Bricklayers, Local No 2

National Labor Relations Board - Board Decisions

Jun 17, 1976

224 N.L.R.B. 1021 (N.L.R.B. 1976)

BRICKLAYERS, LOCAL NO 2 1021
Bricklayers and Stone Masons Union , Local No 2,
Bricklayers, Masons and Plasterers ' International
Union of America, AFL-CIO (Gunnar I Johnson &
Son, Inc ) and Associated General Contractors of
Minnesota and Minnesota Concrete and Masonry
Contractors Association , Duluth and Iron Range
Contractors Association , Bricklayers and Stone
Masons Union No 1 of St Paul, Bricklayers, Ma-
sons and Plasterers ' International Union of Ameri-
ca, AFL-CIO, Bricklayers , Masons and Plasterers'
International Union of America , AFL-CIO, Locals
Nos 7, 8, 10, 17, 21, 12, 13, 15, 6, 11, 14, 22, 4, 3,
16, Parties to the Contract
Construction and General Laborers Local 563, Labor-
ers' International Union of North America, AFL-
CIO and Associated General Contractors of Minne-
sota and Minnesota Concrete and Masonry Con-
tractors Association , Laborers District Council of
Minnesota and North Dakota (on behalf of Locals
Nos 68, 132, 405, 492, 515, 563, 580, 1091, 1097,
1148, 1316), Parties to the Contract
International Union of Operating Engineers, Twin
City Local No 49, AFL-CIO and Associated Gen-
eral Contractors of Minnesota
Plumbers Union Local No 15, United Association of
the Plumbing and Pipefitting Industry of the United
States and Canada , AFL-CIO and Associated Gen-
eral Contractors of Minnesota and Minneapolis
Area Plumbing Contractors Association , Party to
the Contract Cases 18-CE-25-1, -2, -3, -5
labor practices On January 8, 1975, the above-
named cases went to a hearing before Administrative
Law Judge Jerry B Stone At the hearing, no oral
testimony was adduced, instead, the parties joined in
preparing a written stipulation of the chronological
history of these proceedings and also agreed to the
introduction of other documents Thereafter, all the
parties, including the General Counsel, joined in fil-
ing a motion to the Board I to transfer these proceed-
ings directly to the Board As part of the motion, the
parties agreed to waive further hearings before the
Administrative Law Judge, the making of findings of
fact and conclusions of law, and the issuance of a
Decision by him, and indicated their desire to submit
the consolidated proceeding directly to the Board for
findings of fact, conclusions of law, and Order The
parties further agreed that the entire record of this
case is composed of the proceedings before the Ad-
ministrative Law Judge on January 8, 1975 On Feb-
ruary 4, 1975, the Board issued its order granting the
parties' motion and transferring the case to the
Board Thereafter, the General Counsel, Charging
Party, and Respondents filed briefs to the Board, and
Charging Party and Respondents filed reply briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
Upon the entire record in this case, including the
parties' briefs, the Board makes the following find-
ings
I THE BUSINESS OF THE ASSOCIATION
June 17, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
This proceeding is brought under Section 10(b) of
the National Labor Relations Act, as amended, pur-
suant to charges filed by Associated General Con-
tractors of Minnesota (hereinafter AGC) on June 19,
1974, against the Respondents named above in Cases
18-CE-25-1, -2 and -3, and on July 19, 1974,
against the Respondent named in Case 18-CE-25-5
On November 15, 1974, the Regional Director for
Region 18 issued an order consolidating cases, com-
plaint, and notice of hearing The complaint alleges
that Respondents have violated Section 8(e) of the
Act On November 27, 1974, the Respondents filed a
joint and several answer to the complaint wherein
they generally denied having committed any unfair
AGC is an association of employers in the con-
struction industry who are engaged in the State of
Minnesota and other States in various kinds of con-
struction work One of the purposes of AGC is to
represent its members in collective bargaining Each
year individual employer-members of AGC located
within the State of Minnesota perform construction
work valued in excess of $50,000 outside the State of
Minnesota Each year individual employer-members
of AGC purchase goods, articles, and materials val-
ued in excess of $50,000 which are shipped to and
received by the employer-members of AGC within
the State of Minnesota directly from business entities
located outside the State
It is not disputed, and we find, that AGC is an
employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
1 This motion was received by the Board on January 23 1975
224 NLRB No 132
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE LABOR ORGANIZATIONS INVOLVED
It is not disputed, and we find, that Respondents
are labor organizations within the meaning of Sec-
tion 2(5) of the Act
III ALLEGED UNFAIR LABOR PRACTICES
A Facts 2
During the summer of 1973, the Elk River, Minne-
sota, School District contracted with Gunnar I John-
son & Son, Inc (hereinafter Johnson) as the general
contractor to construct an elementary school The
School District contracted with Gorham's Construc-
tion Company, Inc (hereinafter Gorham's) to be the
prime mechanical contractor on the project, and with
Design Electric, Inc (hereinafter Design) to be the
prime electrical contractor Johnson employs mem-
bers of the Laborers, Bricklayers, and Operating En-
gineers and Gorham employs members of the
Plumbers, all of which labor organizations are affili-
ates of the AFL-CIO Design employs members of
the Christian Labor Association, Local No 84, an
independent organization not affiliated with the
AFL-CIO
Work began at the construction site in August
1973 On October 24, about 7 30 in the morning, the
International Brotherhood of Electrical Workers, Lo-
cal No 110, an affiliate of the AFL-CIO, caused a
sign to be posted at the construction site which read
as follows
Notice to the Public-Electrical Work Being
Performed on This Job is at Substandard Wages
and Benefits by Design Electric-This Notice is
for Information of the Public and is not Intend-
ed to Cause any Person to Refuse to Pick Up or
Deliver or to Perform any Service-IBEW L U
#110
Employees of Johnson and Gorham, appearing for
work at their usual starting time at 8 am, left the
jobsite upon seeing this sign and refused to perform
any work thereon
Charging Party Associated General Contractors
represents Minnesota contractors in the construction
industry, including Johnson, in contract negotiations
with construction trades unions After Local 110's
sign was posted at the construction site, AGC recom-
mended to Johnson that it establish reserved gates to
isolate the dispute Pursuant to this advice, Johnson
2 The following statement of facts is based upon a document entitled
Stipulation which was introduced at the hearing as Joint Exh I and upon
other documents which were put into evidence by agreement of the parties
including the arbitrators decision and award
posted signs at the east and west ends of the con-
struction site, designating the east side gate as re-
served for Johnson and Gorham (neutral employers)
employees and suppliers, and designating the west
side gate, which was some 450-500 feet away, as a
reserved gate for employees and suppliers of Design
(the primary employer) Thereafter, Local 110 con-
tinued its picketing at the west side gate only How-
ever, except for a short time on October 3 the neu-
tral employees continued to refuse to enter the east
gate until March 29, 1974, the day after an injunction
was issued against the continuing work stoppage
On March 1, 1974,4 Associated General Contrac-
tors, Johnson, and Gorham jointly filed a complaint
in Federal district court against the four Respon-
dents herein, seeking a temporary restraining order
