N.L.R.B. v. General Truck Drivers, Warehousemen, Helpers and Automotive Employees of Contra Costa County, Local No. 315

• Decision Date: 01 April 1994
• Docket Number: No. 92-70417,92-70417
• Citation: 20 F.3d 1017
• Parties: 146 L.R.R.M. (BNA) 2009, 62 USLW 2672, 127 Lab.Cas. P 11,070 NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent, The Atchison, Topeka & Santa Fe Railway Company, Petitioner-Intervenor, v. GENERAL TRUCK DRIVERS, WAREHOUSEMEN, HELPERS AND AUTOMOTIVE EMPLOYEES OF CONTRA COSTA COUNTY, LOCAL NO. 315, Respondent-Cross-Petitioner.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1017

20 F.3d 1017

146 L.R.R.M. (BNA) 2009, 62 USLW 2672,

127 Lab.Cas. P 11,070

NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent The Atchison, Topeka & Santa Fe Railway Company, Petitioner-Intervenor, v. GENERAL TRUCK DRIVERS, WAREHOUSEMEN, HELPERS AND AUTOMOTIVE EMPLOYEES OF CONTRA COSTA COUNTY, LOCAL NO. 315 Respondent-Cross-Petitioner.

No. 92-70417.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 15, 1993.

Decided April 1, 1994.

Aileen A. Armstrong, Fred L. Cornnell, N.L.R.B., Washington, DC, for petitioner-cross-respondent.

Ronald W. Novotny, Hill, Farrer & Burrill, Los Angeles, CA, for petitioner-intervenor.

Duane B. Beeson, Beeson, Taylor, Silbert, Bodine & Livingston, San Francisco, CA, for respondent-cross-petitioner.

On Application for Enforcement and Cross-Petition for Review of an Order of The National Labor Relations Board.

Before: WALLACE, Chief Judge, GARTH ^* and WIGGINS, Circuit Judges.

GARTH, Circuit Judge:

The National Labor Relations Board ("Board") petitions for enforcement of its order against General Truck Drivers, Warehousemen, Helpers and Automotive Employees of Contra Costa County, Local No. 315, affiliated with International Brotherhood of Teamsters, AFL-CIO ("Union"). The Atchison, Topeka & Santa Fe Railway Company ("Santa Fe") intervened in support of the Board.

In its cross-petition for review, the Union contends that the Board erred in holding that the Union violated the secondary picketing proscriptions of sections 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act ("Act"), 29 U.S.C. Secs. 158(b)(4)(i) and (ii)(B), by engaging in common situs picketing and handbilling activities conducted with the object of enmeshing Santa Fe and other neutral employers in the Union's dispute with the primary employer.

We find that the Board applied the proper standard for assessing the Union activity, and that substantial evidence supports the Board's findings that the Union violated the secondary picketing provisions of the Act. We, therefore, will enforce the order of the Board, and deny the Union's cross-petition for review.

I.

The facts of this case are not in dispute. The Union was engaged in a primary labor dispute with Piggyback Services, Inc., a non-union employer. The dispute erupted after Santa Fe awarded Piggyback a subcontract to ramp and deramp intermodal freight ¹ at Santa Fe's Richmond, California rail terminal. That work previously had been performed by union members for a wholly owned subsidiary of Santa Fe. When Piggyback allegedly reneged on its promise to hire the former union workers in July 1990, the Union began picketing and distributing handbills at Santa Fe's Richmond rail terminal.

In an effort to insulate itself from the Union's labor dispute with Piggyback, Santa Fe designated a gate, Gate 1, as the sole entrance to the Richmond facility for employees, customers, visitors and suppliers of Piggyback. Santa Fe also posted signs at four other entrances to the Richmond facility, designated as Gate 2, Gate 3, Gate 4, and Gate 5, stating that these "neutral" gates were reserved for the exclusive use of Santa Fe's employees, customers, visitors and suppliers, and that Gate 1 was available only for Piggyback's employees, customers, visitors and suppliers.

Although Piggyback employees entered only through Gate 1, and the Union fully acknowledged that it had no labor dispute with Santa Fe, the Union began picketing at the four "neutral" gates. The Union also picketed a fifth neutral gate, Gate 4(b), which was not posted and which was used by Santa Fe's employees to enter and exit the railyard; Santa Fe closed Gate 4(b) after only one day. Much of the Union's picketing commenced after Santa Fe, apparently for safety reasons, declined the Union's request to picket inside the railway yard where Piggyback employees worked.

Handbills distributed by the Union at neutral locations urged neutral employees and customers entering the Santa Fe railway yard to either honor the picket line or, alternatively, to cease all work related to Piggyback's day-to-day operations. The Union sent letters to the presidents of the seven unions which represented Santa Fe employees; the letters requested that union members employed by Santa Fe not perform work directly related to Piggyback's operations at the Richmond terminal. A similar letter was sent by the Union to United Parcel Services (UPS), Santa Fe's primary unionized intermodal trucking customer.

