April 2, 1971
NATIONAL LABOR RELATIONS BOARD, PETITIONER
GENERAL DRIVERS AND DAIRY EMPLOYEES, LOCAL NO. 563 ET AL., RESPONDENTS.
Before SWYGERT, Chief Judge, and CUMMINGS and KERNER, Circuit Judges.
Per Curiam: The National Labor Relations Board has petitioned for enforcement of three orders issued against certain Teamsters', Engineers', and Carpenters' Unions.*fn1 The orders are reported at 176 NLRB No. 51, 179 NLRB No. 109, and 179 NLRB No. 131. The issue before us is whether the Unions violated Section 8(b)(4)(B) of the National Labor Relations Act by threats and picketing at four jobsites.*fn2
The activities in question occurred in Fox Valley, Wisconsin. In that area, for many years the Fox Valley Construction Material Suppliers Association has conducted industry-wide collective bargaining on behalf of its seven employer members. After contracts between the Teamsters, Engineers, and Association members had expired, and negotiations for a new contract had collapsed, the Teamsters struck all the members of the Association on July 29, 1968. On the next day, the Engineers struck the four Association members with which it had contractual relations. Daily picketing occurred thereafter at the premises of the struck employers. Some of the picketing was joint picketing by both Unions. Despite the strike and picketing, the members of the Association continued to do business.
The Board contends that the Unions engaged in prohibited secondary boycotts at various locations. Because of the limited nature of the exceptions filed by the Unions, we need only consider whether threats and picketing at four locations where Association members were engaged in work with other employers violated Section 8(b)(4)(B). Our conclusion is that the statute was violated at each common situs and that a judgment should therefore issue enforcing the Board's orders in full.
Threats at Manhattan Project
The P.G. Miron Construction Company ("Miron") was engaged as the general contractor to construct an addition to the plant of the Manhattan Rubber Company in Neenah, Wisconsin. Miron rented two cranes with operators from Schindler Equipment Rentals, Inc. On August 10, 1968, ready-mix trucks of Courtney & Plummer, Inc. ("C & P"), a struck member of the Association, were delivering concrete to the Manhattan site, and the Schindler cranes were being used to move the concrete. The cranes were being operated by Carl Schindler, president of the Schindler company, and his employee, Eugene LeFeber. Overall supervision was being provided by Dave Voss, superintendent for Miron.
At 10:00 a.m., Teamster pickets arrived on the scene and then Engineers' Business Agent Shaw appeared. Shaw told LeFeber that he was going to try to take LeFeber's Engineers' membership card, fine him, and expel him from the Engineers. Shaw told Schindler to quit and to let LeFeber quit because they were handling material of strike-bound sub-contractor C & P. Schindler then told LeFeber to leave and asked Voss whether he could quit. Voss demurred "because the concrete pour then in progress was for a large, solid concrete slab which had to be completed before operations could cease." Schindler relayed this reason to Shaw, who told Schindler that he would have to appear before the union "court" and be fined. Shaw also told Voss that all Miron's jobs would be picketed on the following Monday. The trial examiner credited Schindler's testimony that the coercion and threatened picketing were directed against his company and Miron because of C & P's use of non-union men. The trial examiner refused to credit Shaw's testimony that he merely told Schindler and LeFeber that there were Teamster pickets at the entrance to the premises and that under Schindler Equipment's contract with Miron, Schindler and LeFeber were not required to stay on the job.
The Board concluded that Shaw's actions violated Section 8(b)(4)(B). We agree that these direct threats to Schindler, LeFeber, and Voss constituted such a violation. In our view, Schindler Equipment was an independent employer working for Miron rather than for C & P. Schindler Equipment's sole contractual relationship was with Miron. C & P neither engaged Schindler Equipment nor exerted control over its employees. The trial examiner was entitled to credit Schindler's testimony that Shaw's threats were directed against his company and Miron rather than against C & P.
The Unions urge that since the Schindler crane operators were contributing to C & P's operations, Schindler Equipment could properly be subjected to the pressures exerted. This ignores the rationale of National Labor Relations Board v. Denver Building & Construction Trades Council , 341 U.S. 675, that the relation between contractors on a construction contract is not so interconnected that they should all be regarded as one entity.*fn3 Therefore, it was an unfair labor practice for Shaw to force Miron and Schindler Equipment to terminate relations with C & P. As neutrals, Miron and Schidler Equipment were entitled under Section 8(b)(4) to relief from respondents' secondary activities.*fn4
Picketing of Reserved Neutral Gates
The remainder of this case involves the picketing of reserved neutral gates at three other common situs construction locales. At each, respondents picketed gates used only by employees of neutrals instead of confining their picketing to gates reserved solely for C & P and its suppliers. As the Board found, respondents' motive was to exert unlawful pressure on the neutral employers.
