Local 761, Int'l Union of Electrical, Radio Etc.

National Labor Relations Board - Board DecisionsAug 28, 1962

138 N.L.R.B. 342 (N.L.R.B. 1962)

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD station in St. Louis, Missouri. Employees engaged as radio and television continuity checkers and transcription record clerks, cur- rently represented by St. Louis Newspaper Guild, Local 47, American Newspaper Guild, AFL-CIO, are entitled to perform all indexing and clerical work associated with such cartridges at the Employer's aforesaid station. Accordingly, Local 4, International Brotherhood of Electrical Workers, AFL-CIO, is not entitled to force or require the Employer by means proscribed by Section 8(b) (4) (i) (D) of the Act to assign the above-mentioned disputed work to engineers and projectionists who are currently represented, by it. 2. Within 10 days from the date of this Decision and Determina- tion of Dispute, Local 4, International Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for the Four- teenth Region, in writing, whether or not it will refrain from forcing or requiring the Employer by means proscribed by Section 8 (b) (4) (1) (D) to assign the work in dispute to its members rather than to the employees currently represented by the Musicians and Guild. MralnER FANNING took no part in the consideration of the above Decision and Determination of Dispute. Local 761, International Union of Electrical , Radio and Machine Workers (AFL-CIO) and General Electric Company , Appli- ance and Television Receiver Division. Case No. 9-CC-158. August 08, 19693 SUPPLEMENTAL DECISION AND ORDER On June 8, 1959, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding, finding that the Respondent, Local 761, International Union of Electrical, Radio and Machine Workers (AFL-CIO), had engaged in certain conduct in violation of former Section 8(b) (4) (A) of the National Labor Rela- tions Act, as amended, and ordering it to cease and desist therefrom and to take certain affirmative action, set forth therein. Thereafter, on April 18, 1960, the United States Circuit Court of Appeals for the District of Columbia issued an Order enforcing the Board's Order 2 and, on May 18, 1960, entered a Decree enforcing the Order of the Board. On May 29, 1961, the United States Supreme Court reversed the Decree of the Court of Appeals and directed it to remand the case to the Board for the purpose of making further findings of fact.' 1123 NLRB 1547 2 278 F 2d 282 3 366 U S 667, G72 138 NLRB No 38. LOCAL 761, INT'L UNION OF ELECTRICAL, RADIO, ETC. 343 Pursuant to the mandate of the Supreme Court, on July 12, 1961, the Court of Appeals vacated its Order and Decree and remanded the case to the Board for further proceedings. On September 14, 1961, the Board issued an Order reopening the record in this case and directing that a further hearing be held for the purpose of receiving further evidence. On February 26, 1962, Trial Examiner A. Bruce Hunt issued his Supplemental Intermediate Report in this proceeding, a copy of which is attached hereto, finding that the Respondent had not engaged in un- fair labor practices as alleged in the complaint and recommending that the complaint be dismissed. Thereafter, the General Counsel and the Charging Party filed exceptions to the Supplemental Intermediate Report and briefs in support thereof. The Respondent filed excep- tions to the Supplemental Intermediate Report and a brief in support of the Trial Examiner's Recommended Order. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Supple- mental Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. General Electric (herein referred to as GE) owns and operates a plant near Louisville, Kentucky, known as Appliance Park, where it manufactures washers, refrigerators, and other household electrical appliances. Because of unsettled grievances, Respondent Union, called a strike against GE on July 27, 1958, during which it picketed all entrances to GE's premises, including gate 3-A, which had been reserved by GE for the exclusive use of employees of independent con- tractors engaged in various jobs at Appliance Park. In its original decision, there being no dispute that the Union's conduct was otherwise lawful, the Board concluded that an object of the Union's picketing at gate 3-A was "to enmesh these employees of the neutral employers [the independent contractors] in its dispute with the Company," and hence, by the picketing, the Union violated former Section 8 (b) (4) (A).' In remanding the case for further findings, the Supreme Court ruled that picketing at a reserved gate on the premises of a primary employer, such as that involved in the instant case, was law- ful primary activity, unless the following three conditions existed: 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 unrelated to the normal operations of the employer; and the 4 Member Fanning concurred on the separate ground that the picketing failed to com- port with two of the criteria set forth in the Board 's Moore Dry Dock Comp any decision, 92 NLRB 547. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work must be of a kind that would not, if done when the em- ployer were engaged in its regular operations, necessitate cur- tailing those operations. The Supreme Court further indicated that, if there was a "mingled use" of the reserved gate, the picketing would be primary, unless the work of the independent contractors not meeting either of the latter two conditions, referred to above, was "so insubstantial as to be treated by the Board as de minimis." As the record theretofore made failed to show the extent to which gate 3-A had been used by em- ployees of independent contractors in the performance of "conven- tional maintenance work necessary to the normal operations" of GE, the Supreme Court remanded the case. As described more fully in the Supplemental Intermediate Re- port, GE's Appliance Park is divided into five separate manufac- turing departments.5 Each of these manufacturing departments is housed in a separate building and employs its own maintenance em- ployees, known as "building maintenance" employees, who do the "routine maintenance work" at each of the buildings. In addition, in GE's relations and utilities department, there is a division called Central Maintenance (herein sometimes referred to as CM), employ- ing about 100 persons, which performs maintenance work for all the GE departments. In addition to "routine maintenance" work, CM, as appears below, performs maintenance work of a "capital-improve- ment nature." On occasion, CM bids against independent contractors for work to be done at Appliance Park. The principal work sched- uled to be done by the independent contractors using gate 3-A during the picketing period related to the rearranging and enlarging of the conveyor system in the refrigerator and range departments.6 These conveyors,are utilized by GE to transport appliance parts along the production lines and for the purpose of storing extra parts. The bulk of this conveyor work is necessitated by GE's annual change- over to production of new appliance models. In addition to the conveyor work, independent contractors during the picketing period had contracts to do work for GE in the sum of approximately $100,000. This work, described in detail in the Supplemental Intermediate Re- port and discussed more fully below, was principally construction work and, to an extent, repair and miscellaneous other work.' 5 These are home laundry, ranges , dishwashers and disposals , household refrigerators, and air conditioners. O The total amount of work scheduled to be done by the independent contractors dur- ing the picketing period amounted to approximately $ 278,000. Of this amount , the con- veyor work constituted approximately $170,000. 7 The Trial Examiner admitted evidence relating only to work of the independent con- tractors which was begun or scheduled to be done during the picketing period. The Union also sought to present evidence relating to the work of independent contractors using gate 3-A for a year prior to the strike and work scheduled to commence after the strike ended . The Trial Examiner rejected such evidence and the Union excepted to his LOCAL 761 , INT'L UNION OF ELECTRICAL , RADIO, ETC. 345 The Trial Examiner , in his Supplemental Intermediate Report, recommended dismissal of the complaint in its entirety . Relying solely on the conveyor work, the Trial Examiner concluded that this work failed to meet either of the Supreme Court's last two condi- tions establishing that reserved -gate picketing is secondary.' The Trial Examiner found that since the conveyor system was "an essen- tial step in resuming the production of finished products ," the con- veyor work was therefore related to GE's normal operations. The Trial Examiner further found that since the conveyor work could take place only while production employees were not at work, the con- veyor work also failed to satisfy the Supreme Court's second condi- tion . The Trial Examiner found it unnecessary to consider whether work by independent contractors other than conveyor work was re- lated to GE 's normal operations. The General Counsel and GE excepted generally to the conclusions of the Trial Examiner . The Union excepted to the Trial Examiner's failure to rely on the nonconveyor work in dismissing the complaint. We find, in agreement with the Trial Examiner , that, by picketing gate 3-A, the Union did not violate former Section 8(b) (4) (A). However , we reach this conclusion solely on the following grounds. As noted, the Supreme Court ruled that reserved -gate picketing was primary unless the work of the independent contractors using the gate met both of these conditions : ( 1) the work of the contractors must be unrelated to the normal operations of the employer ( hereinafter re- ferred to as the "related work" test ) ; and (2 ) the work of the con- tractors , if done when the plant was engaged in regular operations, would not necessitate curtailing those operations . Accordingly, if a portion of the work of the independent contractors using gate 3-A constituting more than a de minimis amount failed to meet either of these conditions , the reserved -gate picketing was primary . For the reasons stated below , we find that work