against the members of Respondents from continu-
ing to honor the Local 110 area standards banner
and refusing to work on the project, the complaint
also sought an order to require the Respondents to
arbitrate the dispute pursuant to the grievance-arbi-
tration provisions of their respective collective-bar-
gaining agreements On March 28, the court granted
the temporary restraining order, directed the parties
to arbitrate the proceedings, and required the Re-
spondents to post notices at the work project indicat-
ing that the Respondents did not condone the work
stoppage and that the agreements require, and that
the Respondents were requesting, that all their mem-
bers return to work The Respondents complied with
the district court's order by posting the approved no-
tices, and work resumed on the project the next day,
March 29 An appeal of that decision is pending be-
fore the Eighth Circuit Court of Appeals
Meanwhile, in compliance with the district court's
order, on April 16, 17, and 18 the aforementioned
complaining parties and Respondents proceeded to
arbitrate their dispute before neutral arbitrator
Thomas Gallagher The arbitrator was asked to inter-
pret certain clauses in the parties' collective-bargain-
ing agreements, which in the case of Bricklayers, La-
borers, and Operating Engineers essentially read as
follows
PICKETS, BANNERS AND STRIKES The Employer
may not request or instruct any Employee ex-
3 A few days before October 31 1973 Johnson s superintendent asked the
foreman of the bricklaying crew to request the employees to return to work
on October 31 The foreman did so and in response to his request five
employees came to work on that date They worked until lunch hour when
several business representatives of AFL-CIO unions arrived at the jobsite
and had discussions with the job superintendent the workers on the job
and by telephone the president of Johnson The job superintendent then
told the workers that the Job was being closed down Thereafter no work
was performed on the construction project until March 29 1974 the day
after a Federal district court issued an injunction against the continuing
work stoppage as set forth hereinafter
4 Hereinafter all dates refer to 1974 unless otherwise indicated
BRICKLAYERS LOCAL NO 2
cept Watchmen or Supervisory personnel to go
through a picket line except to protect life or
property The Unions agree that there shall be
no cessation of work or any recognition of pick-
et lines of any union without first giving prior
notice to the Employer or his Association
The Plumbers clause under attack reads as follows
Refusal to pass through a lawfully permitted
picket line will not constitute a violation of the
agreement
The positions taken by the parties before the arbi-
trator were later summarized by the arbitrator as fol-
lows I
The employers asserted that the picket line
clauses of the four collective-bargaining agree-
ments were illegal "hot cargo" clauses within the
meaning of Section 8(e) of the NLRA if those
clauses were used to protect a refusal to work
caused by the presence of a secondary picket
line
The response of the unions to this argument was
that the picket line present at the Elk River
School site was a primary and not a secondary
picket line The unions also defended the use of
the several picket line clauses against the pro-
scription of Section 8(e) on the basis that the
decision not to work was one made solely by the
individual workers and that none of the unions
took any action to encourage or instigate the re-
fusal to work
Counsel for the unions speaking on behalf of
their respective locals represented by them stat-
ed that the picket line clauses were not being
interpreted by the unions to authorize, encour-
age, or permit secondary activity They argued
that the unions were not interpreting their re-
spective picket line clauses in a manner violative
of Section 8(e) 6
5 The excerpt which follows is taken from a letter dated June 28 by Arbi
trator Gallagher to all the parties to the proceeding This letter was drafted
at the request of Respondents counsel who asked the arbitrator to describe
the positions taken by the parties with respect to the 8(e) issue during the
arbitration proceeding Par 17 of the parties Stipulation specifically re
fers to this letter as setting forth the positions of the parties before the
arbitrator and indicates that the letter has been filed herewith Although
the letter was not included in the joint exhibit folder with the stipulation it
was contained in the Joint Respondents exhibit file However since the
stipulation does refer to this letter and neither AGC nor General Counsel
specifically contests anything set forth therein it is treated herein as part of
the undisputed factual record which has been stipulated to and transferred
to the Board
6 The arbitrator concluded this letter with the following sentence In
arriving at my award I passed upon the issue and determined that none of
the unions had taken the position or attempted to enforce or apply an illegal
picket line clause within the meaning of the proscription of Section 8(e) of
the Federal Act
1023
On June 5, Gallagher issued his decision and
award finding in favor of Respondents, and against
complaining parties, that the clauses were broad
enough to protect employee refusals to work on the
project' Gallagher rejected the argument of the Em-
ployers that the picket line clauses are hot cargo pro-
visions violative of Section 8(e) He reasoned that
Section 8(e) protects only against secondary activity
and, since he found that Local 110's picketing was
primary, he concluded that "the picket line clauses
may be used to protect the individual decision of
neutral employees to honor it," citing N L R B v Lo
cal 217, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO [The Carvel
Co ], 361 F 2d 160 (CA 1, 1966)
On June 6, the day following issuance of the
arbitrator's favorable award, all four Respondent
Unions posted almost identical notices to members
in the usual places notifying them of the arbitrator's
favorable ruling with respect to the protection pro-
vided by the contract clauses, and concluding with
the following
Accordingly, under our contract, you have the
right to decide whether or not to work on this
job in the presence of the Electricians Local 110
banner It is up to you to decide whether to hon-
or or not the Electricians' banner
On June 19, 1974, and July 19, 1974, Associate
General Contractors filed the instant unfair labor
practice charges against the Respondents, alleging vi-
olations of Section 8(e) On August 30, the Employ-
ers also filed a motion with the Federal district court
to vacate the arbitrator's award on the ground that
the underlying agreements violate Section 8(e) of the
Act On December 23, the Federal district court is-
sued an order denying the motion to vacate and de-
ferring to the proceedings pending before the Board
B Contentions of the Parties
General Counsel and Charging Party contend that
the contractual clauses of the Bricklayers , Laborers,
and Operating Engineers are unlawful on their face
inasmuch as each of these clauses " is broad enough
to permit employee refusals to cross not only lawful
picket lines but also secondary picket lines at the
Employer 's place of business " They further contend
that the Board has repeatedly found in the past that
similar language which is broad enough to encom-
pass secondary picket lines is violative of Section
8(e) They also contend that the arbitrator 's interpre-
7 The relevant portion of the decision and award is attached as Appendix
B
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tation and construction with respect to all of the con-
tractual clauses in issue herein (including that of the
