Building and Construction Trades Council, Etc.

National Labor Relations Board - Board Decisions

Oct 25, 1965

155 N.L.R.B. 319 (N.L.R.B. 1965)

BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 319
WE WILL NOT advise our employees that they were laid off because of their
union and concerted activities.
WE WILL NOT lay off or otherwise discriminate against our employees in
respect to hire and tenure of employment for the purpose of discouraging union
membership or for engaging in concerted activities.
WE WILL make whole for loss of pay suffered as a result of our discrimina-
tion against them the following:
Otis Bradley John Pinkney
Johnny Cureton Marcelius Schenk
Steven Loftin Earl Troxler
John McCrimmon
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise guaranteed them by Section 7 of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining , members of any labor organization.
OETTINGER LUMBER COMPANY, INC., THE LEON CORPORATION
AND ELM TRUCKING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Tele-
phone No. 724-8356.
Building and Construction Trades Council of New Orleans, AFL-
CIO and Markwell and Hartz , Inc. Case No. 15-CC-201. Octo-
ber 25, 1965
DECISION AND ORDER
Upon charges duly filed by Markwell and Hartz, Inc.., herein called
M&, II, the General. Counsel of the National Labor Relations Board
by the Regional Director for Region 15 issued a complaint dated
January 10, 1961, against the Building and Construction Trades Coun-
cil of New Orleans, AFL-CIO, herein called respondent, alleging
that the Respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section S(b) (4) (i) and (ii) (B) of
the National. Labor Relations Act, as amended. Copies of the charge,
complaint, and notice of a hearing before a Trial. Examiner, were duly
served upon the Respondent and the Charging Party. On January 17,
1964, Respondent filed its answer admitting certain allegations of the
complaint, but denying the commission of any unfair labor practices.
On March 17, 1964, the Respondent, the Charging Party, and the
General Counsel entered into a stipulation of facts and motion of
transfer this proceeding directly to the Board for issuance of a Deci-
sion and Order after the filing of briefs and without further hearing.
The stipulation states in substance that the parties waive their rights
to a hearing before a Trial Examiner and to the issuance of a Trial
Examiner's Decision, and that the charge, amended charge, complaint,
155 NLRB No. 42.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer, the stipulation, and the transcript compiled and exhibits
received in evidence at a hearing before a United States District Court,
Eastern District of Louisiana, New Orleans Division, in the case of
Charles M. Paschal, Jr., Acting Regional Director of the Fifteenth
Region of the National Labor Relations Board v. Building and Con-
struction Trades Council of New Orleans, AFL-CIO, Civil Case No.
14128, should constitute the entire record in this case. On March 19,
1964, the Board approved the stipulation, ordered transferral of the
proceedings to the Board, and granted permission to the parties to file
briefs. Briefs were filed by the Respondent, Charging Party, and
General Counsel. On October 12, 1964, the Board, pursuant to notice,
heard oral arguement at Washington, D.C., in which all parties
participated.'
Upon the basis of the aforesaid stipulation and the entire record in
the case, and having considered the briefs of the parties and the posi-
tions advanced at oral argument, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
Markwell and Hartz, Inc., is a Tennessee corporation engaged as a
general contractor in the building and construction industry with its
principal office and place of business in Memphis, Tennessee. In the
operation of its business, M & H annually receives in excess of $50,000
for services performed outside the State of Tennessee. At all times
material herein, M & H has been engaged as general contractor on the
filtration plant expansion of East Jefferson Water Works District No.
1, Jefferson Parish, Louisiana. In connection with this construction
job, M & H will receive goods and materials from outside the State of
Louisiana valued in excess of $50,000.
Binnings Construction Company, Inc., herein called Binnings, and
Walter J. Barnes Electrical Company, herein called Barnes, are
engaged as piledriving and electrical contractors, respectively, in the
building and construction industry.
The parties concede and we find that M & H is engaged in commerce
and that Binnings and Barnes are engaged in an industry affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
We find that Respondent Building and Construction Trades Council
of New Orleans, AFL-CIO, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
1 The Building and Construction Trades Department, AFL-CIO, filed a brief as amicus
curiae and argued orally in support of Respondent 's position . District 50, United Mines
Workers, also appeared as amicus curiae and participated in the argument in support of
the Charging Party and General Counsel.
BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 321
III. THE UNFAIR LABOR PRACTICES
A. The facts
In the period covered by the complaint, M & H was the general con-
tractor on a project for expansion of a filtration plant on the premises
of the East Jefferson Water Works, District No. 1, in Jefferson Parish,
Louisiana. M & H decided to perform about 80 percent of the project
with its own employees while subcontracting the balance. Included
in the work contracted out was the piledriving awarded to Binnings,
and the electrical work awarded to Barnes. Both Binnings and
Barnes employ members of craft unions affiliated with Respondent.
The East Jefferson Water Works is surrounded by a chain-link
fence, with two vehicular gates on Jefferson Highway which bounds
the property on the north, and two additional gates on Arnoult Road
is the principal gate insofar as the construction project is concerned,
and is called the main gate. On Arnoult Road the northern-most gate
is the warehouse gate while the southern-most shall be referred to as
the rear gate.
At all times material, Respondent has been engaged in a primary
labor dispute with M & H, and has had no dispute with either Binnings
or Barnes.
On October 17,2 in connection with its dispute with M & H, Respond-
ent commenced picketing the gates leading to the jobsite. The picket-
ing took place during normal workhours, with the number of pickets
varying from one to three individuals. The picket sign listed both
the rates that should be paid on the job and carried the following
message :
MARKWELL AND IIARTZ
GENERAL CONTRACTOR
DOES NOT HAVE A SIGNED AGREEMENT WITH THE
BUILDING AND CONSTRUCTION TRADES COUNCIL
OF NEW ORLEANS
AFL-CIO
The picketing continued until enjoined in the aforementioned 10(1)
proceeding on January 16, 1964. At no time during the picketing did
employees of Binnings or Barnes cross the picket line to perform work
in connection with their employers' subcontract.