other than conveyor work, scheduled to be done by independent contractors during the picketing period and constituting more than a de minimis amount , was related to GE's normal operations. While, as noted above , the Trial Examiner did not rely on the non conveyor work in recommending dismissal of the complaint, in his Supplemental Intermediate Report, he reiterated his earlier finding in the original Intermediate Report I that the work of the independent contractors was "of a class and sometimes even of an exact kind as that which is performed by the Company 's employees ." Specifically, the record establishes that GE employees had done nonconveyor work ruling In view of our determination hereinafter that the complaint be dismissed, we find it unnecessary to decide whether the Trial Examiner ruled correctly in excluding such evidence. 8 Gate 3-A was clearly a separate gate, marked and set apart from other gates, as re- quired by the Supreme Court in its first condition. 9 123 NLRB, at p. 1555. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD identical or substantially similar to that scheduled to be done by em- ployees of the independent contractors in jobs whose contract prices totaled approximately $14,750.10 These jobs were the installation of shower rooms, repair of roads, construction of a sound room, enlarging of the ventilating system for the removal of welding fumes, concrete work in connection with an air-shelter type of warehouse building, and the construction of a catwalk." Since this work, which we find constitutes more than a de minimis amount had previousy been per- formed by GE employees, we find that such work was part of GE's normal operations. It follows therefore that this work, which was scheduled to be performed by independent contractors utilizing gate 3-A, was necessarily related to GE's normal operations. We accord- ingly find that the Supreme Court's "related work" condition was not met and hence the Union's picketing at gate 3-A was primary. We further find that work of the independent contractors was re- lated to GE's normal operations for the following additional reason. The Trial Examiner found, and the record establishes, that Central Maintenance employees were scheduled to work during the picketing period together with employees of independent contractors in the con- struction of a truck dock and in the construction of a mezzanine. The contract price on the portion of work awarded to the independent con- tractors on these jobs totaled $26,100.12 We find that CM's portion of the work of these jobs was part of GE's normal operations and, there- fore, that the work of the independent contractors on these jobs was related to GE's work on these jobs and hence related to GE's normal operations. We accordingly find, for this additional reason, that the work of the independent contractors failed to meet the Supreme Court's "related work" condition and, on this basis, that the picketing herein was lawful primary picketing.13 Accordingly, we shall dismiss the complaint. [The Board dismissed the complaint.] MEMBERS RODGERS and LEEDOM took no part in the consideration of the above Supplemental Decision and Order. 10 Approximately 34 employees of independent contractors were required to perform the work involved on these jabs 11 CM was asked to bid against independent contractors for the job of constructing the sound room ( contract price $ 1,240), but was underbid . CM was also asked to bid against independent contractors fol the job of enlarging the ventilating system ('$1,83'8), but it did not offer a bid 12 In the construction of the truck dock, the independent contractors were to be paid $17,500 and CM, which was to do the lighting and heating work, was to be paid $ 5,400. In the construction of the mezzanine , independent contractors were to be paid $8,630 and ACM , which was to do the sprinkler and lighting work, was to be paid $3 , 500. The record indicates that the portion of the work scheduled to be done by the independent contractors on these jobs was not of the type that had previously been done by GE, employees. 18 In view of our decision herein , we find it unnecessary to pass on the validity of the grounds relied on by the Trial Examiner in finding that the picketing of gate 3-A was lawful. LOCAL 761, INT'L UNION OF ELECTRICAL, RADIO, ETC. 347 SUPPLEMENTAL INTERMEDIATE REPORT STATEMENT OF THE CASE The issues in this case are derived from the remand in Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. N.L R.B., et al., 366 US. 667. The hearing on remand was conducted by Trial Examiner A. Bruce Hunt on November 8, 9, and 10, 1961, at Louisville, Kentucky, with all parties represented. Upon the entire record and my observation of the witnesses, I make ,the following: SUPPLEMENTAL FINDINGS OF FACT 1. SUMMARY OF FACTS ALREADY ADJUDICATED This case involves picketing at a "separate gate" to a plant. My original findings and conclusions appear at 123 NLRB 1554 et seq. The Board's decision reversing my conclusions appears at page 1547 et seq. The Supreme Court's opinion is cited above. Briefly, General Electric Company (herein the Company) operates