Local 1, Int'l Brotherhood Electrical Workers

340 . DECISIONS OF' NATIONAL LABOR- RELATIONS BOARD Local No. 1, -International Brotherhood of Electrical Workers, AFL-CIO and Mallinckrodt Chemical Works. Case, No. 14-CC- 251. August 18, 1964 DECISION AND ORDER On February 28,1964, Trial Examiner Thomas' F. Maher issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the'unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in his attached Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Re- spondent filed a brief in support of the Trial Examiner's Decision, and thereafter filed cross-exceptions to certain of the Trial Examiner's findings and conclusions made in his Decision, and to certain of his rulings made at the hearing herein, and a supporting brief, and also filed a brief in answer to the General Counsel's exceptions. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' [The Board dismissed the complaint.] 1In view of the fact that the Board is herein dismissing the complaint in Its entirety on the ground that the General Counsel has failed to make out a prima facie case, we deem it unnecessary, and therefore do not pass upon the exceptions filed by the Respond- ent with respect to certain of the Trial Examiner's findings, conclusions, and evidentiary rulings alleged to be prejudicial to Respondent's case. Also, in view of the dismissal, we find it unnecessary to pass upon Respondent's request for oral argument. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE , Upon a charge filed on August 28, 1963 , by Mallinckrodt Chemical Works, the Regional Director for Region 14 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on October 3, 1963 , against Local No. 1, International Brotherhood of Electrical Workers, AFL-CIO, Respondent herein , alleging violations of Section 8(b) (4) (i) and (ii ) (B) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice, a hearing was held before Trial Examiner Thomas F. Maher on October 24, 1963 , in St. Louis, Missouri, where all parties were represented by counsel and afforded full opportunity to be heard , to present oral argument, and to file briefs with me . Briefs were filed by all parties on December 12. 148 NLRB No. 36. LOCAL 1, INT.'L BROTHERHOOD --ELECTRICAL WORKERS 341, -Upon consideration of, the entire record' in this- case,l including the briefs of the' parties, and upon my observation of each of the witnesses appearing before me, I make the following: _1 I OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE EMPLOYERS Mallinckrodt Chemical Works, hereinafter called the Company, is engaged at Weldon Springs, Missouri, in the purification of uranium ore and the manufacture of uranium salts and metals, under contract with the Atomic Energy Commission, an agency of the Government of the United States. In the course of its operations the Company annually receives goods and materials from outside the State of Missouri valued in excess of $1 million, and annually ships products outside the State of Missouri valued in excess of $1 million. Robinson Steel Construction Company, hereinafter called Robinson, is a heavy construction company having its principal office and place of business in St. Louis, Missouri. In the course of its operations it annually purchases goods and materials from outside the State of Missouri in excess of $50,000. It has contracted to provide Mallinckrodt with labor, materials, and equipment necessary for the con- struction of an electrolytic prototype, said contract being valued at $147,290. It has also contracted to construct subsurface drainage at building No. 301, said contract being valued at $4,355. Melvin Snyder Electric Company, hereinafter called Snyder Company, is an elec- trical contractor with its principal office and place of business in St. Louis, Missouri. In the operation of its business it annually purchases goods and materials from out- side the State of Missouri in excess of $50,000. Snyder has contracted to provide Mallinckrodt with labor, materials, and equipment necessary for the installation of a criticality alarm system, said contract being valued at $17,050. Schmelig Construction Company, Inc., hereinafter called Schmelig, is a heavy construction company with its principal office and place of business located in St. Louis, -Missouri. In the course of its operations Schmelig annually performs serv- ices outside the State of Missouri valued in excess of $50,000. It has contracted to provide Mallinckrodt with labor, materials, and equipment necessary for construct- ing of a falling stream standard sampler, said contract being valued at $39,242. R. K. & A. Jones, Inc., hereinafter called Jones, is a building construction con- tractor with its principal office and place of business in St. Louis, Missouri. In the course of its operations -it annually purchases goods and materials from outside the State of Missouri in excess of $50,000. It has contracted with Mallinckrodt to supply labor, materials, and equipment necessary for alterations on the admin- istration building located at Mallinckrodt's Weldon Springs plant. Said contract' is valued at $23,370. - Kennedy Heating and Air Conditioning Company, 'hereinafter called Kennedy,- has a principal office and place of business in St. Louis, Missouri. It has a sub- contract with Becker-Marsten Company which in turn has contracted with Mal- linckrodt to supply