The validity of Respondent's picketing prior to October 23 is not
in issue. However, on that date M & H posted the two gates on Jeffer-
son Highway and the warehouse gate on Arnoult Road, reserving
them for use of subcontractors and persons making deliveries to the
project, and prohibiting their use by M & H's employees. The rear
gate on Arnoult Road was designated for exclusive use of the latter.
2 Unless designated , all dates refer to 1963.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That morning, when Respondent's picket encountered the newly
marked gates, he moved to the rear gate which was reserved for
M & H's employees. As a result, piledriving crews employed by
Binnings entered the main gate and began working. About an hour
and a half later the picket returned to the main gate, and Binnings'
employees walked off. M & H then decided to remove its employees,
with the exception of the superintendent and project engineer, in the
hope that Binnings would then be able to complete the piledriving
work. By 10 o'clock that morning its employees were off the site.
Though Respondent was notified of the absence of the primary employ-
ees, the picketing continued. When Binnings' crews again honored
the picket line, M & H recalled its employees. They reported to work
on October 24 at 10 a.m. to complete the piledriving work themselves.
On November 14, M & H changed the signs on the Jefferson Highway
gates to indicate that these entrances were not to be used by employees
of M & H or carriers and suppliers making deliveries to M & H, and
that such persons were to use the rear gate on Arnoult Road. M & H
informed Respondent of these changes and notified suppliers to use
the rear gate only. Identical changes were made at the warehouse
gate on November 16, and on December 6 the rear gate was marked as
reserved for use of employees of M & H and suppliers and carriers
making deliveries to M & H.
The record does not show that the gates were at any time used in a
manner inconsistent with the postings. Excepting a brief period on
October 23, and the period between December 16 and 20, Respondent
picketed the gates which were posted for exclusive use of subcon-
tractors and which were not used by M & H's employees and suppliers.'
B. Discussion
On these facts, we are asked to decide whether a union, in further-
ance of a primary dispute with a general contractor in the construction
industry, may lawfully engage in jobsite picketing at gates reserved
and set apart for exclusive use of neutral subcontractors. In this con-
nection, the General Counsel and Charging Party contend that
Respondent's picketing of the subcontractor gates exceeded permissible
bounds of primary action and, thereby, demonstrated that Respondent
unlawfully sought to enmesh secondary employers in its dispute with
the general contractor. The Respondent, without denying that its
conduct fell within the prohibitory terms of Section 8(b) (4) (i) and
(ii) (B) of the Act, argues that the picketing was at all times in fur-
therance of its primary dispute with M & H and protected by the
-'Because of M & H, Binnings, Barnes, and suppliers and carriers making deliveries to
M & H are the only persons identified as using the four gates, it is assumed that, after
November 16, Binnings and Barnes and their employees had exclusive use of all gates
save the "rear gate" set aside for M & H, its employees, and persons making deliveries
to it.
BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 323
"primary strike and picketing proviso." 4 Specifically, Respondent
asserts that, as the work of the subcontractors purportedly related to
the normal operations of M & H, the Supreme Court's decisions in
Local 761, International Union of Electrical, Radio and Machine
Workers, AFL-CIO (General Electric Co.) 5 v. N.L.R.B. and United
Steelworkers of America, AFL-CIO (Carrier Corp.) v. N.L.R.B.,s
compel dismissal of the complaint herein. We do not agree with the
Respondent's position.
In General Electric the Supreme Court ruled that the picketing "at
a gate utilized exclusively by employees of independent contractors
who work on the struck employer's premises" is lawful primary activ-
ity unless the following conditions exist :
There must be a separate gate, marked and set apart from other
gates ; the work done by the men who use the gate must be unre-
lated to the normal operations of the employer, and the work must
be of a kind that would not, if done when the ... [employer] were
engaged in its regular operations, necessitate curtailing those
operations.?
Subsequently, in Carrier Corp., the Court approved the Board's
application of these standards so as to permit, as legitimate primary
action, picketing of a gate, owned by a railroad but cut through a
fence surrounding the struck employer's premises. This gate was
used exclusively by neutral railroad employees entering the struck
premises to perform delivery activities related to the normal opera-
tions of the struck employer.
Without passing upon whether the subcontractor gates involved
herein were established and maintained in accordance with the Gen-
eral Electric requirements, we are of the opinion that the principles
expressed in that case are inapposite in determining whether a union
may lawfully extend its dispute with a general contractor on a con=
struction site by picketing gates reserved for exclusive use of subcon-
tractors also engaged on that project. Rather, we believe that this
issue must be resolved in the fight of the Moore Dry Dock standards,8
traditionally applied by the Board in determining whether picketing
at a common situs is protected primary activity.
4 "Provided, That nothing contained in this clause ( B) shall be construed to make un-
lawful, where not otherwise unlawful , any primary strike or primary picketing."
5 366 U.S. 667.
9 376 U S. 492.
7 Local 761, Electric Workers (General Electric Co ) v N L.R B, supra, 681.
8 Sailors' Union of the Pacific, APL (Moore Dry Dock Company), 92 NLRB 547.
Specifically , the Board held that picketing of premises occupied by secondary employers
is lawful if the following conditions are met: ( a) the picketing is strictly limited to
times when the situs of the dispute is located on the secondary employer 's premises ,
(b) at the time of the picketing the primary employer is engaged in its normal business
at the situs; (c) the picketing is limited to places reasonably close to the location of the
situs ; and ( d) the picketing discloses clearly that the dispute is with the primary
employer.