a 1,000- acre plant called Appliance Park near Louisville, Kentucky, where it manufactures washers, dryers, and other household appliances. One entrance to the premises, called gate 3-A, is reserved for the exclusive use of independent contractors whose employees work on the premises. Local 761 I.U.E. (herein the Respondent or the Union) represents the Company's approximately 7,600 production and mainte- nance employees and, during 1958, called a strike against the Company because of 24 unsettled grievances. All entrances to ,the premises, including gate 3-A, were picketed. The strike was lawful and, insofar as we are concerned here, the picket- ing was peaceful. The issue is whether the picketing at gate 3-A was valid primary strike activity or, on the other hand, a secondary boycott in violation of Section 8(b)(4)(A) as the Act was written before the 1959 amendments The picketing at all other entrances was, as the General Counsel concedes, primary strike activity. II. THE SUPREME COURT'S OPINION; THE REMAND The question presented to the Supreme Court was whether a. majority-status union, engaged in a lawful primary strike, may validly, as part of primary strike activity, picket at a gate to the struck premises which is used exclusively by employees of independent contractors who work on the premises. The answer, according to the Supreme Court, "is found in the type of work that is being performed by those who use the separate gate." 366 U.S. at 680. Prerequisites to a determination that the picketing is invalid are: "the work done by the men who use the gate must be unrelated to the normal operations of the [primary] 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." Id. at 681. The Court held further that, "if Gate 3-A was in fact used by employees of independent contractors who performed conventional maintenance work necessary to the normal operations of General Electric, the use of the gate would have been a mingled one outside the bar of 8(b)(4)(A)." The Court remanded for additional evidence because the record did not disclose the extent of "such mingled use." Id. at 682. The Board, pursuant to the remand, directed that evidence be received on the following subjects: (1) Whether the work performed by the independent contractors ... whose employees used Gate 3-A consisted of: a. Construction, or b. Remodeling and repairing of machinery or buildings of the [Company], or c. Retooling, revamping, or rearrangement of machinery and equipment of the [Company], or d. A combination of the above categories. (2) Whether any of the work described in the above categories included conventional or regular maintenance work necessary to the normal operations of the [Company]. (3) The dollar amount of work performed and the number of employees used by each of such independent contractors in executing contractual obliga- tions under (1) above. (4) The nature of any work described in (1) above which the [Company's] employees have performed or could have performed and the extent thereof. In addition to the term "conventional maintenance work," the Court used the terms "general maintenance work," "maintenance work," "routine maintenance serv- 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ices," and "specialized work of a capital-improvement nature." As noted, the Board used the term "conventional or regular maintenance work ." For reasons which will appear, it is unnecessary to classify each of the work projects described below as having been within one or another of the quoted terms. III. THE FACTUAL SITUATION AFTER HEARING ON REMAND In considering the work which was done by the Company 's maintenance em- ployees, as well as by employees of independent contractors, it should be recalled that each of the manufacturing departments at Appliance Park "is operated on an independent basis with its management being charged with the responsibility of making a profit." 123 NLRB at 1555. Each manufacturing department is housed in a separate building or buildings and has its own maintenance employees who are called "Building Maintenance" and who do the routine maintenance work of the building. In addition to those maintenance employees, there 'are 100 or more others who are on the work force of "Central Maintenance" and who work in the manufacturing departments and elsewhere throughout the 1,000-acre premises. Id. Central Maintenance is a division of a nonmanufacturing department called "Rela- tions and Utilities" (R & U) which, as the Company says in its brief: ... handles employee and community relations problems, ... the construction and repair of utility systems such as water, heat, power, etc., serving the plant . sees that the grounds, roadways, parking lots, etc., are kept in proper con- dition ... perform[s] the engineering and drafting work for the jobs relating to utilities and the other areas which are the particular responsibility of R & U, . .. renders engineering and technical assistance on all phases and types of construction, etc., with which any [manufacturing or nonmanufacturing] De- partment at Appliance Park may be concerned .. . . As was recited in my Intermediate