Unpublished Disposition, 883 F.2d 1024 (9th Cir. 1986)

MEMORAMDUM^* 

OVERVIEW

The National Labor Relations Board (NLRB) petitions this court for enforcement of the NLRB's order finding that Ironworkers Local 433 (Union) committed an unfair labor practice by engaging in a secondary boycott. Our jurisdiction is pursuant to 29 U.S.C. § 160(e), and we grant the Petition for Enforcement.

FACTS

On September 2, 1986, the union began picketing the Quail Air jobsite where Chris Crane Company (Chris Crane) had a subcontract to erect structural steel and decking on the project. Ribeiro, the general contractor, established a reserve-gate system for the three entrances on September 5, reserving one gate for the exclusive use of Chris Crane.

The union picketed only at the reserve gate on September 8. By late afternoon, however, the union's business agent, Max Price, received erroneous information from the picket captain that two Chris Crane employees had "tainted" the reserve gate system that afternoon by going through a neutral gate.

Without verifying this report, Price sent a telegram to Ribeiro, advising it that the neutral gate had been tainted. Price then instructed the union's pickets to begin picketing the neutral gates the following morning.

When Ribeiro's construction coordinator, James Trubee, arrived at the jobsite and saw the pickets, he telephoned Greg Kamer, Ribeiro's counsel. Trubee informed Kamer of the picketing and of the telegram he had received that morning which expressed the union's claim of taint.

Kamer called Price between 7:15 and 7:30 a.m. He told Price he had received the union's telegram and that the neutral gates had been tainted. Price told Kamer that if the union received written confirmation of the taint, the union would remove the picket line. The pickets were removed from the neutral gates that afternoon after Price received a telegram from Kamer confirming the taint.

The administrative law judge found the union was entitled to picket the neutral gates because Ribeiro was a supplier of Chris Crane. The NLRB did not rely on this analysis, nor does the union rely on this proposition in its argument to this court. The Board, instead, found that the union violated Sec. 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act (29 U.S.C. § 158(b) (4) (i) and (ii) (B) by "commencing picketing at the neutral gates ... with an object of forcing neutral employees to cease doing business with Chris Crane."

The issue we must address is whether the NLRB properly held that the union had engaged in a secondary boycott within the meaning of the National Labor Relations Act by picketing the neutral gates of the jobsite in order to force neutral employees to cease doing business with Chris Crane. Decisions of the NLRB will be upheld if the Board correctly applied the law and if its factual findings are supported by substantial evidence on the record as a whole. NLRB v. Island Film Processing Co., Inc., 784 F.2d 1446, 1450 (9th Cir. 1986). The court of appeals will yield to the NLRB's reasonable interpretations and applications of the National Labor Relations Act. Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381, 1384-85 (9th Cir. 1984).

DISCUSSION

The legal principles prohibiting secondary boycotts are well established. Section 8(b) (4) (B)¹  was enacted to forward the "dual congressional objectives of preserving the right of labor organizations to bring primary pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own." NLRB v. Denver Bldg. and Constr. Trades Council, 341 U.S. 675, 692 (1951). " [T]he distinction between legitimate 'primary activity' and banned 'secondary activity' ... does not present a glaringly bright line," particularly "in the 'common situs' cases ... where two employers [are] performing separate tasks on common premises." Electrical Workers Local 761 v. NLRB, 366 U.S. 667, 673, 676-677 (1961).

To determine whether concerted activity is primary or secondary, it is necessary to ascertain whether "the object of [the activity] is to affect the labor policies of th [e] primary employer" or whether the activity is "engaged in for its effect elsewhere." Houston Contractors Ass'n v. NLRB, 386 U.S. 664, 668 (1967). "The key to determining whether section 158(b) (4) (i) and (ii) (B) was violated here is to identify the object of the Union's picketing at [the] gates." Carpenters Local 470 v. NLRB, 564 F.2d 1360, 1362 (9th Cir. 1977).