212-809-66-vol. 155-22
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unlike General Electric and Carrier Corp., both of which involved
picketing at the premises of a struck manufacturer, the picketing in
the instant case occurred at a construction project on which M & H,
the primary employer, was but one of several employers operating
on premises owned and operated by a third party, the Jefferson Parish
Water Works. Picketing of neutral and primary contractors under
such conditions, has been traditionally viewed as presenting a "com-
mon situs" problem s
Over the years, the distinction between common situs picketing and
that which occurs at premises occupied solely by the struck employer
has been a guiding consideration in Board efforts to strike a balance
between the competing interests underlying the boycott provisions of
the Act.10 Mindful of the fact that "Congress did not seek, by Sec-
tion 8 (b) (4), to interfere with the ordinary strike," 11 the Board has
given wide latitude to picketing and related conduct confined to the
sole premises of the primary employer.12 On the other hand, in the
interest of shielding "unoffending employers" from disputes not their
own, the Board has taken a more restrictive view of common situs
picketing, requiring that it 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 picketing in reaching the pri-
mary employees." 13
In accordance with the foregoing, the Board, in determining
whether a labor organization, when picketing a common situs, has
taken all reasonable precaution to prevent enmeshment of neutrals,
See Hermandad de Trabaiadores de la Construction, et al. (Levitt Corp.), 127 NLRB
900, Eau Claire and Vicinity Building and Construction Trades Council, etc. (St Bridgets
Catholic Congregation, Inc.), 122 NLRB 1341; and Local Union No. 55 and Carpenters'
District Council of Denver and Vicinity, etc. (Professional and Business Men's Life In-
surance Co.), 108 NLRB 363, enfd. 218 F. 2d 226 (C.A. 10). The Board, in the PBM
case, rejected a contention that, where the union's dispute is with the general contractor,
the entire project must be viewed as the primary situs, stating at 366, that:
. . . the Supreme Court has rejected the view that prime contractors and subcon-
tractors working on a construction project constitute for present purposes a single
integrated operation. The Supreme Court has agreed with the Board "in its con-
clusion that the fact that the contractor and subcontractor were engaged In the same
construction project, and that the contractor had some supervision over the subcon-
tractor's work, did not eliminate the status of each as an independent contractor or
make the employees of one the employees of the other." N.L.R.B. v. Denver Bldg.
Council, 341 U.S. 675, at 089-690.
1s It is the duty of the Board to balance "the dual congressional objectives of preserving
the right of labor organizations to bring pressure to bear on offending employers in pri-
mary labor disputes and of shielding unoffending employers and others from pressures
in controversies not their own." N.L.R.B. v. Denver Building and Construction Trades
Council, et al. (Gould & Preisner), 341 U S. 675, 692.
n International Rice Milling Co , Inc, et al. v. N.L.R B , 341 U.S. 665, 672.
12 See Oil Workers International Union, Local Union 346 (CIO) (Pure Oil Company),
84 NLRB 315; Newspaper and Mail Deliveries' Union of New York and Vicinity (Inter-
borough News Company), 90 NLRB 2135; International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local 87, AFL (Di Giorgio Wine Company),
87 NLRB 720, 744-746, affd. 191 F. 2d 642 (C.A.D.C.) ; Retail Fruit ,& Vegetable Clerks
Union, Local 1017, et al. (Crystal Palace Market), 116 NLRB 856, 860, footnote 10, enfd.
249 F. 2d 591 (C.A. 9).
13 Crystal Palace Market, supra, 859.
BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 325
traditionally applies the limitations set forth in the Moore Dry Dock
case. In our opinion application of these standards to all common
situs situations, including those, which like the instant case, involve
picketing of gates reserved exclusively for neutral contractors on a
construction project, serves the "dual congressional objectives" under-
lying the boycott provisions of the Act.
The instant facts, when considered in the light of the legislative
history and decisional precedent, do not warrant a departure from
our long-established policy with respect to common situs packeting.
Quite to the contrary, our continued adherence to the Moore Dry Dock
standards in such cases comports with the clear expression of Con-
gress, in enacting the "primary strike and picketing" proviso, that
said proviso "... does not eliminate, restrict, or modify the limitations
on picketing at the site of a primary dispute that are in existing
law." 14 Nor do the Supreme Court's decisions in General Electric
and Carrier detract from our conclusions in this regard; for, the mere
fact that picketing of a neutral gate at premises of a struck employer,
may in proper circumstances be lawful primary action, does not
require a like finding when a labor organization applies direct pres-
sure upon secondary employers engaged on a common situs.15 That
the Supreme Court had no intention of overriding this historic dis-
tinction is evidenced by its express approval of the Moore Dry Dock
standards,"' and its observation that the General Electric case did not
present a common situs situation to which the Moore Dry Dock stand-
ards should apply.17 It is plain, therefore, that the Court did not seek
to interfere with the Board's traditional approach to common situs
problems; 18 rather, the Court's decisions in General Electric and Car-
14 As indicated by the following statement on the part of the House conferees , the enact-
ment of specific language protecting primary activity was accompanied by express
preservation of the Denver Building Trades and Moore Dry Dock cases
. . . the amendment adopted by the committee of conference contains a provision
"that nothing contained in clause ( B) of this paragraph ( 4) shall be construed to
make unlawful , where not otherwise unlawful , any primary strike or primary picket-
ing." The purpose of this provision is to make it clear that the changes in Section
8(b) (4) do not overrule or qualify the present rules of law permitting picketing at
the site of a primary labor dispute. This provision does not eliminate, restrict, or
modify the limitations on picketing at the site of a primary labor dispute that are
in existing law. See, for example, NLRB v. Denver Building and Construction Trades
Council, et al. (341 U.S. 675 ( 1951 )) ; . . . Moore Drydock Co. (81 NLRB 1108)
[ sic] ; ... 1 Leg. Hist. 942 ( 1959).
15 The diverse inferences to be drawn from economic pressures applied to neutrals at
the premise of a struck employer and that applied at a common situs were recognized in
early decisions of the Supreme Court interpreting Section 8 ( b) (4). Thus, in N.L.R.B. v.
Local 74, United Brotherhood of Carpenters & Joiners of America, A.F. of L., et al. (Ira
A. Watson Company, d/b/a Watson's Specialty Store, 341 U.S. 707, in finding a union's
inducement of work stoppages at a common situs to be secondary and unlawful , the Court
distinguished International Rice Milling Co., supra, pointing out at page 712, that picket-
ing at the premises of the struck employer was not involved.
m Local 761 , IUE (General Electric Co.), v. N.L.R.B., supra, 629.
17 Steelworkers (Cartier Corp .) v. N.L.R.B., supra, 497.
ai As stated by the Supreme Court in Denver Building and Construction Trades Council,
supra, 692 ; "the Board 's Interpretation of the Act and . . . application of it in doubtful
situations are entitled to weight."
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rier Corp., merely represent an implementation of the concomitant
policy that lenient treatment be given to strike action taking place at
the separate premises of a struck employer.
