Carpenters Local Union No 470

National Labor Relations Board - Board Decisions

Jun 2, 1976

224 N.L.R.B. 315 (N.L.R.B. 1976)

CARPENTERS LOCAL UNION NO 470
Carpenters Local Union No 470 , United Brotherhood
of Carpenters and Joiners of America, AFL-CIO
and Mueller-Anderson, Inc. Case 19-CC-766
June 2, 1976
DECISION AND ORDER
Upon charges filed by Mueller-Anderson, Inc,
herein called Anderson, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 19, issued a complaint on April
22, 1975, against Respondent, Carpenters Local
Union No 470, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, herein called Re-
spondent or Union Copies of the charge and the
complaint and notice of hearing before an Adminis-
trative Law Judge were duly served on the Respon-
dent and Anderson In substance, the complaint al-
leges that Respondent violated Section 8(b)(4)(i) and
(ii)(B) of the National Labor Relations Act, as
amended, by picketing at a construction site entrance
gate reserved solely for subcontractors in furtherance
of a dispute with the general contractor, Anderson
The answer duly filed by Respondent substantially
admits the jurisdictional and factual allegations of
the complaint, but denies the commission of any un-
fair labor practices
On June 4, 1975, Anderson, the General Counsel,
and Respondent entered into a stipulation in which
they agreed that certain documents shall constitute
the entire record herein I and that no oral testimony
is necessary or desired by any of the parties Thus,
the parties expressly waived all intermediate proceed-
ings before an Administrative Law Judge and peti-
tioned that this case be transferred to the Board for
the purpose of making findings of fact and conclu-
sions of law and issuing an appropriate order, reserv-
ing to themselves only the right to object to the mate-
riality or relevancy of any of the stipulated facts
By Order dated June 11, 1975, the Board approved
the stipulation, transferred the proceedings to itself,
and set a date for the filing of briefs Thereafter, the
General Counsel, Anderson, and the Respondent
filed briefs, which have been duly considered by the
Board
The Board has considered the entire record herein
as stipulated by the parties, as well as the briefs filed
by the Respondent, General Counsel, and Anderson
and makes the following
1 The stipulated record consists of the charge, complaint answer and the
stipulation of facts
FINDINGS OF FACT AND CONCLUSIONS
I THE BUSINESS OF THE EMPLOYER
315
Charging Party Anderson is a general contractor
and developer of an apartment complex located in
Tacoma, Washington, the site of the present dispute
Anderson is an employer within the meaning of Sec-
tion 2(2) of the Act engaging in commerce within the
meaning of Section 2(6) and (7) of the Act
II LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Respon-
dent Carpenters Local Union No 470, United Broth-
erhood of Carpenters and Joiners of America, AFL-
CIO, is now, and at all times material herein has
been, a labor organization within the meaning of
Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A The Issue
The question presented is whether Respondent
violated Section 8(b)(4)(i) and (ii)(B) of the Act by
picketing the primary employer-general contractor
Anderson-entrance gate reserved solely for subcon-
tractors, notwithstanding the fact that the reserved
gate system had not been properly adhered to prior
to April 9, 1975
B The Stipulated Facts
As noted, Anderson is a general contractor and
developer of an apartment complex located in Taco-
ma, Washington, with whom the Respondent has a
labor dispute Anderson's jobsite involved herein at
all times had two main entrances One is located at
105th Avenue Southwest at the northeast corner of
the site (herein referred to as the 105th Avenue gate),
and the second gate is at 116th Street Southwest lo-
cated at the southeast corner of the site (herein re-
ferred to as 116th Street gate) Some date shortly be-
fore April 2, 1975, these two entrance gates were
designated by Anderson as follows
The 116th Street gate was marked with a sign
which read "This gate is reserved for the exclusive
use of the employees and suppliers of Mueller and
Anderson, Inc, H & S Construction Company,
Washington Plumbers Company, Allison Plumbing
Company and Rainier Pools, Inc The use of this
gate by anyone else is prohibited "
The 105th Avenue gate was marked with a sign
which read "This gate reserved for the exclusive use
224 NLRB No 21
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees and suppliers of Fox Electric Com-
pany, J W Brower, Inc, Bud English Drywall Com-
pany, V & R Construction Company, Gary Gehrike