The union-represented truck drivers of UPS and other Santa Fe customers honored the picket line by refusing to deliver intermodal freight to the Richmond terminal. In response, Santa Fe established a drop-off site about a mile-and-a-half from Gate 3, for use by UPS and other Santa Fe customers. Although no Piggyback employees were stationed at the UPS drop-off site, the Union expanded its activity to that location. The Union also picketed at two railroad spurs, designated as the West Switching Lead and the Zone 3 Industries, where intermodal freight cars entered the railway yard.

Santa Fe notified the Union that its picketing was unlawful, and that it had filed unfair labor practice charges against the Union. While denying the charges, the Union acknowledged that it was requesting Santa Fe employees not to perform work directly involved in the day-to-day operations of Piggyback Services. Following issuance of a temporary restraining order, all Santa Fe employees returned to work on August 27, 1990.

Applying the standards of Sailors' Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547, 549 (1950), the Board affirmed the conclusion of the administrative law judge (ALJ) that the Union activities violated the secondary boycott provisions of the Act, 29 U.S.C. Secs. 158(b)(4)(i) and (ii)(B). Specifically, the Board found that the Union's activities were conducted with the object of enmeshing Santa Fe and other neutral employers in the Union's dispute with Piggyback by picketing unlawfully at Gates 2, 3, 4, 4(b), 5 at the West Switching Lead and the Zone 3 Industries spurs, and at the UPS drop-off point. Accordingly, the Board approved with minor modification the ALJ's order prohibiting the Union from engaging in any picketing and handbilling activity with an object of forcing neutral employers to cease doing business with Santa Fe, and of forcing Santa Fe to cease doing business with Piggyback. ²

We must uphold decisions of the Board if its findings of fact are supported by substantial evidence and if the Board correctly applied the law. N.L.R.B. v. O'Neill, 965 F.2d 1522, 1526 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2995, 125 L.Ed.2d 689 (1993). " 'The substantial evidence test is essentially a case-by-case analysis requiring review of the whole record.' " Id. (quoting Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.1987)). We defer to the Board's interpretation of the National Labor Relations Act " 'if it is reasonably defensible.' " N.L.R.B. v. United Union of Roofers, Waterproofers & Allied Workers, Local 81, 915 F.2d 508, 510 (9th Cir.1990) (citation omitted).

II.

Section 8(b)(4)(B) of the Act prohibits secondary boycott activities calculated to embroil neutral employers and employees in a union's dispute with the primary employer. ³ A union may picket a primary employer at a job situs under the control of a secondary employer only if the picketing is primary in nature. Iron Workers Dist. Council, Local 29 v. N.L.R.B., 913 F.2d 1470, 1475 (9th Cir.1990); N.L.R.B. v. Ironworkers Local 433, 850 F.2d 551, 554 (9th Cir.1988). An employer, of course, is entitled to establish separate gates for the use of primary and neutral employers. So long as the "neutral" gate is used only by neutral employees or suppliers, a union cannot picket at that gate and must confine its activities exclusively to the gate reserved for the primary employer's use. Local 761, Int'l Union of Elec., Radio & Mach. Workers v. N.L.R.B. (General Electric), 366 U.S. 667, 680-81, 81 S.Ct. 1285, 1293, 6 L.Ed.2d 592 (1961). Conversely, a substantial mixed use of a "neutral" gate by primary and secondary employees or suppliers compromises the gate's neutrality, thereby permitting union picketing. Id. at 681-82, 81 S.Ct. at 1293-94; Local 76 of Int'l Bhd. of Elec. Workers v. N.L.R.B., 742 F.2d 498, 501 (9th Cir.1984).

As a means of distinguishing between primary and secondary boycotts, the Board in Moore Dry Dock established a four-part test for determining whether union picketing at a common situs, where both primary and secondary employers are performing work, is a lawful exertion of pressure against a primary employer or is an unlawful secondary boycott. As we understand the Moore Dry Dock doctrine, any one of the following four criteria, if violated, can give rise to a rebuttable inference that the Union is engaged in a secondary boycott. By the same token, a union acts within permissible bounds if: (1) the picketing is limited to times when the situs of the dispute is located on the secondary employer's [Santa Fe's] premises; (2) at the time of the picketing the primary employer [Piggyback] is engaged in its normal business at the situs; (3) the picketing is limited to places reasonably close to the location of the situs; and (4) the picketing discloses clearly that the dispute is with the primary employer [Piggyback]. 92 N.L.R.B. at 549. In this case, the only one of the four Moore Dry Dock criteria which the Union was found not to have complied with, and which the Union challenges, is the third criterion; that "the picketing is limited to places reasonably close to the location of the situs." The Board, as we discuss infra, found that the Union had not refuted the inference that its picketing objective constituted a secondary boycott.

A.

The Moore Dry Dock standards for common situs picketing were explicitly approved by the Supreme Court in General Electric. 366 U.S. at 680-81, 81 S.Ct. at...