Intl. Chemical Wrks Union

168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Chemical Workers Union, AFL-CIO and Local No. 557, International Chemical Workers Union, AFL-CIO and Crest, Inc. Case 23-CC-309 October 16, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA General Counsel (issued January 19 on a charge filed January 8, 1969) The issue is whether Respondents, in picketing a "reserved gate" on the premises of the primary (the struck) employer thereby violated Section 8(b)(4)(i) and (u)(B) of the Act The General Counsel, the Union and the Charging Party presented evidence and oral argument and have filed briefs, all of which have been duly considered. On the entire record (as corrected on notice to the parties) and by observation of the witnesses, I hereby make the following. FINDINGS OF FACT On June 13, 1969, Trial Examiner A. Norman Somers issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision Thereafter, the General Counsel and Charging Party filed exceptions to the Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions,' and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. in view of our adoption of the Trial Examiner's finding that the work performed by Crest on items other than the newly installed string 7 production line was related to Sinclair -Koppers' normal operations, we find it unnecessary to pass on the Trial Examiner' s additional finding that string 7 work is also related work Also, in adopting the Trial Examiner's finding that the Moore Dry Dock standards are inapplicable to the situation herein, we do not adopt or pass on the Trial Examiner's interpretation and comments concerning Member Fanning 's opinion in the General Electric decision in the absence of exceptions , we adopt pro forma, the Trial Examiner's conclusion that "the General Counsel has met condition [1] of the reserved gate principle " TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A. NORMAN SOMERS, Trial Examiner: This case, with all parties represented, was heard before me in Beaumont, Texas, on February 18 and 19, 1969, on complaint of the I. THE EMPLOYERS The primary employer is Sinclair-Koppers Company It is a partnership composed of Sinclair Petrochemicals, Inc., and Koppers Company and does business as "S-K." S-K, at its plant in Port Arthur, Texas, makes and sells plastic products from byproducts of the petrochemical industry. Its receipt of supplies from, and its sales and shipment of products to, points outside Texas exceed $50,000 a year in each category Crest, Inc , is a Texas corporation, with its main office and place of business in Nederland, Texas, and is engaged in construction of petrochemical refineries. One of its customers is S-K, and in that connection Crest is engaged also in maintenance and repair work of S-K units and facilities. Crest receives at least $50,000 worth of materials a year from outside the State. It is not disputed and I hereby find that both companies are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Respondents, International Chemical Workers Union, AFL-CIO, and its Local No 557, are labor organizations within the meaning of the Act' 11I. THE UNFAIR LABOR PRACTICES A. Issue The issue is whether Respondent, by picketing a "reserved gate" of S-K (in an otherwise valid strike) engaged in primary and therefore legal activity (as Respondent claims), or in "secondary" activity, in violation of Section 8(b)(4)(i)(ii)(B) of the Act (as the General Counsel claims). Involved is the principle enunciated by the Supreme Court in the General Electric case,' that picketing at a "reserved gate" at the primary (or struck) employer's premises is primary (and therefore lawful) activity unless all of the following three conditions exist (id at 681) (each condition numbered for convenience of reference). [1] There must be a separate gate marked and set apart from other gates; [2] the work done by the men who use the gate must be unrelated to the normal operations of the employer; and [3] the work must be of a kind that 'Unless specifically differentiated, the International Chemical Workers Union and its Local No 557 will be collectively referred to as the Respondent or ICWU, or the Chemical Workers 'Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO v N L R B (General Electric Company). 366 U S 667, remanding 123 NLRB 1547, supplemental decision by Board on remand 138 NLRB 342 179 NLRB No. 26 INTL.CHEMICAL WRKS UNION 169 would not, if done when the employer were engaged in its regular operations, necessitate curtailing these operations. As later appears, the defense (the Respondent) on the one hand, and the prosecution (the General Counsel with the Charging Party in all instances concurring) on the other, are at cross purposes, on what these words mean. This is particularly so in respect to condition [2], the "related work" element Much of the work of the contractors at S-K's premises is maintenance and repair work of S-K's units and facilities S-K itself has a maintenance department doing that kind of work or capable of doing it, and in any event, since these repairs, as Respondent contends, are needed in S-K's normal operations, they are "related work" within the principle of General Electric, and the Board's application of it in its Supplemental Decision on remand (supra, fn 2) and in its later decision in Firestone Synthetic,3 (a case arising from the same Regional Office as the instant case) The General Counsel, on the other hand, claims "related work" and "normal operations" have a narrower legal meaning than their literal words, - at least narrower than Respondent's conception of them A like dispute exists in respect to the meaning of the first and third elements of the reserved gate principle. Finally, the General Counsel claims that Respondent was additionally remiss in not naming the primary employer in its "on strike" sign, thereby, as is claimed, running afoul of the requirements of Moore Dry Dock,' albeit the picketing here was on the primary employer's premises and not in stranger premises in a "common situs" situation. B The Strike and the Meeting Concerning the Picketing of the Reserved Gate S-K for years has had separate contracts with five unions but with a common expiration date Respondent represents the largest numbers of S-K's working force It represents S-K's operating employees and also the employees of two of the six crafts comprising S-K's maintenance department. Respondent represents the boilermakers and painters The other four crafts in S-K's maintenance department are pipefitters, mechanics, electricians and maintenance men, and they are represented by the unions of their respective crafts The separate contracts expired on December 31, with no new agreements having been reached All five unions thereupon struck on January 4, 1969, and as of the date of the hearing are still on strike S-K's main entrance has been picketed since January 4, and there is no issue over the legality of the strike or of the picketing at S-K's