Plumbers, which is not alleged to be unlawful on its
face) "brought them within the proscription of Sec-
tion 8(e), thus constituting a further and separate vio-
lation " As to this latter violation, they argue that the
arbitrator's decision construing the picket line claus-
es is too broad for the same reason that the three
picket line clauses alleged to be unlawful on their
face are too broad "Those three picket line clauses
were not limited to primary picket lines and thus are
too broad, the arbitrator's construction of those
clauses is not limited to situations in which the pri-
mary union could legally picket at a gate reserved for
neutral employees and is therefore too broad "
Respondents, on the other hand, contend that the
contracts in issue were all entered into substantially
before the 10(b) period and that General Counsel has
failed to show any reaffirmation of the pertinent
clauses within the 10(b) period With respect to the
alleged per se unlawfulness of the clauses in the con-
tracts of the Laborers, Bricklayers, and Operating
Engineers, Respondents contend that the Board
should evaluate the clauses in the context of the way
they were litigated in the arbitration proceeding, dur-
ing which the Respondents consistently maintained
that the clauses protected only responses to primary
activity and never attempted to have a broader inter-
pretation placed on them As to the alleged unlawful-
ness of the clauses in all of the Respondents' con-
tracts, as interpreted and applied by the arbitrator,
Respondents contend essentially that the arbitrator
interpreted all the clauses as being limited to primary
activity, that a "picket line clause properly may pro-
tect refusals to cross any picket line established at the
premises of another employer if that picket line is
primary," that the arbitrator's interpretation of the
clauses and application to the facts before him "pro-
duces only permissible secondary effects of primary
activity," and that the arbitrator's interpretation is
consistent with Board decisions which have found
employees to be engaged in protected concerted con-
duct by honoring primary picket lines by other
unions regardless of whether the refusal occurs at a
separate or reserved gate, citing Congoleum Indus
tries, Inc, 197 NLRB 534 (1972)
C Analysis and Conclusions
The record facts and parties' briefs raise the fol-
lowing issues for us to decide in this consolidated
proceeding
1 Whether the relevant portions of the contract
clauses in issue have been "enter[ed] into," as provid-
ed in Section 8(e), within the 10(b) period
2 Whether the picket line clauses in the contracts
of the Laborers, Bricklayers, and Operating Engi-
neers are per se violative of Section 8(e)
3 Whether the clauses in all four of Respondents'
contracts (i e, including that of the Plumbers) as in-
terpreted by an arbitrator are violative of Section
8(e)
On the basis of the foregoing undisputed facts and
our full consideration of the parties' contentions, we
conclude, for the reasons set forth below, that all of
the Respondents did reaffirm the contract clauses in
issue during the 10(b) period, that the contract claus-
es of the Laborers, Bricklayers, and Operating Engi-
neers are violative of Section 8(e) on their face, and
that the relevant clauses of all the Respondents' con-
tracts are violative of Section 8(e) as interpreted and
applied by the arbitrator
1 Reaffirmation within the 10(b) period
The threshold issue in this case is whether some
action or conduct has been taken by Respondents
during the 6-month limitations period provided in
Section 10(b) which constitutes an "enter[ing] into"
within the meaning of Section 8(e) of the Act, since,
as noted in the factual statement above, the contracts
themselves were all negotiated more than a year prior
to the filing of the charges in this case
General Counsel contends that all four Respon-
dents have "enter[ed] into" the contract clauses in
dispute since December 1973 (which constitutes the
outer limits of the 10(b) period in this case) by (1) the
arbitrator's decision and award, which issued on
June 5, 1974, interpreting those provisions, (2) the
position taken by Respondents from April 16-18,
1974, during the arbitration proceedings, and (3) Re-
spondents' posting of notices to members on June 6,
1974, notifying them of the arbitrator's decision and
of their right to refuse to perform services under the
contract
On the other hand, Respondents' position is that
they were compelled to go to arbitration as a result of
Charging Party's litigation, and thus the arbitrator's
decision is not the voluntary act of entering into an
agreement envisioned by Section 8(e), citing Service
and Maintenance Employees' Union, Local No 399,
AFL-CIO (Kal Efron d/b/a Superior Souvenir Book
Company), 148 NLRB 1033 (1964) Secondly, Re-
spondents argue that throughout the long litigation
of this case they have consistently maintained the
position that the clauses only protect an employee's
voluntarily made choice to respect a primary picket
line, not employee refusals to cross any secondary
picket line
BRICKLAYERS, LOCAL NO 2
We find that Respondents did "enter into" the
contract clauses in issue within the meaning of Sec-
tion 8 (e) The Board has long held that for the pur-
poses of Section 8(e) it is sufficient to show that the
respondent has reaffirmed the clause in issue within
the 10(b) period in order to bring it within the "to
enter into" language of Section 8(e) 8 Further, the
Board has repeatedly found reaffirmation of a dis-
puted clause evidenced by arbitration proceedings
wherein the parties are disputing the interpretation to
be given that clause 9 Nor does it make any differ-
ence that Respondents resisted arbitration until they
were forced to proceed to arbitration by the Federal
district court, contrary to Respondents' contention 10
For, what is important is that throughout this entire
dispute Respondents have relied on the clauses in
issue to protect the employees they represent from
discipline for refusing to cross the neutral gate re-
served for them In short, they have maintained
throughout these proceedings the continued enforce-
ability of these clauses Although Respondents claim
that they have consistently limited their interpreta-
tion of their respective clauses to primary activity
which is outside the proscriptive parameters of Sec-
tion 8(e), that position goes to the merits of the al-
leged violation and not to the question of whether
they have reaffirmed the clauses Indeed, that posi-
tion contains its own admission that Respondents
continue to reaffirm the effectiveness of the claus-
es-albeit only against primary activity
We accordingly find that Respondents have en-
tered into the disputed clauses within the 10(b) peri-
od by their continuing reaffirmance of the enforcea-
bility of those clauses protecting the employees from
discipline for refusing to cross the neutral gate as-
signed them by their respective employers
8 Los Angeles Mailers Union No 9 IT U (Hillbro Newspaper Printing
Company Division of Hearst Publishing Company Inc) 135 NLRB 1132
1136-37 (1962) enfd 311 F 2d 121 (CAD C 1962)
9International Brotherhood of Boilermakers Iron Ship Builders Black
smiths Forgers & Helpers International Brotherhood of Boilermakers Iron
Ship Builders Blacksmiths Forgers & Helpers Local 92 (Bigge Drayage Corn
pony) 197 NLRB 281 (1972) Sheet Metal Workers Union Local 216 Sheet
Metal Workers International Association AFL-CIO (Associated Pipe and
Fitting Manufacturers) 172 NLRB 35 ( 1968) and Automotive Petroleum &
Allied Industries Employees Union Local 618 affiliated with International
Brotherhood of Teamsters Chauffeurs Warehousemen & Helpers of America