Applying the Moore Dry Dock standards 19 to the instant case
requires the timing and location of the picketing and the legends on
the picket signs to be tailored to reach the employees of the primary
employer, rather than those of the neutral employer, and deviations
from these requirements establish the secondary object of the picket-
ing and render it unlawful. Indeed, our dissenting colleagues do not
disagree with this principle, but cite the PBM decision 20 with appar-
ent approval. If the" mere failure, as in PBM, to name the general
contractor on the picket signs as the sole disputant suffices to demon-
strate that a union is seeking to induce employees of the subcontrac-
tors not to work, it is self-evident that picketing a gate used solely by
the neutral subcontractors demonstrates the same purpose. And if
it is unlawful to induce such employees in the indirect, and more sub-
tle, fashion represented by the facts in PBM, it is a fortiori unlawful
in the direct inducement of such employees at a separate gate. PBM,
in short, stands for the proposition that the relationship of a subcon-
tractor to a general contractor does not make the former's employees
fair game in connection with a union's dispute with the latter. The
sole difference between PBM and the instant case lies in the means
used to convey the union's respective messages to the employees of the
neutral subcontractors. That this is an irrelevant difference is estab-
lished by the Supreme Court's holding in International Brotherhood
of Electrical Workers, Local 501, et al. (Sanwel Langer), v.
N.L.P.B.,21 that "The words `induce and encourage' are broad enough
to include in them every form of influence and persuasion." Since
Respondent's picketing at the neutral gates of Binnings and Barnes
continued after November 16, we find, in agreement with the General
Counsel, that the picketing after that date 22 failed to comply with
19 Supra, footnote 8.
20 Supra , footnote 9.
n 341 U.S. 694, 701-702.
22 We do not regard, as unlawful , Respondent ' s picketing prior to November 16, as
it was on that date that the respective neutral gates were first marked to preclude use
by persons making deliveries to M & H Although a common situs problem is presented
where a gate is reserved for both neutral subcontractors and persons making deliveries
to a struck contractor , a balance of the competing interests underlying 8(b) (4) (B)
requires our respecting the traditional right of labor organizations to appeal to such
deliverymen as a lawful incident of legitimate strike action against the primary employer.
See Crystal Palace Markets, supra, 861
In so finding , we note that, on October 23, M & H withdrew its employees for a 24-hour
period in an attempt to prevent any legitimate picketing of the project. It is apparent
that the primary employees were removed from the project though work was then available
for them, that they could have been recalled at any time , that M & II's superintendent
and project engineer remained on the job at all times, and that M & H otherwise continued
its duties as general contractor during the 24-hour absence of its employees In the cir-
cumstances , we are satisfied that despite the removal of its workers, Al & H was then
engaged in its normal business on the project, and that Respondent ' s continued picketing
during this period fully complied with Moore Dry Dock, and did not evidence a departure
from what at that time constituted lawful primary action Local 3, International Broth-
BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 327
the Moore Dry Dock requirement that such action take place reason-
ably close to the situs of Respondent's dispute with M & H. We are
completely satisfied that Respondent's picketing at the subcontractor
gates was to induce strike action by employees of subcontractors
with whom Respondent had no dispute. By such conduct, Respond-
ent unlawfully sought to disrupt the operations of the neutral sub-
contractors and their employees and to enmesh them in the primary
dispute in a manner which could not be condoned as an unavoidable
by-product of legitimate primary picketing.
The dissent does not persuade us otherwise. The dissent's analysis,
although well-stated and on first reading not unreasonable as an
application of General Electric standards in a construction industry
setting, nevertheless runs counter to firmly established principles gov-
erning common sites picketing in that industry. Simply because the
work of the neutral subcontractors in one sense is "related to M & H's
normal operations," our dissenting colleagues would exonerate the
pickets' appeals to the secondary employees to honor the picket line
aimed at M & H. And notwithstanding their suggestion (in footnote
35) that they would apply the "related work" standard only where
the dispute is with a general contractor, the plain logic of their posi-
tion is equally applicable where the primary dispute is with a building
construction subcontractor whose employees are working closely with
employees of other subcontractors or those of the general contractors.
Given the close relation-which is not only characteristic of but almost
inevitable at many stages of a building construction project-of the
work duties of the various other employees with those of the primary
subcontractor, the principle of the dissent would also permit picket
line appeals to the employees of the neutral 'general contractor and
other subcontractors whatever the situation as to common or separate
gates.
But it was precisely this claim, that the close working relations of
various building construction contractors on a common situs involved
them in a common undertaking which destroyed the neutrality and
thus the immunity of secondary employers and employees to picket
line appeals, that. the Supreme Court rejected in Denver Building
Trades. And there is not the slightest intimation by the Court in
General Electric or Carrier that it was reversing or revising the rule
in Denver. t Although our dissenting colleagues disclaim such a pur-
pose, by applying the "close relation to normal operations" test of
General Electric, the theory of the dissent, if logically extended, is
erhood of Electrical Workeis, AFL-CIO (1Tew Power Wne and Electric Corp. and P d L
Services, Inc ), 144 NLRB 1089; International Brotherhood of Electrical Workers, Local
861, AFL-CIO (Brownfield Electric, Inc.), 145 NLRB 1163, and Seafarers' International
Union of North America, et al. (Salt Dome Production Co ) v. N.L.R.B., 265 F. 2d 585
(CAD.C.).
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one that would in effect reverse Denver not only where the overarch-
ing general contractor on the building site is the primary employer,
but also, where the intertwined work of a construction subcontrac-
tor is the primary target.
We are not constrained, without much plainer indications from the
Court of an intention to effect such a reversal, to apply principles
laid down by the Court in an entirely different set of circumstances
to a situation in which the prior Board and court interpretations of
the statutory protection established for neutrals are clear and have
been long understood by the parties to labor-management relations
and by the Congress?-3
For the reasons stated, we conclude that Respondent violated Sec-
tion 8(b) (4) (i) and (ii) (B) of the Act by inducing employees of
Binnings and Barnes to engage in work stoppages, and by restraining
and coercing said Employers, for an object of forcing or requiring
them to cease doing business with M & H.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-,
nection with the operations of M & H, Binnings, and Barnes as set
forth in section I, above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices , we shall order that it cease and desist therefrom and
take certain affirmative action that we find necessary to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, we adopt the following :
CONCLUSIONS OF LAW
1. Markwell and Hartz, Inc., is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Binnings Construction Company, Inc., and Walter J. Barnes
Electrical Company are persons engaged in an industry affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
3. The Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
x' See for example the recurrent hearings and committee reports on consideration of
"situs picketing" legislation.
BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 329
4. By inducing individuals employed by Binnings Construction
Company, Inc., and Walter J. Barnes Electrical Company to engage
in a strike or refusal in the course of their employment to perform
services, with an object of forcing said persons to cease doing business
with Markwell and Hartz, Inc., Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Section
8(b) (4) (i) (B), and Section 2(6) and (7) of the Act.
5. By threatening, coercing, and restraining Binnings Construction
Company, Inc., and Walter J. Barnes Electrical Company, with an
object of forcing said persons to cease doing business with Markwell
and Hartz, Inc., Respondent has engaged in unfair labor practices
within the meaning of Section 8(b) (4) (ii) (B), and Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Building and Construction Trades Council of New Or-
leans, AFL-CIO, its officers, agents, and representatives, shall:
1. Cease and desist from :
(a) Inducing individuals employed by Binnings Construction
Company, Inc., and Walter J. Barnes Electrical Company to engage
in a strike or refusal in the course of their employment to perform
services, where an object thereof is to force or require said persons to
cease doing business with Markwell and Hartz, Inc., under circum-
stances prohibited by Section 8(b) (4) (i) (B) of the Act.
(b) Threatening, restraining, or coercing Binnings Construction
Company, Inc., and Walter J. Barnes Electrical Company, where an
object thereof is to force or require said persons to cease doing busi-
ness with Markwell and Hartz, Inc., under circumstances prohibited
by Section 8(b) (4) (ii) (B) of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act:
(a) Post at their business offices and meeting halls in New Orleans,
Louisiana, copies of the attached notice marked "Appendix." 24
Copies of said notice, to be furnished by the Regional Director for
Region 15, shall, after being duly signed by the Union's representa-
tive, be posted by the Union immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Union to insure that
said notices are not altered, defaced, or covered by any other material.
2& In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order " the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Sign and mail to the Regional Director for Region 15 sufficient
copies of said notice , to be furnished by him, for posting by Binnings
Construction Company, Inc., and Walter J. Barnes Electrical Com-
pany, if willing.
(c) Notify the said Regional Director, in writing , within 10 days
from the date of this Order , what steps have been taken to comply
herewith.
MEMBERS FANNING and JENKINs, dissenting : a
We dissent from the majority's conclusion that Respondent vio-
lated Section 8(b) (4) (B) of the Act by picketing, in the course of its
primary dispute with Markwell & Hartz, gates reserved for employees
of the subcontractors M & H had engaged to aid it in performing the
construction work it was obligated to complete. In our view, the
majority has inferred that respondent's picketing was for an unlaw-
ful object simply from the fact that the reserved gates were used only
by secondary employees, without inquiry into the question of whether
the appeals to such employees, were, in the circumstances of this case,
permissible primary activity, an inquiry which we believe is required
by the Supreme Court's decisions in General Electric25 and Carrier
Corp.28 As we believe, for reasons stated below, that the Court in
those decisions applied principles of general application, we dissent
from the majority's conclusion that the tests announced in General
Electric for determining whether appeals to employees of neutral con-
tractors constitute legitimate primary activity are not applicable to
the building and construction industry.
In its initial decision in General Electric'27 the Board held that
picketing of a gate reserved by the primary employer for the exclusive
use of employees of neutral contractors engaged by it to perform work
on its premises was unlawful because the union's object was "to enmesh
these employees of the neutral employers in its dispute with the Com-
pany" by encouraging them to engage in concerted action "with an
object of forcing the independent contractors to cease doing business
with the Company." The Circuit Court of Appeals for the District
of Columbia granted enforcement 28 and the Supreme Court accepted
the case for review because "the incidence of the problem involved in
this case is extensive and the treatment it has received calls for
clarification.'' 29
The Court's opinion contained a thorough survey of the-cases deal-
ing with secondary picketing activity, including common situs cases,
z Local 761, IUE ( General Elects ic), v. N L R B, 366 U S. 667.
25 United Steelwo?kers of America, AFL-CIO (Carder Corp.) v. N.L.R.B., 376 U S. 492.
27 123 NLRB 1547.
's 278 F. 2d 282.
29 General Electric, supra, 671.
BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 331
and it is apparent that the Court was concerned with defining with
particularity the distinction between legitimate "primary activity"
and banned "secondary activity." Conceding that the distinction
between the two types of activity "does not present a glaringly bright
line," the Court (General Electric v. N.L.R.B., supra, 673) noted that
the Act compels the task of drawing lines "more nice than obvious,"
and in a carefully considered statement which obviously applies to
the entire spectrum of secondary boycott cases reminded the Board
that
Almost all picketing, even at the situs of the primary employer
and surely at that of the secondary, hopes to achieve the forbid-
den objective, whatever other motives there may be and however
small the chances of success. [Citation omitted.] But picketing
which induces secondary employees to respect a picket line is not
the equivalent of picketing which has an object of inducing those
employees to engage in concerted conduct against their employer
in order to force him to refuse to deal with the struck employer.
[Citation omitted.] [Emphasis supplied.]
The italicized sentence from the above quotation succinctly states
the, issue which the Board must decide in this case: was Respondent's
picketing for an object of inducing employees of the neutral subcon-
tractors to take action to force their employers to cease dealing with
M & H; or was its object merely to induce such employees to respect
the picket line thrown up around M & H's operations, and, if so, does
such activity constitute legitimate primary activity? This issue is no
different from the issue posed by the facts in the General Electric
case itself, for there the Board inferred an unlawful object simply
from the fact that the picketing called into question by the complaint
occurred at a gate not used by primary employees, and was directed
solely to neutral employees. The whole thrust of the Court's General
Electric decision and the Carrier Corporation decision is that the
inference of unlawful object cannot be based simply on the fact that
the picketing occurs at gates used solely by neutral employees, for the
proviso to Section 8(b) (4) (B) protects all primary strike pressures
which are applied with the object of:
... halting the day-to-day operations of the struck employer.