Report and as will appear below, from time to time Central Maintenance bids against independent contractors for work anywhere on the premises. A. The record does not show all types of work which Central Maintenance performed before the strike or on which it bid against contractors The evidence does not disclose the full variety of tasks which Central Maintenance employees performed. The "shop orders" showing such tasks during 1958, as well as Central Maintenance's bids, successful and unsuccessful in that year, were de- stroyed during 1959. On the other hand, the evidence does establish, as Merle G. Lawson, the Company's manager of plant construction engineering and drafting, testified, that Central Maintenance employees are not confied to "routine maintenance services" but sometimes engage "in specialized work of a capital-improvement na- ture." Those employees used not only the small tools of electricians, carpenters, machinists, bricklayers, etc., but also such equipment as power tools, precision cut- ters, air compressors, hydraulic benders to form pipe, plumbing equipment, welding equipment, trucks, road graders, bulldozers, reverse cranes for digging, fork trucks and load lifters capable of lifting as much as 15 tons, cranes that are rated up to 90 tons, and a "crow's nest" to lift employees to substantial heights. The General Counsel concedes in his brief that the employees in Central Maintenance "were sufficiently skilled in the various trades and 'had available the necessary equipment so that maintenance employees were individually capable of performing much of the work done by employees of the independent contractors." As will appear, how- ever, Central Maintenance's work force was not large enough to handle the work of some independent contractors while simultaneously performing work on which it had underbid contractors or which had been assigned to it for other reasons. B. The Company's annual "shutdown period" and its proximity in 1958 to the strike Each year the Company has a shutdown period which generally extends for 2 weeks and in which production employees are given vacations, but which may ex- tend for a longer period in a particular production department if the needs of the department so require. During the annual shutdown periods, the maintenance em- ployees, with few exceptions, are not given vacations because there is much work for them during those periods. Too, there are more independent contractors at work on the premises during the shutdown periods than'at any other time of year. During 1958 the pertinent dates of the strike and the shutdown period were as fol- lows: On July 27 the strike began, and there was picketing at all entrances; on Sat- LOCAL 7 6 1, INT'L UNION OF ELECTRICAL, RADIO, ETC. 349 urday, August 9, the picketing at gate 3-A ceased when the General Counsel ob- tained an injunction in a local United States district court; on August 10 the strike and all other picketing ended; on Monday, August 11, the 2-week shutdown period began.' C. The documentary evidence concerning the work of independent contractors The documentary evidence concerning the work of independent contractors con- sists of certain contracts, called "purchase orders," between the contractors and the Company. This evidence was confined to work which was interrupted or delayed be- cause of the picketing at gate 3-A.2 Neither the contracts nor the available testi- mony disclosed the total number of employees of all independent contractors, nor was there evidence available upon which to determine the proportions of the total contract prices which were for materials and for labor. Three of the contracts will not be discussed because the work thereunder was relatively minor; in each the con- tract price was less than $1,000 and the combined prices were less than $2,000? D. The work of independent contractors in rearranging and enlarging the conveyor systems The principal work of contractors at times material was to rearrange and to enlarge overhead conveyor systems in the range and household refrigerator departments. The systems are the means by which parts_are transported along production lines to be assembled into finished products. Most of the changes in, and additions to, the systems during the 1958 shutdown period were necessitated by the fact that produc- tion on new models of ranges and refrigerators was to begin after that period, and the systems in use for the earlier models were unsuitable for the new models .4 The contracts for the work (General Counsel's Exhibits Nos. 24, 25, 35, 36, and 37) total about $172,000 including materials,5 plus a few thousand dollars in the event of overtime work by the contractors' employees. Those employees numbered about 116, slightly more than the number of employees in Central Maintenance. The work on the conveyor systems in preparation for the new models could not be performed when production employees were at work. Therefore, it was sched- uled mainly for the shutdown period, but some of it was performed earlier on week- ends and at night. Gordon Chadbourne, the Company's manager of manufacturing and engineering in the range