Linbeck Const. Corp. v. N.L.R.B.

• Decision Date: 11 April 1977
• Docket Number: No. 75-3555,75-3555
• Citation: 550 F.2d 311
• Parties: 94 L.R.R.M. (BNA) 3230, 81 Lab.Cas. P 13,161 LINBECK CONSTRUCTION CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 311

550 F.2d 311

94 L.R.R.M. (BNA) 3230, 81 Lab.Cas. P 13,161

LINBECK CONSTRUCTION CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 75-3555.

United States Court of Appeals, Fifth Circuit.

April 11, 1977.

Hugh E. Hackney, A. Martin Wickliff, Jr., Oscar N. Hibler, Jr., Houston, Tex., for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, David A. Fleischer, Atty., N.L.R.B., Washington, D.C., for respondent.

Petition for Review of an Order of the National Labor Relations Board (Texas Case).

Before MORGAN and GEE, Circuit Judges, and HUNTER, ^* District Judge.

LEWIS R. MORGAN, Circuit Judge:

Linbeck Construction Company (Linbeck) petitions for review of an order of the National Labor Relations Board issued on August 5, 1975, 219 N.L.R.B. No. 133. That order concerns two segments of picketing during the summer of 1974 that Linbeck alleges to have violated Section 8(b)(4)(i)(ii)(B) of the National Labor Relations Act. ¹

I. Facts.

Linbeck was the general contractor for the construction of a shopping mall in Austin, Texas. The excavation, paving, sanitary and storm sewer work was subcontracted to Luckie Construction Company (Luckie), a non-union employer. Shortly after construction began in June of 1973, Linbeck barricaded all entrances to the project except an entrance on Northcross Drive designated for the use of Luckie's employees and suppliers (Luckie gate) and an entrance on Anderson Lane (Linbeck gate) reserved for the employees and suppliers of Linbeck and the other subcontractors. ² Despite the restrictions indicated on the gate signs, Luckie's employees and suppliers continued to enter the job site through the Linbeck gate.

On June 20, 1974, upon hearing rumors that the International Union of Operating Engineers, Local Union No. 450, AFL-CIO (Union) intended to picket the job site to protest Luckie's non-union hiring practices, Linbeck's project manager sent the Union a telegram stating that Linbeck had designated the Northcross gate for the use of Luckie, its employees, materials and equipment; other employers, their suppliers, and employees would use the Linbeck gate. On June 24, the Union set up two pickets: one at the Luckie gate and one who walked 100-150 feet on Anderson Lane, but who never came closer than 100 feet to the Linbeck gate. Picketing continued in this fashion through June 26. While Luckie employees used only the Luckie gate to enter the site during this period, materials to be used by Luckie, such as cement, steel, and crushed stone, were delivered through the Linbeck gate and were signed for by Linbeck employees. Prior to the picketing, such materials had been received by Luckie employees.

On June 26, Linbeck's project manager sent the Union a telegram indicating that henceforth Luckie would cease working on the job site between 7:30 a. m. and 4:30 p. m. on weekdays, instead working between 5:00 p. m. and 7:00 a. m. on weekdays and twenty-four hours a day on weekends; upon receipt of the telegram, the Union removed its pickets. Linbeck subsequently sent the Union a letter informing it that Luckie would not resume work until July 19. Thereafter, Luckie did not return to the site until July 20 and the Union did not resume picketing until July 24. ³ Upon resuming work on July 20, Luckie's employees, who entered the job site each evening through the Luckie gate, adhered to their announced schedule and were not on the job site during the weekdays. Materials that Luckie worked on in the evenings, however, were delivered during the day at the Linbeck gate and received by the general contractor's employees. In addition, Luckie and his foreman, Joe Jackson, visited the job site on two occasions during the day to examine the materials that had been delivered and to make preparations for their crew's work that evening.