" 'Intent is inferred from the nature of the acts performed.' " Allied Concrete, Inc. v. NLRB, 607 F.2d 827, 830 (9th Cir. 1979) (quoting Pickens-Bond Constr. v. United Bhd. of Carpenters, 586 F.2d 1234, 1241 (8th Cir. 1978)). The proper test for determining the legality of union picketing at common situs construction projects is provided by the guidelines the NLRB established in Sailors' Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547, 549 (1950).²  Carpenters Local 470, 564 F.2d at 1362. However, "it must be remembered that the Moore Dry Dock rule is only an evidentiary tool. Thus, 'the inference of primary activity raised by compliance with the Moore Dry Dock standards may be dispelled if the totality of the circumstances [indicates] the union's' objective is secondary." Int'l Ass'n of Bridge, etc. v. NLRB, 598 F.2d 1154, 1157 (9th Cir. 1979) (citations omitted).

We have emphasized the delicate nature of common situs picketing:

While a union has a right to express itself, that expression must be restricted so as to affect only primary employees. In this regard, the Fifth Circuit has adopted "a requirement that the picketing union do everything that is reasonably necessary to insure that secondary employees are not misled or coerced into observing the picket line." Ramey Constr. Co. v. Local 544, Painters, 472 F.2d 1127, 1131 (5th Cir. 1973). " [T]his requirement places a heavy burden on the picketing union to convince the trier of fact that the picketing was conducted in a manner least likely to encourage secondary effects." Id. We, too, have stated that unions have a "duty to picket with restraint." Carpenters Local 470 v. NLRB, supra, 564 F.2d at 1363; accord, Local 98, United Ass'n of Journeymen v. NLRB, 497 F.2d 60, 65 (6th Cir. 1974). We think that this principle is also applicable to other conduct of members and officials of a union engaged in a labor dispute at a common situs job project. The Union here had a duty to act with restraint.

Id. at 1159.

Here, the Board found that the union failed to comply with Moore Dry Dock by picketing at a reserved gate. The Board based its conclusion on the premise that the union's information of taint came from its own agents and that no genuine attempt was made to verify the information prior to the neutral gate picketing. The Board further found the union's reliance on Kamer's admission of taint was misplaced because the record did not support a finding that Kamer called Price prior to the start of the neutral gate picketing.

The union argues that the Board mechanically applied the Moore Dry Dock standard without regard to whether the totality of the circumstances demonstrated impermissible secondary intent. The union bases its argument on two factors. The union first submits that because the union business agent believed in good faith that he had received substantiated information regarding a taint, there can be no evidence of unlawful intent. Second, Price received verification from Kamer of the taint at about the time the picketing was commencing. Thus, if Kamer had not verified the taint, the union would have had the opportunity to immediately stop the neutral gate picketing.

The union has a duty to act with restraint when picketing a common situs "so as to affect only primary employees." Int'l Ass'n of Bridge, 598 F.2d at 1159. A union is not justified in picketing a reserve gate unless it can show "a pattern of destruction of the reserved gate system" not merely "isolated occurrences" of misuse of the neutral gate by the primary. Electrical Workers Local 332 v. NLRB, 269 N.L.R.B. 417, 421 (1984). The facts show that the union decided to picket the reserve gates based upon unverified statements of a union employee. In light of the deference we accord the Board, the Board's interpretation that the union should have made an effort to verify a report of taint before engaging in a secondary boycott is affirmed; otherwise the union's duty to act with restraint could prove meaningless.

The Board's finding that the union's reliance on Kamer's admission of taint was misplaced because the record did not support a finding that Kamer called Price prior to the start of netural gate picketing is supported by the record. The Board found that picketing began from 7:00 a.m.--7:30 a.m.; whereas Kamer did not call Price until 7:15 a.m.--7:30 a.m., after he learned of the picketing. It is true that the telegram merely informed Ribeiro of the alleged taint of the reserve gate, but it mentioned nothing about a plan to picket the neutral gates. Because it is the union's burden to justify its disregard of the reserve gate system, ambiguities will be resolved against it. Operating Engineers Local 12 (McDevitt & Street), 286 N.L.R.B. No. 114 (1987). Accordingly, we find that the Board's factual findings are supported by substantial evidence on the record as a whole.

The Board's Petition for Enforcement is GRANTED.