on-site supervisor.

The Court in Linbeck Construction Corp. v. NLRB, 550 F.2d 311, 317 (5th Cir. 1977), citing to two U.S. Supreme Court cases and a number of Board decisions, emphasized the importance of the union's right to picket gates used by suppliers. The Linbeck Court quoted the following language from United Steelworkers of America v. NLRB [Carrier Corporation], 376 U.S. 492, 499 (1964):

"Picketing . . . has characteristically been aimed at all those approaching the situs whose mission is selling, delivering, or otherwise contributing to the operations of which the strike is endeavoring to halt. In light of this traditional goal of primary pressures we think Congress intended to preserve the right to picket during a strike a gate reserved for employees of neutral deliverymen furnishing day-to-day service essential to the plant's regular operations."

In Linbeck, the neutral employer undercut the union by informing it that the primary employer's suppliers would only enter the site on weekday nights and weekends. It then changed its accounting system so that the neutral employer would accept deliveries during the day. The court held that "the Union was predictably misled by this maneuver." Id., at 319. The employer cannot benefit from the union's breach of a Moore Dry Dock requirement when "these parties have given the Union false and misleading information." Id. In Linbeck, the false information was as to when the primary employees would be on site; in this case, it was as to which road the suppliers would use. See also Plumbers and Steamfitters Local Union No. 398 and Robbins Plumbing & Heating Contractors, 261 N.L.R.B. 482, 486 (1982).

CONCLUSION AND RECOMMENDATION

The Union's virtual failure to picket the primary gate weighs in favor of a finding of a secondary object of its picketing. The statement by one of the pickets also weighs on that side of the balance, although Turner's statement cannot be used to support such a finding. The picketing cannot be justified by the unproven or de minimis claims of pollution of the neutral gate. Hovever, the reserved gate system was set up providing for the primary employers' suppliers, a legitimate recipient of the Union's message, a road which was unsuitable for their use. This could have been foreseen to lead, and did lead, to circumvention of the system by the suppliers, and the neutral employers knew it. The Union also knew that the system was being circumvented but did not know how, since the neutral employers did not tell it of the third road. Thus, the Union could not have picketed the entrance the suppliers used. Instead the Union picketed the gate it was led to believe, by the circumstances creaded by the neutral employers, was being used by the suppleris. On these facts, the undersigned cannot find clear and convincing evidence that an object of Respondents' picketing was secondary. The undersigned recommends that the board's petition that Respontents be held in contempt of the Court's order be denied.