Oil, Chemical & Atomic Workers Local 1-591 (Burlington Railroad)

324 325 NLRB No. 45 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Unless otherwise noted, all dates refer to 1995. Oil, Chemical and Atomic Workers International Union, Local 1-591 and Burlington Northern Railroad. Case 19–CC–1933 January 27, 1998 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN, HURTGEN, AND BRAME On charges filed by Burlington Northern Railroad (Burlington) on June 6, 1995,1 against Oil, Chemical and Atomic Workers International Union, Local 1-591 (the Union), the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on July 25. The complaint alleges that the Union violated Section 8(b)(4)(i) and (ii)(B) of the Act by picketing at the entrance to Texaco’s refinery re- served for the exclusive use of Burlington, a neutral entity. The complaint further alleges that the Union violated Section 8(b)(4)(i) and (ii)(B) by picketing at a point on Burlington’s railroad tracks away from Tex- aco’s premises after it had been directed to move its pickets to that location by law enforcement officers called to the scene by Texaco. On October 10, the Union, Burlington, and the Gen- eral Counsel submitted a motion to transfer proceed- ings to the Board and filed a stipulation of facts in which they waived a hearing and the issuance of find- ings of fact, conclusions of law, and a decision by an administrative law judge, and submitted the case di- rectly to the Board for findings of fact, conclusions of law, and a decision. The parties agreed that the charge, complaint, the Union’s answer and amended answer, and the stipulation of facts would constitute the entire factual record in the case. On December 22, the Board issued an Order approv- ing the stipulation of facts, granting the motion, and transferring the proceeding to the Board. The parties thereafter filed briefs. On the entire record and the briefs, the Board makes the following FINDINGS OF FACT I. JURISDICTION Burlington is a Delaware corporation, with its office and principal place of business in Fort Worth, Texas. Burlington operates railroads throughout the United States, including the State of Washington. During the 12-month period preceding the submission of the case to the Board, a representative period, Burlington, in the course and conduct of its business operations, sold and shipped goods or provided services from its facilities within the State of Washington to customers outside the State, or sold and shipped goods or provided serv- ices to customers within the State which were engaged in interstate commerce by other than indirect means, of a total value in excess of $50,000. Texaco Refining and Marketing, Inc. (Texaco) is a corporation engaged in refining and marketing petro- leum products worldwide and in the State of Washing- ton. During the 12 months preceding the submission of the case to the Board, Texaco had gross sales of goods and services valued in excess of $500,000 and sold and shipped goods or provided services from its facili- ties within the State of Washington, to customers who were engaged in interstate commerce by other than in- direct means, of a total value in excess of $50,000. Western Plant Services, Inc. (WPS), a subsidiary of Hall-Buck Marine, Inc., is a California corporation with an office and place of business in Anacortes, Washington, where it handles and loads petroleum coke within Washington State. On the basis of a pro- jection of its operations since June 1, when it com- menced its operations at Texaco’s refinery in Anacortes, Washington, WPS will annually provide services from that facility to customers within Wash- ington State, or provide services to customers within the State which are themselves engaged in interstate commerce, of a total value in excess of $50,000. At all material times, Texaco and WPS have been employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and Burlington has been a person covered by the Railway Labor Act which is engaged in an industry affecting commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4) of the Act. At all material times, the Union has been a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Stipulated Facts Texaco operates a heavy petroleum refinery in Anacortes, Washington. Within that facility, Texaco owns the delayed coking unit (DCU), which is used to produce petroleum coke. Texaco sells petroleum coke to its customers, including Alcan Aluminum and Kai- ser Aluminum, which are aluminum producers with fa- cilities in Spokane, Washington, and Canada. Texaco employees fill the DCU with heavy petroleum, which they ‘‘crack’’ in the DCU. Texaco employees then pipe the refined petroleum product into other areas of the refinery for further processing, leaving the petro- leum coke in the DCU. Since at least 1984, Texaco has contracted with a series of independent contractors to handle and load the petroleum coke from the DCU. Between April 1, 1990, and May 31, 1995, Texaco contracted with Alpha Omega Construction, Inc. (Alpha Omega) for that purpose. The Alpha Omega employees who cut, VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00324 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10 325 OIL WORKERS LOCAL 1-591 (BURLINGTON NORTHERN RAILROAD) handled, and loaded the petroleum coke were rep- resented by the Union. About June 1, Texaco awarded the contract for cut- ting, handling, and loading petroleum coke to WPS. Under Texaco’s agreement with WPS, Texaco owns, and provides for WPS’ exclusive use during the coke cutting and handling process, the coke handling facili- ties and equipment for cutting, handling, moving, and storing coke as well as wash-up and sanitary facilities, electric power, and water supplies. WPS provides labor for coke cutting and handling, small tools, preventive maintenance of the coke cutting equipment, mainte- nance and management of other equipment, front end loaders, and miscellaneous consumables. After Texaco has refined and piped away the petro- leum in the DCU, it signs a document permitting WPS to cut and handle the coke. From that point, the DCU is operated solely by WPS employees, who cut, proc- ess, and crush the coke into a commercially usable substance, and store the crushed coke in one of three storage areas. From the storage areas, WPS employees move the coke onto trucks or railcars. The price paid to WPS by Texaco for coke handling is based on the tonnage of coke handled. The agreement provides for two kinds of arrange- ments for shipping the coke to Texaco’s customers. Under the first, WPS obtains the services of an inde- pendent trucking contractor and arranges for the arrival and departures of the trucks. WPS employees load the coke onto the trucks, which transport it to the Port of Anacortes, where longshoremen transfer it to barges procured by Texaco’s customers. When Texaco’s customers wish to have coke shipped by rail instead of by truck and barge, they contract with Burlington for the services of rail coke cars. The customers also communicate directly with Texaco’s stock and shipping department concerning coke shipments by rail, and they discuss available coke inventory with WPS. Texaco’s stock and shipping de- partment arranges for the arrival of rail coke cars, which Burlington delivers to the ‘‘coke spur’’ railroad tracks that run next to the DCU. WPS employees then load the coke onto the cars. When the coke has been loaded, WPS informs Texaco, which advises Bur- lington that the cars are ready for shipment. Burlington then removes the coke cars via the coke spur to the main railroad line and delivers them to Texaco’s cus- tomers. The customers pay Texaco for the coke on the basis of the weight delivered. Texaco does not pay for the costs of rail shipment; Burlington collects shipment costs from Texaco’s customers. Texaco has a reserve gate system that is in operation at all times. The main gate is reserved for Texaco, its employees, and its suppliers. The main gate is located at the north end of Bartholomew Road, a half mile or more from the location of the allegedly unlawful pick- eting. There