Fireplace Company and Envirodyne Company Use
of this gate by any other persons is prohibited "
From April 2 until April 6, 1975, the Respondent
picketed only the 116th Street gate, with a picket sign
which read "Mueller-Anderson UNFAIR to Carpen-
ters Local 470, Sub-Standard wages and conditions "
On April 7 and 8, the Respondent picketed both the
116th Street gate and the 105th Avenue gate with a
picket sign which read "Mueller-Anderson UNFAIR
to Carpenters Local 470, Sub-Standard wages and
conditions " Prior to April 9, 1975, employees and
suppliers of Anderson had not been observing the
reserved gate system and had been using the 105th
Avenue gate
At the end of the day on April 8, 1975, Anderson
established a new entrance gate system The entrance
gates were reserved and the signs were updated to
accommodate new subcontractors working on the
jobsite at that time The Respondent was notified of
the changes by letter from Anderson delivered to the
Respondent at or about 10 a in on April 9, 1975
From April 9 through 15, the Respondent contin-
ued to picket both the 105th Avenue gate and the
116th Street gate with picket signs reading as follows
"Mueller-Anderson, Inc UNFAIR to Carpenters Lo-
cal 470, Sub-Standard wages and conditions " From
and after April 9, none of the employees of Anderson
or its suppliers or any employees or suppliers of the
other subcontractors named on the sign at the 105th
Avenue gate used the 116th Street gate to enter or
leave the jobsite for any purposes
C Contentions of the Parties
The General Counsel contends that the Union vio-
lated Section 8(b)(4)(i) and (ii)(B) of the Act by pick-
eting at a construction site entrance gate reserved
solely for subcontractors in furtherance of a dispute
with the general contractor, notwithstanding the fact
that the reserved gate system had not been properly
adhered to prior to April 9, 1975 Respondent con-
tends, to the contrary, that there is no secondary em-
ployer since the primary employer, Anderson, is the
owner of the premises and all work being carried on
is furtherance of and in connection with the interests
and operations of Anderson Respondent also con-
tends that, once the gates were mingled, the striking
employees had the right to picket any gate without
regard to the new, altered, or changed posting
D Discussion
We find Respondent's contention that once the
gates were mingled the striking employees were
thereafter free to picket both gates to be contrary to
the policies behind the prohibition of secondary boy-
cotts as stated in Section 8(b)(4)(i) and (ii)(B) of the
Act In our judgment, if a reserved gate system ini-
tially breaks down, an employer should be allowed to
establish a revised reserve gate system and still be
protected from secondary picketing so long as the
revised system is honored and the labor organization
involved is notified of the revision The stipulated
record indicates that on April 9 Anderson revised its
gate system, that Respondent was duly informed of
the revision, and that from and after April 9 the re-
vised gate system was honored The record also indi-
cates that from April 9 through 15 the Respondent
picketed both gates As a consequence of the picket-
ing individuals employed by Fox Electric, Allison,
Inc, J W Brower, Inc, V & R Construction, Geh-
rike Fireplace Company, T W Traverse Construc-
tion, and Puget Power, each of which is engaged in
commerce or an industry affecting commerce, have
not performed services for their respective employers
at the Anderson jobsite
The dissent makes two points (1) Respondent act-
ed reasonably in ignoring Anderson's letter delivered
to it about 10 am on April 9 informing it of the
change being made in the reserved gates, and (2)
Markwell and Hartz 2 was never intended to govern a
situation where, as here, a primary employer acting
as its own general contractor is engaged in the devel-
opment of an apartment complex on its own prem-
ises
We find merit in neither point As to (1), the letter
delivered to Respondent on the morning of April 9
stated
In view of the above [notification of the change
in the reserved gates], we ask that you terminate
your picketing activity at the gate located along
116th Street S W unless you picket with signs
which name one of the employers listed on the
sign posted at the 116th Street gate We realize
that it will take you some time to investigate this
situation and assure yourselves that the proper
posting has been done However, as the picket-
ing of this project has induced employees of Fox
Electric to refuse to work on the project, we
must insist that you make a decision about dis-