main gate (That is the gate the employees use when they are at work ) On January 5, S-K erected a sign at its East Gate, some distance away from its main entrance, reading On January 5 or 6, Respondent picketed that gate with the sign ICWU LOCAL 557 ON STRIKE' Respondent continued thus to picket the East Gate until January 16, when it suspended doing so pursuant to a stipulation for a "standby" injunction entered into in the Section 10(1) proceeding in the District Court.6 Crest is S-K's most largely used contractor The nature of the relationship between Crest and S-K will be later detailed On the afternoon of January 6, at the behest of Jack Schrimscher, general superintendent of Crest and George Weller, Crest's general counsel, a meeting was held at the Pipefitters Hall in Nederland, Texas, between Crest's representatives and the representatives of the striking crafts The 30 to 35 persons attending included Don Jones, plant engineer of S-K, and representatives of the Respondent Local (supra, fn. 1). The purpose was to have the picket sign at the East Gate removed. The discussion concerned a list of 20 projects or items on which contractors had already started work or were going to do so, and which S-K had contracted out before the strike. The list, General Counsel's Exhibit 4 (hereafter "the list," a duplicate of which is appended hereto as Appendix A) had been prepared by S-K's Don Jones on December 30, 1968. Though some of the items involved projects to be performed by contractors other than Crest, the bulk of them were those in which Crest was the contractor In substance, Crest's representatives asked that the picket sign be removed. Louis Distefano, president of Respondent Local, said he had no authority to remove it Crest's representatives assured the strikers Crest is not a "strikebreaker" and had no intention to "take away" any work from the strikers.' Crest asked if the strikers had any "quarrel" with Crest They responded their quarrel was not with Crest but with S-K. While at least one craft other than those represented by Respondent spoke up, the spokesmen most vocal were from the ranks of Respondent Local. The spokesmen of Respondent Local variously commented that some of the items on the list was "their work" and that they were tired of S-K taking work away from them There was talk about whether Crest was willing to have the business agents of the various crafts "police" Crest's work at S-K to see if it was "taking away" work from the strikers. Schrimscher said this would be agreeable He again asked Local President SINCLAIR KOPPERS CONSTRUCTION GATE ALL CONSTRUCTION AND DELIVERIES ENTER HERE 'Oil. Chemical and Atomic Workers International Union, AFL-CIO. and its Local Union No 4-23 (Firestone Synthetic Rubber etc ). 173 NLRB No 195 'Sailors' Union of the Pacific (Moore Dry Dock Company), 92 NLRB 547 'Respondent later added the words "against Sinclair-Koppers Company " Whether this was in replacement of or a supplement to the original sign, the earlier sign was around long enough to have offended the Moore Dry Dock requirement (of specifically naming the primary employer) if such requirement here existed 'Potter v I C W U (D C E D Tex Civ Ac 6187) 'The last contract of S-K with Respondent has a "contracting of work" clause (of which the contractors with the other unions are presumably typical) stating that any contracting by S-K of maintenance and repair jobs "shall not be for the purpose of laying off employees in the job classifications involved during the period that the work is being performed" and S-K "shall make every reasonable effort to use its available force and equipment in order to avoid contracting of maintenance and repair jobs " 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Distefano about removing the picket sign and Distefano said this was up to the International representative of Respondent. Schrimscher, the following morning, asked Distefano (who, as it happens, is,himself an operating, not a maintenance employee) if he had: spoken to his International representative, and Distefano said he had called the International representative but could not reach him. There was no further contact between Crest and Respondent Respondent continued to picket that gate until it entered into the previously mentioned stipulation of January 16, for the standby injunction (supra, fn. 6) pending the determination by the Board in the instant proceeding C The Projects on "the list" Considered "Related work" 1. Scope of items presenting the issue The issue over whether the work on the premises is related to S-K's normal operations concerns those projects involving maintenance and repairs of existing units or facilities (as distinguished from "new production"). Respondent concedes that Item 13, which involves the construction of a new office building with its appurtenances consisting of the laboratory, sewer pump and landscaping, is new production Respondent claims that all the rest involve maintenance and repair of existing facilities, which S-K's maintenance department can do and in respect to numbers of them have done The General Counsel's response differentiates between those projects on the list that concern a newly constructed production unit, termed string 7 (to be later explained), and the remaining items on the list. As to those items which concern string 7 (Items 1, 2, 3, 4, 7, 15, 16, 17, 18, and 19), the claim is that however much they might be classed as conventional maintenance if performed on a pre-existing production unit, they are part of "new construction" as applied to the recently completed string 7 As to the remaining items, i.e., those that do not concern string 7 (or Item 13), the General Counsel does not dispute that they are maintenance or repair items or that S-K's maintenance employees are competent to do the work involved The contention, however, is that this is not the full answer to whether these items are related to S-K's normal operations. What makes these products, according to the General Counsel's contention "unrelated" to S-K's normal operations is that they involve more manpower than S-K's maintenance force can handle consistently with their other commitments, and from this the argument runs, it follows that maintenance and repair work contracted out to others in order to overcome that insufficiency is not related to S-K's normal operations. 2 Preliminary statement of Crest's relationship with S-K As stated, Crest is the contractor for all but a few of the items on the list. For the 8 years of S-K's operations, Crest has had a "blanket contract" under which S-K can call on Crest for a particular operation (on which Crest bills it on a cost-plus-fixed percentage basis). Since September 8, 1967, Crest has had also a "construction contract," and under it has constructed the string 7 production unit, and is also performing under Item 13, the appurtenances to the office building (the building as such being contracted to a building construction company) S-K calls on Crest so consistently that during more than the last 3 years (which goes back to before the time the "construction contract" of September 1967 was entered into) Crest's general superintendent Schrimscher has been permanently assigned to S-K's headquarters. There, along with Crest's timekeeper, Schrimscher has an office at S-K and supervises some 30-odd Crest employees performing under him at S-K.