are eight other reserved gates, numbered 1 through 8, which are reserved for the use of various contractors, their employees and suppliers. Those gates are located on South Texas Road, to the east of Bar- tholomew Road, and are also several hundred feet from the location of the allegedly unlawful picketing. Since about June 1, gate 6 has been reserved for WPS. Gate 7, next to gate 6, is used by independent trucking companies to haul coke away from the DCU. There is another reserved gate, for Burlington, where the coke spur enters the refinery property on the east side to service the DCU. Since about June 1, the Union has been engaged in a labor dispute with WPS based on WPS’ failure to hire the former Alpha Omega employees. The Union has no labor dispute with Burlington. For purposes of this litigation, the Union does not admit, but does not contest, the absence of a primary labor dispute with Texaco; the General Counsel does not concede that the Union has a primary labor dispute with Texaco. Beginning about June 1, in furtherance of its dispute with WPS, the Union picketed gate 6 (reserved for WPS) and gate 7 (used by trucks picking up coke from the DCU) with signs that read ‘‘Unfair Labor Practice Strike against Hall-Buck Marine/Western Plant Serv- ices—OCAW Local 1-591’’ and ‘‘On Strike Against Hall-Buck Marine/Western Plant Services—OCAW Local 1-591.’’ The picketing at gates 6 and 7 is not alleged to be unlawful. Beginning about June 3, one member of the Union picketed the gate to the refinery reserved for Bur- lington’s exclusive use (i.e., the gate through which the coke spur passes on its way to and from the DCU). The coke spur is used only for the delivery of empty rail cars to the DCU and for the passage of cars loaded with petroleum coke out of Texaco’s premises; it does not continue on to any other facility. When Burlington’s employees attempted to deliver empty coke cars to the DCU via the coke spur, they encountered the union picket and refused to cross the picket line or deliver the coke cars. Texaco called local law enforcement officials who came to the railroad en- trance to the refinery. An official directed the picket to move off Texaco’s property to the closest public property, which is where Burlington’s main rail line crosses a public roadway before the coke spur branches off the main line. The picket moved to that location and continued to picket with the signs de- scribed above. Burlington’s main rail line services other businesses, including the Shell Oil refinery to the northwest of the Texaco refinery. On June 5, the first train to arrive at the location of the picketing carried cars destined for both the DCU and other locations. When Burlington’s employees approached the pickets, the pickets asked the train crew not to cross the picket line. The pickets VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00325 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10 326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 376 U.S. 492 (1964). 3 366 U.S. 667 (1961). 4 Section 8(b)(4) provides that It shall be an unfair labor practice for a labor organization or its agents—(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a re- fusal in the course of his employment to use, manufacture, proc- ess, transport, or otherwise handle or work on any goods, arti- cles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in com- merce or in an industry affecting commerce, where in either case an object thereof is— (B) forcing or requiring any person to cease using, selling, han- dling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person... Provided, That nothing con- tained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing[.] 5 Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950). 6 Id. at 549. 7 See Operating Engineers Local 450 (Linbeck Construction), 219 NLRB 997 (1975), enfd. 550 F.2d 311 (5th Cir. 1977); Carrier. 8 306 NLRB 616 (1992), enfd. 20 F.3d 1017 (9th Cir. 1994), cert. denied 513 U.S. 946 (1994) (herein referred to as Piggyback). gave the rail crew a flyer detailing the nature of the Union’s dispute with WPS. They explained that the dispute was only with WPS and with no other em- ployer. Initially, Burlington’s employees would not cross the picket line, but after the cars destined for the DCU were detached, the pickets dropped their signs and the train continued on the main track to the Tex- aco and Shell refineries before it returned to the main line. The coke cars were then reattached and Bur- lington’s supervisors delivered the empty cars to the DCU. Thereafter, the pickets did not picket on the tracks, but instead stood or sat beside the tracks. All the picketing described above was peaceful. The Union has not picketed Burlington or its tracks since June 9. B. Issues Presented The issues to be decided are (1) whether the picket- ing was primary situs or common situs picketing; (2) if primary situs, whether the picketing was lawful under the ‘‘related work’’ test enunciated by the Su- preme Court in Steelworkers (Carrier Corp.) v. NLRB2 and Electrical Workers Local 761 (General Electric) v. NLRB3; and (3) if common situs, whether the picketing was unlawful because it did not take place reasonably close to the situs of the dispute with the primary em- ployer, or whether it was lawful because of the nature of the service provided to the primary by the railroad. C. Contentions of the Parties The General Counsel contends that the Union’s picketing of Burlington was secondary picketing in violation of Section 8(b)(4)(B).4 He argues that the picketing took place at the Texaco refinery, where em- ployers and persons other than WPS were working, and therefore that the Moore Dry Dock5 standards for evaluating the validity of common situs picketing should apply. The General Counsel contends that Tex- aco had established a valid reserved gate system and that, by picketing the gate reserved for Burlington, the Union failed to limit its picketing to places reasonably close to the location of the situs of its dispute with WPS, the primary employer.6 Accordingly, he argues, the Board should find that the picketing had an unlaw- ful secondary objective. Burlington agrees with the General Counsel that this is a common situs picketing case that should be gov- erned by Moore Dry Dock. However, Burlington ar- gues that, as WPS is never on Burlington’s premises, the picketing was not limited to times at which WPS was on those premises and the Moore Dry Dock stand- ards cannot be met. The Union contends that the premises at issue is not the Texaco refinery but the DCU, which was and is customarily occupied by WPS. Therefore, the Union argues, the picketing was not common situs picketing but picketing of the premises of WPS, the primary em- ployer. And, the Union continues, because the service supplied to WPS by Burlington is closely related to WPS’ normal operations, the picketing of the gate re- served for Burlington was lawful primary picketing under the analysis in Carrier, supra. But even if the picketing is judged under Moore Dry Dock, the Union contends, it was still lawful because Burlington supplies coke cars to WPS and picks up and hauls away the processed coke, and a union may lawfully picket a gate reserved for suppliers of mate- rials essential to a primary employer’s operations or for distributors of the primary’s products.7 The General Counsel disputes this contention, citing Teamsters Local 315 (Santa Fe),8 in which the Board and court rejected a similar argument. The General Counsel does not allege that the Union violated the Act in any way other than by picketing at the Burlington gate and, later, at the Burlington main line. Thus, there is no contention that the messages on the Union’s picket signs or handbills, or any state- ments made by the pickets, indicated an unlawful sec- ondary objective. D. Discussion and Conclusions A union is permitted to picket a primary employer with whom it has a labor dispute, but it runs afoul of Section 8(b)(4) if it pickets a neutral employer with the proscribed object of enmeshing the neutral employer in a controversy not its own. Where, as here, neutral sec- ondary employers perform separate tasks on the same jobsite as a primary employer with whom a union has a dispute, the Board has long held that the Section 8(b)(4) right to engage in primary picketing must be VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00326 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10 327 OIL WORKERS LOCAL 1-591 (BURLINGTON NORTHERN RAILROAD) 9 Retail Fruit & Vegetable Union Local 1017 (Crystal Palace Market), 116 NLRB 856, 859 (1956), enfd. 249 F.2d 591 (9th Cir. 1957). 