(Greater St Louis Automotive Trimmers and Upholsterers Association Inc)
134 NLRB 1363 (1961)
10 Respondents reliance on the Trial Examiner s reasoning in Service &
Maintenance Employees Union Local No 399 AFL-CIO (Kai Efron d/b/a
Superior Souvenir Book Company) 148 NLRB 1033 (1964) as support for
the contrary position is misplaced The Board adopted the Trial Examiners
dismissal of the complaint in that case for other reasons entirely and specifi
cally noted that it was not adopting all the reasoning and legal conclusions
of the Trial Examiner
1025
2 Unlawfulness of certain of the clauses on their
face
As already noted, General Counsel contends that
the clauses of the Laborers, Bricklayers, and Operat-
ing Engineers are violative of Section 8(e) on their
face Respondents counter that the clauses should be
assessed in the context of the arbitration proceeding,
when there was no attempt by Respondents to inter-
pret and apply the clauses so as to protect secondary
activity
The Board has repeatedly held that to the extent
that picket line clauses are "broad enough to apply to
secondary picketing having no connection with dis-
putes concerning jobsite subcontracting, [such claus-
es are] prohibited by 8(e) " 11 It is clear here
that the clauses of the Laborers, Bricklayers, and Op-
erating Engineers are broad enough, on their face, to
apply to such conduct Further, contrary to the Re-
spondents' contention, even if we were to find, ar-
guendo, that Respondents were attempting to have
the clauses interpreted and applied in a lawful and
restricted manner before the arbitrator, it would not
change the fact that the clauses originally entered
into are overly broad on their face It is clear from
the legislative history of Section 8(e) that Congress
intended to proscribe the entering into of a hot cargo
clause as well as its subsequent enforcement," except
to the extent that the construction industry proviso to
that section exempts the entering into of agreements
"relating to the contracting or subcontracting of
work to be done at the site of the construction"
Since the clauses of the Laborers, Bricklayers, and
Operating Engineers clearly are not restricted to con-
tracting or subcontracting of work to be done on the
construction site, we find those clauses to be overly
broad and Respondents' entering into those clauses
by their reaffirmance of them was violative of Sec-
tion 8(e) 13
li Hodcarriers and Construction Laborers Union Local 300 International
Hodcarriers Building and Common Laborers Union of America AFL-CIO
(Jones & Jones Inc) 154 NLRB 1744 1745 fn 7 (1965 ) see also Brother
hood of Painters Decorators and Paperhangers of America Local Union No
823 AFL-CIO (Independent Painting Contractors of New Mexico) 161
NLRB 620 629 fn 15 (1966) and accompanying text
12 Drivers Salesmen Warehousemen Milk Processors Cannery Dairy Em
ployees and Helpers Local Union No 695 International Brotherhood of Team
sters Chauffeurs Warehousemen and Helpers of America et a! (John B
Threlfall d/b/a Threlfall Construction Company) 152 NLRB 577 (1965)
enfd 361 F 2d 547 (C A D C 1966)
i3 See Local 294 International Brotherhood of Teamsters Chauffeurs
Warehousemen & Helpers of America (Clemence D Stanton d/b/a Rexford
Sand and Gravel Co) 195 NLRB 378 381 (1972) and Local 445 Interns
tional Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of
America (Edward L Nezelek Inc) 194 NLRB 579 585 (1971) where the
Board found similar clauses to be overly broad and violative of Sec 8(e)
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 Unlawfulness of the clauses as interpreted and
applied by arbitrator
The final issue before us is the complaint' s allega-
tion that the clauses of all four Respondent Unions
were violative of Section 8(e) as interpreted by the
arbitrator
General Counsel's principal argument is that the
arbitrator's decision has the effect of construing the
intent of the contracting parties as embodied in the
picket line clauses Consequently, by construing the
clauses as permitting the employees to refuse to pass
through a neutral reserved gate, the arbitrator has
given those clauses the same effect as permitting the
employees to respect a secondary picket line sta-
tioned at that gate General Counsel maintains that
by such an interpretation the clauses are clearly vio-
lative of Section 8(e) Respondents, on the other
hand, essentially argue that the Board and courts
have long held that Section 8(e) is only directed at
secondary conduct, that since the Local 110 banner
here was admittedly primary the arbitrator's decision
interpreting the clauses as protecting the rights of
employees to respond individually and voluntarily to
a primary picket line does not fall within the pros-
criptive ambit of Section 8(e), and that any second-
ary effects are only incidental to the primary activity
There are really two sub-issues which must be con-
fronted in determining whether Respondents' claus-
es, as interpreted by the arbitrator, violate Section
8(e) of the Act (1) are the clauses, as interpreted,
"hot cargo" clauses proscribed by Section 8(e), and
(2) if so, are they nonetheless exempt under the con-
struction industry proviso to that section
With respect to the first question, we find the
clauses of all four Respondent Unions, as interpreted
and applied by the arbitrator, to be "hot cargo"
clauses within the proscription of Section 8(e) In
Muskegon Bricklayers Union #5,14 the Board found a
similar clause to be a "hot cargo" clause covered by
Section 8(e) The Board's reasoning in its decision in
that case is equally applicable here 15
The precise limit of the disputed clause is not
clear But it does manifestly extend beyond pro-
tection of the work and work standards of em-
ployees represented by Respondent By the
terms of the agreement, the Employer is placed
on notice that he will be faced with a strike by
his own employees if he accepts a contract for
the performance of work at a jobsite where any
14 Muskegon Bricklayers Union #5 Bricklayers Masons and Plasterers In
ternational Union of America (AFL-CIO) (Greater Muskegon General Con
tractors Association 152 NLRB 360 (1965) enfd 378 F 2d 859 (C A 6
1967)
15 Ibid at 363-364
other contractor not employing craftsmen cus-
tomarily represented by Respondent, and not
having any contractual relationship with the
contracting employer, pays less than the union
wages and benefits prescribed by other unions
An employer' s agreement with a labor organiza-
tion permitting employees to refuse to work in
the event the employer does business with an-
other employer considered objectionable by the
labor organization is in practical effect the
equivalent of an agreement by the employer not
to do business with other employers within the
meaning of Section 8(e)
Nor do we find any merit in Respondents' some-
what novel argument that the arbitrator's interpreta-
tion and application of the clause was such as merely
to cover individual employee responses to primary
activity on the jobsite By interpreting the clause to
protect individual employee refusals to cross the neu-
tral gate, the arbitrator was giving the clauses the
same unlawful breadth found objectionable by the
Board in the above excerpt For, it is well established
by now that properly established reserved gates for
neutral employers, their employees, and their sup-
pliers on a construction site functionally serve the
purpose of isolating the dispute to the primary em-
ployer Respondents therefore admit that, had a
picket line been established in front of the neutral
gate which the employees refused to cross, it would
have been a secondary picket line and the picket line
clauses in their contracts could not be used to protect
refusals to cross such a secondary picket line How-