continuing your picketing at 116th Street
2 Building and Construction Trades Council of New Orleans, AFL-CIO
(Markwell and Hartz, Inc) 155 NLRB 319 (1965), enfd 387 F 2d 79 (C A
5, 1967 ) cert denied 391 U S 914
CARPENTERS LOCAL UNION NO 470
promptly If you contend that you still have a
right to picket at 116th Street, we demand that
you tell us why If you are still picketing at 116th
Street on Thursday April 10 with picket signs
naming any employer other than those listed on
the sign at the gate, we will be forced to con-
clude that your picketing is unlawful and unfair
labor practice charges will be filed with the
NLRB
Nothing in the stipulation of the facts, in
Respondent's answer to the complaint, or in its brief
to the Board indicates that Respondent picketed the
116th Street gate from April 9 to 15 in order to, in the
words of the dissent, "investigate the situation" and
to "satisfy itself that the gates had been reestablished
in good faith and did not constitute a denial of its
rights to engage in lawful picketing " This is a de-
fense which has been raised, sua sponte, in behalf of
Respondent by the dissent There is no evidence to
support it, nor could there be since Respondent
made no such contention Accordingly, this purport-
ed defense is not properly before the Board
As to point (2), we attach no legal significance to
the fact that the general contractor was engaged in
erecting an apartment complex on land which it
owned In General Electric,' the Supreme Court
traced the evolution of the Moore Dry Dock 4 doc-
trine It discussed and cited with approval Local
Union No 55, and Carpenters' District Council of Den-
ver (Professional and Business Men's Life Insurance
Company), 108 NLRB 363 (1954), enfd 218 F 2d 226
(C A 10), which is on all fours with the present case
In that case an insurance company, acting as general
contractor, was building a housing project on land
which it owned A neutral subcontractor was also
working at the site The respondent union was en-
gaged in a dispute with the insurance company and
picketed the entire site The Board and the court
found that the picketing was unlawful because it did
not conform with the Moore Dry Dock standards
The Supreme Court in this same case discussed and
cited with approval Retail Fruit & Vegetable Clerks
Union, Local 1017 (Retail Grocers Association of San
Francisco), 116 NLRB 856 (1956), enfd 249 F 2d 591
(C A 9, 1957), where the Board again applied the
Moore Dry Dock principles to a common situs situa-
tion even though the premises were owned by the
primary employer The Board stated (116 NLRB at
859)
3 Local 761, International Union of Electrical Radio and Machine Workers
AFL-CIO [General Electric Company] v N L R B 366 U S 667 (1961)
4 Sailors Union of the Pacific AFL (Moore Dry Dock Company) 92 NLRB
547 (1950)
317
We can see no logical reason why the legality of
such picketing should depend on title to proper-
ty The impact on neutral employees of picket-
ing which deviates from the standards outlined
above is the same whether the common premises
are owned by their own employer or by the pri-
mary employer
More recently the Board made the same point in
General Teamster, Warehouse and Dairy Employees
Union Local No 126 (Ready Mixed Concrete, Inc),
200 NLRB 253 (1972) (Members Fanning and Jen-
kins dissenting), where the Board stated (fn 5)
Although Moore Dry Dock involved picketing
at the common situs of a secondary employer,
its rule has been extended by the Board to pick-
eting at the situs of a primary employer where a
secondary or neutral employer is engaged
[Citations omitted ]
In Markwell and Hartz,' the Board affirmed, with
court approval, that the legality of picketing at a
common situs in the construction industry, including
picketing of gates reserved exclusively for neutral
contractors at the project, is to be determined under
the Moore Dry Dock standards rather than by the
special guidelines laid down by the Supreme Court in
General Electric
As pointed out above, under Moore Dry Dock
standards it is immaterial that the picketing occurred
at a construction site owned by the primary employer
or that the general contractor was engaged in erect-
ing a building on its behalf The decision in this case
therefore involves an application of Markwell and
Hartz in light of precedents relating to Moore Dry
Dock It does not involve in the words of the dissent
"a sweeping extension of the Markwell and Hartz
case "
Since Respondent's picketing on and after April 9,
1975, did not comport with Moore Dry Dock, we find
on the basis of the entire record that an object of the
picketing was to force or require secondary employ-
ers to cease doing business with Anderson and that
the picketing was therefore violative of Section
8(b)(4)(1) and (11)(B) of the Act
IV THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above have
a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and
5 Building and Corporation Trades Council of New Orleans, AFL-CIO
(Markwell and Hartz, Inc) 155 NLRB 319 (Members Fanning and Jenkins
dissenting), enfd 387 F 2d 79 (C A 5 1967), cert denied 391 US 914,
Nashville Building and Construction Trades Council (Markwell and Hartz
Inc) 164 NLRB 280 (1967), enfd 383 F 2d 562 (C A 6, 1967)
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tend to lead to industrial strife burdening and ob-
structing commerce
V THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices in violation of
Section 8(b)(4)(i) and (ii)(B) of the Act, we shall or-
der that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the pol-
icies of the Act
On the basis of the foregoing findings of fact and
on the entire record in this case, we make the follow-
ing
CONCLUSIONS OF LAW
1 Mueller-Anderson, Inc, is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act
2 Respondent is a labor organization within the
meaning of Section 2(5) of the Act
3 By picketing on and after April 9, 1975, at a
construction site entrance gate reserved solely for
subcontractors in furtherance of a dispute with
Mueller-Anderson, Respondent violated Section
8(b)(4)(1) and (ii)(B) of the Act
4 The foregoing unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) 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 Respondent,
Carpenters Local Union No 470, United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO, Tacoma, Washington, its officers, agents, and
representatives, shall
1 Cease and desist from threatening, coercing, or
restraining persons engaged in commerce or in an
industry affecting commerce, or inducing and en-
couraging employees of persons engaged in com-
merce or in an industry affecting commerce, where
an object thereof is to induce such persons or em-
ployees to cease doing business with Mueller-Ander-
son, Inc, at its j obsite located between 105th Avenue
and 116th Street in Tacoma, Washington
2 Take the following affirmative action which is
necessary to effectuate the purposes of the Act
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix " 6
6In 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
Copies of said notice, on forms provided by the Re-
gional Director for Region 19, after being duly
signed by Respondent's authorized representative,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are cus-
tomarily posted Reasonable steps shall be taken by
the Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(b) Furnish to the Regional Director for Region
19 enough signed copies of the aforesaid notice for
posting by Mueller-Anderson, Inc, if they are will-
ing, in places where notices to their employees are
customarily posted
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with
MEMBERS FANNING AND JENKINS, dissenting
Mueller-Anderson, hereinafter called Mueller, is in
the business of constructing and developing apart-
ment complexes At all times material herein Mueller
has had a labor dispute with Respondent Union The
events giving rise to this complaint occurred at a j ob-
site in Tacoma, Washington, where Mueller, acting
as its own general contractor and in part using its
own employees, was engaged in the business of con-
structing an apartment complex
As set forth in the majority's decision, Mueller es-
tablished two gates shortly before April 2, 1975, one
of which was designated for the exclusive use of spec-
ified contractors, including Mueller Another gate
was designated for the exclusive use of other contrac-
tors At first the Union picketed only the Mueller
gate, with signs stating that Mueller was unfair,
"Sub-Standard wages and conditions " On April 9,
1975, in a letter to the Union, Mueller admitted that
it had been permitting deliveries to be made to itself
through the gate reserved for other contractors In
the same letter Mueller informed the Union that it
was switching gates, the one reserved for other con-
tractors would thereafter be used exclusively by sev-
eral employers, including Mueller, the gate thereto-
fore reserved for Mueller would be used exclusively
by other contractors Mueller asked the Union to in-
form Mueller of "any apparent violations of these
reserved gates" and promised to take corrective ac-
tion immediately Mueller acknowledged "that it will
take you some time to investigate this situation and
assure yourselves that the proper posting of this proj-