° As to when a particular job is allotted to S-K or to Crest, Engineer Jones testified that the decision is made by the chiefs of S-K's maintenance department. These are Joe Cassidy, superintendent, and Bill Nida, assistant superintendent of S-K's maintenance department, and they never testified. Engineer Jones testified that his role is limited to making recommendations, and only when the maintenance heads consult him. His testimony indicates that it is merely a matter of the manpower needed in relation to a job to be done. The General Counsel puts it in his brief as follows. (1) total manhours involved, (2) are their sufficient maintenance employees to do the work in question, and (3) how much is it going to cost. Jones testified that his usual recommendation is that a particular job not be contracted out unless it involves a minimum cost of $1,000, and Crest superintendent Schrimscher testified he did not recall a job involving less than $1,000.' Jones testified, moreover, that he had at times waived the $1,000 minimum, and that the maintenance heads who make the decision do not always follow his recommendation. What it comes down to, then, is that each job involves an evaluation by the maintenance heads concerning where the particular job is to be allotted. It could be to S-K's maintenance department, or to Crest, or it could be a combination of both. This indeed has occurred, as appears in the ensuing discussion involving the various (non-string 7-concerned) items. When the strike began, there were approximately the following employees at S-K's maintenance department and Crest employees working at S-K S-K Crest Boilermakers 16 6 Painters 6 1 Pipefitters 39 8 Machinists 25 Electricians 7 or 8 Instrument men 6 or 5 Operating Engineers 6 Ironworkers 10 Laborers 5 Cement Finishers 1 Carpenters 6 Total 95 or 97 33 'Schrimscher testified he has indeed billed S-K for less than $1,000 in situations where he has "loaned" Crest employees to S-K on jobs where S-K has run short of help on jobs being performed by S-K's own maintenance crew In that situation , the Crest man performs under S-K supervision, and Crest bills S-K for the "loaned" employee' s wages plus Crest's "markup " This has occurred about 6 times in Schrimscher's 3-year tenure at the S-K premises The 20 projects on "the list" do not include any such loan arrangement INTL.CHEMICAL WRKS.UNION 171 3 The projects (other than those involving string 7) In which Crest is the contractor The bulk of the items that do not involve string 7 are primarily Crest-contracted items, and in addition, the work involved is boilermakers work Since the record includes specific evidence concerning the comparability of the jobs they have performed with the projects involving boilermakers work, we shall treat these items (5, 6, 9, 10, and 11) in the text Preliminarily, however, we treat in a footnote the remaining items not concerned with string 7 or with Item 13 (the new office building) They are items 8, 12, 14, and 20 10 Items 5 and 6 Each item involved wall repair damage caused by the "decomp" (an explosion) occurring in October (before the strike) in the reactor to string 4 Item 5 involves repairing the Crude (extruder) room wall, and item 6 involves replacing "transite" (corrugated asbestos sidings) on the wall of the compressor building Engineer Jones and Jim Baker, an S-K boilermaker, testified decomps are "fairly common" occurrences Baker, corroborated by fellow boilermaker Roger Castilow, testified, without denial by anyone in the maintenance department, that in most prior occasions, S-K boilermakers have made decomp repairs by themselves, and in one instance, the repairs were done by a mixed crew of S-K and Crest boilermakers " Engineer Jones drew a distinction between a "minor" and "major" decomp, explaining that if "I was not asked [by the maintenance heads] for construction assistance," it must have been a "minor" decomp He later defined a "major" decomp as one where "we actually blow material out of the concrete confinement or destroy equipment in the basic stall." However, Jones later disclaimed that "major" decomps have been performed only by outside contractors instead of by S-K's crew, and Schrimscher admitted that Crest has not done all of S-K's repairs on decomp work. Item 5 is indeed the most extensive and expensive of the maintenance items But the job itself is boilermakers work, and as Baker and Castilow testified, the repairs S-K's boilermakers had done to damage caused by decomps were hardly tiddlediwinks either Baker testified to an occurrence last November where 10 or 1 I tubes had blown.' 2 The job took 4 or 5 days around the clock, and the repairs were done by "our boilermakers along with Crest. . We didn't have sufficient personnel to do the job, but we did work with them man for man around the clock "" Castilow testified to an occurrence some 2 years ago, where the No 2 reactor "blew up and it knocked the roof off of the building." The S-K pipefitters changed the valves and three other boilermakers besides himself repaired the roof He described another occurrence calling for the replacement of transite at the walls (as in item 6 and later described item 10) He described a later decomp where a couple of boilers blew up, and when they were removed, "it left a pretty big opening" in the structure He and an apprentice boilermaker put up 18 sheets of transite to cover the holes and also did the metal frame work on which the transite was hung Item 9 involves putting platforms at the pelletizer of an S D. unit (S.D units produce the S-K product called "Syper Dylan," while so far as appears, the units producing the other polythelene product, "Dylan" are termed "strings." Both are in pellet form See the later discussed item 1, concerned with string 7 ) Jones explained the jurisdictional area of the work is that of either boilermakers or machinists Item 10 involves repair work on the E B (ethyl benzene) building, which is the oldest of S-K's buildings (circa 1952) It calls for removing " transite" (supra, item 6) from the building, installing new iron work (to replace the rusted old iron work), and replacing the transite. Engineer Jones testified the work is in the jurisdiction of S-K boilermakers and painters Baker and Castilow described prior occasions in which they had done the kind of work involved in the Item 10 project on the EB building. Assistant Maintenance Superintendent Nida asked Baker (who was then alternate steward) and his two-man partner on that particular shift to survey the EB project and indicate whether they