ever, they would have us do by indirection what they
can obtain directly-that is, achieve contractual pro-
tection for the employees when refusing to enter the
premises of a neutral employer because another em-
ployer is involved in labor problems on the same job-
site
Contrary to what Respondents suggest, the em-
ployees' response in this case does not comport with
what has been traditionally deemed to be primary
activity Thus, the Board and courts have held that
the scope of Section 8(b)(4) and Section 8(e) does not
go so far as to prohibit such traditional primary ac-
tivity as employees' refusal to cross primary picket
lines established at the premises of their own employ-
er or primary picket lines established at the premises
of another employer,16 but it has never been held to
16 See Truck Drivers & Helpers Local Union No 728 International Brother
hood of Teamsters and Southern Conference of Teamsters affiliated with the
International Brotherhood of Teamsters Chauffeurs Warehousemen & Helpers
of America (Brown Transport Corp) 140 NLRB 1436 (1965) enfd in part
334 F 2d 539 (C A D C 1964) Truck Drivers Union Local No 413 Interna
tional Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of
America et al (The Patton Warehouse Inc) 140 NLRB 1474 (1963) enfd in
part 334 F 2d 539 (C A D C 1964) Drivers Salesmen Warehousemen etc
BRICKLAYERS LOCAL NO 2 1027
be primary activity when employees refuse to work
for their employer who is a neutral in the dispute
because picketing of another employer is taking
place nearby on the common situs The only way
that the employees' activity here could be deemed a
legitimate response to primary activity would be to
hold that the construction site is of such an integrat-
ed nature that a primary dispute against one employ-
er on the site makes the entire project a primary situs
However, that is contrary to the long-established
principles of Denver Building and Construction Trades
Council 17 and Markwell and Hartz 18 which have
been and continue to be the law of the land
With respect to sub-issue (2), we find the Respon-
dents' clauses, as interpreted by the arbitrator to pro-
tect individual employee refusals to cross a neutral
gate, are not exempt under the construction industry
proviso to Section 8(e) Under that proviso, the
Board and courts have held that although the parties
can agree to enter into a hot cargo provision and a
union can use economic pressure to obtain such a
provision under Section 8(e), it cannot use economic
means to enforce it 19 The Board found in Muskegon
Bricklayers, supra, that a clause similar to those in
issue here sanctioned "private economic action by
the employees in the event the employer breached its
no subcontracting area standards agreement" and
that such a self-help provision has the same effect as
a union's inducing employees to strike to enforce
such a "hot cargo" clause Thus, the Board reasoned,
at 152 NLRB at 365-366
The first proviso to Section 8(e) exempts from
its coverage "an agreement between a labor or-
ganization and an employer in the construction
industry relating to the contracting or subcon-
tracting of work to be done at the site of the
construction " Although Congress thus
made lawful certain onsite "hot cargo" construc-
tion contracts, it also made clear an intention
that such contracts could be enforced only by a
lawsuit and not by strikes or other self-help eco-
nomic action proscribed by Section 8(b)(4)(B)
Here the proposed clause not only contains an
implied agreement not to do business at con-
struction sites where union wage rates are not
being paid, but at the same time sanctions pri-
vate, economic action by the employees in the
event the employer breaches the agreement This
Local 695 IBT (Threlfall Construction Co) 152 NLRB 577 (1965) enfd 361
F 2d 547 (C A D C 1966)
17 N L R B v Denver Building and Construction Trades Council [Gould &
Preisner] 341 U S 675 (1951)
18 Markwell and Hartz Inc v N L R B 387 F 2d 79 (C A 5 1967) cert
denied 391 U S 914 (1968)
19 Orange Belt District Council of Painters No 48 AFL-CIO [Calhoun
Drywall Co ] v NLRB 328 F 2d 534 (C A D C 1964)
proposal looks not to the courts for enforce-
ment, but to strikes If the proffered clause were
valid, and the employer were to breach the
agreement, the employees then would be lawful-
ly entitled under the agreement to walk off the
job If the employer thereupon sought to disci-
pline them, it would follow that the employees
could sue to enjoin such disciplinary action on
the basis of the contract, assuming always that
the union takes no further action to induce the
employees to strike Thus, by holding the instant
clause valid, the courts could be used to protect
the very self-help action in support of a con-
struction site "hot cargo" clause that Congress
clearly intended to prohibit We can see no dif-
ference in practical effect in terms of prohibited
self-help between a situation where a union in-
duces employees to strike after employer viola-
tions of a lawful "hot cargo" clause in order to
remedy such breach, clearly unlawful action,
and a situation where, in order to prevent such a
breach, the union tells the employees that if the
employer should violate the "hot cargo" clause
in the future the employees may cease work with
impunity The latter is the effect of Re-
spondent's proposed "hot cargo" clause Ac-
cordingly, we hold that where, as in this case, a
limitation upon contracting at a construction
site is intertwined with a provision permitting
such self-help as striking or otherwise refusing to
perform services, e g, by permitting employees
to refrain from working without suffering disci-
plinary action, in the event of a breach of the
"hot cargo" clause, the clause exceeds the pre-
scribed bounds of the first proviso to Section
8(e) and is therefore unlawful
Since the Respondents' clauses in issue here are
similarly intertwined with self-help provisions per-
mitting employees to refuse to perform services for
their employer and remain free from disciplinary
sanctions,20 we conclude that they are outside the
construction industry exemption and are violative of
Section 8(e) 21
20 Our dissenting colleague argues that the picket line clauses in the bar
gaining agreements of Respondents Laborers Bricklayers and Operating
Engineers do not constitute self help provisions because they impose a re
striction on the Employers rather than the employees and thus do not
contemplate enforcement by strike action sanctioned by these Unions We
find the suggested distinction to be meaningless Whether the clauses state
that the employees may refuse to cross any picket line or as here the
Employers may not request them to do so the import and result is the same
employees cannot be disciplined for honoring secondary picket lines
2 Congoleum Industries Inc 197 NLRB 534 (1972) cited by Respon
dents for the principle that employee refusals to cross a picket line in front
of a reserved gate is protected concerted activity is readily distinguishable
In that case the Board specifically noted that the employees refusal had not
been alleged or litigated as violative of Sec 8(b)(4) or 8 (e) and that the only
Continued
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1 Associated General Contractors of Minnesota
and its employer-members involved herein are en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act
2 All four Respondent Unions named in the cap-
tion of this Decision and Order are labor organiza-
tions within the meaning of Section 2(5) of the Act
3 By maintaining, giving effect to, and enforcing
the picket line clauses in their respective contracts,
which on their face protect employees from disci-
pline for refusing to cross secondary picket lines, Re-
spondents Laborers, Bricklayers, and Operating En-