ect has been done "
Apart from the general issue of the legality of a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
CARPENTERS LOCAL UNION NO 470
union's picketing at a construction site, it would
seem to us in the circumstances of this case that this
Union acted reasonably and, indeed, in the only
practical way to preserve its statutory right to picket
Mueller Accepting Mueller's original-reserve gate
plan in good faith, the Union picketed only the gate
used by Mueller After several days, apparently alert-
ed to the fact that deliveries to Mueller were being
made through the gate reserved for other contractors,
the Union lawfully picketed both gates The General
Counsel's complaint results from the Union's contin-
ued picketing of both gates after Mueller sent its let-
ter of April 9 But what could the Union reasonably
conclude on the basis of that letter in the context of
prior events? That there would be no further viola-
tions of the reserved gate restrictions? Even Mueller
indicated uncertainty on this score What of the
switching of gates? While Mueller stated that all
"employers" had been notified of the change, did it
follow automatically that all employees and all sup-
pliers had been similarly notified? On April 8 the
Union was lawfully picketing the gate at the 116th
Street entrance On the next day, according to the
majority, that picketing suddenly became unlawful
because the primary employer switched signs Muel-
ler itself took a more reasonable position In its letter
to the Union Mueller suggested that the Union might
want to take some time to investigate the situation
Obviously, the Union would want to satisfy itself
that the gates had been reestablished in good faith
and did not constitute a denial of its rights to engage
in lawful picketing The majority completely ignores
these cogent considerations
In addition to the above-unusual circumstances
which, in our opinion, warrant a dismissal of this
complaint, we are even more concerned with the
majority's sweeping extension of the Building & Con-
struction Trades Council of New Orleans [Markwell
and Hartz, Inc], 155 NLRB 319 at 324, from which
we dissented In that case the majority held
Unlike General Electric [366 U S 667] and
Carrier Corp [376 U S 492], both of which in-
volved picketing at the premises of a struck manu-
facturer, the picketing in the instant case oc-
curred at a construction project on which
M & H, the primary employer, was but one of
several employers operating on premises owned
and operated by a third party, the Jefferson Par-
ish Water Works
Thus it is clear that the Board's decision in Mark-
well and Hartz was not intended to govern a situation
where, as here, a primary employer acting as its own
general contractor is engaged in the pursuit of its
normal business, i e , the development of an apart-
319
ment complex on its own premises I Both the Board's
decision in that case and subsequent court decisions
were concerned only with the picketing by a union of
a construction site where a general contractor, nor-
mally engaged in the business of general contracting,
was acting on behalf of a third party in conjunction
with other neutral employers 8
Nothing in those decisions is authority for the
proposition that the developer of a construction proj-
ect, Mueller, is immune from the General Electric
rule permitting appeals to employees of other con-
tractors engaged in work related to Mueller's normal
business operations
So far as this record shows, Mueller is not a gener-
al contractor in the accepted meaning of that term
Mueller is in the business of constructing apartments
on its own premises It does not construct buildings
for others If Mueller's name were changed to Gener-
al Electric and that Company had employees nor-
mally engaged in constructing new buildings on its
premises, there would be little doubt that the General
Electric rule would be controlling We do not believe
a different law applies because Mueller's name is
Mueller Nor do we believe the Supreme Court
would so find As Justice Frankfurter, writing for the
Court in Local 761, International Union of Electrical,
Radio & Machine Workers, AFL-CIO [General Elec-
tric] v N L R B, 366 U S 667 (1961), stated (at 680)
With due regard to the relation between the
Board's function and the scope of judicial re-
7 Nor is Nashville Building & Construction Trades Council (Markwell &
Hartz) 164 NLRB 280 (1967), authority for a different view That case also
involved a dispute between a union and a general contractor , which, togeth-
er with subcontractors , was engaged in construction for a third party on its