department, testified that "it just isn't possible to op- erate the plant and do this kind of [conveyor] work" simultaneously. Wilbur L. Goodfleish, manager of manufacturing and engineering in the household refrigerator department during 1958, testified that the conveyors "are an integral part of our production facility, [and] are almost constantly being revised to some degree or another," often on weekends because most changes do not require a longer period of time, and during the annual shutdowns in the instances of "major revisions." With respect to the Board's inquiry whether the Company's employees could have handled the conveyor projects, the answer is that Central Maintenance employees had the necessary skills for all conveyor work and to some extent performed con- veyor work. The type of conveyor work which has been discussed is the rearrange- 'There is testimony by David Falk, the Company's construction engineer in the depart- ment which manufactures washers and dryers, that the 1958 shutdown period for that department was deferred until December. 21 excluded from evidence certain contracts which were offered by the Union and which covered work that had not been scheduled to begin until August 11, by which date the strike had ended. Upon reconsideration, I seriously doubt the soundness of my ruling, but there was no prejudicial error in view of the determinations herein. 3 biy use of the term "relatively minor" does not connote de minimus. " 'De minimus in the law has always been taken to mean trifles-matters of a few dollars or less.' . . . The time has not yet arrived when $2,000 is but a trifle." N.L.R.B. v. Aurora City Lines, Inc, 299 F. 2d 229 (CA.?) 4 The Company says in its brief that "Changes in the conveyors are . . . made neces- sary each year because of annual model changes in the various appliances manufactured by the Company, and the extent of the changes depends on whether the model changes are slight or radical When a major change is made in appliance models the rearrange- ment of the conveyors can require the addition of as much as 25% to 75% new equipment." 5A single employer was awarded contracts totaling about $136,000, of which about $42,000 represented the cost of materials for installation of a new conveyor line, an un- determined amount represented cost of materials on lines which were to be relocated, and still another undetermined amount represented labor costs. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment and enlargement of conveyor systems. Richard A. Anderson, superintendent of Central Maintenance, testified that employees under his supervision have the necessary skills for the work but that such projects must be performed during brief annual shutdown periods when the production employees are not at work, and Cen- tral Maintenance's work force is not large enough to meet the time demand. In fact, on one contract for $8,285 involving electrical work on the same project as that mentioned in footnote 5, Central Maintenance was so busy as the shutdown period approached that it refused to bid. Another type of conveyor work is the "almost constant" revisions, which are due partly to technological advances. The revisions are performed by contractors but Central Maintenance employees are qualified to do the work. Still another type of conveyor work is the maintenance. Routine main- tenance is handled by Building Maintenance instead of Central Maintenance. On the other hand, upon an occasion before the strike when it was necessary to elevate a portion of a conveyor system in order to make room for the erection of "a gigantic oven" by a contractor, the elevation was handled by Central Maintenance. E. Construction, repair, and other work of contractors which did not necessitate curtailing production operations A number of contracts involved work which in some instances was related to the Company's production operations, but which was of kinds that, to quote from the Supreme Court's opinion, "would not, if done when the plant were engaged in its regular [production] operations, necessitate curtailing those operations." These contracts (General Counsel Exhibits Nos. 14 through 18, 21, 23, 28, and 46) had a total price of about $100,000 for labor, materials and equipment. The number of employees required is uncertain but was less than 100. Central Maintenance could have performed some of the work of the contractors and did perform related work. The projects were: (1) the construction of a two-stall truck dock. The dock was built partly by an independent contractor and partly by Central Maintenance. It was an enlargement of loading and unloading facilities of a building in which refrig- erators are manufactured. The independent contractor's portion of the project was valued at $17,531, and to some extent Central Maintenance could have done that work. Central Maintenance's portion was valued at $5,400 and in- volved the heating, electrical and sprinkler work. (2) the construction of a mezzanine to be used as a testing area for air conditioners. The work was done by a contractor and Central Maintenance. The total cost was about $12,000, of which the