labor, materials, and equipment necessary to construct a water plant boiler at Mallinckrodt's Weldon Springs operation, said contract valued at $8,239. In the operations of its business Becker-Marsten annually purchases goods and materials from outside the State of Missouri in excess of $50,000. Kennedy's out-of-State purchases do not appear in the record., Bulger Electric Company, hereinafter called Bulger, is an electrical contractor with its principal office and place of business in St. Louis, Missouri. It has con- tracted with Mallinckrodt to supply labor, materials, and equipment necessary '.As will be-discussed in some detail hereafter, Respondent sought to introduce certain evidence which I ruled not relevant to the issues framed by the pleadings. , I' permitted, counsel to submit written offers of proof covering this subject matter which I have con- sidered and, deeming it irrelevant, adhere to my original ruling rejecting it. 'Counsel for the Charging Party also sought to Introduce evidence in the nature of rebuttal testimony that would clarify contract documents placed in evidence by stipulation as part of Gen- eral Counsel's case-in-chief. and thereafter allegedly brought Into question by the testi- mony of witnesses for the-Respondent., Ruling.the document to speak for itself I rejected evidence in clarification of it but permitted counsel for the Charging Party to submit a written offer of proof concerning the expected rebuttal evidence Upon further considera- tion I still deem the rebuttal evidence unnecessary and accordingly reject the offer. 342 DECISIONS -OF- NATIONAL 'LABOR__ RELATIONS BOARD for' the installation of emergency power :for the fire and ambulance garage -at the Weldon Springs plant. Said contract is valued. at: $1,998. In the, operation of its business Bulger annually purchases goods from firms which in turn purchase those goods from outside the State of Missouri in excess of $50,000 annually. M. F. Gildehaus Piping Contractors, Inc., hereinafter called Gildehaus, has its principal office and place of business in St. Louis, Missouri. In the operation of its business it annually purchases goods-and materials from outside the State of Mis- souri in excess of $50,000. It has contracted to furnish to Mallinckrodt labor, materials, and equipment necessary for constructing a falling stream standard sampler at the Weldon Springs plant. Said contract is valued at $7,000. 'St. Louis Blow Pipe and Heater Company, -hereinafter called St. Louis Blow Pipe, has a principal office and place of business at St. Louis, Missouri. In the course of its operations it annually purchases goods and materials in excess of $50,000 from firms which in turn purchase those goods from outside the State of Missouri. Gross Engineering Company, hereinafter called Gross, is a heavy construction contractor with its principal office and place of business in St. Louis, Missouri. In the course of its operations it annually purchases goods and materials from outside the State of Missouri in excess of $50,000. It has a contract with the Atomic En- ergy Commission, hereafter referred to as the AEC, in the amount of $612,130, for the installation of a fluid bed denitration system in building No. 103 at the Weldon Springs plant. Upon the foregoing stipulated facts the parties further stipulate and I conclude and find that each of the employers enumerated above are engaged in commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act and I further find and conclude that it will effectuate the policies of the Act to assert jurisdiction in this case. It further appears that three other employers had during all times pertinent herein extensive relations with Mallinckrodt at its Weldon Springs plant, each hav- ing contracted with Mallinckrodt as follows: Kickham Boiler and Sheet Iron Works Co. contracted to supply all labor, mate- rials, and equipment necessary for the retubing of boiler No. 3 in building No. 401 at the Weldon Springs plant, said contract valued at $11,033. Simon Painting Co. contracted with Mallinckrodt for the painting of the criticality alarm system being installed by Sndyer Electric, said contract valued at $1,480. Commercial Broadcasting Co. contracted with Mallinckrodt for the installation of a refinery paging system, said contract valued at $1,388. Although neither the extent of the out-of-State purchases and sales of the fore- going three employers nor the extent of the services provided out-of-State by any of them appears in the record, the record does indicate that the services rendered by each of them in conjunction with the contracts with Mallinckrodt, all of whom appear in the record, is directly related with construction operations being performed at Mallinckrodt's Weldon Springs plant. As it thus appears in the record that each of the foregoing three employers are in an industry affecting commerce, I accord- ingly find and conclude that each is engaged in commerce within the meaning of Section 8(b) (4) of the Act. II. THE LABOR ORGANIZATION INVOLVED ' Respondent, Local No . 1, International Brotherhood of Electrical Workers, AFL- CIO, is conceded to be a labor organization within the meaning of Section 2(5) of the Act and I so conclude and find. III. THE ISSUE The application of the Supreme Court's reserved gate test respecting work re- lated to the normal operations of a picketed plant. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The events Respondent represents the maintenance and construction electrical employees of the Company pursuant to an election and certification in Case No. 14-RC-3770.2 2 See Mallinckrodt Chemical Works, Uranium Division, 129 NLRB 312. LOCAL. 1, INT'L BROTHERHOOD ELECTRICAL WORKERS 343 The collective-bargaining agreement between Respondent and the Company termi- nated during the summer of 1963, 'and negotiations for a new agreement were in progress prior"to and after the"date of the ,expiration of the old -agreement. Upon failure of the parties'to, reach anew 'agreement Respondent,°on-August-26;-1963, called ii strike of the electricians at the Weldon-Springs facility and established pickets at the main plant gate, located -ori Highway- No. 94. The production and main- tenance employees of the Company habitually entered the facility through this gate. On August 27, the'day following the calling of the strike, the Company established a gate.3,00 yards to, the north of the main gate on Highway. No. 94, and designated it -as the subcontractors'' or reserved gate. -, Both gates faced eastward onto the high- way and were visible, to each other. A large "sign affixed to the fence' immediately to the right of the subcontractors' gate as it was approached from the highway bore this inscription: SUBCONTRACTORS! GATE Construction Personnel Only All Others Use South Gate. A" guard was stationed at this gate and was instructed to -deny entrance to all but the employees of subcontractors, directing all other employees to use the main"gate. On August 28, Respondent placed pickets in front of and in the vicinity of the subcontractors' gate? After the pickets had been thus established at this particular gate none but subcontractors' employees entered it, excepting only. the guards as- signed to duty there and, on one occasion, several plant employees engaged in cutting the grass adjacent to the gate, fence, and highway. Picketing at the subcontractors' gate continued until September 27, 1963, at which time it ceased pursuant to an agreement between Respondent and counsel for the " General Counsel, being a consideration in the determination of the U.S. District Court for the Eastern District of Missouri to hold in abeyance General Counsel's petition for an injunction against Respondent, which -petition, although still pending, has not proceeded to hearing in view of the agreement not to picket at the subcon- tractors' gate. B. The nature of the Company's operations .The Company has a contract with the Atomic Energy Commission, a governmental agency, hereinafter called the AEC, which provides that it will engage in the purifica- tion of uranium ore and uranium salts for the Government. The plant facilities are owned by the AEC. In furtherance of the terms of its contract with AEC the Company is required thereby to follow all AEC rules and regulations concerning the work to be done at the Company's facility, including compliance with the regulations promulgated pursuant to the terms of the Davis-Bacon Act 4 and supervised by a Davis-Bacon Committee appointed by the AEC. In furtherance of this relation- ship either the AEC or the,Company may initially propose projects to be performed at the facility. Thus the Company may propose a job to be performed and submit an estimate and description of it to AEC's representatives at the plant and to its operational offices at Oak Ridge, Tennessee. In such a proposal to the AEC the Company may, recommend what jobs are to be performed and whether the jobs should be performed by the Company's maintenance employees or subcontracted out. Once such a recommendation has been received by the AEC the Company has no further control over whether the job is to be performed by its own maintenance em- ployees, or by subcontractors. The maintenance employees referred to are those employed in the maintenance departments Included in this department is a machine shop, carpenter and mill- wright shop, plumbing and pipefitting shop, welding shop, auto shop, rigger shop, paint shop, and electrical shop. Each of these shops have the equipment necessary to perform its operations and the employees assigned to the department use this equipment and the traditional tools of their particular trade. The picket signs stated as follows: IBEW LOCAL NO. 1, AFL-CIO ON STRIKE AT " MALLINCKRODT CHEMICAL WORKS, URANIUM DIV. 4Act of March 3, 1931, as amended , 40 U S.C 276a 5 Credibly described by Fletcher Anderson; Mallinckrodt's manager of engineering and maintenance, a witness called by Respondent after General Counsel has rested his case 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was further established on the record that in the determinations and recom- mendations made by AEC and the Company relative to the performance of any project the maintenance department never was required or sought to bid on such a job 6 In fact General Counsel supplied no evidence whatever as to the nature of the jobs performed by employees in the maintenance department C Contract work in progress at time of strike Pursuant to its contractual authority the Company, and on one occasion the AEC itself, entered into contracts for the completion of certain construction projects which had previously been approved by the appropriate AEC authority under the terms governing the operation of the Weldon Springs