Local Union No. 76 v. National Labor Relations Board

742 F.2d 498
Court of Appeals for the Ninth Circuit·Decided September 5, 1984·No. Nos. 83-7866, 83-7929·Published·Cited by 1 cases

Opinion

Eugene A. WRIGHT, Circuit Judge:

An unfair labor practice charge was brought by Gaylord Broadcasting Co., d/b/a KSTW-TV, against Local Union No. 76, International Brotherhood of Electrical Workers. It charged that the Union violated § 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(b)(4)(i), (ii)(B), by engaging in unlawful secondary picketing at a gate reserved exclusively for a neutral contractor.

During a strike against KSTW by the Union, KSTW established a separate gate for the sole use of a neutral employer who was making capital improvements on KSTW property. The issues here are whether a particular incident of alleged misuse tainted the gate and if so whether its neutrality was rehabilitated. FACTS

On November 2, 1982, some KSTW employees went out on strike and began to picket KSTW’s Tacoma facility. Gordon Korsmo Construction Company was then building a structural addition to the KSTW facility. No KSTW employees were involved in the construction which caused no interruption in KSTW’s day-to-day operations. When picketing began, construction stopped.

KSTW immediately attempted to set up a neutral gate for the sole use of Korsmo Construction. It posted signs reserving its Trafton Street entrance for the exclusive use of the employees, agents, visitors, and suppliers of Korsmo Construction and its subcontractors, and its 19th Street entrance for the exclusive use of the employees, agents, visitors, and suppliers of KSTW. This effort was unsuccessful.

About November 17, KSTW erected a chain link fence around part of its building with a locking gate at the Trafton Street entrance, attended by a 24-hour security guard. The guards were given a list of neutrals allowed to use that gate and were instructed to let no others enter.

[500]*500KSTW notified the Union by letter on November 18 that the Trafton neutral gate had been reestablished and explained the steps taken to maintain the integrity of the gate. It requested the removal of pickets from the neutral gate.

Picketing at the Trafton entrance continued until December 3, when the parties reached a settlement agreement. Under the agreement unfair labor practice charges against the Union were dismissed and it agreed not to picket the Trafton entrance as long as it was used exclusively by the designated neutrals.

The Union claimed that the neutral status of the Trafton entrance was destroyed when a garbage truck serviced a KSTW dumpster on February 24, 1983. The Union resumed picketing at the Trafton gate on February 25 and construction work stopped.

On February 25 KSTW heard of the dumpster incident, asked that the guard who permitted the use be removed from further service at KSTW, and reaffirmed its instructions to the security service. On that day it notified the Union by letter that the Trafton gate was still reserved as a neutral gate and that the dumpster incident did not justify picketing.

Picketing at the Trafton gate continued until April 19, when it was enjoined by this court’s order. Construction work resumed about May 1. KSTW paid Korsmo an additional $58,000 on account of the delay.

An Administrative Law Judge concluded that the Union was guilty of unlawful secondary picketing at a neutral gate, in violation of § 8(b)(4)(i), (ii)(B) of the NLRA. The Board affirmed that decision.

ANALYSIS

I. Legal Background

The NLRA, § 8(b)(4), was designed to meet the dual Congressional objectives of preserving the right of unions to pressure offending employers in primary labor disputes while shielding unoffending employers from pressures generated by the controversies of others. NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284 (1951). It prohibits a union from picketing with the object of inducing a neutral employer to cease doing business with the primary employer with whom the union has a dispute. 29 U.S.C. § 158(b)(4).1

However, that prohibition does not apply to otherwise lawful primary picketing. Id. § 158(b)(4)(ii)(B). Activity directed only at the primary employer may be lawful even if some neutral employers may be affected. NLRB v. Northern California District Council of Hod Carriers, 389 F.2d 721, 725 (9th Cir.1968).

Although the distinction between legitimate primary activity and unlawful secondary activity is important, it is not marked by a bright line. Local 761, International Union of Electrical Workers v. NLRB, 366 U.S. 667, 673, 81 S.Ct. 1285, 1289, 6 L.Ed.2d 592 (1961) (General Electric). The problem is complicated when two employers perform separate tasks at a common situs. The criteria devised by the courts to draw the distinction rely heavily on the means used by the union to promote its cause. Id. at 674, 81 S.Ct. at 1290.

The Moore Dry Dock case established standards for valid primary picketing when [501]*501the situs of the primary employer is ambulatory. Sailors’ Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547 (1950).

The NLRB there laid out four indicia of valid primary picketing: (1) it is limited to times when the situs of the dispute is on the premises, (2) the primary employer is engaged in its normal business at the site, (3) the picketing is reasonably close to the situs, and (4) the picketing clearly discloses that the dispute is with the primary employer only. The NLRB then began to apply those standards to eases in which the situs was owned by the primary employer. See, e.g., Retail Fruit & Vegetable Clerks (Crystal Place Market), 116 N.L.R.B. 856 (1956), enforced, 249 F.2d 591 (9th Cir. 1957).

The Supreme Court has approved the Board’s balancing of the interests of unions and neutral employers and applying the statute to make it unlawful to picket at a gate used exclusively by employees of neutral contractors who work on the struck employer’s premises. General Electric, 366 U.S. at 680-81, 81 S.Ct. at 1293-94. The key to the union’s right to picket at a particular gate is the type of work performed by those using it. Id.

In applying § 8(b)(4) and the Moore Dry Dock standards to a situation involving a reserved gate on the premises of a primary employer, these are the controlling considerations:

‘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.’

Id. 366 U.S. at 681, 81 S.Ct. at 1293-94 (quoting United Steelworkers v. NLRB, 289 F.2d 591, 595 (2d Cir.1961)). If there is substantial mixed use of a gate, picketing is not barred. Id. at 682, 81 S.Ct. at 1294; Huber & Antilla Construction v. Carpenters Local 470,

Local Union No. 76 v. National Labor Relations Board, 742 F.2d 498 (9th Cir. 1984).

742 F.2d 498 (Local Union No. 76 v. National Labor Relations Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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