Local Union No. 501, Intern. Broth. of Elec. Workers, AFL-CIO v. N.L.R.B.

• Decision Date: 15 March 1985
• Docket Number: AFL-CI,R,P,Nos. 84-1340,84-1464,s. 84-1340
• Parties: 118 L.R.R.M. (BNA) 3103, 244 U.S.App.D.C. 179, 53 USLW 2472, 102 Lab.Cas. P 11,399 LOCAL UNION NO. 501, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 501, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,espondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 888

756 F.2d 888

118 L.R.R.M. (BNA) 3103, 244 U.S.App.D.C.

179, 53 USLW 2472,

102 Lab.Cas. P 11,399

LOCAL UNION NO. 501, INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 501, INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS, AFL-CIO, Respondent.

Nos. 84-1340, 84-1464.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 17, 1985.

Decided March 15, 1985.

Petition for Enforcement of an Order of the National Labor Relations board.

Petition for Review of an Order of the National Labor Relations Board.

Ralph P. Katz, New York City, for petitioner in No. 84-1340 and cross-respondent in No. 84-1464.

Scott Meza, Chapel Hill, N.C., Atty., National Labor Relations Board, of the Bar of the Supreme Court of North Carolina pro hac vice by special leave of the Court, with whom Elliott Moore, Deputy Associate General Counsel, National Labor Relations Board, Washington, D.C., was on the brief, for respondent in No. 84-1340 and cross-petitioner in No. 84-1464.

Before WRIGHT, WALD and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Local 501, International Brotherhood of Electrical Workers, AFL-CIO ("Local 501" or "the union") seeks review of a decision of the National Labor Relations Board ("NLRB" or "the Board") finding that the union violated the secondary boycott provisions of the National Labor Relations (Taft-Hartley) Act, 29 U.S.C. Sec. 158(b)(4)(i), (ii)(B). The Board, which cross-petitions for the enforcement of its order, concluded that the union engaged in unlawful secondary activity when it picketed the gate reserved for so-called neutral employees at a multi-employer construction site. In many circumstances, neutral gate picketing raises a presumption that the union impermissibly seeks to involve neutral employees and employers in disputes with other employers. Because we believe that the Board improperly applied its neutral gate presumption to the circumstances of this case, however, we grant the union's petition, set aside the Board's ruling and remand for further proceedings consistent with this opinion.

I.

This case concerns the legality of labor picketing conducted at a multi-employer construction site in New Canaan, Connecticut. In June of 1982, Frank Mercede & Sons, Inc. ("Mercede"), a general contractor, was engaged in the construction of a building on the campus of St. Luke's School ("St. Luke's") on North Wilton Road in New Canaan. See Brief for Petitioner at Appendix C (stipulations between the general counsel and the union) [hereinafter cited as "Stip. p"]. Mercede subcontracted parts of the construction work to various subcontractors including non-union C.W. Pond Electric Service, Inc. ("Pond") and two union firms, Berlin Steel Construction Co. ("Berlin") and Buckingham Routh Co. ("Routh"). Local 501 represents area electrical workers and, at all times relevant to this case, was engaged in a dispute with Pond over its alleged failure to pay area standard wages to its employees.

The St. Luke's campus has only two entrances. See Stip. p 8. On June 2, 1982, Mercede clearly posted each of these entrances with "reserved gate" signs in anticipation that Local 501 would picket Pond. The main entrance to the campus, Entrance No. 1, was reserved for neutrals: all employees, suppliers, visitors and members of the public other than Pond employees and suppliers. Entrance No. 2, in turn, was exclusively reserved for the employees and suppliers of the primary employer, Pond. ¹ Entrance No. 1 is located on North Wilton Road; public traffic on North Wilton is relatively heavy, averaging more than 300 vehicles each work day. See id. p 9. It is undisputed that Entrance No. 1 is the main public gateway to St. Luke's. Entrance No. 2, by contrast, is located on a cul-de-sac at the end of Soundview Lane, a public road that intersects Laurel Road approximately one mile from the main entrance located at the intersection of Laurel and North Wilton. See id. paragraphs 10-11. Entrance No. 2 is also located near the home of the St. Luke's headmaster. See id. p 12. Unlike Entrance No. 1, however, this back gate is not in any way designated as an official entrance to the campus. During the period relevant to this dispute, moreover, virtually no public vehicular traffic passed by Entrance No. 2. See id. p 10. In effect, then, Entrance No. 2 is located on a dead end alley behind and tucked around the corner from the main, public entrance to St. Luke's.