wanted the S-K crew or Crest to do the job ' ° The upshot as to Item 10 (the present repair job on the EB building, as distinguished from the earlier job, which is treated in fn 14, supra) was that in deference to Nida's "primary concern [for] speed," Crest was allotted the job on Item 10, with the understanding that Crest would do the job, but if overtime was involved, the S-K crew was to do the overtime.' S Item II ("Install guard rails at S D [Super Dylan-producing unit] powder bins and test bins") Jones agreed this is boilermaker work Further, as indicated by Baker's undenied testimony, shortly prior to the strike, Baker and another boilermaker had already unloaded and stacked the guard rails at the S.D. unit preparatory to installing them, and that this was pursuant to Maintenance Superintendent Cassidy's statement that the S-K boilermakers would install them after they were "Item 8 ("Guard for bulk car wash station nozzle ") is for the installation by Crest of a safety device on an already existing Dylan unit (other than string 7) and involves pipefitters work, supra. fn 8 Item 12 , explained by Jones as correcting the discharge of "condensate" of the pipes of strings I to 6, calls for piping by Crest (pipefitters work) and for electrical work by an outside electrical concern, Eldridge Electrical Co Item 14 is roof repair work in which the contractor is a roofing company Crest , however, has helped out to the extent that the roofing company is short of manpower There is no explicit evidence of the craft involved However, S-K boilermaker Baker's undenied description of boilermakers' work (infra, fn 11) apparently fits the kind of work involved in this repair operation Item 20 (Relocate wall on Cambre's office ) is totally unexplained regarding either the office or the occupant or the craft The contractor is a building company (the same company constructing the new office building in Item 13). "Baker described boilermakers work as involving sheet metal, structural steel , repair and general maintenance He explained that if a part of a building has deteriorated to the point of being a hazard to employees, the boilermakers repair and even rebuild it "Baker testified that in the maintenance department "minor" or "major" decomps are identified on the basis of the number of tubes blown The blowing of one or two is "minor" and from 5 on (and involving at least 24 hours' work) it is major "Baker explained that the reason Crest was then used was that "we didn't have a dragline in the plant," but now S-K does "Castilow testified that it is "sort of common practice" for Nida or one having like authority to consult the craft involved on whether the S-K crew wants to do the work or they are agreeable to having Crest do it Castilow described a specific example of this in a prior instance involving repairs calling for transite replacement on the EB building This was on the fifth level of the building and it called for rebuilding the frame and putting it back on before replacing the transite After discussion , the S-K crew was in that instance given the whole job "Baker testified that "we have never objected to working along with Crest, as long as all of our men were working If the job was large enough that we felt that we would be hindering the Company from production, we agreed amongst the boilermakers that we would work with Crest as long as no one was displaced, and it is common knowledge, about the plant that if the job was a small job, that we did the work " 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received from an outside concern that was fabricating them 4. The projects concerned with string 7 As earlier stated, all of the projects that concern string 7 (at least those on which Crest is the contractor in whole or in part) are maintenance type items except for the General Counsel' s contention that they are still part of "new construction " Construction of string 7 began on September 8, 1967, when Crest (apart from its long and still standing "blanket contract") made the "construction contract" with S-K Of the pre-existing strings (1 to 6), the most powerful is string 4 It has a pressure of 45,000 pounds per square inch, and string 7 was designed to be the peer of string 4 in that respect Jones testified that by August or September 1968, he and his engineering department began "checking" the unit out, i e determining whether it is "to be considered a production unit " (Jones explained that his department represented "construction" in S-K, as distinguished from production or maintenance.) By October 1968, as Jones testified, his engineering department "checked out" the unit and then proceeded with the responsibility of "selling" it to the heads of S-K's production and maintenance departments Jones testified Q Did you sell string 7 to Sinclair-Koppers9 A The unit as a whole was sold, but there were certain exceptions which were incomplete. The "exceptions" are presumably the 11 projects on "the list," which concern string 7 Of these, Crest is the sole contractor of items 1, 2, 3, 4, 7, and 17, and with the exceptions of 3 (which involves painters' work) all involve the work of boilermakers (except that 7 could also be done by pipefitters, another of the crafts in S-K's maintenance crew (Supra, fn. 8)." Jones testified that while these corrections are pending, string 7 has operated at a pressure of 35 to 40,000 instead of the hoped for 45,000 He testified, however, that it is "limited production," in that the unit's operation has not exceeded 2 or 3 consecutive days at a time. While the reason for this intermittence is not specified, it does appear that some of the items on the list, as Crest superintendent Schrimscher testified, cannot (or could not) be done while the unit is in full operation (items 1, 4, and 17) Whether that accounts for the intermittence is not clear, since there is no indication that these "exceptions" play any role in the hoped-for increase in the pressure of the unit, as distinguished from merely adding to the facility, safety or convenience in its operation, whatever the pressure (Exemplifying the latter purpose, would appear to be all of the Crest-contracted items, later discussed, i.e item 17, treated in the text and items 1, 2, 3, 4, and 7, treated on fn 18, infra ) What is clear, however, is that though the unit is in limited production, it is in actual production The General Counsel's brief states that all operations on string 7 consist merely of "testing." The record makes no such suggestion and the fair intendment of Jones' testimony is that the unit is actually producing products, that is to say, commercially, whatever the interruptions to its continuity Jones further testified that the operating employees on string 7 have the same classification as the employees operating the other strings (classification A and B) Further, the corrective items worked on are conventional post-completion items of the kind that according to Baker's undenied testimony, he and his