But Congress not only preserved the right to strike; it also saved
"primary picketing" from the ... ban. Picketing has tradition-
ally been a major weapon to implement the goals of a strike and
has characteristically been aimed at all those approaching the
situs whose mission is selling, delivering or otherwise contribut-
ing to the operations which the strike is endeavoring to halt. In
light of this traditional goal of primary pressures we think Con-
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gress intended to preserve the right to picket during a strike a
gate reserved for ... neutral deliverymen furnishing day-to-day
service essential to the ... [employer's] regular operations 30
The Court expressly rejected the view of the Court of Appeals for
the Second Circuit "that picketing at the site of a strike could be
directed at secondary employees only where incidental to appeals to
primary employees." In so doing, the Court firmly established the
proposition that direct appeals to employees of neutrals "whose mis-
sion is selling, delivering or otherwise contributing to the operations
which the strike is endeavoring to halt" constitute protected primary
activity.
But it is not only direct appeals to employees of suppliers and deliv-
erymen which were found to constitute direct primary action. The
General Electric case involved appeals to employees of neutral sub-
contractors and the Court, noting that "the key to the problem is found
in the type of work that is being performed by those who use the sepa-
rate gate," held that, before such appeals may be ruled unlawful under
Section 8(b) (4) (B),
There must be a separate gate, marked and set apart from other
gates; the work done by the men who use the [separate] gate
must be unrelated to the normal operations of the employer, and
the work must be of a kind that would not, if done when the plant
were engaged in its regular operations, necessitate curtailing
those operations.
The crucial consideration regarding this holding is not, as the major-
ity apparently views it, that it was made with respect to conduct occur-
ring in connection with a strike at an industrial plant, but that it held
that appeals to respect a picket line made to employees of secondary
employers whose operations do not meet the tests stated above consti-
tute legitimate primary activity just as do similar appeals to employ-
ees of neutral suppliers and deliverers.
In view of the foregoing, we find, contrary to the majority opinion,
that the principles set forth in the General Electric decision, and the
tests there enunciated by the Court for the application of those prin-
ciples, govern picketing in the construction industry as well as in other
industries. In our view, neither the fact that the Court expressly
approved the Moore Dry Dock standards, nor its holding that the
General Electric case did not present a common situs situation to
which those standards should be applied, requires a different conclu-
80 Carrier Corporation v. N.L.R.B., supra, 499. In the General Electric decision the
Court stated the same proposition in the following form: " . . . if a separate gate were
devised for regular plant deliveries, the barring of picketing at that gate would make a
clear invasion on traditional primary activity of appealing to neutral employees whose
tasks aid the employer's everyday operations."
BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 333
sion. The Moore Dry Dock standards were not designed to restrict
primary activity at common situs disputes, but rather to assure that
banned secondary activity would not be permitted, and though the
Court (Local 761, Electrical Works v. N.L.B.B., supra, 677) did
express approval of those standards, it noted too that :
As is too often the way of law or, at least, of adjudications, soon
the Dry Dock tests were mechanically applied so that a violation
of one of the standards was taken to be presumptive of illegal
activity. For example, failure of picket signs clearly to desig-
nate the employer against whom the strike was directed was held
to be violative of Section 8(b) (4) (A).
Furthermore, it is clear that, had the Board concluded in its decision
on remand in the General Electric case 31 that the work of the neutral
contractors was not directly related to General Electric's normal oper-
ations, the application of the Moore Dry Dock tests to the picketing
,of the reserved gate in that case would be permissible.
The majority declines to apply the General Electric tests to common
situs picketing in the building and construction industry because, in
its view, historic Board policies governing common situs picketing
require that such picketing be conducted so as "to minimize its impact
on neutral employees insofar as this can be clone without substantial
impairment of the effectiveness of the picketing in reaching the pri-
mary employees" and because "the Court's decisions in General Elec-
tric and Carrier Corp., merely represent an implementation of the
'concomitant policy that lenient treatment be given to strike action
taking place at the separate premises of a struck employer." The
logic of the first quotation is simply that common sit;us picketing must
be confined to direct appeals to the employees of the primary employer
and that appeals to employees of neutrals are permissible only where
incidental thereto-a view expressly repudiated by the Supreme
Court in Carrier Corporation v. N.L.R.B., supra, 498. Under such
logic, there is no warrant for the majority's conclusion that the pick-
eting of the reserved gate did not violate 8(b) (4) (B) prior to Novem-
ber 16 because the gates were being used by employees making deliv-
eries to Al & H. The majority's conclusion is flatly inconsistent with
the very principles it states it is applying to this case.
11 137 NLRB 1684. In this connection, the Board found that construction operations
performed by contractors for General Electric, whose employees also were engaged in
similar construction work, were "directly related" to General Electric's operations, thus
giving the union engaged in 'a primary dispute with General Electric the right to make
direct appeals to employees of the neutral contractors to honor its picket line. It is
ironical, to say the least, for the majority now to hold that the undisputed direct relation-
ship which does exist between the operations of general contractors and their subcon-
tractors in the building and construction industry goes for nought in determining whether
a striking union's picket line publication of its primary dispute with the general con-
tractor, with consequent appeals to neutral employees to respect the picket line, constitutes
legitimate primary activity.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We, of course, do not quarrel with the conclusion that Respondent
had the right to appeal to employees delivering supplies and mate-
rials to M & H to respect the picket line, for such conclusion, grounded
as it inescapably is on the premises underlying the Supreme Court's
decision in Carrier Corp., seems eminently correct, and in no way
obstructive of the Board's obligation to prohibit unlawful secondary
activity under Section 8(b) (4) (B). It undoubtedly is too late in
the day to argue that appeals to employees making deliveries to a pri-
mary employer in the construction industry are not legitimate pri-
mary activity. Certainly, it cannot be so argued on the faulty premise
that Congress intended "more lenient" treatment of. picketing at
industrial. sites than it intended for picketing of sites in the building
and construction industry. Indeed, if the special treatment accorded
the building and construction industry in Section 8(e) and 8(b) (4)
(A) is considered, it could be argued that Congress intended that
more "lenient treatment" be given to secondary activity in building
and construction industry than in manufacturing industries gener-
ally.32 We do not rest our position in this case on that ground, how-
ever. Rather, we believe that, because the Supreme Court clearly
equated picket line appeals to employees of neutral subcontractors
whose tasks aid the every day operations of the struck employer with
similar appeals to employees of neutral suppliers and deliverers, there
is no warrant for distinguishing between the two situations in this
case, as the majority has done. As the Court determined that such
appeals constitute primary activity protected from the reach of 8 (b)
(4) (B) by the proviso thereto, unless the neutral contractor's opera-
tions meet certain tests, we believe it incumbent upon the Board to
determine whether such tests are met, and we see no particular diffi-
culty in applying the Moore Dry Dock standards in a manner entirely
consistent with such tests.