facility by the Company for the Gov- ernment These contracts follow 1 Installation of fluid bed denitration system This project was contracted for di- rectly by AEC with Gross Engineering on March 11, 1963, in the amount of $612,130 and involved the complete installation of new equipment in building No 103-the refinery The space utilized for the purpose was previously occupied by the main- tenance shop The project included all necessary structural revisions and additions, piping and plumbing, instrumentation, heating and ventilating, including extension and relocation of existing vacuum cleaning, exhaust, and dust collecting systems, me- chanical, process, and vessel installation, electrical and insulation work, and certain general building construction work The project when completed will supplement, if not replace altogether, the denitra- tion system presently used in the "pot room" of the refinery and thus provide a more effective system for the conversion of previously extracted uranium nitrate into uranium trioxide, the basic ingredient in the production of uranium metal and fuel cores and the end product of the plant 2 Construction of falling stream standard sampler This contract entered into on July 22, 1963, with Schmelig Construction was in the amount of $39,242 It con- sisted of installing in building No 101 an ore sampling operation that had previously been located at Grand Junction, Colorado The replacement of the Colorado opera- tion with the one involved here places in operation a much more accurate method of assaying the uranium ore to be processed at the Weldon Springs facility of the Company and elsewhere The construction details are described in the drawings and specifications enumer- ated in the contract and set forth the installation of numerous items of heavy equip- ment such as hoppers, stirrers, and conveyors, and the necessary power equipment and controls to drive them, together with essential pipe, plumbing, duct, and electrical conduit installation For 1 week during the course of this installation the schedules of the Company's own production employees were changed to accommodate con- struction work There is no evidence, however, that the production was curtailed in any way 3 Construction of electrolytic prototype Three contracts with Robinson Steel were executed on March 21, June 14, and August 2, 1963, respectively, to a total cost of $147,390 for the construction in building No 404, the metal pilot plant, of an electrolytic prototype designed for development purposes, specifically to obtain data for future use in planning a future electrolytic plant 7 This installation principally consisted of newly introduced equipment and a system not yet part of the facility's production, including a considerable amount of heavy equipment necessary for uranium refinement on a small scale research level, together with the necessary piping, plumbing, duct work, and electrical conduit and control materials necessary to operate it upon completion 4 Installation and painting of criticality alarm system On April 3, 1963, a contract was executed with Snyder Electric for the installation of this system, and on May 7 a contract with Simon Painting for the painting of it The contracts were in the amount of $17,050 and $1,480, respectively This is an installation to provide electronic radiation detection and was tied in with a central control panel in the guard office By means of it any excessive radia- e The credited testimony of Construction Super\ isor Stewart Barnett 7It is stipulated that in addition to the developmental aspects carried out In the pilot plant, of which the electron tic prototy pe is a p irt, one special production order Ras filled during the past year to accommodate i customer's request for an enriched material specially required by him for experimental purposes LOCAL 1, INT'L BRO1HERHOOD ELECTRICAL WORKERS 345 tion in the plant activates a signal setting off a horn alarm system throughout the plant Details in the contracts indicate extensive running of wires, installation of horns, and control devices, and the painting of the exposed elements of the system There is no evidence of -instructions ever being given to Mallinckrodt employees to physically connect this new installation into existing plant circuits 8 5 Installation of refinery paging system A contract for this installation was ex- ecuted on July 16, 1963, with Commercial Broadcasting Co in the amount of $1,388 Its purpose was to pi ovide electronic voice paging from several locations within the refinery From a review of the contract in evidence and an understanding of the usual public address systems in common usage its installation entailed the usual running of wires and the proper placement of speakers, microphones, amplification units, and necessary controls 6 Construction of subsurface drainage-building No 301 A contract was ex- ecuted on July 17, 1963, with Robinson Construction for the completion of this project at a value set at $4,355 Its purpose was stated simply as providing sub- surface drainage adjacent to building No 301 and required the services of operating engineers, laborers, and carpenters in a project which, according to the terms of the contract, required excavation, the laying of plain and reenforced concrete, and the subsequent replacing of the removed earth 7 Administration building alterations A contract