contractor's portion was $8,630. Central Maintenance employees, in addition to having performed a part of the work, had the skills and equipment to perform some, if not all, of the remainder. (3) the installation of ;facilities for testing room air conditioners. The con- tract price was $43,800. Central Maintenance could have performed some of the work. (4) the resurfacing of a parking lot. The cost was about $16,225. Central Maintenance employees, who were skilled and equipped to perform some of the work, lacked certain equipment to perform the entire project. (5) the installation of shower rooms at a cost of $5,060. Central Maintenance could have performed the job, but it was not asked to bid against the independent contractor because its employees were too busy on other projects. (6) the repair of roads at a cost of $4,204. Central Maintenance could not have done the entire job because it lacked two types of rollers. (7) miscellaneous projects costing less than $2,000 each, namely, (a) the construction of a soundroom for maintaining noise levels, on which Central Maintenance was underbid; (b) enlarging a ventilating system for the removal of welding fumes, on which Central Maintenance declined to bid although its employees were qualified for the job; and (c) certain concrete work which Cen- tral Maintenance could have done in part if not entirely. F. The remaining work of independent contractors Three contracts ( General Counsel 's Exhibits Nos. i13, 39, and 41 ), do not fit read- ily into groups already discussed . The number of men involved is uncertain but perhaps did not exceed a dozen . The projects were: (1) plumbing to correct a deficiency in a drain . The cost was $1,573 includ- ing materials . Central Maintenance employees had the skills and equipment to do the job but they were committed to other projects . This plumbing differs from other plumbing already discussed in that it was for a different purpose LOCAL 761, INT'L UNION OF ELECTRICAL, RADIO, ETC. 351 and also could not have been performed while production employees worked at their regular tasks (2) installation of production control equipment at a cost of $1,990. Central Maintenance was underbid by an independent contractor . The equipment which was installed constituted only a portion of an entire project that was never completed . Some of the work was done before the strike, but I cannot determine whether there was any interruption in the work of production employees. (3) installation of a "catwalk ," i.e., a walkway about 35 feet above the floor, at a cost of $ 1,405. Central Maintenance could have performed the work but did not bid on it . The record does not disclose whether, if the work had been performed while production employees were at work, there would have been any interference with production. IV. CONCLUSIONS AND RECOMMENDATION The Board 's remand order directed that evidence be taken on certain subjects. The evidence , insofar as it was available , is set out above . With respect to the portion of the remand order which inquires , as to the nature of any work performed by independent contractors, that the Company 's employees have performed or could have performed , the evidence on remand warrants reiteration of a finding in my Intermediate Report as having been essentially correct. That finding reads: the work of the [contractors '] employees is of a class and sometimes even of an exact kind as that which is performed by the Company 's employees; that is, the contractors ' employees , like the Company 's employees , are engaged in work related to the production of finished products or to the maintenance of the plant. The prerequisites to a finding that the Union's picketing at gate 3-A was invalid, as set forth in section II above, were enunciated in United Steelworkers v. N.L.R.B., 289 F. 2d 591 , 595 (C.A. 2 ), and were adopted by the Supreme Court in the instant case. The Court of Appeals said: The principles of the Board 's ruling which we here enforce are not unduly difficult to understand or to put into practice . 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 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. In setting forth in my Intermediate Report certain principles which I understood to be established law, J held that traditional primary strike activity includes deliberate attempts to halt the operations of a struck plant by peacefully soliciting neutral em- ployees inter aka (1 ) not to bring raw materials into the plant for processing by pri- mary employees , or to take finished products from the plant , and (2 ) not to contribute to production by working in the plant . The Supreme Court's opinion in this case established that "traditional primary activity" includes appeals "to neutral employees whose tasks aid the [primary ] employer's everyday operations " and, therefore, that an employer may not utilize a separate gate to shield from primary picketing the neutral employees who transport raw materials for processing by primary employees or ,the finished products made therefrom . 