premises Although the Board reiterated its Markwell & Hartz holding that
the related work test of General Electric was not applicable to the construc-
tion industry, nothing in the case required , and no reason was given to
support, an extension of the holding to cases involving picketing at the
primary employers premises
8 In enforcing the Markwell & Hartz decision, 387 F 2d 79 (C A 5, 1967),
a majority of the court actually found that the related work test of General
Electric was applicable to the construction industry Thus District Judge
Connally writing for the court, posed the question before the Court as
whether the work of subcontractors was related to the normal opera-
tions of Markwell & Hartz (as, for example, ordinary maintenance as in
General Electric), in which event the picketing is primary, or whether it is
unrelated to the normal operations (as, `of a capital improvement nature') '
387 F 2d 79, 82-83 He found that the work was unrelated on the
authority of N L R B v Denver Building and Construction Trades Council
[Gould & Preisner] 341 U S 675 (1957) Circuit Judge Rives joined in en-
forcing the Board s decision because he found Denver and General Electric
were distinguishable in that the former dealt with a common situs where two
or more employers are performing separate tasks on common premises, and
the latter dealt with picketing at the situs of the primary employer Interest-
ingly, he indicated that if the related work test were to be applied the work
of the subcontractors was related to that of the general contractor Circuit
Judge Wisdom agreed with the court that the "related work' test did apply
and would have remanded to the Board for consideration of that issue The
Nashville case was enforced by the Sixth Circuit, 383 F 2d 562 , essentially on
the grounds that the General Electric case involved a different industry, and
did not affect the authority of the cases cited by it to support the order of
enforcement
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view of its rulings, the question is whether the
Board may apply the Dry Dock criteria so as to
make unlawful picketing at a gate utilized exclu-
sively by employees of independent contractors
who work on the struck employer's premises
That is the question here, and the Court's answer was
that if the work of the subcontractors' employees was
related to the work of the struck employer, appeals to
such employees (with notification that the dispute
was solely between the union and the primary em-
ployer) were primary appeals and could not be
barred There is nothing in the decision which re-
motely suggests that in fashioning the test for de-
termining whether appeals to employees of employ-
ers working for the primary employer are primary or
not the Court was not dealing with the construction
industry
In response to the foregoing our colleagues state
that they attach no legal significance to the fact that
the primary dispute herein occurred on premises
owned by the primary employer In support, they cite
Board and Court precedents demonstrating that the
Moore Dry Dock standards have been applied to de-
termine the legality of common situs picketing with-
out regard to whether the situs of the dispute was or
was not owned by the primary employer, precedents,
we note, that include disputes both in and out of the
construction industry We have no quarrel with that,
for it is a fact which should be quite clear, but seem-
ingly has been lost sight of by our colleagues, that in
General Electric, the Supreme Court approved the
application of the Moore Dry Dock standards to such
picketing The Moore Dry Dock standards could be
utilized in such circumstances, the Court said, to bar
appeals to the employees of the neutral subcontrac-
tors' employees if (1) a separate gate were established
for such employees, (2) the work performed by such
employees was unrelated to the normal operations of
the primary employer, and (3) the work was of such a
kind that its performance would not, if done when
the plant was engaged in its regualr operations, nec-
essarily curtail those operations
If those tests are met, picketing the separate gate
may be barred, because such picketing is not then
picketing of the primary employer It does not then
constitute an appeal to employees aiding in the tasks
of the struck primary employer It then becomes
picketing of the neutral secondary employers, and
amounts to an appeal to their employees to cease
working for them in order to force them to bring
pressure on the primary employer to come to terms
with the picketing union Such picketing, in short,
fails to meet the Moore Dry Dock standards
Quite obviously, dust as application of the Moore