with R K & A Jones, Inc, was executed July 12, 1963, to cover this project and was valued in the amount of $23,370 From a reading of the contract in evidence these alterations are shown to be extensive, covering both the first and second floors of the administration building It entailed the clearing of the areas, the installation of partitions, overall construction work, including masonry, cement, and roofing work, the revision and the relocation of light, heat, ventilating, and telephone equipment with the attendant installation and glazing of window and partition glass, the rewiring for power, telephones, etc , and installing of piping, conduits, pneumatic equipment, and ventilating ducts Struc- tural alterations of this nature costing in excess of $2,000 are never assigned to the plant maintenance employees but are completed on a contract basis 9 8 Retubing of boiler No 3, building No 401 A contract with Kickham Boiler was executed on June 7, 1963, for the completion of this project and was valued at $11,033 9 Installation of emergency power system for the fire and ambulance garage A contract was executed on August 7, 1963, with Bulger Electric for this project in the amount of $1,998 The resume of specifications set forth in the contract indicates that this was an electrical wiring project consisting of both overhead and conduit installation 10 Installation of boiler in water plant A contract for the installation of a new boiler at the Company's water plant located 2 miles from the plant site was executed on July 17, 1963, and the cost was fixed at $8,239 In the execution of each of the foregoing contracts a determination of compliance with the Davis-Bacon Act was included, thus attesting to the fact that the project had been reviewed by the Davis-Bacon Committee of the AEC and was being con- tracted for in compliance with the Davis-Bacon requirements (supra) From credible testimony of Construction Supervisor Barnett it is clear that no company maintenance employee was assigned to work on any of the foregoing projects, that the work on the projects was entirely separate and distinct from production work at the plant at all times, that it was scheduled to be done concurrently with regular plant produc- tion work, and that it would not interfere with it D The nature of the violation alleged It is General Counsel's contention that the Respondent's effective picketing of the gate reserved exclusively for the employees of subcontractors was not necessary to further the legitimate purposes of its primary dispute with Mallinckrodt, which 8 The credited testimony of Construction Supers isor Stewart Barnett, and Manager of Engineering and Maintenance Fletcher Anderson, testifying as Respondent's witnesses Upon observing employee Frissella who testified to the contrary I reject his testimony (cf footnote 15 infra) Q The credited testimony of Maintenance Manager l nderson, called as a Ritness by Re spondent after General Counsel had rested his case 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes the picketing at the main gate was adequately serving On the contrary, it is contended, this picketing of the subcontractors' gate had as its specific and sole objective the enmeshing of neutral employers in the Union's dispute with Mallinckrodt by inducing the neutral employers and their employees to refuse to enter the plant and to perform the agreed upon work, thereby restraining these neutral subcontractors with the object of requiring them to cease doing business with the Company, in viola- tion of Section 8(b) (4) (i) and (ii) (B) of the Act io Cognizant of the limitations which have been placed upon picketing in situations such as this, referred to as common situs picketing,ii the General Counsel further contends that with respect to the work performed or to be performed under any of the contracts herein by any of the subcontractors whose employees were effectively induced not to go through the gate reserved for them, none of it was related to the normal operations of Mallinckrodt's plant For this reason, it is contended, the rule established by the Supreme Court in the General Electric case,12 and there- after promulgated by the Board upon remand of that case to it by the Court,13 has no application to the facts and circumstances of this case so as to legitimatize the picketing at the reserved gate E Respondent's defense Respondent defends its picketing of the subcontractors' gate upon an interpretation of the General Electric reserved gate rule that would establish work performed by the subcontractors, or at least one of them, as work related to the normal opera- tions of the plant In this iespect Respondent claims that Mallinckrodt's normal operations comprise not only the operations of the facility, the attendant production of uranium and its derivatives, the allied research and development, and the usual maintenance required to maintain these operations, but in addition its normal opera- tions also comprise the construction and subcontracting business, using the previ- ously listed projects as illustrations Thus it is claimed that as participation in these construction projects is part of the normal operations picketing affecting them is primary in nature Arguing in converse form Respondent urges that the General Counsel has not met the burden of proving that the work being performed by the subcontractors