10 Denver Building Trades Council v. NLRB, 341 U.S. 675, 692 (1951). 11 The four criteria require that (1) the picketing be strictly limited to times when the situs of the dispute is located on the secondary employer’s premises; (2) the primary employer be engaged in its normal business at the situs at the time of the picketing; (3) the pick- eting be limited to places reasonably close to the location of the situs; and (4) the picketing disclose clearly that the dispute is with the primary employer. If the picketing conforms to these criteria it is presumed to be lawful primary picketing. 12 Building & Construction Trades Council (Markwell & Hartz), 155 NLRB 319, 323–326 (1965), enfd. 387 F.2d 79 (5th Cir. 1967) (hereinafter referred to as Markwell & Hartz). 13 Carrier Corp., 376 U.S. at 497–498. 14 Linbeck Construction v. NLRB, 550 F.2d at 316. 15 Id. at 318. 16 Although the Union does not admit the absence of a primary labor dispute with Texaco, neither does it contest this fact. More- over, it has made clear that its only dispute is with WPS. We there- fore find that Texaco is a neutral for purposes of this case. 17 Retail Fruit & Vegetable Clerks’ Union (Crystal Palace Mar- ket), 116 NLRB at 858. 18 Carrier, 376 U.S. at 497–498; General Electric, 366 U.S. at 680. 19 The ‘‘related work’’ test is applied only when picketing is at the premises of the primary, not when, as in this case, it takes place at the premises of a neutral. See Piggyback, 306 NLRB at 625–626. Burlington argues that the Union violated criterion (1) of Moore Dry Dock, i.e., that the picketing take place only when the situs of the dispute is located on the premises of the secondary. The railroad reasons that (1) it is a secondary entity; (2) WPS never works on Burlington’s premises; and (3) thus, the picketing did not occur when the situs of the dispute was located on the railroad’s premises. That argument has no merit. The relevant premises, as we have found, is the refinery, not the portions of the refinery that are occu- pied by other entities. As WPS is consistently on Texaco’s premises, the situs of the dispute is located there as well. conducted so as to minimize its impact on neutral em- ployers insofar as this can be done without substantial impairment of the effectiveness of the picketing on reaching the employees of the primary employer.9 Stat- ed otherwise, it is the Board’s duty to balance ‘‘the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offend- ing employers in primary labor disputes and of shield- ing unoffending employers and others from pressures in controversies not their own.’’10 In accordance with the foregoing, several well-estab- lished tests have been developed for determining the legality of union picketing undertaken at a multiple employer worksite where separate entrances have been established for the use of the primary and neutral em- ployers. The first test, the so-called Moore Dry Dock test, is composed of four criteria which, in essence, re- quires a union to picket only the gate used by the pri- mary employer with whom it has the labor dispute, and precludes picketing at separate gates set aside for the use of neutral secondary employers.11 This test is applicable when the premises on which the primary employer is working are not his own.12 By contrast, the second test—the ‘‘related-work’’ test—was devel- oped by the Supreme Court in General Electric and Carrier for use in situations where the premises are owned and operated by the primary employer. This test, which is broader than Moore Dry Dock, focuses on the type of work being performed by the secondary employees using a separate gate, and states that: if the duties of [secondary] employees [are] con- nected with the normal operations of the [pri- mary] employer, picketing directed at them [is] protected primary activity, but if their work [is] unrelated to the day-to-day operation of the [pri- mary] employer’s plant, the picketing [is] an un- fair labor practice.13 Finally, there is the ‘‘supplier’’ exception which ‘‘occup[ies] a middle ground in the spectrum of per- missible activity under 8(b)(4).’’14 This exception, a corollary of both the related-work test and the Moore Dry Dock test, permits picketing at ‘‘any gate used to deliver materials essential to the primary employer’s normal operations.’’15 We agree with the General Counsel that the picket- ing here was common situs picketing. The Union pick- eted at the Texaco refinery, which is owned by Tex- aco, a neutral,16 and occupied by Texaco, WPS, and other subcontractors and suppliers. Thus, because both the primary employer (WPS) and secondary employers occupy the premises, the refinery is a common situs.17 The Union contends that the relevant premises is not the refinery, but the DCU, which is customarily occu- pied by WPS, and therefore that the Union’s conduct constituted primary situs picketing because it took place at the premises of the primary, WPS. Thus, in the Union’s view, the ‘‘related work’’ test for primary situs picketing set forth in Carrier and General Elec- tric, rather than the Moore Dry Dock analysis, should apply here. Under the ‘‘related work’’ test, picketing the primary’s premises at a gate used by a secondary is primary and lawful if the secondary is performing work that is connected with the primary’s normal oper- ations.18 Because the railroad’s services were con- nected with WPS’ normal operations, the Union con- tinues, the picketing was lawful. We reject the Union’s arguments. Although WPS may occupy the DCU, the DCU itself is part of the larger refinery premises, which is owned and occupied by Texaco, a neutral, and where other employers as well as WPS, the primary, work. We therefore find that this is a typical common situs situation and that, because the picketing took place at the premises of Texaco, a neutral, it must be analyzed under Moore Dry Dock.19 Applying Moore Dry Dock, we conclude that the Union’s picketing of Burlington violated Section VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00327 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10 328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 Iron Workers Local 433 (Oltmans Construction), 272 NLRB 1182, 1186 (1984). 21 Markwell & Hartz, 155 NLRB at 324. 22 Denver Building Trades, 341 U.S. at 692. 23 Piggyback, 306 NLRB at 625–626. 24 General Electric, 366 U.S. at 679. 