Dry Dock tests does not depend on ownership, appli-
cation of the related work tests does not depend on
the primary employer's ownership of the premises at
which it is engaged in its normal operations and at
which the situs of the dispute is located 9 The Su-
preme Court made the point abundantly clear in
United Steelworkers of America, AFL-CIO [Carrier
Corporation] v N L R B, 376 U S at 499
Nor may the General Electric case be put
aside for the reason that the picketed gate in the
present case was located on property owned by
New York Central Railroad and not upon prop-
erty owned by the primary employer The loca-
tion of the picketing is an important but not a
decisive factor
In this case, it is undisputed that the railroad's
operations were in furtherance of Carrier's
normal business "
So too, there is no dispute that Mueller, the primary
Employer, is engaged in his "normal operations" at
the premises in question, operations which involve
the building and construction of apartment buildings
with employees drawn from certain of the building
and construction trades So, too, it is undisputed that
Mueller has subcontracted some of the work in-
volved in the construction of those apartments to
other employers employing members of the construc-
tion trades not employed by Mueller, but whose con-
tributions are necessary to the completion of the
buildings It is, or should be, obvious, therefore, that
the work of the employees of the separate and neu-
tral subcontractors is related to the "normal opera-
tions" of Mueller and is of such a kind that its perfor-
mance would not curtail Mueller's normal
operations Indeed, as is customary on a building
and construction project, without the contributions
of the employees of the subcontractors performed on
an ordered basis, Mueller's "normal operations"
would come to a halt It is apparent, therefore, that
the General Electric related work tests have not been
met in this case and that the erection of a separate
gate for employees of the neutral subcontractors
could not bar appropriate appeals by the picketing
9 Though ownership is not decisive , it may be important and it does
weigh in this case against our colleagues conclusions It was after all the
majority in Markwell & Hartz supra, 155 NLRB at 326, which sought to
limit application of the General Electric related work tests to "strike action
taking place at the separate premises of the struck employer" It is the
majority here which is ignoring the fact that this case involves strike action
at the primary employer 's premises and is thereby extending the sweep of
the Markwell & Hartz decision More importantly , they are ignoring the fact
that Mueller is engaged in `normal operations at these premises Cf Los
Angeles Building & Construction Trades Council AFL-CIO v N L R B, 530
F 2d 1095 (C A D C, 1976)
CARPENTERS LOCAL UNION NO 470 321
union to those employees not to "contribute to the
operations the strike was endeavoring to halt "
This is so unless there is merit in our colleagues'
view that the Court's Denver Building Trades deci-
sion 10 precludes application of the General Electric
decision to this industry We have heretofore pointed
out that "in Denver, the Court held that despite the
close relationship, the several contractors on a con-
struction job were not allies or a single employer for
purposes of the boycott provisions of the Act "
(Markwell & Hartz, Inc, 155 NLRB at 335) In Gen-
eral Electric, the Court accepted the Board's identical
finding with respect to General Electric and the sub-
contractors it had engaged to perform work on its
premises Notwithstanding the separate identities,
the "non-ally" relationship, if you will, the Court
held that a separate gate could not be utilized by
General Electric to bar appeals to the employees of
the neutral subcontractors performing work related
to General Electric's normal operations
We sense on the part of our colleagues an appre-
hension that application of the "related work" test to
the building and construction "industry" will mean
that henceforth there can be no effective regulation
of picketing at construction projects so as to distin-
guish unlawful secondary picketing from lawful pri-
mary picketing We believe that apprehension is un-
founded The Moore Dry Dock tests are still available
to regulate such conduct to ensure that the picketing
union engages only in primary appeals at the site
With or without a separate gate, a union picketing at
the project may be required to clearly identify the
employer with whom it has a dispute, it cannot label
all employees on the project as unfair 11 With or with-