fellow-boilermakers regularly do at the postcompletion stage As Jones admitted, and as previously stated, the bulk of the work in the items in which Crest is the contractor is boilermakers work (items 1, 2, 4, 7, and 17) Jones also admitted that S-K's own maintenance employees had in fact been working on corrections of string 7 itself The testimony concerning item 17 ("Improvements to 7 string jet zone") previously alluded to (supra, fn 16) so indicates Jones explained that the specific jet zone improvement in item 17 happens to involve the dryer Baker and Castilow testified to another improvement they made on the jet zone This was done under specific orders of Tom Turner, chief engineer of S-K's maintenance department When Turner made this assignment, Baker, according to his undenied testimony, asked Turner whether the jet zone improvements had been assigned to S-K's boilermakers, and Turner responded that "had it not been that he (Turner) wouldn't be assigning us to do the job "" As appears from Jones' testimony, the string 7 items that are under the "construction contract" are 1, 2, 3 and 4, and 7 Item 17 involving the jet zone improvement, which is not under the construction contract and by that token is under the "blanket contract," has already been described. Of the items under the construction contract, all involve boilermakers work except item 3, which involves painters The particulars of 1, 2, 3, 4, and 7 are described in the footnote below 18 However, items 3 and 7 Of the remaining 5 items, the contractor on items 12, 15 and 19 is Eldridge Electrical Company , previously mentioned These involve electrical work, but item 12 also involves pipefitting , for which Crest is the contractor As to item 16, after Jones' engineers work out the deficiencies in the design of the silo level indicators with the vendor (whose name Jones at the moment did not recall ), Crest is to install them Item 18 is noted for its relevancy to a soon to be mentioned aspect of the "new construction" contention advanced by the General Counsel Jones testified that item 18 (removal of a wire to step up the power of the motor in the purge air blower ) calls for the alignment of the motor after removal of the wire Jones testified that the alignment job on that very project is the work of S-K's own machinists Before the strike, Jones told the machinists' representative that the wire removal would be done by Eldridge Electric and S-K's supervisors would do the alignment The machinists said that if S-K did any part of that job, they would picket the reserved gate Jones testified that since there was no crying need to increase the power of that purge air blower, S-K "didn't press the issue ," but it has nevertheless retained item 18 on the list, "since there was no agreement made that we would not do the complete job " A counterpart to this is item 17, improvement of the jet zone As the evidence later indicates , S-K's boilermakers had before the strike already made one such improvement to the jet zone of string 7 under an assignment to S-K ' s crew , to do all the improvements on that jet zone "A like situation appears in the previously discussed item 11 (not involving string 7), where Maintenance Superintendent Cassidy said the job there (installing guard rails at an S D unit ) would be done by the boilermakers when they were received from the fabricating company, and where Baker and another boilermaker after the rails arrived, had unloaded and stacked the rails at the S D unit as the preparatory step for making the installation "Item I involved a correction of the "bin sample probes" (tubes), which would enable the sample probes to open and close properly so as to catch the sample pellets Baker testified that about a year before this, the S D unit had a similar problem "and we took the sample probes out and revised them , and put them back in so that they would operate properly " (Jones testified that the mechanisms of Dylan and S D producing units are the same after they have reached the stage of producing the pellets ) Item 2 (" Install platforms at silos 7 string") These are safety platforms to provide a safe place for the operating personnel in the silo area to stand on Baker testified the boilermakers did the identical thing in the S D unit Jones testified that the job here was the same as item I I (which does not involve string 7) In both instances "we are going back and putting safety platforms in the bins and test bins as well as guard rails " Item 3 Jones explained that this was "a concrete pad that was poured to house mix additives " Baker testified that 2 weeks before the strike S-K's INTL CHEMICAL WRKS, UNION involve still another feature peculiar to themselves. The General Counsel's brief includes items 3 and 7 as part of the "new construction" claimed for string 7 (until that unit hits a pressure of 45,000 as distinguished from its present 35 to 40,000 pounds) But Jones testified that item 3 applies to all 7 strings, and as to item 7, Schrimscher testified that the project concerns two other units, in addition to string 7 - strings 5 and 6. So whatever might be said for the "new construction" characterization of the jobs as applied to string 7 (and whatever role these items can conceivably play in the hope of having string '7 achieve an increase in its pressure) they are at least conventional maintenance items as applied to the other production units that these items involve The essential feature, here, is not the terminology used but its realities. They are corrections of a unit that has been checked out as completed by S-K's engineering department, and is actually in production though on a limited basis The work involves post-completion corrections of the kind made in respect to preexisting units 5. The relation of some of the projects to S-K's normal operations for consideration apart from S-K's employees prior performance or competence in respect to them Various items involved corrections that were needed by S-K in connection with its existing day-to-day operations Specific examples appear in respect to the repairs (Items 5 and 6) needed in the building damaged by the explosion o the 4 reactor, and also in respect to the repairs needed on the EB building (Item 10). Regarding the repairs in the "crude room" (extruder) building (Item 5), Jones had testified that if that structure experienced another decomp (which, as both engineer Jones and boilermaker Baker agreed, is not an infrequent occurrence) "the whole extruder room roof could fall, so we are going in and picking up the roof beams with new steel support columns." Crest Superintendent Schrimscher elaborated upon it and added, "It (the crude room) is unsafe the way, it is." This was on direct On cross, Schrimscher was asked whether until the large holes in the compressor room (Item 6) and the EB building (Item 10) were covered by the transite or its equivalent type of covering, they too were not safe Schrimscher testified that if he had not made the repairs (presumably after Respondent ceased picketing the East Gate) "it is possible that some of the people could have gotten wet or cold." At any rate, regarding the compressor building (Item 6), Schrimscher acknowledged that "those compressors are necessary to' ,the company's normal operations," the implication being the same in respect to the Crude room and the EB! building (Items 5 and 10) painters had poured a similar slab at an S D unit Item 4 ("Additional bracing on string 7") This was to correct vibrations) in the pipings which had been detected at string 7 Baker 's testimony, undemed, is that it had been the prior practice to assign that work to S-K's' boilermakers Baker explained that "if something has a vibration, running at a tendency to where it won't stay on the foundation , well, we are there every day, and we are assigned to this particular area, and naturally we brace it down That is our job " Item 7 (the item which is prorated as between the construction contract and, presumably , the blanket contract) involves erecting a cover for the V A (vinal acetate) pump and drum storage The cover would consist of four columns and a roof Jones testified that S-K has "people available that could do it" and that if S-K did it "it would be done probably by the boilermakers , since we have no iron workers at Sinclair -Koppers " 173 Jones testified in respect to other items that are needed as safety devices. These are items 2, 8, and II Jones testified that Item 11 (installation of the guard rails at the S D powder and test bins) were safety platforms, which the engineering department thought of for the first time after that unit was completed (As earlier noted, Maintenance Superintendent Cassidy has specifically stated that S-K's boilermakers were to install these rails after they were received from the fabricators ) Jones further explained that this work on the S.D. area is similar to Item 2, the platform project on string 7, in that after completion of the unit in each instance, the engineers for the first time, thought of having safety platforms installed on the bins of each unit Item 8 calling for a guard for the bulk wash station nozzle on a Dylan producing unit, other than string 7 (and by that token an unquestionably pre-existing unit) was characterized by Jones as a "safety device " It involves pipefitters' work. D Items whose performance call for curtailment of regular operations Schrimscher testified that the following items could not be done on string 7 unless it is in full operation - item 1 (the correction of the hold bin sample probes); item 4 (the additional bracing to correct vibrations), and item 17 (the improvements to 7 string jet zone). E Conclusionary discussion 1. Related work If anyone of the three conditions of the reserved gate principle has not been met by the General Counsel, the picketing of the reserved gate on the primary employer's premises is primary and therefore lawful activity." Though Respondent urges that the General Counsel has not met anyone of the three conditions, we discuss at this stage the second, the "related work" condition (around which most of the hearing was centered, as are also the briefs of the parties and the preceding factual discussion) The more accurate short cut expression for the condition is "unrelated work," since, as stated, the General Counsel has the burden of establishing that the work of the employees of the independent contractors using the reserved gate is "unrelated to the normal operations of the [primary] employer " Item 13 of "the list," which involves the construction of the new office building and its appurtenances, has indeed met that condition. The other items, on the face of it and as appears from engineer Jones' explanation, are maintenance and repairs of existing units and facilities used in S-K's regular business operations The Crest-contracted items, far from being demonstrated to be unrelated to S-K's normal operations, are shown by the evidence to be most related to them The fact that the competence of S-K's maintenance repair crew to perform these tasks is not disputed would in itself be sufficient to defeat the assertion that they are unrelated to S-K's normal operations. See Firestone Synthetic, supra, fn. 2, and Mallinckrodt Chemical, supra, fn 19 The affirmative evidence, in the Crest-contracted items, and more particularly those involving boilermakers work "See General Electric case, supra. fn 2, Firestone Synthetic case, supra, fn 3 See also Local No 1. International Brotherhood of Electrical Workers, AFL-CIO (Mallinckrodt Chemical Works), 148 NLRB 340, 348-349 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (as the bulk of them do) show that the S-K maintenance crew have done identical or similar work and have met similar problems to those stated on the Crest-contracted projects. See Items 1, 2, 4, 5, 6, 9, 10, 11, 17 (boilermakers), and 3 (painters) Crest is shown to be simply an extension of the manpower needs of S-K in connection with its maintenance and repair work, and as stated, the work is not merely "related" to S-K's normal operations It is an integral part of S-K's operations however much S-K uses Crest for those repairs in addition to its own maintenance crew. The General Counsel, in urging a contrary result, conceives the terms "related work" and "normal operations" to have a different meaning in law from their ordinary meaning His thesis, basically, is that work is unrelated to the employer's normal operations unless the strikers would actually have been doing that work but for the strike.20 That premise would preclude picketing the reserved gate even when used by truckers delivering supplies for the primary employer's own operations, since this is hardly work the strikers would have been doing had there been no strike The General Counsel acknowledges, however, that the Union may lawfully picket the reserved gate when used to make deliveries intended for the primary employer. See General Electric, supra, fn. 2 at p. 680, and Carrier Corporation 21 In an effort to reconcile the contradiction between his premise and the broad conclusion it invites, the General Counsel states the following two propositions as "plainly obvious" from the rationale of General Electric, thus "(I) an employer under the guise of a separate gate may not allow someone else to keep his plant running during a strike, and (2) the broad term `related work' is narrowly construed to mean that the work is of a usual day to day maintenance classification, that is the work that those on strike would have been expected to be doing but for the strike (usually general maintenance work)." (Emphasis added ) This is in effect saying that the test of the right to picket a reserved gate is whether the contractor is an outright strikebreaker or ally of the primary employer. (That indeed was the basis on which Crest, at its meeting on January 6, with the strikers' representatives, advanced its claim that the picketing of the reserved gate should be abandoned.) As it happens, even under the General Counsel's conception of "related work," there are at least four specific items on which S-K's maintenance crew would have been working had there been no strike Three involve the boilermakers These are items 11 (the guard rails, which Maintenance Superintendent Cassidy said the boilermakers were to install when the rails were received from the fabricators); 17 (the jet zone improvements on string 7, which Maintenance Engineer Turner said had been assigned to the S-K boilermakers when he assigned, -and the boilermakers performed, another improvement called for on string 7, and item 10, where Assistant Superintendent Nida, after consultation with S-K's boilermakers, stated that the work was to be a combined operation of Crest employees during regular hours and S-K's boilermakers on overtime (These include also item 18, involving the machinists work on the purge air blower 1OAt the hearing, the General Counsel had carried this thesis to the point of insisting that the work is "unrelated" unless it is work that but for the strike only the employees represented by the picketing union would have been doing regardless of whether employees in the other crafts would have been doing it The General Counsel, in his brief, apparently no longer carries his restriction of the term that far "United Steelworkers of America. AFL-CIO v NLRB (Carrier Corporation). 376 U S 492 motor Supra, fn. 16.) However, the matter of whether the work of an independent contractor is "unrelated work" hardly turns on the narrow question concerning whether the strikers would not have been doing that specific job in the absence of a strike. The question is whether the work is of a character which is necessary to the employer's own regular operations, however neutral the user of the reserved gate may himself be in the conflict.22 In urging that such maintenance work is not related to the employer's normal operations, the General Counsel relies on these two factors. (a) that the jobs contracted for call for more manpower than the primary employer has in his maintenance crew, and (b) that the jobs had all been contracted for prior to the strike As to (b), in General Electric, the work of the independent contractors, too had been contracted for prior to the strike. As to (a), the General Counsel, as previously mentioned, relies on that factor only in respect to the items not concerned with string 7 The string 7 items, though they would be ordinary maintenance even under the General Counsel's conception of the term, are, in the General Counsel's view, taken out of that category on the premise (rejected in the preceding portion of this Decision) that the work on string 7 is and ever will be "new construction" until it achieves the vaunted 45, instead of the existing 35 to 40,000 pounds of pressure. And under that view, every job on string 7 continues as "new construction" even if it has already been constructed and is already producing, and even if the projects on it are not shown to have any relation to the wished for increase in its power As to the items other than string 7, the contention that the size of the maintenance job takes it out of the related work character involves a number of anomalies. The theory is that the size of the work contracted for so exceeds the size of the day-to-day jobs of S-K's maintenance crew as in fact, to render these jobs "unrelated to [S-K's] normal operations " The minor premise happens not to be so in any event, as the size of some of the prior jobs done by S-K's boilermakers attests. Further, a job where the Crest bill, under the cost-plus-fixed percentage basis, totals $1,000 is not so disproportionate to some of the jobs regularly done by the S-K crew as to take the Crest jobs out of the related work category even under the General Counsel's theory But taking the jobs that were more costly and calling for more manpower than those available by S-K (of which item 5 is the most prominent example), the proposition that this takes it out of the "related work" category seems to be based on a reverse application of the de minimis doctrine as used by the Supreme Court in the reserved gate principle. The brief states (Br 9) The jobs performed by Respondent's boilermakers, when compared to the scope of the 20 items on G C. Ex. 4 [here Appendix A] (omitted from publication), "New construction is not part of the employer's regular operations, which is what distinguishes the result in the Phelps Dodge case (United Steelworkers of America v N L R B, 289 F 2d 591, 595) from that in General Electric in General Electric, the Supreme Court adopted the reserved gate principle for purposes of remand, which the Second Circuit in Phelps Dodge expressed by way of dictum, since Phelps Dodge involved new construction The other cases relied on by the General Counsel (Allied Industrial Workers of America. Local 681, AFL-CIO (Smith Engineering Works), 174 NLRB No 61, and Janesville Typographical Union (Gazette Printing Company), 173 NLRB No 137) involve the same distinction They involved new construction as distinguished from the employer's maintenance operations See also Firestone Synthetic (supra, fn 3, and infra, fn 23) INTL CHEMICAL WRKS UNION constituted jobs which may be classified as de minimis The Court, in remanding the Genera! Electric case for consideration of the extent to which the independent contractor used the reserved gate in connection with work that was related to GE's normal operations, qualified itlas follows (id. at 682). It 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 . It calls for Board determination On remand, the Board determined that the work of the independent contractor using the reserved gate included work "identical or substantially similar" to those performed by GE's employees was not de minimis, and thus (138 NLRB at 346). i Since this work, which we find constitutes more than a de minimus amount had previously been performed by GE employees, we find that such work was part of GE's normal operations. We accordingly find that the Supreme Court's "related work" condition was not met and hence the Union's picketing at gate 3-A was primary. Under the General Counsel' s position , the contractors' maintenance work that is comparable to S-k's maintenance work can be so far in excess of de minimis as to become de maximis, and by that token produce the same legal effect as if that work were de minimis in the first place. While surfeit may be the counterpart of undernourishment as a physiological proposition, it would seem less than such as a legally logical one. The result here under the theory propounded would be this A smaller job, such as work which the General Counsel attributes to S-K's employees as a "day-to-day" matter (and by that token presumably less needed to S-K's continued operation) is related to S-K's normal operation. On the other hand, a larger job and presumably the result of a condition where there is an