8(b)(4). There was a valid reserve gate system estab- lished at the Texaco Plant. Gates 6 and 7 were, as de- scribed above, the primary gates set aside for use by the employees, customers, visitors and suppliers of WPS. A separate gate was designated for the exclusive use of neutral Burlington Northern. By extending its picketing beyond gates 6 and 7 to the gate and main railroad line of Burlington Northern, the Union vio- lated the third Moore Dry Dock criterion which re- quires that picketing be limited to places reasonably close to the situs of the primary dispute, i.e., gates 6 and 7. This gives rise to the presumption that the Union’s picketing of Burlington’s gate and main line sought the unlawful objective of placing secondary pressure on this neutral employer.20 The Union has presented no evidence to rebut this presumption and, hence, the Section 8(b)(4) violation is complete. Our dissenting colleagues purport to address the issue in dispute under the principles set forth in Moore Dry Dock. In fact, they have applied the ‘‘related- work’’ test articulated by the Supreme Court in Gen- eral Electric and Carrier. That test is inapplicable to the facts of this case. Our colleagues acknowledge that the ‘‘related- work’’ test of General Electric and Carrier is inap- plicable here because the neutral employer (Texaco) is the owner of the picketed premises and, therefore, the case must be analyzed under Moore Dry Dock. But their subsequent reasoning is drawn almost entirely from Carrier; not a mention is made of Moore Dry Dock beyond their initial concession that it is the gov- erning standard. Specifically, they find that Burlington, ‘‘as the hauler-away of coke processed by WPS,’’ is no different from the neutral railroad in Carrier which delivered and picked up goods at a struck employer’s plant. Therefore, if, as in Carrier, the Court held that the neutral railroad was lawfully picketed at its re- served separate gate, the dissent concludes that so too was Burlington a legitimate target of primary picketing at its separate gate entrance to the Texaco plant. We disagree. Carrier has never been applied to a situation, as here, involving picketing at the premises of a neutral employer, and we find no principled basis for applying it for the first time in this case and thus, for expanding inappropriately the boundaries now con- fined by Board and judicial precedent. In Carrier and General Electric, the Supreme Court formulated the re- lated-work test in response to the limited question of whether picketing is primary when it takes place at a reserved neutral employer entrance to the separate premises of a primary employer. It was only in that context that the Court stressed the type of work being performed by the neutral employer. In those limited circumstances, picketing at the reserved gate is primary since the work is related to the normal operations of the primary employer. The test is clearly a broad one designed to promote the Act’s policy of giving ‘‘wide latitude to picketing and related conduct confined to the sole premises of the primary employer.’’21 That policy is completely out of place, however, in cases like this, where the picketing occurs at premises neither owned nor solely occupied by the primary em- ployer. In the interest of ‘‘shielding unoffending em- ployers’’ from disputes not their own,22 the Board has traditionally taken a more restrictive view of picketing in this setting by requiring that it be conducted in con- formance with the Moore Dry Dock criteria23—criteria on which the Supreme Court in General Electric has placed its explicit imprimatur.24 The dissent, citing the court decisions in Linbeck and J. F. Hoff Electric Co., 642 F.2d 1266 (D.C. Cir. 1980), cert. denied 451 U.S. 918 (1981), argues that Carrier’s reasoning was used in both cases which in- volved a common situs and, therefore, it is appropriate to do so here. We disagree. Both of those cases were analyzed under Moore Dry Dock, not Carrier’s relat- ed-work test, and the courts found that it was the ‘‘supplier’’ exception to Moore Dry Dock which war- ranted dismissal of the 8(b)(4) allegations. It was only in that context that Carrier was cited in Linbeck and Hoff. Indeed, the Board has made it clear that Carrier does not apply to a common situs. See Markwell & Hartz, supra. Our dissenting colleagues, however, do not contend that the instant case fits within the supplier exception of Moore Dry Dock, nor could they. A supplier of a primary employer may be lawfully picketed only if the supplier is providing ‘‘materials essential to the pri- mary employer’s normal operations or solely for the use of the primary’s employees.’’ Iron Workers Local 433 (Chris Crane), 294 NLRB 182, 183 (1989) enfd. mem. 931 F.2d 897 (9th Cir. 1991). Thus, we cannot agree with our dissenting colleagues’ suggestion that picketing of every supplier of primary employers is primary and lawful, even at a common situs. Rather, the picketing must meet the test set forth in Chris Crane. In the instant case, Burlington is not supplying materials to anyone; it is supplying a transport service. Further, the transport service, or as the dissent calls it—the hauler-away service, is supplied to neutral Tex- aco, not WPS, to haul away Texaco’s coke, not WPS’ coke. Even accepting the dissent’s contention that the sup- plier exception to Moore Dry Dock is applicable to a ‘‘hauler-away,’’ we would find that it is not applicable under the facts of this case because neither the rail cars VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00328 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10 329 OIL WORKERS LOCAL 1-591 (BURLINGTON NORTHERN RAILROAD) 25 See Chris Crane, supra at 183 (picketed support services at issue in that case ‘‘do not relate directly to the structural steel work that Woods [the general contractor] hired Chris Crane, the primary here, to perform’’); and Piggyback, 306 NLRB at 630 (intermodal freight was not subject to picketing as ‘‘supplies’’ of primary em- ployer that switched freight between railcars and trucks; freight ‘‘was not delivered to Piggyback for its employees to use in the per- formance of their duties’’). As the Ninth Circuit observed in affirm- ing the Board’s finding of a violation in Piggyback, the test applicable to picketing of direct suppliers of primary employers is not as broad as General Electric’s related-work test. The right to picket a ‘‘supplier’’ applies only where the other employer’s goods or services are for the direct and exclu- sive use of the primary employer. 20 F.3d at 1025–1026 (citations omitted). Compare Hoff Electric (electrical fixtures brought onto a common situs by a general con- tractor were supplies with respect to the electrical contractor which ultimately installed them pursuant to its subcontract with the general contractor); and Linbeck (crushed rock for primary employer’s use in performing paving work under its subcontract was lawfully pick- eted as ‘‘supplies’’). 26 In contrast, WPS is responsible for transportation of Texaco’s coke by truck from the refinery to the Port of Anacortes. Consistent with its contractual obligation, WPS hires independent trucking firms to transport the coke, loads the coke onto the trucks in the DCU area, and arranges for the arrival and departure of the trucks from the refinery through gate 7. There is no allegation that the Union’s picketing of gate 7 was unlawful. We agree with the General Coun- sel’s argument in his brief that the picketing at the rail gate and gate 7 are distinguishable for the foregoing reasons. nor the transportation services provided by Burlington Northern are ‘‘essential to the primary’s normal oper- ations’’ or ‘‘solely for the use of the primary’s em- ployees.’’ Chris Crane, supra. As fully discussed above, Texaco and its customers arrange for the deliv- ery of empty rail cars into the DCU area and for their pickup by Burlington Northern when loaded, and Tex- aco’s customers—not WPS—pay for Burlington Northern’s services. The WPS-Texaco contract only re- quires WPS to load the coke into the railcars and there is no evidence in this case that the parties’ actual prac- tice differs from that set forth in the contract. Our colleagues state that these services are ‘‘essen- tial’’ to WPS’ normal operations. We disagree, as this finding is not supported by the facts or by controlling legal precedent. In determining whether picketed sup- plies satisfy the ‘‘essential to the primary’s normal op- erations’’ test, the Board and the courts look to the na- ture of the work performed by the struck primary. Thus, when the materials or services in issue are not used by the primary to perform the work it was hired to do, the Board and the courts have consistently found that they are not ‘‘essential’’ to the primary’s normal operations.25 In this case, WPS and its employees have no responsibility for rail transportation of Texaco’s coke. Because WPS was not hired to transport the coke by rail, and thus could fully perform its obliga- tions to Texaco without using the rail services of Bur- lington Northern, those services were not essential to its normal operations. Piggyback, supra; Chris Crane, supra. Accordingly, the Union’s picketing of those services does not fall within the supplier exception to Moore Dry Dock.26 Nor is Burlington a proper target of picketing based on the dissent’s view that WPS is the ‘‘principal pro- ducer or processor’’ of Texaco’s coke. Assuming arguendo that is true, WPS is not the sole producer— a point that should appear as significant to the dissent as it was to the court in Hoff in holding that the sup- plier therein was lawfully picketed because the elec- trical fixtures that it delivered were used ‘‘only by Hoff.’’ 642 F.2d 1275. As such, the court reasoned that ‘‘any disruption caused if the Union should be successful in its appeal to [the supplier’s] deliveries would not spread to anyone but the primary em- ployer.’’ Id. Here, by contrast, Texaco is not only a co-producer of its coke, it is the party solely respon- sible to ensure that it gets produced and, in the case of rail transportation, delivered to its customers. Thus, unlike Hoff, the disruption caused by the Respondent’s picketing was not confined solely to the primary em- ployer, but was forseeably intended to impact the busi- ness of neutral Texaco and its transport provider, neu- tral Burlington. In the end, the dissent claims to disavow the related- work test of Carrier and does not rely on the supplier exception of Moore Dry Dock. Those, however, are the only two existing analytical doctrines that can be ap- plied to find lawful the Respondent’s picketing. Thus, whatever theory the dissent seeks to apply in dismiss- ing the complaint, it is not one that the Board or courts have ever applied and, therefore, it is the dissent, not us, who lacks precedential authority for their position. There is no question here that, unlike the railroad in Carrier that, in effect, made the labor dispute its own by entering the struck facility to perform work related to the normal operations of the primary employer, Bur- lington is the type of unoffending employer envisioned by Congress as deserving of the Act’s protection against secondary picketing. It is a neutral employer under contract to another neutral employer (Texaco) to transport the product of a neutral (Texaco) to cus- tomers who are neutrals. To adopt the dissent’s view by applying Carrier’s related-work test in this context would grossly distort the purpose of that doctrine by permitting secondary picketing of Burlington based merely on the fact that the work of the primary em- ployer, WPS, is related to the coke producing oper- ations of neutral Texaco. But as the Supreme Court held in Denver Building Trades, notwithstanding a close working relationship between the primary and neutral employer on a common work site and, indeed, even where a neutral employer as in the instant case ‘‘had some supervision over the [primary employer’s] VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00329 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10 330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 27 Denver Building Trades, 341 U.S. at 689. 28 Markwell & Hartz, 155 NLRB at 327. 29 General Electric, 366 U.S. at 679. 30 If 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ work,’’27 the union may picket only the primary em- ployer. ‘‘[T]here [was] not the slightest intimation by the Court in General Electric or Carrier that it was re- versing or revising the rule in Denver.’’28 To the con- trary, General Electric cited Denver with approval and held that in conjunction with the rule in Denver, the standard set forth in Moore Dry Dock is applicable to cases where, as here, two employers perform work on a common site.29 CONCLUSIONS OF LAW 1. Burlington Northern Railroad is a person engaged in an industry affecting commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4) of the Act. Texaco Refining and Marketing, Inc. and Western Plant Services, Inc. are employers engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing the gate to the Texaco refinery at Anacortes, Washington, reserved for the use of Bur- lington Northern Railroad, and later by picketing next to the Burlington rail line near the reserved gate, when it did not have a primary labor dispute with Bur- lington, with an object of forcing or requiring Bur- lington and other neutral persons to cease handling or transporting the products of Texaco Refining and Mar- keting, Inc., and other neutrals or to cease doing busi- ness with Texaco, other neutrals, and Western Plant Services, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER The National Labor Relations Board orders that the Respondent, Oil, Chemical and Atomic Workers Inter- national Union, Local 1-591, its officers, agents, and representatives, shall 1. Cease and desist from (a) Engaging in, or inducing or encouraging any in- dividual employed by Burlington Northern Railroad, or by any other person engaged in commerce or in an in- dustry affecting commerce, to engage in, a strike or re- fusal in the course of his employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Burlington Northern Railroad, or any other neutral person engaged in commerce or in an in- dustry affecting commerce, to cease using, selling, handling, transporting, or otherwise dealing in the products of, or to cease doing business with, Texaco Refining and Marketing, Inc., other neutral persons, and Western Plant Services. (b) Threatening, coercing, or restraining Burlington Northern Railroad, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Burlington Northern Railroad, or any other neutral person engaged in commerce, to cease using, selling, handling, trans- porting, or otherwise dealing in the products of, or to cease doing business with, Texaco Refining and Mar- keting, Inc., other neutral persons, and Western Plant Services. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days after service by the Region, post at its offices and meeting halls copies of the attached notice marked ‘‘Appendix.’’30 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. (b) Sign and return to the Regional Director suffi- cient copies of the notice for posting by Burlington Northern, if willing, at all places where notices to its employees are customarily posted. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. CHAIRMAN GOULD, concurring. I join Members Hurtgen and Brame in finding that the Respondent violated Section 8(b)(4)(B) by picket- ing at the entrance to Texaco’s refinery reserved for the exclusive use of Burlington Northern Railroad, and add the following additional comments. Almost a half a century ago, the United States Su- preme Court noted that, while the National Labor Re- lations Act ‘‘safeguards’’ concerted activity, collective bargaining and ‘‘strikes between the primary parties to a labor dispute, § 8(b)(4) restricts a labor organization and its agents in the use of economic pressure where an object of it is to force an employer or other person VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00330 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10 331 OIL WORKERS LOCAL 1-591 (BURLINGTON NORTHERN RAILROAD) 1 Denver Building Trades Council v. NLRB, 341 U.S. 675, 687 (1951). 2 Electrical Workers IBEW v. NLRB, 181 F.2d 34, 37 (2d Cir. 1950). See generally Howard Lesnick, The Gravamen of the Second- ary Boycott, 62 COLUM. L. REV. 1363 (1962). The Hand opinion is quoted by Professor Lesnick. Id. at 1363. 3 NLRB v. International Rice Milling Co., 341 U.S. 665, 673 (1951). 4 Carpenters Local 1976 (Sand Door) v. NLRB, 357 U.S. 93, 98 (1957). See also my dissenting opinion relying on Sand Door in Port Canaveral Stevedoring Limited, 323 NLRB No. 178 (slip op. at 3– 9) (1997) (W. B. Gould, dissenting). 5 National Woodwork Mfgs. Assn. v. NLRB, 386 U.S. 612, 623 (1967). 6 See W. B. Gould IV, The Supreme Court’s Labor and Employ- ment Docket in the October 1980 Term: Justice Brennan’s Term, 53 U. COLO. L. REV. 1 (1981). 7 Id. at fn. 5. 