gineers have entered into agreements in violation of
Section 8(e) of the Act
4 By maintaining, giving effect to, and enforcing
the picket line clauses in their respective contracts,
which were interpreted by an arbitrator to protect
employees from discipline for refusing to pass
through a neutral reserved gate because a primary
picket line was stationed elsewhere on the common
work situs, Respondents Laborers, Bricklayers, Oper-
ating Engineers, and Plumbers have entered into
agreements in violation of Section 8(e) of the Act
5 The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act
IV THE REMEDY
Having found that the Respondents have engaged
in certain unfair labor practices, we shall order that
they cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of
the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondents
Bricklayers and Stone Masons Union, Local No 2,
Bricklayers, Masons and Plasterers' International
Union of America, AFL-CIO, Construction and
General Laborers Local 563, Laborers' International
Union of North America, AFL-CIO, International
Union of Operating Engineers, Twin City Local No
49, AFL-CIO, and Plumbers Union Local No 15,
United Association of the Plumbing and Pipefittmg
Industry of the United States and Canada, AFL-
issue before them was whether Section 8(a)(3) prohibits discharges of em
ployees for withholding their services because of picketing by a union in
which they were not members at their place of employment
CIO, Minneapolis and St Paul, Minnesota, their of-
ficers, agents, and representatives, shall
1 Cease and desist from entering into, enforcing,
or giving effect to the picket line clauses of their re-
spective contracts, which were interpreted by an ar-
bitrator to permit employees to refuse to pass
through a neutral gate under circumstances where
there is a primary picket line stationed elsewhere on
the jobsite, or any other contract or agreement, ex-
press or implied, whereby employers represented by
Associated General Contractors of Minnesota agree
to cease and refrain from handling, using, selling,
transporting, or otherwise dealing in any of the prod-
ucts of any other employer, or from doing business
with any other person in violation of Section 8(e) of
the Act, or agree that employees will not be required
to, or will not be disciplined for failing to, perform
services for another person, in violation of Section
8(e) of the Act
2 Take the following affirmative action which the
Board finds will effectuate the policies of the Act
(a) Post at their business offices at Minneapolis
and St Paul, Minnesota, copies of the attached no-
tice marked "Appendix " 22 Copies of said notice, on
forms provided by the Regional Director for Region
18, after being duly signed by representatives of the
Respondent Unions, shall be posted by the Unions
immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to
members are customarily posted Reasonable steps
shall be taken by the Unions to insure that said no-
tices are not altered, defaced, or covered by any
other material
(b) Sign and mail sufficient copies of said notice
to the Regional Director for Region 18 for forward-
ing to Gunnar I Johnson & Son, Inc , Gorham's
Construction Company, Inc , and Design Electric,
Inc, for their information and, if they are willing, for
posting by them at all locations where notices to their
employees are customarily posted
(c) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order,
what steps Respondents have taken to comply here-
with
MEMBER FANNING, dissenting
Contrary to my colleagues, I would dismiss the
complaint
I do not believe that the picket line clauses in the
operative collective-bargaining agreements of Re-
22 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading Posted by Order
of the National Labor Relations Board shall read Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
BRICKLAYERS, LOCAL NO 2 1029
spondents Laborers, Bricklayers, and Operating En-
gineers are prohibited self-help provisions authoriz-
ing unlawful secondary strike action by employees
within the meaning of the Board's Greater Muskegon
General Contractors decision as enforced by the
Court of Appeals for the Sixth Circuit 23
As explained in the General Counsel's brief, the
complaint in this case alleged the following language
appearing in each of the picket line clauses to be
unlawful
The Employers may not request any employee
except Watchmen or Supervisory personnel to
go through a picket line except to protect life or
property
As noted by the General Counsel, "[a]bstracted to
their essential elements the clauses read `The Em-
ployers may not request any employee to go
through a picket line ' " As so abstracted, the
essential feature of the clauses is the imposition of a
restriction upon the Employer, i e, the Employer
may not request, instruct, or require employees to go
through a picket line It is therefore not a self-help
provision Assuming for the purposes of argument 24
that the restriction applies to requests to pass through
an unlawful secondary picket line established by an-
other union, it is nevertheless protected by the sec-
ond proviso to Section 8(e) As the clauses restrict
employer action, they are amenable to judicial en-
forcement, and hence do not contemplate enforce-
ment by strike action sanctioned in advance 25 They
are, therefore, not unlawful on their face
The foregoing also necessarily is dispositive of the
complaint allegation that these clauses as construed
by Arbitrator Gallagher are unlawful Even accept-
ing my colleagues' apparent conclusion that Arbitra-
tor Gallagher's construction of the clauses makes
23 N L R B v Muskegon Bricklayers Union #5 Bricklayers Masons and
Plasterers International Union of America (AFL-CIO) [Greater Muskegon
General Contractors Association] 378 F 2d 859 (C A 6 1967) enfg 152
NLRB 360 (1965)
24 These clauses were construed oy Arbitrator Thomas Gallagher as ap
plying to primary picket lines He found that picketing at a reserved gate on
the project was lawful primary picketing and that the employees represented
by the Respondents who were required to enter the project through another
gate could each decide for himself whether or not the picketing extended to
his gate though the gate was not actually picketed My colleagues reject his
reasoning and conclude that so construed the clauses applied to unlawful
secondary picket lines as well as primary picket lines I need not reach that
issue here but I have elsewhere noted my disagreement with my colleagues
views that the principles of Local 761 International Union of Electrical Ra
dio and Machine Workers AFL-CIO [General Electric Company] v
N L R B 366 U S 667 (1961) and United Steelworkers of America AFL-
CIO [Carrier Corporation] v N L R B 376 U S 492 (1964) do not apply to
the construction industry See Building and Construction Trades Council of
New Orleans AFL-CIO (Markwell and Hartz Inc) 155 NLRB 319 (1965)
25 N L R B v Muskegon Bricklayers Union #5 supra at 864 It is undis
puted that the employees Unions and Employers involved herein are en
gaged in the building and construction industry and that the collective
bargaining agreements and clauses in question apply to onsite work
them applicable to secondary picket lines, the fact
remains that the proviso to Section 8(e) has been in-
terpreted by the Supreme Court as
a measure designed to allow agreements
pertaining to certain secondary activities on the
construction site because of the close commu-
nity of interests there, but to ban secondary ob-
jective agreements concerning nonjobsite work,
in which respect the construction industry is no
different from any other [National Woodwork
Manufacturers Association v N L R B, 386 U S
612, 638-639 (1967) ]