To determine if the picketing was secondary and therefore forbidden, it is appropriate to consider the Board's Moore Drydock criteria evolved in Sailors' Union of the Pacific , 92 NLRB 547, 549 (1950).*fn5 One of them shows that this picketing was secondary, for it was not "limited to places reasonably close to the location of the situs ."
As to the Highway 41 project, C & P was the prime contractor and two of the subcontractors were Edward Kraemer & Son, Inc. and John F. Bloomer Co., Inc. Respondents contend that Kraemer and Bloomer were primary employers rather than neutral secondaries. However, as the Board found, C & P's project coordinator, Alan Rich, did not exert direct control over the Kraemer or Bloomer employees. They were not on the C & P payroll, and indeed there was no employer-employee relationship between them and C & P. The Board also found Kraemer and Bloomer were not owned or controlled by C & P, the prime contractor, and that C & P would not have performed Kraemer's or Bloomer's work even if there had been no strike. Since these findings are supported by substantial evidence, the picketing violated Section 8(b)(4)(B) if the reserved neutral gates were not honored.
The respondents contend that they were not required to honor the reserved gates at the Highway 41 project because "there was no way to guarantee that entrance to the project was really limited" to the two C & P gates and the three gates reserved for the other employers. However, the respondents did not picket the perimeter of the project but picketed all five gates, thereby ignoring Moore Drydock and Section 8(b)(4)(B).
At the Leach Company's plant in Oshkosh, Wisconsin, C & P was constructing a truck parking lot. After November 25, 1968, C & P reserved Gate 2 for use of its employees and suppliers, and Gate 1 was reserved for "employees, job applicants, and suppliers of Leach Company." Nevertheless, the Union picketed Leach's gate instead of the C & P gate. Accordingly, the Board found that the picketing at the neutral gate instead of at the primary gate was contrary to the above-quoted Moore Drydock requirement and in contravention of Section 8(b)(4)(B). The Board also observed that there was no relation between C & P's parking lot construction and the operation of the Leach plant. Since the Board sanctioned the pre-November 25 picketing, we need not consider the Unions' argument that before then the two reserved gates were ineffective.
In April 1969, C & P was extending a driveway, building a culvert, and supplying fill at the plant of the Great Northern Container Corporation in Appleton, Wisconsin. C & P had posted a reserved gate sign, designating the west side of the driveway to the rear of the Great Northern plant as Gate 1 for the use of Great Northern. The east side was designated as Gate 2 for C & P. The driveway was divided into two sections, with rope and iron stakes separating the west side (leading to the rear loading dock) from the east side (leading to C & P's construction area).The Board found that the reserved entrances adequately provided separate gates for primary and secondary employers. Both gates were picketed, and for one period the picketing was extended even further - to the west of neutral Gate 1. Since the reserved gates were effective in channeling primary activities during this period, the respondents' contention that the gates at Great Northern were flimsy is unavailing. Local 761, Electrical Workers v. National Labor Relations Board , 366 U.S. 667, 681.
Propriety of Orders
The Board's orders require respondents to cease and desist from their unlawful conduct when directed at other employers and employees with the same unlawful object, regardless of whether respondents' primary dispute is with the Fox Valley Construction Material Suppliers Association.As International Brotherhood of Electrical Workers v. National Labor Relations Board , 341 U.S. 705, 706, made plain, such orders are proper insofar as they deter respondents from involving neutral employers in their dispute with the Association, for otherwise "other employers who do business with him the primary employer, would be left exposed to the same type of pressure through other comparable channels."
The portions of the orders prohibiting respondents from engaging in secondary activity designed to force neutral employers to cease doing business "with any other employer or person" were justified because it could be anticipated that respondents would again resort to unlawful secondary conduct in future disputes with other primary employers. National Labor Relations Board v. Express Publishing Co ., 312 U.S. 426, 437; National Labor Relations Board v. Local 135, Teamsters , 267 F.2d 870, 874 (7th Cir. 1959), certiorari denied, 361 U.S. 914.
The orders will be enforced.