8 See W. B. Gould IV, Taft-Hartley Comes to Great Britain: Ob- servations on the Industrial Relations Act of 1971, 82 YALE L. JOURNAL 1421 (July 1972). Of course, Taft-Hartley restricts strikes in other respects as well. See for instance generally: W. B. Gould IV, On Labor Injunctions Pending Arbitration: Recasting Buffalo Forge, 30 STANFORD L. REV. 533 (1978), and W. B. Gould IV, On Labor Injunctions, Unions, and the Judges: The Boys Market Case, 1970 SUPREME COURT REV. 215. 9 See, e.g., the Court of Appeals for the Ninth Circuit’s decision in NLRB v. General Truck Drivers, Warehousemen, Helpers and Automotive Employees of Contra Costa County, Local No. 315, 20 F.3d 1017 at 1025 (1994): ‘‘The right to picket a ‘supplier’ applies only where the other employer’s goods or services are for the direct and exclusive use of the primary employer.’’ The Ninth Circuit re- jected the related work test within the common situs context, thus declaring Steelworkers v. NLRB, 376 U.S. 492 (1964), inapplicable to the issues before the Board in the instant case. While it may be, as the dissent asserts, that this decision does not ‘‘require a finding in this case that the Union’s picketing had a secondary purpose,’’ the opinion’s limiting language, i.e., ‘‘goods or services’’ for ‘‘direct and exclusive use’’ suggests an intent which is consonant and com- patible with my views expressed in this concurring opinion and the views of the majority. to boycott someone else.’’1 The relevant statutory framework on the question of what constitutes primary and secondary activity is both difficult and also fre- quently elusive. Judge Learned Hand said it best when he articulated the test for the balance: ‘‘The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its aim is to compel him to stop business with the em- ployer in the hope that this will induce the employer to give in to his employees’ demands.’’2 Thus, the ‘‘traditional’’ right to strike is not limited by the secondary boycott prohibitions unless ‘‘specifi- cally provided for’’ in the Act.3 As Justice Frankfurter said about Section 8(b)(4): ‘‘The section does not speak generally of secondary boycotts. It describes and condemns specific union conduct directed to specific objectives.’’4 Nonetheless, the prohibitions have a long reach, and we are obliged to adhere to them as the expert admin- istrative agency charged with statutory interpretation. As Justice Brennan said: ‘‘Labor abuses of the broad immunity granted by the Norris-LaGuardia Act re- sulted in the Taft-Hartley Act prohibitions against sec- ondary activities.’’5 We must remain ever mindful of this historical backdrop. On this golden anniversary of the Taft-Hartley amendments to the Act, and the secondary boycott pro- hibitions so prominently featured in them, it is both meet and right to recall their early origins. As Justice Brennan, the modern labor law doyen of the Federal judiciary6 has told us, Congress found that union ‘‘abuses’’7 warranted regulation. Today, modern labor law and policy makers evaluat- ing its reform have turned away completely from the view that Taft-Hartley is a ‘‘slave labor act,’’ an ap- pellation quite frequently applied to its strictures when their enactment was debated.8 Modern labor law, still properly rooted in its historic promotion of the collec- tive-bargaining process, is predicated on the assump- tion that both employers and unions, left to their own devices, will revert in some instances to abusive con- duct at odds with public policy objectives. Of course, the Board within the parameters of the Act, makes policy. ‘‘The function of striking that bal- ance to effectuate national labor policy is often a dif- ficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.’’ NLRB v. Truck Drivers Local 449, 353 U.S. 87, 96 (1957). Ac- cord: NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963); and NLRB v. Weingarten, Inc., 420 U.S. 251, 267 (1975). This mandate was renewed yet again by the Court more recently almost 3 years ago. NLRB v. Town & Country Electric, 516 U.S. 85 (1995). But Congress and the President have established the basic policy with which we function under the Act. Relevant precedent does not take us to the far away bridge which the Union urges the Board to reach.9 While in appropriate circumstances I am quite willing to both expand on and, indeed, reverse the precedent of both the Board and the appellate courts which are subordinate to the United States Supreme Court, I do not find a basis for doing so here. Thus, to paraphrase the Book of Common Prayer, our dissenting colleagues have left undone those things which they ought to have done, i.e., failed to address the applicable standards of Moore Dry Dock, and they have done that which they ought not to have done, i.e., applied precedent to the dissimilar factual pattern of the instant case. It may be that the law of secondary boycott, in part or in whole, is inequitable or unwise or, in some sense, inconsistent with the Act’s purpose. Denver Building Trades, which spawned the Moore Dry Dock criteria on neutral sites shared by both primary and secondary employers, is thought by many to be a flawed decision and inconsistent with the Court’s subsequent ruling in VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00331 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10 332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 See Judge Wilkey’s dissenting opinion in J. R. Hoff, 642 F.2d at 1283–1284 setting forth the history of this failed legislation. 11 For the same concerns—in that instance the opposition to them was overridden by 3–2 vote 3 years ago—see Chairman Gould’s concurring opinions in Loehmann’s Plaza, 316 NLRB 109 (1995), and Leslie Homes Inc., 316 NLRB 123 (1995). To the same effect see Monson Trucking Inc. & Calvin Anderson, 324 NLRB No. 149 (slip op. at 6–8) (Oct. 31, 1997) (W. B. Gould, concurring); Team- sters Local 443 (Connecticut Limousine Service), 324 NLRB No. 105, slip op. at 6–7 (Oct. 2, 1997) (W. B. Gould, dissenting in part), and Coastal Stevedoring, supra. 1 Denver Building & Trades Council v. NLRB, 341 U.S. 675, 692 (1951). 2 Electrical Workers Local 761 (General Electric) v. NLRB, 366 U.S. 667, 673 (1961). 3 Id. at 674. 4 Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950). 5 See, e.g., Teamsters Local 315 (Santa Fe) (Piggyback), 306 NLRB 616, 626–627 (1992), enfd. 20 F.3d 1017 (9th Cir. 1994). 6 The record establishes that the Union picketed at the main line at the direction of a law enforcement officer, who ejected from the refinery property a picket who was attempting to patrol at the Bur- lington gate. The parties have stipulated that the picketing at the main line took place on the public property closest to the railroad gate. Thus, if the picketing at the gate was lawful because it was reasonably close to the situs, the picketing at the main rail line would be lawful as well. 7 376 U.S. 492 (1964). 8 The Union notes that, as most common situs cases arise in the construction industry, where the product is not carried away, the ‘‘hauling-away’’ cases have arisen in noncommon situs situations. The Union, however, asserts that no case has held that trucks or trains arriving to deliver the primary’s product are not subject to pri- mary picketing. General Electric. This is one reason why the Congress addressed—but failed to enact—a reversal of the High Court’s decision in Denver Building Trades.10 The dissent would circumvent and thus reverse sub silentio Denver Building Trades and its Moore Dry Dock progeny. This initiative is properly left to the Congress and the President and not the Board.11 MEMBERS FOX AND LIEBMAN, dissenting. Unlike the majority, we find that the Union’s picket- ing in this case did not have a secondary objective and thus was not unlawful. We therefore dissent. Section 8(b)(4)(B) of the Act proscribes union pick- eting that is intended to bring pressure against an em- ployer with whom the union has no labor dispute (the secondary employer), in order to induce the secondary not to deal with another employer with whom the union does have a labor dispute (the primary em- ployer). It does not, however, render invalid otherwise lawful picketing against the primary employer. This statutory framework reflects ‘‘the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.’’1 