J.F. Hoff Elec. Co. v. N.L.R.B., 79-1450
| Citation | 642 F.2d 1266 |
| Decision Date | 20 April 1981 |
| Docket Number | No. 79-1450,79-1450 |
| Parties | 105 L.R.R.M. (BNA) 2345, 206 U.S.App.D.C. 298, 89 Lab.Cas. P 12,257 J. F. HOFF ELECTRIC COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local Union 323, International Brotherhood of Electrical Workers, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
William R. Radford, Miami, Fla., for petitioner. Peter J. Hurtgen, Washington, D. C., also entered an appearance for petitioner.
Richard B. Bader, Atty., N. L. R. B., Washington, D.C., with whom Robert E. Allen, Acting Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., were on brief, for respondent.
Robert Lewis, Roger S. Kaplan, and Stephen A. Bokat, Washington, D.C., were on brief, for amicus curiae, Chamber of Commerce of the United States of America, urging the granting of the petition for review and case remand.
Thomas X. Dunn, and Laurence J. Cohen, Washington, D.C., were on brief, for amicus curiae, Building and Construction Trades Department, AFL-CIO, urging denial of the petition for review.
Joseph H. Kaplan, Miami, Fla., was on brief, for intervenor. Joseph C. Segor, Miami, Fla., also entered an appearance for intervenor.
Before WRIGHT, Chief Judge, and WILKEY and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
This case poses the problem of whether a "neutral gate," set up by a construction contractor to insulate neutral employers at a common site from the impact of union picketing, lost its protected status when supplies, intended to be used by the primary employer 1 but ordered and owned by the owner of the construction project, were delivered through the gate. The primary employer, J. F. Hoff Electric Company, filed an unfair labor practice charge with the National Labor Relations Board when the Local 323, Int'l Brotherhood of Electrical Workers, picketed the gate, charging that the Union had violated the "secondary picketing" ban of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(i) and (ii)(B). 2 The NLRB ruled that the gate had lost its neutral status, at least temporarily, and dismissed Hoff's unfair labor practice complaint. Hoff has appealed the dismissal. We affirm the Board's action.
Hoff, which employs non-union workers, was engaged to install the electrical system on a residential construction project in North Palm Beach, Florida. The project itself was located at the extreme southern end of a site which was more than 1600 feet long. There were only two gates into the project; the "reserved" north gate, at the far end of the site away from the project, which was marked for the use of Hoff's employees, suppliers, and certain other subcontractors, and the "neutral" south gate near the construction project which was used by everyone else connected with the project. During the course of construction, once or twice a week as needed by Hoff but not on any fixed schedule, Consolidated Electric Supply Company delivered electrical fixtures ordered by the project owner to a trailer on the site. Hoff employees picked up the fixtures at the trailer and installed them in the new buildings. Consolidated used the south gate for such deliveries. In November, 1977, the Union began picketing at the north gate publicizing and protesting the fact that Hoff employees were paid less than Union wages. In December, 1977, picketers saw Consolidated delivering electrical fixtures through the south gate and moved their pickets to that
gate. They also began picketing along the fence between the south gate and the southernmost boundary of the project. After four days Hoff wrote the Union assuring it that Hoff and its suppliers would henceforth use only the north gate; on its attorney's advice, the Union's pickets thereupon withdrew from the south gate. They continued to picket in front of the area of construction work, however, several hundred feet away from the south gate. 3
The Board adopted the findings of its Administrative Law Judge (ALJ), ruling that the neutrality of the south gate had been breached by delivery of Consolidated's fixtures to be installed by Hoff and thus the Union committed no violation of 8(b)(4) by picketing at that gate. The Board relied on Int'l Union of Operating Engineers, Local No. 450 (Linbeck Construction Corp.), 219 NLRB 997 (1975), enforced, 550 F.2d 311 (5th Cir. 1977), for the proposition that "any gate used to deliver materials essential to the primary employer's normal operations is subject to lawful picketing," 550 F.2d at 318. 4 The Board also unanimously found that the picketing along the southernmost end of the project site was lawful and unrelated to any secondary intent, applying the four-prong test set out in Sailors' Union of the Pacific (Moore Dry Dock Company ), 92 NLRB 547 (1950), which is used to determine the permissible scope of picketing a site shared by many employers.
1. Settled Principles: It is settled that a union may picket a primary employer with which it has a labor dispute; indeed, such picketing is expressly exempted from the prohibitions contained in section 8(b)(4). 5 The Union may not, however, picket a neutral employer in order to force that employer to cease doing business with the primary employer. Such picketing is "secondary" in that it constitutes an attempt to draw a neutral party into the dispute between the union and the primary employer, a dispute in which the secondary employer has no direct interest, and which it is powerless to resolve. On construction sites, where many subcontractors work side by side and are dependent upon each other, the attempt to reconcile these principles and to accommodate both the legitimate interest of the union in bringing economic pressure to bear on the primary employer through picketing, and the interests of neutral employers who wish not to be involved in the dispute, has proved especially difficult. In an attempt to strike a reasonable balance among the competing interests in this situation, certain rules and practices have been evolved by the Board and approved by the courts. In Moore Dry Dock, supra, 92 NLRB 547, the Board announced several criteria which, if met, raise a presumption that common situs picketing is directed against the primary and not a secondary employer. Those rules are:
(P)icketing of the premises of a secondary employer is primary if it meets the following conditions: (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the time of the Id., at 549 (footnotes omitted).
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.
It has also been decided by the Board and the courts that in order to isolate a labor dispute and to minimize disruption of the entire work force in common work situs situations, special gates may be reserved for the subcontractor who is the object of picketing. So long as the employees and suppliers of that subcontractor are limited to that gate, the union may not picket the "neutral gate" used by others not involved in the dispute. A case involving picketing at a plant owned by the primary employer, Local 761, Int'l Union of Electrical Workers v. NLRB (General Electric), 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961), established the legitimacy of a limitation of picketing to specially designated gates used by the primary object of the picketing. At the same time, the Court cautioned against any "mechanically applied" tests that disregard the fundamental criteria: the object of the picketing, if it is to be legitimate, must be limited to disruption of the primary employer's business. If, from all the circumstances it can be determined that the object of the picketing is inducement of secondary employees to strike, thus forcing their employer to cease doing business with the primary employer, the picketing is unlawful secondary activity. The Court acknowledged:
Important as is the distinction between legitimate "primary activity" and banned "secondary activity," it does not present a glaringly bright line. The objectives of any picketing include a desire to influence others from withholding from the employer their services or trade. "(I)ntended or not, sought for or not, aimed for or not, employees of neutral employers do take action sympathetic with strikers and do put pressure on their own employers." ... 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.
However difficult the drawing of lines more nice than obvious, the statute compels the task. Accordingly, the Board and the courts have attempted to devise reasonable criteria drawing heavily upon the means to which a union resorts in promoting its cause. Although "(n)o rigid rule which would make ... (a) few factors conclusive is contained in or deducible from the statute," ... "(i)n the absence of admissions by the union of an illegal intent, the nature of acts performed shows the intent."
Id. at 673-74, 81 S.Ct. at 1289 (citations and footnotes omitted). In upholding the struck employer's right to assign a gate to independent contractors not involved in the dispute in order to insulate them from the effects of picketing, the Court was...
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