Significantly, Congress has not seen fit to distinguish between indus-
tries, by adopting a more narrow definition of the lawful scope of
picketing in the construction industry than is permitted in other
industries. Certainly, the economic pressure sustained by neutral
subcontractors as a consequence of reserved gate picketing on a con-
struction job is no different from that imposed by like conduct upon
neutral subcontractors performing work on premises occupied by a
struck manufacturer. Nor is it any different from the pressures sus-
tained by neutral suppliers making deliveries to the struck primary
employer whether he be a manufacturer or a general contractor in the
building and construction industry. Accordingly, it is only by deter-
mining the legality of reserved gate picketing by standards generally
32 The majority advances no reason why an employer in the construction industry
should be permitted to designate or limit the places of primary activity against him,
while those in other industries may not do so.
BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 335
applicable to all industries that the dual congressional objectives"
are served and the competing interests of picketing unions and second-
ary employers protected.
Nor do we regard the Court's decision in Denver Building and Con-
struction Trades Council 34 as precluding application of General Elec-
tr'ic to the instant case. In Denver, the Court held that despite their
close relationship, the several contractors on a construction job were
not allies or a single employer for purposes of the boycott provisions
of the Act 35
The Supreme Court in General Electric affirmed the rule stated in
Denver and, accepting the separate legal status of General Electric
a' N.L.R.B. v. Denver Building and Construction Trades Council, et al. (Gould CC Preis-
ner), 341 U.S. 675, 692; Local 761, IUE (General Electric) v. N.L.R.B., supra.
34 Id.
3^Id., pp. 680-690. In Denver, the conduct evidencing the union's objective of enmesh-
ing the neutral employer was its demand that the neutral general contractor remove a
nonunion subcontractor from the project, which demand was accompanied by picketing
which failed to disclose that the Respondent Council's primary dispute was only with a
nonunion subcontractor. These facts plus the other factors supporting the finding that
the picketing constituted a "signal in the nature of an order to the members of the
affiliated unions to leave the job and remain away until otherwise ordered" demonstrated
the secondary objectives of the picketing, and distinguishes that case from the instant
case. Here, in contrast, the Respondent's primary dispute is with the general contractor
and the picketing clearly discloses this fact. Similarly too, the PBM decision relied on
by the majority is distinguishable from the instant case in that the picket signs did not
satisfy the Moore Dry Dock requirement of clearly disclosing that the union's primary
dispute was with the insurance company-general contractor, and the conduct of the
Respondent unions vis-a-vis neutral employees and subcontractors working on the "un-
fair" project was such as to lead the Board and the court of appeals to conclude that the
picketing was directed against the subcontractors to cause them to cease doing business
with the general contractor. Thus, those cases illustrate instances where a union's pres-
sures were aimed directly at employees of neutral employers in order to induce them to
engage in concerted action to force their employers to cease doing business with the
primary employer. We have no quarrel with the requirement that a union's picketing at
a common situs must clearly disclose that its dispute is with the primary employer. We
in fact insist upon observance of that requirement but, when it and the other Moore Dry
Dock requirements are observed , we believe that there is no warrant for inferring that
the picketing is for an object other than to induce employees to honor the picket line.
In view of the General Electric decision , we believe that the Moore Dry Dock tests cannot
be applied in a manner which will bar primary appeals to employees of employers whose
operations are directly related to the normal operations of the struck employer. In so
finding, we do not imply that simply because a union has a dispute with one subcontractor
on a construction project, appeals to employees of other subcontractors using different
gates constitute primary appeals within the meaning of the General Electric decision.
Northern California District Council of Hodcarriers and Common Laborers of America,
AFL-CIO, et al. (Joseph Mohamed, Sr., d/b/a Joseph's Landscaping Service), 154 NLRB
1,384. Painters District Council No. 88, Brotherhood of Painters, Decorators and
Paperhangers of America, AFL-CIO (Edgewood Contracting Company), 153 NLRB 797.
See also Orange Belt District Council of Painters No. 48, AFL-CIO (Frank A. Calhoun
d/b/a Calhoun Drywall Company), 154 NLRB 997. In such situations, the work of
the employees of the neutral general contractor and subcontractors, though obviously
bearing a close relationship to the work of the primary employees, is nevertheless not
work which the primary subcontractor has obligated himself to perform or which lies
within his power to control or to assign to whomsoever he sees fit. It is therefore not
"related to the normal operations of the [primary] employer" nor does it "otherwise con-
tribut[e] to the operations which the strike is endeavoring to halt" within the meaning
of the General Electric and Carrier decisions. In similar fashion, we would not, in the
direct converse of the General Electric case where the primary dispute is with a General
Electric subcontractor, apply the General Electric principles to preclude General Electric
from setting up separate gates for its own employees and those of subcontractors not
involved in the dispute for the purpose of confining the picketing to those gates used by
the employees of the struck primary subcontractor and his suppliers.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and its contractors,3, addressed itself to the question whether the
picketing involved had an unlawful secondary objective. Here, too, we
accept the proposition that the various contractors at a construction
job are separate employers 37 and concern ourselves only with the cir-
cumstances under which the Board, absent direct proof or admission,
may properly infer that the picketing involved had an unlawful
secondary objective.