The distinction between primary and secondary ac- tivities is sometimes elusive. That is because a union that engages in even ordinary picketing directed against the primary employer hopes, even if it does not intend, that others will be persuaded not to deal with the primary.2 Nevertheless, as the Supreme Court has remarked, ‘‘However difficult the drawing of lines more nice than obvious, the statute compels the task.’’3 In this case, we find that the Union’s picketing fell on the lawful side of the line. We agree with our colleagues, for the reasons they set forth, that this is a common situs case that must be evaluated under the criteria set forth in Moore Dry Dock.4 Under Moore Dry Dock, picketing is presump- tively lawful if it (1) is limited to times when the situs of the dispute is located on the premises of the second- ary, (2) takes place when the primary is engaged in his normal business at the situs, (3) takes place reasonably close to the situs, and (4) clearly discloses that the dis- pute is only with the primary. Normally, when a valid reserved gate system has been established at a common situs, picketing at a gate reserved for neutrals will not be found to be reasonably close to the situs, and indi- cates a proscribed secondary objective.5 The General Counsel alleges only that the Union violated criterion (3) by picketing at the gate reserved for Burlington and, later, by the Burlington main rail line.6 He does not argue that the Union failed to observe the Moore Dry Dock standards in any other way. The Union contends that, even under Moore Dry Dock, its picketing at the gate reserved for Burlington was lawful because the railroad picks up WPS’ prod- ucts for delivery to customers. It notes that in Steel- workers (Carrier Corp.) v. NLRB,7 the Supreme Court found that a union engaged in lawful primary picketing of the railroad gate to the Carrier plant, where empty railcars were being delivered to pick up the primary’s finished goods. Accordingly, the Union contends that, as the hauler-away of the coke processed by WPS, Burlington can lawfully be picketed in support of the Union’s primary dispute with WPS.8 Finally, the Union argues that, under established Board and court precedent, it does not matter that WPS did not have title to the coke. We agree with the Union that, as the hauler-away of the coke processed by WPS, the railroad was a legiti- mate target of primary picketing. We arrive at this conclusion for the following reasons. First, the Supreme Court has held that carriers who seek to pick up and haul away for distribution the goods of struck employers may lawfully be picketed as they attempt to make the pickups. In Carrier, the Court held that a union could lawfully picket an en- trance to a railroad spur track located on a railroad- owned right-of-way adjacent to the struck employer’s premises which was used exclusively by railroad per- sonnel to bring empty boxcars to the employer and VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00332 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10 333 OIL WORKERS LOCAL 1-591 (BURLINGTON NORTHERN RAILROAD) 9 376 U. S. at 493–494, 498–500. 10 Id. at 499 (fn. omitted). 11 219 NLRB 997 (1975), enfd. 550 F.2d 311 (5th Cir. 1977). 12 241 NLRB 694 (1979), enfd. 642 F.2d 1266 (D.C. Cir. 1980). 13 550 F.2d at 317; 642 F.2d at 1271. 14 642 F.2d at 1271 (emphasis added). 15 Steelworkers Local 5895 (Carrier Corp.), 132 NLRB 127, 130 (1961), revd. 311 F.2d 135 (2d Cir. 1962), revd. 376 U.S. 492 (1964). 16 366 U.S. at 681. 17 Id. 18 The protection afforded to picketing of suppliers of essential materials to the primary does not extend to picketing of companies supplying incidental support services such as food, telephone, elec- trical, sanitation, and trash removal, to all contractors on a common situs. Iron Workers Local 433 (Chris Crane), 294 NLRB 182, 183 (1989). By parity of reasoning, a company that picks up ordinary business mail or packages from the primary, such as UPS or Federal Express, or that hauls away trash (see Chris Crane), probably could not be lawfully picketed at a neutral gate, at least if it provided those services to all employers on the jobsite. These examples, however, are easily distinguishable from the essential task of picking up the primary’s product for delivery to customers. 19 See the Board and court decisions in Linbeck and Hoff Electric. 20 Linbeck Construction Corp. v. NLRB, 550 F.2d 311, 318. haul away boxcars after they were loaded with the em- ployer’s products.9 The Court explained that in enact- ing the 1959 amendments to Section 8(b)(4), Congress not only preserved the right to strike; it also saved ‘‘primary picketing’’ from the second- ary ban. Picketing has traditionally been a major weapon to implement the goals of a strike and has characteristically been aimed at all those ap- proaching the situs whose mission is selling, de- livering or otherwise contributing to the oper- ations which the strike is endeavoring to halt. In light of this traditional goal of primary pressures we think Congress intended to preserve the right to picket during a strike a gate reserved for em- ployees of neutral delivery men furnishing day-to- service essential to the plant’s regular oper- ations.10 Although Carrier did not involve a common situs, we see no reason to treat common situs situations dif- ferently. In common situs cases, the Board and courts have consistently allowed unions to picket gates used by neutrals who supplied the primary with materials that were essential to the primary’s normal operations. Thus, in Operating Engineers Local 450 (Linbeck Con- struction), the union lawfully picketed a neutral gate through which crushed stone was delivered for the use of the primary subcontractor in paving and parking lot work.11 In Electrical Workers Local 323 (J.F. Hoff Electric), the union lawfully picketed a neutral gate used to deliver electrical fixtures to the primary sub- contractor for installation.12 Both the Fifth Circuit in Linbeck and the D.C. Circuit in Hoff Electric cited the passage from Carrier quoted above in affirming the Board’s finding that the union lawfully picketed neutrals’ deliveries of materials to primaries in com- mon situs cases. Although both of those common situs cases were concerned with deliveries of materials to the primaries, both courts noted that Carrier was also concerned with pickups of outbound shipments from the primaries.13 In particular, the court in Hoff Electric noted that ‘‘[t]he determinative fact [in Carrier] was . . . that the neutral deliverymen were furnishing rou- tine services essential to the employer’s normal oper- ations and so were legitimate objects of the picketing union’s appeal.’’14 Those services, as described by the Board, were ‘‘the delivery of empty boxcars to Carrier and the transportation of Carrier products’’15—the identical functions performed by Burlington in this case. As the Supreme Court explained in General Elec- tric, picketing is not secondary activity prohibited by Section 8(b)(4) if it appeals to ‘‘neutral employees whose tasks aid the employer’s everyday oper- ations.’’16 In our view, which mirrors exactly the Su- preme Court’s holding in Carrier and the D.C. Cir- cuit’s application of it in the common situs context in Hoff Electric, the hauling away of products produced by the primary employer no less ‘‘aids the employer’s everyday operations’’ than the supplying of material to be used in the production process. Thus, the picketing of employees engaged in hauling away is ‘‘traditional primary activity.’’17 Consequently, we find that unions are permitted to picket entities that haul away finished products, even when the primary is working at a com- mon situs.18 We also agree with the Union that it is irrelevant that the coke is owned by Texaco and not WPS. In as- sessing whether the picketing of a neutral who fur- nishes materials to a primary employer is primary or secondary, both the Board and the courts have held that it does not matter whether the materials are owned by the primary or by a neutral.19 