3,66 U .S. at 681. The Board has changed its decisional law accordingly 6 If, as I believe to be the law, a separate gate also may not be used to shield from primary picketing the neutral employees whose work in the plant contributes to production , the complaint in this case must be dismissed. As recited , at ,times material the principal work of the contractors was in connec- tion with the overhead conveyors while the remainder of their work was largely construction , repair, and the installation of equipment and facilities . The General Counsel and the Company contend that all work of the contractors ' employees was (1) unrelated to normal operations of the Company and (2 ) of kinds that, to quote from the opinion in United Steelworkers , "would not, if done when the plant were engaged in its regular operations , necessitate curtailing those operations." On the other hand , if the work on the conveyor systems does not fit both of those two prerequisites , we need not consider the other work of the contractors because the conveyor work was extensive from the standpoints of both the cost and the number °In Local Union No. 5895, United Steelworkers , et at. ( Carrier Corporation), 132 NLRB 127, the Board overturned the 1959 doctrine of Lumber & Sawmill Workers, et at (Great Northern Railway Company ), 122 NLRB 1403, 1410-1412, 126 NLRB 57, that peaceful picketing of a separate gate which is used exclusively by a carrier of raw materials and finished products is not primary strike activity 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of neutral employees . We have seen , as a representative of the Company testified, that the conveyors "are an integral part of our production facility." Too, the shift from production of old to new model refrigerators and ranges during 1958 was dependent upon the rearrangement and enlargement of the conveyors , and thus, ,to paraphrase a statement of the Supreme Court in this case , "the tasks of the neutral ,employees aided the Company's everyday operations ." It seems to me that work on .an integral part of production facilities as an essential step to resuming the produc- tion of finished products is clearly related to the plant 's normal operations. This conclusion dictates dismissal of the complaint , but the second prerequisite will be dis- cussed with reference to the conveyor work. Turning to the second prerequisite , that the work of the neutral employees who use the separate gate "must be of a kind that would not, if done when the plant were engaged in its regular operations , necessitate curtailing those operations ," the Gen- eral Counsel argues that the plant's normal operations were not curtailed by the work of the contractors ' employees on the conveyors because "normal operations were not carried on during the shut -down period . . . ." The General Counsel thus reads the prerequisite as though the Court had not used the phrase , "if done when the plant were engaged in its regular operations ." I cannot agree with the General Counsel because I believe that that phrase is very meaningful . It is interesting to note that the Company takes a different position than the General Counsel. The Company argues that "normal or regular operations of the Company's plant include an annual vacation shutdown . . ." and thus that the work of the contractors during the shutdown period was performed during normal operations without curtailment of the operations . This argument , according to the Union , "smacks of sophistry." I cannot agree with the Company's contention . As I construe the pertinent por- tions of the opinion in United Steelworkers , read in the light of the facts there, and bearing in mind that they "are not unduly difficult to understand," I believe that the Court said in substance that the work of employees who use the separate gate must be not only unrelated to the normal operations of the primary employer , but must also be of kinds that could be performed by neutral employees while the primary employees continued with their work . Viewed in that light , the second prerequisite also is absent . The neutral employees could work on the conveyors only when production employees were not at work . To quote Chadbourne again , "it just isn't possible to operate the plant and do this kind of work." For the reasons related , I find that the Respondent has not engaged in unfair labor practices and I recommend that the complaint be dismissed . This recommendation, I reiterate , is made without having to decide which of the various projects described in section III , E and F , above, were related to the normal operations of the Company. Lawler's Cafeteria & Catering Company and Hotel, Motel, Restaurant and Club Employees Union Local 353, affiliated with Hotel & Restaurant Employees and Bartenders Inter- national Union , AFL-CIO. Case No. 16-CA-1619. August 29, 1963 DECISION AND ORDER On June 1, 1962, Trial Examiner James F. Foley issued his Inter- mediate Report in the above=entitled proceeding, finding that the Re- spondent had engaged in the unfair labor practices alleged in the com- plaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Interme- diate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with 138 NLRB No. 40.