In applying the General Electric standards to the instant case, we
find that the work of Binnings and Barnes was related to the normal
operations of Al & H, the general contractor. In this connection it is
relevant, that employees of the named subcontractors were scheduled to
work during the picketing period together with the employees of
M& H in completing the filtration plant expansion job.3S In addition,
during this period, Al & H's project engineer and superintendent were
to work with the subcontractors to insure that itM & H's commitment to
the owner was performed in compliance with project specifications.
We find that M & H's portion of the work on this job was part of its
normal operations, as was completion of the entire project, and that the
work of the subcontractors was related to both M & H's work on the job
and its responsibility to complete the project itself, and hence related
to M & H's normal operations.39 We, accordingly, hold that the work
8e In General Electric, the Board's finding that the primary and secondary employers
were not allies (123 NLRB 1547, 1548, footnote 3) was not disputed and was part of the
record before the Supreme Court in its consideration of the case.
87 For an illustration of legal principles and proposed legislative language which would
overrule the Denver Building Trades decision, see the recurrent bearings and committee
reports on consideration of "common situs picketing" amendments to the Act. Com-
parison of such proposed amendments with our Decision herein clearly reveals that the
application of the General Electric principles to the construction industry does not con-
stitute reversal of the Denver Building Trades principle that the various contractors and
subcontractors on a construction project are separate employers doing business with each
other within the meaning of Section 8(b)(4) of the Act, our colleagues' assertion to the
contrary notwithstanding. Whether such legislation is or is not in the public interest is,
of course, for the Congress to determine. We are not constrained, however, by such
current consideration of a complex issue, to hold, as does the majority, that application
of general principles enunciated by the Supreme Court must be limited to the precise set
of circumstances that occasioned their formulation.
8811 & H undertook to perform about 80 percent of the project with its own employees,
while subcontracting the balance. It also appears that 1 & H in certain instances could
not work until completion of a subcontractor's phase of the job, while in others subcon-
tractors would have to hold up while Al & H was performing.
m In so finding, we reject the General Counsel's view that the "unrelated work" con-
dition is met unless the work is "identical or substantially similar" to that of the primary
employer. The work of those using the reserved gate may be related to the normal
operations of the primary employer though not "identical or substantially similar" to that
normally performed by the latter. Local 761, International Union of Electrical, Radio
hnd Machine Workers, AFL-CIO (General Electric Company, Appliance and Television
Receiver Division), 138 NLRB 342. Thus, in the portion of that Decision dealing with
the construction of a truck dock and mezzanine, the Board held the work of the neutral
contractors to be related to the struck manufacturer's normal operations despite the
finding that "the portion of the work scheduled to be done by the independent contractors
on these jobs was not the type that previously had been done by GE employees." Also,
see the Board's Decision in Local Union No. 5895, United Steelworkers of America, AFIr-
CIO, et al. (Carrier Corporation), 132 NLRB 127, where the "related work" finding was
not based upon evidence that employees of the struck manufacturer had performed work
identical or substantially similar to that scheduled for the neutral railroad employees.
BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 337
of the subcontractors failed to meet the "unreleated work" condition 40
and, on this basis, we find that Respondent had the right to appeal to
the employees of the subcontractors to honor its picket line around
M & H's operations.
This being the case, the fact that such appeals were addressed to
those employees at gates reserved for their exclusive use by M & H
furnishes no basis for the majority's conclusion that the picketing after
November 16 "failed to comply with the Moore Dry Dock requirement
that such action take place reasonably close to the situs of Respondent's
dispute with M & H." As the Supreme Court indicated in the General
Electric decision, the barring of picketing through the device of a gate
reserved for the exclusive use of secondary employees whose tasks aid
the struck employer's every day operations constitutes a clear invasion
of traditional primary activity. Furthermore, the Moore Dry Dock
tests are utilized by the Board to aid it in determining whether certain
kinds of picketing constitute proscribed secondary or protected pri-
mary activity whereas the General Electric tests are designed to aid in
determining whether a union as the right to appeal directly to the
secondary employees using a reserved gate. Accordingly, it seems
obvious that the former tests must be applied in a manner which will
give full effect to the latter tests. As we find that Respondent had the
right to appeal to the employees of the neutral subcontractor, we find
that the picketing at the reserved gates constituted compliance with
the requirement that its picketing be limited to places reasonably close
to the situs of Respondent's dispute with M & H. Accordingly, as the
picketing also conformed to the other Moore Dry Dock tests, we per-
ceive no basis on which to conclude that Respondent's object in picket-
ing the reserved gates was to induce the employees of M & H's subcon-
tractors to engage in a refusal to perform services with the object of
forcing their employers to cease dealing with M & H.
Accordingly, we would find that Respondent's picketing did not vio-
late Section 8(b) (4) (B), and we would dismiss the complaint.
40 having found that the work of those using the'reserved gate was directly related to
the normal operations of M & H, we need not decide whether, or under what circum-
stances, the "interruption of operations" test applies to reserved gate picketing in the
construction industry.
APPENDIX
NOTICE TO OUR MEMBERS AND TO ALL EMPLOYEES OF BINNINGS
CONSTRUCTION COMPANY, INC., AND WALTER J. BARNES ELECTRIC
COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT in any manner prohibited by Section 8(b) (4) (B)
of the Act, engage in, or induce, or encourage employees of Bin-
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pings Construction Company, Inc., and Walter J. Barnes Elec-
trical Company, to engage in a strike, or threaten, coerce, or
restrain Binnings Construction Company, Inc., and Walter J.
Barnes Electrical Company by striking or picketing, where in
either case an object thereof is to force or require said persons to
cease doing business with Markwell and Hartz, Inc.
BUILDING AND CONSTRUCTION TRADES COUNCIL
OF NEW ORLEANS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New
Orleans, Louisiana, Telephone No. 529-2411, Extension 6396, if they
have any question concerning this notice or compliance with its
provisions.
James Rubin d/b/a Orthodontist 's Service, Hawley 's, Inc., and
Prior Plastics , Inc. and District 65, Retail , Wholesale and De-
partment Store Union , AFL-CIO . Case No. 2-CA10352. Octo-
ber 26, 1965
DECISION AND ORDER
On July 1, 1965, Trial Examiner Leo F. Lightner issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exami-
ner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
155 NLRB No. 37.