was not related to the normal operations of the plant, and Respondent refers to the projects seriatim, seeking to establish this point In this respect Respondent sought to establish by evidence that the employees of the Company were qualified to do the type of work being performed by the subcontractors' employees Similarly Respond- ent sought to establish by evidence that the work being performed related to work 10 Section 8(b) (4) (1) and (ii) (B) states as follows (b) It shall be an unfair labor practice for a labor organization or its 'igents- a a a a a 9 a (4) (1) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in in industry affecting commerce to engige in, a strike or a refus'tl in the course of his employment to use, manufacture, process, transfer, or otherwise handle or work on any goods, articles materials, or com modities or to perform any seriice or (ii) to threaten, coerce, or restr'iin any person engaged in commerce or in in industry affecting commerce, where in either case an object thereof is a o a a a a a (B) forcing or requiring any person to cease using, selling, handling, trans porting or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or barg'iin with it labor organization as the representatiie of his employees unless such labor organi7ation has been certified as the representatiie of such employees under the provisions of section 9 Provided, That nothing contained in this clause (B) Shall he construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing , 11 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 12Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO (General Electric Company) v N L R I3 , 366 U S 667, 681 13 Local 761, International Union of Electrical, Radio and Machine Workers (AFL-CIO) (General Electric Company, Appliance and Television Receiver Station ), 138 NLRB 342 LOCAL 1, INT'L BROTHERHOOD ELECTRICAL WORKERS 347 previously performed by the Company at some earlier period as part of what it claimed were normal operations at that earlier time For reasons which will appear in detail hereafter, I excluded as not relevant the comparison of skills and talents of the employees of the Company on the one band and of the subcontractors on the other 14 I likewise rejected as remote in point of time any evidence of work or projects performed by employees of the Company at any time prior to 6 months preceding the filings of the charge in this case Further discussion of my ruling thus establishing the concept of contemporaneous normal operations will appear in detail hereafter 15 F Analysis and conclusion The ultimate issue to be resolved here is what constitutes the normal operations of the plant The answer to this becomes the measure of all work performed by those who enter by the reserved gate Thus, to quote the Supreme Court, if the gate "was in fact used by employees of independent contractors who performed con- ventional maintenance work necessary to the normal operations [of the Company] the use of the gate would have been a mingled one," and the picketing of it permis- sible 16 The Court's conclusion, it will be recalled, stems from its earlier one out- lining the basic requirement for a separate gate, free of picketing "There must be a separate gate, marked and set apart from other gates, the work done by the men who use the gate must be unrelated to the normal operations of the employer, and the work must be of a kind that would not, if done when the plant were engaged in its regular operations, necessitate curtailing those operations " United Steel Workers v Labor Board, 289 F 2d 591, 595 These seem to us controlling considerations 17 This explains why "[t]be key to the problem is found in the type of work that is being performed by those who use the separate gate " 18 As "[i]t may well turn out to be that the instances of these maintenance tasks were so insubstantial as to be treated by the Board as de minimis," application of the rule to given circumstances was left by the Court to the Board In the instant case, as in General Electric, the application of the reserve gate vile rests not so much with the rule itself, or even with the Court's explication of it, so much as it rests with the Board's application of the rule to the specifics of this individual case before it Crucial to the determination of this case, therefore, are the criteria established by the Board in response to the Supreme Court remand in General Electric Upon remand and further hearing the Board there applied the Court's "related work" test to the evidence and concluded that it was related to the normal opera- tions of the plant and that the picketing was primary in nature and protected Because of the limitations placed by the Board upon its own findings and conclu- sions discussion of the elements of the case seem to be in order Thus it had been found by the Trial Examiner on remand that General Electric had an established work division known as central maintenance which performed maintenance work for all the plant's departments and occasionally bid against independent contractors for work to be done at the plant During the period of picketing, the only periods 14 Respondent's offer of proof on this subject appears in the record is Respondent's offer of proof on this subject appears in the record In support of its contention that certain of the work being performed or scheduled to be performed