And, as the Court has observed more recently in
Connell Construction Co, Inc v Plumbers & Steam
fitters Local Union No 100, United Association of
Journeymen & Apprentices of the Plumbing & Pipefit
ting Industry of the United States and Canada, AFL-
CIO, 421 U S 616, 630 (1975)
Other courts have suggested that it serves an
even narrower function
[T]he purpose of the section 8(e) proviso was
to alleviate the frictions that may arise when
union men work continuously alongside non-
union men on the same construction site
Even under this narrower view, unions in the build-
ing and construction industry have a legitimate inter-
est in negotiating agreements with employers provid-
ing that the employees they represent will not be
required to work continuously with nonunion em-
ployees at that project 26 Though they may not en-
force such agreements by means proscribed by Sec-
tion 8(b)(4)(B), they may, as the Respondents did
here, have such agreements enforced in arbitration
and court proceedings
I would also dismiss the complaint against Re-
spondent Plumbers
The Plumbers clause provides that a "refusal to
pass through a lawfully permitted picket line will not
constitute a violation of the Agreement " The clause,
rather than placing a restriction on the Employer's
right to request or instruct employees to work or pass
through a picket line, gives the employees the right to
refuse to pass through the picket line without this
action being deemed a violation of the agreement As
construed by the arbitrator, the clause gives the em-
ployees the right to decide that the picketing, though
confined to the Design Electric gate, did in fact ex-
tend to the other gate through which they had to pass
to go to work As thus construed, the clause, in my
colleagues' view, authorizes a refusal to pass through
a secondary picket line, a refusal which is not pro-
tected by the second proviso to Section 8(e) because
26 Drivers Salesmen Warehousemen etc Local 695 IBT [Threlfall Con
struction Co ] v N L R B 361 F 2d 547 (C A D C 1966)
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the refusal to pass through is itself tantamount to a
union-induced strike, albeit, a strike sanctioned in
advance
That is, of course, the reasoning of the Board and
the court of appeals in the Greater Muskegon General
Contractors decisions In my dissent in that case, I
noted my disagreement with such reasoning With
due respect for the views of my colleagues and the
court of appeals, I remain of the opinion that there is
a significant practical and legal difference between
such independent self-help and union-induced self-
help The clause recognizes the employee's right to
refrain from going to work, it does not require him to
refrain nor direct him to refrain It may be unlikely
as to one employee that he will go to work unless
instructed to do so by his union It may be unlikely
as to another that he will refuse to go to work unless
induced to such action by his union The fact re-
mains that there is no allegation that Respondent
Plumbers unlawfully induced its members to refrain
from going to work Even if there were such allega-
tion and evidence to support it, all that would be
made out would be the violation of Section
8(b)(4)(B) relative to the enforcement of the clause,
the clause itself would not become invalid
The difficulty with my colleagues' argument is, as
noted by Judge Aldrich for the First Circuit in
N L R B v Local 217, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting
Industry of the US and Canada, AFL-CIO [Carvel
Company],
that section 8(b)(4)(B) does not prohibit all
forms of economic self-help This section makes
it an unfair labor practice only "for a labor orga-
nization or its agents to engage in, or to induce or
encourage any [employees] to engage in a
strike or a refusal [to work] A requisite to
its application is that "employees must be in-
duced " Sand Door, supra 357 U S at 98
We think it implicit in the Court's opinion, see
particularly pages 98-99 that a totally self-
generated cessation of work by Carvel's employ-
ees would not be proscribed [361 F 2d 161, 163
(1966), denying enforcement in pertinent part of
152 NLRB 1672 (1965) ]
I have had occasion to note before,27 that the Union,
once it has secured the employees' right to refuse to
cross a picket line, will feel more free to induce its
members to exercise their contractual right But such
inducement is neither sanctioned by the contract nor,
by virtue of the right secured to employees, exempted
from the provisions of Section 8(b)(4)(B) Therefore,
the clause cannot be said to sanction such prohibited
conduct, nor does its existence constitute prima facie
evidence of prohibited inducement of employees to
exercise the right secured by the clause "If the
[Plumbers] could not bargain for a clause permitting
independent employee action not prohibited by sec-
tion 8(b)(4), such action would be a violation of the
collective bargaining agreement, leaving the employ-
ees unprotected, and their right to take such actions
largely illusory " N L R B v Local 217, Plumbers,
361 F 2d at 164, fn 7
27
Greater Muskegon General Contractors supra
APPENDIX A
NOTICE TO MEMBERS AND EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enter into, give effect to, or en-
force or threaten to enforce the picket line claus-
es of our respective contracts, which were inter-
preted by an arbitrator to permit employees to
refuse to pass through a neutral gate under cir-
cumstances where there is a primary picket line
stationed elsewhere on the jobsite, or any other
contract or agreement, express or implied,
whereby employers represented by Associated
General Contractors of Minnesota agree to
cease and refrain from handling, using, selling,
transporting, or otherwise dealing in any of the
products of any other employer, or from doing
business with any other person in violation of
Section 8(e) of the Act, or agrees that employees
will not be required to, or will not be disciplined
for failing to, perform services for another per-
son, in violation of Section 8(e) of the Act
Inasmuch as the Plumbers clause does not grant a
contractual right to Respondent Plumbers to induce
its members not to cross a picket line, secondary or
otherwise, but merely provides that their refusal to
do so does not constitute a violation of the collective-
bargaining agreement, it does not, contrary to my
colleagues, recognize or give the Plumbers a right to
engage in such actions Of course, it may well be, as
BRICKLAYERS AND STONE MASONS UNION,
LOCAL No 2, BRICKLAYERS, MASONS AND
PLASTERERS' INTERNATIONAL UNION OF
AMERICA, AFL-CIO
CONSTRUCTION AND GENERAL LABORERS
LOCAL 563, LABORERS' INTERNATIONAL
UNION OF NORTH AMERICA, AFL-CIO
BRICKLAYERS LOCAL NO 2 1031
INTERNATIONAL UNION OF OPERATING
ENGINEERS , TWIN CITY LOCAL No 49, AFL-
CIO
PLUMBERS UNION LOCAL No 15, UNITED
ASSOCIATION OF THE PLUMBING AND
PIPEFITTING INDUSTRY OF THE UNITED STATES
AND CANADA, AFL-CIO
APPENDIX B
[p 6] The chief issue to be decided in these arbitra-
tion proceedings is whether the picket line provisions
of the agreements permit these neutral employees to
refuse to work because of an area standards banner
on the job even when that banner is posted at a gate
separated from the entrance reserved for the neutral
employees
[p 8] First, the employers argue that there is no picket
line at the Johnson-Gorham gate because the picket-
ing is restricted to the separate gate of Design, if no
picket line exists at the Johnson-Gorham gate, the
picket line clause does not protest this work stop-
page This argument is based on the principles of
Moore Dry Dock Co, 92 NLRB 547 (1950), and
cases following that decision The Moore Dry Dock
criteria were developed by the NLRB and the courts