From June 3 through June 8, the union stationed pickets at Entrance No. 2, the reserved primary gate, in protest of Pond's alleged failure to pay area standard wages. See id. p 3. The picket signs stated:

NOTICE TO THE PUBLIC

THE ELECTRICIANS WORKING FOR C.W. POND, CO

Do Not Receive Wages And Working Conditions As Good as Those

Established in Contracts of Local Union No. 501

International Brotherhood of Electrical Workers

This Sign is Not Directed to Any other Employer or Employee

on This Job

AFL-CIO

See ALJ Opinion at 5. On June 9, however, the union concluded that it would not be able to reach the public at Entrance No. 2 and began picketing at Entrance No. 1, the reserved neutral gate. The union thereafter picketed continuously at Entrance No. 1 and intermittently at Entrance No. 2. See id. On several occasions between June 9 and June 16, employees of Berlin and Routh engaged in work stoppages and refused to enter the St. Luke's site--apparently as a result of Local 501's pickets. See id. at 5-6. After Berlin's employees consulted with their union representatives, they agreed to resume work for Berlin provided that no Pond employees were present at the jobsite while Berlin's employees were working. See Stip. p 2. At no time during the picketing did the union's agents harass, interfere with or even speak with any employees of Berlin or Routh. See id. Shortly after the work stoppages, however, the Board's general counsel issued an unfair labor practice complaint against the union.

The Board, agreeing with its Administrative Law Judge (ALJ), found that the union had violated sections 8(b)(4)(i) and (ii)(B) of the Act by failing to restrict its pickets to the entrance expressly reserved for Pond employees and suppliers, and instead extending the picketing to the neutral gate. See Local 501, Int'l Bhd. of Elec. Workers (C.W. Pond Elec. Serv. Inc.), 269 N.L.R.B. No. 52 (March 20, 1984) [hereinafter cited as Board Opinion ]. By picketing the reserved neutral gate, the Board concluded, Local 501 raised a presumption that it unlawfully sought to enmesh non-Pond or neutral employees in its area standards dispute with Pond. See id. at 1-2. The Board also held that the Union was not relieved of its obligation to confine its picketing to the reserved primary gate on any theory that Entrance No. 2 was improperly or unreasonably established. See id. at 2-3; ALJ Opinion at 8-10. The Board ordered the union to cease and desist from the secondary boycott violation and to post an appropriate notice of compliance. See ALJ Opinion at 12-13; Board Opinion at 3.

Local 501 now argues that, under the particular circumstances of this case, the Board's presumption that neutral gate picketing establishes a violation of section 8(b)(4) does not constitute a reasonable accommodation of the competing policies embodied in the secondary boycott provisions of the Act. We agree that the NLRB cannot infer a violation of the secondary boycott provisions from the bare fact that the union failed to confine its area standards picketing to a reserved primary gate where that gate is effectively hidden from public view. Because, however, the record does not indicate whether the union could have conveyed its grievance to the public at any reasonable location other than the neutral gate, we remand this case to the Board for a fuller inquiry into whether Local 501's overall conduct revealed an unlawful intent to enmesh neutrals in its dispute with Pond.

II.

Section 8(b)(4) of the Act provides, in relevant part, that:

It shall be an unfair labor practice for a labor organization or its agents--...

(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is--... (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person ... Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.

29 U.S.C. Sec. 158(b)(4)(i), (ii)(B) (emphasis added). Despite its sweeping terms, section 8(b)(4) does not ban all union activity that ultimately interferes with employers not directly involved in the union's primary labor dispute. Instead, the relevant part of that provision makes it unlawful for a union to pressure neutral employees or employers where "an object thereof" is to cause a person or enterprise to cease doing business with the primary employer with whom the union has a dispute. See Local 1976, United Bhd. of Carpenters v. NLRB (Sand Door & Plywood Co.), 357 U.S. 93, 98, 78 S.Ct. 1011, 1015, 2 L.Ed.2d 1186 (1957). Section 8(b)(4) is thus designed to balance the dual congressional objectives of "preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes...