Carpenters Local Union No 470

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