On the evening of July 24, when Luckie employees were working on the job site, the Union, displaying the same picket signs as those used in June, resumed its picket of the Luckie gate. ⁴ The pickets returned during the day on July 25 and July 26 to the Luckie gate and, in response to the barricaded gate and covered gate sign, ⁵ covered their own sign, which indicated the object of their grievance. On July 29, 30, and 31, ⁶ picketing again occurred at the Luckie gate, this time with the picket sign uncovered, but on August 1 the picket again covered his sign. On August 2, he picketed for a couple of hours with an uncovered sign before leaving. No picketing, with a covered or uncovered sign, has occurred since that time.

II. Findings by Administrative Law Judge and Board.

The Administrative Law Judge concluded that the June 24-26 picketing at Anderson Lane, ⁷ 100 feet from the Linbeck gate, did not constitute a violation of § 8(b)(4)(i)(ii)B, but that the July 25-26 and July 29-August 2 picketing did violate the National Labor Relations Act's prohibitions against secondary activity. Upon review of the judge's findings, the Board held that neither segment of picketing violated the Act. The Administrative Law Judge concluded that the June picketing was legal primarily on the ground that a telegram, alone, could not convert a previously integrated job into a job separated by reserve gates and that, therefore, the Union could, pursuant to Sailors Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547 (1950), validly picket anywhere on the site. The Board agreed with the judge's conclusion, but disagreed with his reasoning. Arguing that a telegram would be sufficient to establish a valid reserve gate situation if the gates themselves were legitimately maintained, the Board held that the delivery of materials for Luckie's use through the Linbeck gate violated the integrity of the gates and, thereby, made permissible the picketing on Anderson Lane.

Regarding the July 25-August 2 picketing, the judge rejected Linbeck's contention that its ownership of the materials that Luckie was to work on insulated delivery of those materials from the Union's primary picketing of Luckie. Yet, while the Union could picket when deliveries of materials for Luckie's use were being made or when Luckie and his supervisor visited the site during the day, the judge concluded that because the Union picketed at times during the day when deliveries and visits by Luckie were not being made, this additional picketing constituted unlawful secondary activity.

The Board agreed that Linbeck and Luckie had violated their reserved time schedules by the delivery during the day of materials to be used by Luckie at night and by the visits of Luckie and his supervisor to the site during the day. It held, however, that to limit the Union's picketing to only those times when the above two incidents occurred would place the Union in an impossible situation in that it could never know in advance when deliveries or visits would be made so that it could organize a picket at only those times. Accordingly, since Luckie had misled the Union and violated its reserved time schedule, the Union was free to picket the site during the day, subject only to the guidelines articulated in Moore Dry Dock, 92 N.L.R.B. 547, 549 (1950). The Board acknowledged that the Union had violated one of Moore's requirements that the picketing clearly disclose that the dispute is only with the primary employer through the shrouding of its picket sign on four days. Yet, because the facts of the case indicated that the Union was not attempting to enmesh neutrals in its dispute with the primary employer through the covering of its sign and because a long line of Board decisions hold that Moore is not to be applied mechanically, the Board found that this act did not render the picketing impermissible secondary activity.

III. Discussion

A. Ownership of Materials Vital to Primary Employer's Operations.

Section 8(b)(4) of the National Labor Relations Act seeks to carry out the "dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes . . . (while) shielding unoffending employers and others from pressures in controversies not their own." N.L.R.B. v. Denver Building and Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). The common situs situation, in which primary and neutral employers work at the same site, has required the Board and reviewing courts to draw lines "more nice than obvious," Electrical Workers (IUE), Local 761 v. N.L.R.B. (General Electric), 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961), in determining when primary conduct ends and impermissible secondary activity begins. In Moore Dry Dock, supra, the Board articulated four guidelines that have served as the standard by which the legality of common situs picketing has been gauged. Thus, to be classified as primary activity, the picketing must meet the following conditions: (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. 92 N.L.R.B. at 549. The Supreme Court has authorized employers at a common situs to set up separate gates through which the primary employees and secondary employees may enter. General Electric, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592. By maintaining a separate gate for access to the site, the employees, suppliers, and deliverymen of neutral employers operating at a common situs, thus, can be insulated from disputes involving other employers at the site, in that pickets can operate only at the gate of the employer with whom they have a grievance. In General Electric, however, the Supreme Court qualified the reserve gate doctrine by requiring that the work...