by employees of the subcontractors had been previously performed by or in con- junction with comp'iny maintenance employees Respondent introduced evidence to that effect through testimony of employee Pete Frissella, an electrician employed by the Com- pany and a member of the Respondent labor organization Based upon my observation of him as he testified , upon discrepancies revealed in his testimony (for example , his account of the number of electricians working with him on a job assignment ), and upon the fact that nothing in his testimony, or otherwise, qualified him to speak with certain authority concerning the projects in progress at the plant, I reject his testimony in its entirety is 366 Il S 667, 682 17 366 U S 667, 681 ie 366 U S 667, 680 348 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD considered by the Board,19 • outside contractors whose employees had exclusive access to the reserved gate had contracts to rearrange and enlarge the conveyor systems utilized by General Electric to transport appliance parts along the produc- tion lines in the refrigerator-and range departments-a contract valued in excess of $170,000. Independent contractors also had contracts for (1) the installation of shower rooms, (2) the repair of roads, (3) construction of a sound room, (4) the enlarging of the ventilating system for the removal of welding fumes, (5) concrete work in connection with an air shelter type of warehouse, (6) the construction of a catwalk and, in conjunction with General Electric's general maintenance, (7) the construction of a truck dock, and (8) of a mezzanine. The Board did not rely for decisional purposes upon the largest of these projects, the work being done on the conveyor project-a job not shown to have been bid upon by central maintenance. It relied solely upon the remaining eight contracts to con- clude that they bore significant relation to the plant's normal operations. Of these eight scheduled jobs four of them were within the ambit of central maintenance, that department having been underbid in the construction of the sound room, invited to bid in the enlarging of the ventilating system, and cooperating in the construction of both the truck dock and the mezzanine. As to the remaining scheduled jobs the Board also found that General Electric employees, presumably those in central maintenance, had done "work in the past that was identical or substantially similar to that scheduled to be done by employees of the independent contractors." 20 [Emphasis supplied.] While at first blush it may appear from a study of the foregoing that the Board's application of the Supreme Court rule in the General Electric remand may have been sui generis, some of the jobs evaluated do not appear to partake of the usual affinity with central maintenance . Because, therefore, in applying the Supreme Court's related work test, the Board appears to have relied with equal force upon the character of the work performed in the construction of the shower room and catwalk, the concrete work on the air shelter type warehouse , and the repair of the roads, and because none of these do have the debility of being connected with central maintenance , I would equate the Board's determination only on these four jobs with the facts and circumstances present in the instant case . This I do because here, unlike in General Electric, there was nothing equivalent to central maintenance, and there was positive evidence that the maintenance department neither bid on project contracts nor, collaborated in, the work at any stage of their progress. What the Board found with respect to, these four jobs was that they were related to the plant's normal operations simply because they were identical or substantially similar to work previously done by plant employees. Upon the foregoing considerations of the General Electric case as it relates to the work in progress in the instant proceeding it would seem that if any one or more projects being performed by an outside contractor bore - the same relationship to Mallinckrodt's normal plant operations and the work of plant maintenance em- ployees as did the four enumerated jobs in General Electric then the Mallinckrodt jobs would likewise fail to meet the Supreme Court's "related work" test and the picketing of the reserved gate would be permissible. Accordingly the procedural application of the criteria of the General Electric case to a specific set of facts must next be explored. ' Picketing the plant of a primary employer by his own employees is presumptively legitimate and permissive 21 It is only when the picketing is conducted for an un- lawful objective,22 in an unlawful manner,23 or under otherwise objectionable '19 The Board refused to rule upon my limitation of evidence relating to work performed by independent contractors, where he had restricted testimony to work which was begun or scheduled to be done during the picketing (138 NLRB 342, footnote 7). I accordingly reaffirm my ruling made at 'the hearing in which I excluded evidence as to work per- formed as part of the plant's normal operations at any time prior to February 1, 1963, being a date 6 months and 28' days prior to'the filing of the instant charge. This period for which I have allowed evidence, unlike the similar allowed period in General Electric, began 6 months before the picketing. 20 138 NLRB 342, 345-346. 