to determine whether picketing at common situs situ-
ations is limited by the picketing union so as to re-
strict its effect to the extent possible to the employer
being picketed If the picketing union uses limita-
tions as to the time and place of its picketing and
directs its banner toward the picketed employer, the
fact that such limitations have been adopted by the
picketing union will evidence to the courts that the
intent of the picketing union is primary and lawful
and not secondary and in violation of Section 8(b) of
the National Labor Relations Act In NLRB v Inter
national Hod Carriers, 285 F 2d 397 (1960), the
Eighth Circuit Court of Appeals said
"It must be remembered that these [Moore Dry
Dock] tests were set up for the purpose of de-
termining the character of the picketing, that
they are evidentiary in nature, and they are to be
employed in the absence of more direct evidence
of the intent and purposes of the labor organiza-
tion "
When separate gates are established on a job site,
the fact that the picketing union limits it picketing to
the gate established for the primary employer is a
fact from which an inference of no unlawful second-
ary intent may be drawn This inference may be
drawn even if, through no complicity by the picket-
ing union, the neutral employees honor the picket
line Congoleum Industries, Inc, 197 NLRB 534,
(1972)
Here Design sought to have Local 110 charged by
the National Labor Relations Board with a second-
ary boycott violation of the National Labor Rela-
tions Act, i e, a violation of Section 8(b)(4)(i)( ii)(B)
The Local Division of the NLRB refused so to
charge An appeal to the General Counsel of the
NLRB sustained the refusal to charge stating that
insufficient basis existed to find that Local 110 was
motivated by a secondary objective In addition, the
testimony of the business representative of Local 110
before the arbitrators established that after separate
gates had been established on the sites, Local 110
restricted its picketing to the Design gate and that its
picketing did not have the secondary objective of
forcing the neutral employers, Johnson and Gorham,
to cease doing business with the primary employer,
Design The employers here theorize that, because
Local 110 has limited its picketing in such a way as
to meet the criteria of Moore Dry Dock by picketing
only at the Design gate, of necessity the Johnson-
Gorham gate is free of picketing None of the cases
following Moore Dry DocK hold that the neutral gate
is free from picketing in deciding whether the Moore
Dry Dock criteria have been met The issue before
the courts in those cases is whether the picketing
union has evidenced by the manner of its picketing
an illegal secondary objective Moore Dry Dock
cases, therefore, do not decide that no picketing ex-
ists at the neutral gate, they decide only that a pick-
eting union is tainted or free of the secondary objec-
tive made illegal by the National Labor Relations
Act
Thus the case law cannot be used to support the
proposition that no picket line exists at the Johnson-
Gorham gate In the absence of a determination of
the issue as a matter of law the question whether a
picket line exists is one of fact The evidence present-
ed at the hearing established that the individual em-
ployees resolved that question of fact by deciding
that the picket observed was a picket that they would
honor
Professor Clyde Sommers, a professor of Labor
Law at the University of Yale Law School on tempo-
rary assignment at the University of Minnesota Law
School, testified as an expert witness that the pres-
ence of an area standards sign accompanied by a
man bearing that sign constitutes a picket or a picket
line He also testified that depending upon local
practice individual employees may or may not honor
such a picket line even though it is limited, as the
neutral arbitrator finds here, to a gate reserved for
the primary employer The weight of evidence pro-
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duced at the hearing established that the decision to
honor the Local 110 picket line was an individual
decision and not one induced by any activity of Lo-
cal 110 or of the unions which are parties to this
proceeding The neutral arbitrator finds, therefore,
that the decision to regard the Local 110 banner as a
picket line affecting them was a decision made by the
individual employees who refused to work and that
the decision was one that they might reasonably
make under these circumstances The employees
themselves have decided that a picket line exists even
at the neutral gate The neutral arbitrator holds that
the picket line clause protects that decision as one
reasonably made and not contrary to law
The employers make the additional argument that
the picket line clauses are "hot cargo" clauses, pro-
hibited by Section 8(e) of the National Labor Rela-
tions Act This question is dealt with in Truck Drivers
v NLRB, 334 F 2d 539, cert denied 379 U S 916, 85
S Ct 264 In an extensive discussion of Section 8(e)
of the LRMA and the legislative history leading to its
adoption by the Landrum-Griffin Act in 1959, the
Court determined that Section 8(e) proscribed picket
line clauses which protect the honoring of illegal or
secondary picket lines
"Since `appealing to neutral employees whose
tasks aid the employer's everyday operations' is
a `traditional primary activity,' primary
picketing retains its primary characteristics even
though it induces deliverymen to refuse to cross
the line Thus it seems clear that refusal to cross
a lawful primary picket line, absent demonstrat-
ed secondary intent, is itself primary, and as
such falls outside the Act's proscriptions against
secondary activity [citations omitted] Since Sec-
tion 8(e) is limited to secondary activity, a provi-
sion in the bargaining agreement immunizing
the exercise of this protected right against em-
ployer discipline does not violate it "
As discussed previously the action of Local 110 is
protected primary activity both as established in the
evidence presented in this hearing and by the refusal
of the National Labor Relations Board to charge a
violation of Section 8(b)(4)(i)(u)(B) Because the Lo-
cal 110 picket line is primary, the picket line clauses
may be used to protect the individual decision of
neutral employees to honor it In NLRB v Local 217,
Plumbers, 361 F 2d 160 (C A 1, 1966), the Court dis-
tinguished between the use of a picket line clause to
protect economic action induced by a labor organi-
zation and the use of a picket line clause to protect a
work stoppage which occurs spontaneously by indi-
vidual employees The former use would be a viola-
tion of Section 8(e) and the latter would not
Although the distinction made by the First Circuit
in Local 217, Plumbers is dictum, it is the only pro-
nouncement available in the courts as to the applica-
tion of Section 8(e) in circumstances where, as here,
the employees simply respond to the picket line by
ceasing to work without inducement by a labor orga-
nization The neutral arbitrator holds, therefore, that
the picket line clauses contained in these agreements
protect the voluntary decisions of individual employ-
ees not to work in the presence of the Local 110 ban-
ner and that when so used they are not violative of
Section 8(e) of the Act
AWARD
The decision of the employees of Johnson and
Gorham not to work in the presence of the Local 110
banner was protected under the picket line clauses of
their respective labor agreements and therefore did
not violate the no strike obligations created by those
agreements
The assents of the unions' arbitrators, Samuel I
Sigal and Stephen D Gordon, and the dissent of the
employers' arbitrator, A Patrick Leighton, are noted
Thomas Gallagher
Neutral Arbitrator