even greater need for repairs to enable the employer to engage in his regular operations is by that token unrelated to the employer's normal operations The conclusion is that of the items other than Item 13 (construction of the new office and appurtenances), those in which Crest is the contractor and in which boilermakers work is involved are in the various instances previously described affirmatively demonstrated to be related to S-K's normal operations, and as to the remainder, the General Counsel has not met his burden of showing that they are unrelated. See specifically, the Mallinckrodt case, supra, fn. 19 at 349. It follows that the General Counsel has not met the "related work" condition of the reserved gate principle and that the picketing of the East Gate was primary 2. The sufficiency of S-K's reserved gate sign As stated, Respondent claims that the other two elements of the reserved gate principle have not been met As to the first element, Respondent claims that the word "deliveries" on the reserved gate sign, which appears after "all contractors," is unqualified, and hence that one reading the sign would thus understand that it could be also used for deliveries intended for S-K's own normal use. Whatever its literal meaning, the entire context indicates the deliveries contemplated were for the contractors' use only, and it seems rather clear that no one understood it otherwise by either word or actual occurrences I therefore conclude that with the reserved 175 gate sign, the General Counsel has met condition [1] of the reserved gate principle 3. The need for curtailing some of S-K's regular operations to perform some of the projects As to the third test, Crest superintendent Schrimscher, as earlier indicated, testified that items 1, 4, and 17 could not be performed unless that unit (string 7), is not in full operation The Respondent claims that it follows from this that the performance of these tasks would necessitate curtailing S-K's regular operations and thus the third test necessary to disprove primary activity is not met." The General Counsel's only claim to the contrary is that these items involve string 7, which he insists is still "new construction " I have heretofore overruled that contention and found these to be post-completion maintenance projects of a kind that S-K's maintenance people can do, and have indeed done in the past with similar units. At all events, since the General Counsel has not proved that the suspension of that unit would not pro tanto curtail S-K's regular operations, the third test to disprove primary activity has also not been met 4 The claimed applicability of Moore Dry Dock Finally, the General Counsel claims Respondent was additionally remiss in that the picket sign at the East Gate stated it was "on strike" instead of "on strike against [S-K] " The claim is that the failure of the sign to identify whom Respondent was striking against was "a blatant violation of the Board's Moore Dry Dock [supra, fn 4] standards." The claim that such requirement exists when picketing occurs on a reserved gate on the primary employer's premises (as distinguished from an area away from it and in "common situs" situation) is stated by the General Counsel, as an original proposition. No mention is made of how that proposition fared in the General Electric case itself. In the original decision, in which the Board found the Union's picketing of the reserved gate was a violation, Member Fanning in his concurring opinion relied on the Moore Dry Dock criteria (123 NLRB at 1552, 1553, fn. 9). He expressed the view that Moore Dry Dock applied to picketing of a reserved gate on primary premises as it does to picketing on stranger premises in a "common situs" situation. Concerning General Electric itself, he indicated that two of the four criteria of Moore Dry Dock had not been met, first in that reserved gate was not "reasonably close to the situs of the dispute" with the primary employer (GE), and secondly in that the picketing "did not clearly distinguish that the dispute was only with [GE]." In the Supplemental Decision, the Board, on the basis of the reserved gate principle enunciated by the Supreme Court, found that the "Compare Firestone Synthetic (supra, fn 2) There the Board found the construction by the independent contractor of an effluent ditch to improve Firestone's existing water treatment system, was maintenance work, and since Firestone's own crew had the ability to make the ditch (though they had never theretofore done such a job), this was work related to Firestone's normal operations within the meaning of the second test of the reserved gate principle As to the third test , though the ditch was completed , it still had to be tied to the existing water treatment system, and this in turn would necessitate shutting off the existing water treatment system which serves a good part of the plant The Board noted that since the General Counsel did not prove that the shutdown would not affect a substantial portion of Firestone's operations, the Board (if it reached that issue) would find the third test necessary to disprove primary activity was also not met 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's picketing was primary and therefore lawful, and though the Board specifically noted Member Fanning's concurring opinion in the earlier decision (where he relied on the fact that the picketing "failed to comport with two of the [Moore Dry Dock] criteria") the Board made no further mention of Moore Dry Dock The Board's Supplemental Decision dismissing the complaint thus indicates it thought Moore Dry Dock not applicable Member Fanning in going along with the decision dismissing the complaint, gave no indication that on the facts (and assuming the Moore Dry Dock doctrine applied to a reserved gate situation), he abandoned the view that the picketing did not conform with two of the criteria Thus Member Fanning could not have concurred in the dismissal unless he concluded, along with the other Board members, that Moore Dry Dock did not apply to a reserved gate situation in the primary employer's own premises. Accordingly, once picketing at a reserved gate is otherwise held to be primary activity, it is no more subject to Moore Dry Dock requirements in picketing a reserved gate than it is in picketing any other part of the primary employer's premises The General Counsel's further observation that the omission of S-K's name from the picket sign "certainly reinforced the fact that Respondents by their picketing at the East Gate sought only to have Crest cease doing business with S-K" is no more relevant than would be a like observation in connection with picketing which occurs while an independent contractor is using what is undisputedly a primary area - such as for example, the gate regularly used by the primary employer's employees RECOMMENDED ORDER On the findings and conclusions above and on the entire record, it is hereby recommended that the complaint be dismissed