21 Oil Workers International Union, Local Union 346, CIO (The' Pure Oil Company), 84 NLRB 315, 318-319 ; Newspaper and Mail Deliverers' Union of New York and Vicinity (Interborough News Company), 90 NLRB 2135 ; Di Giorgio Fruit Corporation, et al. v. N.L.R.B., 191 F. 2d 642, 649 (C.A.D.C.). ze NLRB. v. Local 182, I.B.T. (Woodward Motors), 314 F. 2d 53 (C.A. 2). 23 International Hod Carriers, Building and Common Laborers Union of America, Local 916, AFL-CIO (Owen Langston), 145 NLRB 565. LOCAL 1 y INT'L BROTHERHOOD ELECTRICAL WORKERS 349 circumstances 24 that this presumptive approval evaporates. Thus it is apparent that picketing an employer's premises at the subcontractors' gate would be pre- sumptively permissible unless one of the foregoing impediments has been 'established. This counsel for the General Counsel seeks to do by the introduction of stipulated evidence to the effect that only the employees of neutral employers used this gate, the effect of.this picketing thus being to enmesh the. employees of the neutral em- ployers in the primary dispute, and induce and encourage employees of the neutrals to refuse to enter the plant and perform services for Mallinckrodt, thereby re- straining the subcontractors with the object of requiring them to cease doing busi- ness with Mallinckrodt. Under the General Electric rule, however, this is not enough to rebut the presumption of legality. It must be shown, as previously stated, not only that there is a separate gate, but that the work done by the men who use the gate is unrelated to the normal operations of the plant, and that the performance of the work does not necessitate the curtailing of plant operations. The separate nature of the gate, as I have said, has been established. And upon credible evidence it has also been established that regular operations would not be curtailed. The last element of proof necessary to rebut the presumption that the picketing is or was legal is an application of the so-called "related work" test. General Counsel must show, according to the Supreme Court, that the work of the subcontractors' employees is not related to normal operations in the plant. In other words he must show that the work' in the plant was not "identical or substan- tially similar to that scheduled to be done by employees of the independent con- tractors." 25 And the Supreme Court specifically included in this category the formance of "conventional maintenance work necessary to the normal operations." 26 To be sure, as has been found above, one-half of the full proposition has been established by setting forth in detail the work that has been scheduled to be done by the contractors. But it has never been shown what specifically was the work in the plant that this contracted work is identical to or is substantially similar to. But unless I have this basis for comparison I can make no judgment of identity or similarity upon which to draw my conclusion . - This is the necessary minor premise. Thus, for example, it is not enough to consider the project involving alterations on the administration building, or the preparation of subsurface drainage, in vacuo. It must also be shown that no plant- maintenance employee or group of them was doing or had done such a job or one substantially like it. When the General Counsel rested his case-in-chief before me there was nothing in the record upon which such a judgment could be made. Thus in a syllogism lacking a minor premise I cannot apply the Board's ",related work" test and formulate any conclusion whatever. I am not unmindful of Respondent 's efforts to establish as part of his defense the nature of the work actually performed by maintenance employees and the talents they possessed to do it, and of his extensive offer of proof in this regard, made after I had limited such evidence to a contemporaneous period. Quite apart from the fact that the evidence presented and proffered did not weigh sufficiently sub- stantial to form a basis of comparison, nor are we required to assess the abilities of those who do the work but merely the nature-of the work itself, it is not con- ducive to orderly procedure. or due process that such evidence supplied by way of defense be utilized to supply a. critical gap in a- case-in-chief. I accordingly reject any suggestion that Respondent may, have have supplied what General_ Counsel failed to prove. Having thus concluded that General Counsel has provided me no evidence of the work and duties of Company 'employees, particularly in the main- tenance areas, with which I can compare the work scheduled to be done by sub- contractors' employees, I have no basis for applying the General Electric related work test. Failing this it follows that the presumption of legitimacy of the picketing has not been rebutted. I accordingly conclude and find that Respondent has not violated Section 8(b)(4)(i) and (ii) (B), as alleged, and recommend that the com- plaint be dismissed in its entirety. ' RECOMMENDED ORDER in view of the foregoing findings of fact and conclusions of law, it is recom- mended that the complaint be dismissed in its entirety. 24 See, for example, United Association of Journeymen and Apprentices of the Plumbing and Pipejitting Industry of the United States and Canada, AFL-CIO, Local Union No. 562 (Foor Engineering Company), 143 NLRB 475. -. s 138 NLRB 342, 345-346. 2a 366 U.S 667, 682. .