out a separate gate, the union may be required to
limit its picketing to the time during which the pri-
mary dispute is present at the situs, it cannot picket
when the primary employees are not, or for reasons
other than the strike or picketing would not be, work-
ing at the sites With or without a separate gate, the
10 N L R B v Denver Building and Construction Trades Council et at
[Gould & Preisner] 341 U S 675 (1961)
ti Our colleagues seemingly rely on the Supreme Court's discussion of
Local Union No 55, and Carpenters' District Council of Denver and Vicinity
(Professional and Business Men s Life Insurance Company) 108 NLRB 363
(1954) enfd 218 F 2d 226, as precluding application of the "related work"
tests to this case , because PBM, like Mueller here , was engaged in construc-
tion of builmngs on property it owned and yet the Court seemingly ap-
proved the Board's application of the Moore Dry Dock tests to find the
picketing unlawful The reliance is misplaced First, there was no separate
gate established in that case Second, the union picketed with signs declar-
ing the project unfair The Board held, with court approval, that the picket-
ing had a secondary objective because the picket signs failed to disclose that
the dispute was with PBM only There is of course no conflict between that
holding and the General Electric tests which clearly do not allow the union
picketing the primary employer to use picket signs which declare that other
employers on the premises are also unfair because they are doing business
with the primary employer
union can be required to limit its appeals to employ-
ees of neutral employers contributing to the normal
operations which the strike or picketing is endeav-
oring to halt to respect the picket line, it cannot in-
duce them to strike their own employer 12
The related work tests are the outgrowth of the
Court's construction of the proviso to Section
8(b)(4)(B) that "nothing contained in this clause (B)
shall be construed to make unlawful, where other-
wise not unlawful, any primary strike or primary
picketing " As the Court stated in Carrier Corp
We think General Electric's construction of the
proviso to § 8(b)(4)(B) is sound and we will not
disturb it The primary strike, which is protected
by the proviso, is aimed at applying economic
pressure by halting the day-to-day operations of
the struck employer But Congress not only pre-
served the right to strike, it also saved "primary
picketing" from the secondary ban Picketing
has traditionally been a major weapon to imple-
ment the goals of a strike and has characteristi-
cally been aimed at all those approaching the
situs whose mission is selling, delivering or
otherwise contributing to the operations which
the strike is endeavoring to halt [376 U S at
498-499]
There is nothing in those decisions or in the statutory
provisions they construe which suggests that the
scope of the proviso is narrower for the building and
construction industry than for other industries The
economic pressure sustained by neutral subcontrac-
tors as a consequence of separate gate picketing is
the same whether the subcontractors are performing
work related to the normal operations of a general
contractor on a construction site or to the normal
operations of a manufacturer at his premises Such
pressures are not different in kind than those sus-
tained by suppliers of the primary employer It is
only by determining the legality of such picketing by
standards generally applicable to all industries that
the congressional objective of protecting the legiti-
mate competing interests of picketing unions and
neutral employers can be served
As our colleagues persist in a view that sets the
building and construction industry apart as one in
which lawful primary activity on the part of employ-
ees and unions is curtailed, we dissent
12
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 N L R B v Internation
at Rice Milling Co Inc, [341 U S 665] ' General Electric, supra, 366 U S at
673-674 `However difficult the drawing of lines more nice than obvious,
the statute compels the task" General Electric supra at 674
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten, coerce , or restrain per-
sons engaged in an industry affecting commerce,
or induce and encourage employees of persons
engaged in commerce or in an industry affecting
commerce, where an object thereof is to induce
such persons or employees to cease doing busi-
ness with Mueller-Anderson, Inc., at its jobsite
located between 105th Avenue and 116th Street
in Tacoma, Washington.
CARPENTERS LOCAL UNION No. 470, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL-CIO