As the court in Linbeck observed, a contrary rule would allow general contractors in the construction industry to stop a tradi- tional form of primary pressure—attempting to shut down a primary by picketing its suppliers—simply by retaining title to all materials used on the job.20 Simi- lar reasoning applies to ownership of the final product in ‘‘hauling-away’’ cases like this. If ownership were determinative, manufacturers could insulate themselves against all picketing by subcontracting their production operations while retaining title to the final goods. Similar attempts to elevate form over substance have been rejected in the ‘‘supplier’’ cases, and should be rejected here as well. In coming to these conclusions, we do not suggest that, simply because a product has been jointly pro- duced by a number of neutrals and a primary, a union may lawfully picket a neutral attempting to pick up the VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00333 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10 334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 21 The General Counsel relies heavily on Piggyback in support of the complaint allegations. Piggyback, however, is materially distin- guishable from this case. Piggyback, the primary, loaded and un- loaded freight carried by Santa Fe for Santa Fe’s customers. The Board in Piggyback was concerned with whether Santa Fe and its customers were ‘‘suppliers’’ of Piggyback by virtue of furnishing Piggyback with the freight it handled, not with the railcars and trucks that carried the freight. The proposition the Board rejected was that the freight could be analogized to the materials and fixtures supplied by the neutrals in Linbeck and Hoff Electric. It apparently did not consider whether either the truckers or Santa Fe could be picketed because they hauled away the product (the freight) Piggy- back employees had worked on. Moreover, Piggyback’s operation was only a step in the chain of freight-handling between Santa Fe and its customers, whereas here WPS did the entire job of process- ing the coke that had been left in the DCU, including loading it for final shipment. Consequently, Piggyback does not require a finding in this case that the Union’s picketing had a secondary purpose. In enforcing the Board’s decision in Piggyback, the appeals court emphasized that the union’s picketing was not proximate to the pri- mary employer’s premises, and that the union engaged in off-site picketing of Santa Fe and other neutrals at locations which were to- tally unrelated to the primary’s operations. In contrast, here the Union limited its picketing to locations were Burlington was per- forming services solely for WPS, and it only picketed Burlington trains that contained cars which would haul coke out of the DCU. Thus, the Union began its picketing only at the gate where the rail- road tracks led to the DCU, and when law enforcement officials moved the pickets to Burlington’s main rail line on public property, the Union did not interfere with Burlington’s trains destined only for the Texaco and Shell operations on the site. 22 642 F.2d at 1271 (emphasis added). 23 See Chris Crane, 294 NLRB at 183 (only suppliers providing materials essential to the primary employer’s normal operations or solely for the use of the primary’s employees may lawfully be pick- eted). 24 642 F.2d at 1271 (emphasis added). product no matter how minor a role the primary played in its production. Here, however, WPS does not play a minor role in processing the coke. Apart from Tex- aco employees’ pumping the crude petroleum into the DCU and refining and piping away the rest of the components, WPS does all the work on the coke, in- cluding loading it for transport, until the railroad or the truckers haul it away. Indeed, if the coke can be said to have a principal producer or processor, WPS is that entity. In hauling away the coke processed by WPS, Burlington plays an integral part in WPS’ operations.21 The majority’s criticisms of our position are entirely unpersuasive. They assert that we are actually applying the ‘‘related work’’ test improperly in a common situs case. That is manifestly not so. As we have shown, the courts of appeals in Linbeck and Hoff Electric—both of which were common situs cases in which the ‘‘re- lated work’’ test does not apply—employed reasoning from Carrier in finding the picketing of suppliers of primary employers to be protected. Our colleagues argue, however, that Burlington was not supplying materials, but instead was providing a transport service. Exactly. Like the railroad in Carrier, it was transporting away the product of the primary employer; that was the function described by the court in Hoff Electric as essential to the primary employer’s normal operations, and thus a legitimate object of pri- mary picketing. The majority is unable to explain con- vincingly why that principle should not apply equally to common situs cases involving either suppliers or providers of transport services. After all, Carrier was a ‘‘hauler away’’ case, not a supplier case. If, as all sides seem to agree, Carrier supports the proposition that picketing of suppliers of primary employers is pri- mary and lawful, even at a common situs, it would seem to be even more persuasive authority for the proposition that picketing of transporters of finished products at a common situs is also primary and lawful. In fact, the court of appeals in Hoff Electric stated un- equivocally that ‘‘so long as the Moore Dry Dock limi- tations are met, a union may legitimately picket at a common work situs in such a way that all employees, suppliers, and customers of the primary employer are reached by the pickets[.]’’22 The majority nevertheless contend that Burlington’s services are not essential to WPS’ normal operations, and that the railcars supplied by Burlington are not solely for the use of WPS’ employees. Accordingly, they argue that the Union’s picketing of Burlington did not come within the ‘‘supplier exception’’ to Moore Dry Dock and therefore was unlawful.23 Our col- leagues also posit that the picketing was secondary be- cause WPS is not the sole producer of the coke. They further contend that Texaco’s ownership of the coke requires the finding of a violation. None of those argu- ments have merit. In the first place, the majority are attempting to fit a round peg into a square hole by insisting on treating Burlington as though it were a supplier of materials to WPS, rather than, as they themselves accurately de- scribe, a transporter of finished products. As we have demonstrated, court (including Supreme Court) author- ity amply supports our finding that as a transporter of the coke produced chiefly by WPS, Burlington was a legitimate target of primary picketing. Strictly speak- ing, then, it is unnecessary for us to deal at length with our colleagues’ ‘‘supplier’’ arguments. But the majority’s arguments fall short even under supplier case principles. The first, that Burlington’s services are not essential to WPS’ normal operations, is unsupported either in fact or in law. As we have noted, the court in Hoff Electric specifically described the hauling-away functions of the railroad in Carrier, which were the same as Burlington’s here, as essential to the employer’s normal operations and thus as a le- gitimate object of picketing.24 But even if that author- ity did not exist, the transporting of WPS’ final prod- uct is obviously essential to its operations. Without such services, WPS could not move its product to cus- tomers. The result would be twofold. First, the entire VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00334 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10 335 OIL WORKERS LOCAL 1-591 (BURLINGTON NORTHERN RAILROAD) 25 The majority assert that WPS could fully perform its obligations to Texaco without using Burlington’s rail services. That assertion is simply wrong. As the majority themselves recognize, WPS’ contract with Texaco requires WPS to load the coke into rail cars; WPS ob- viously could not accomplish that function without the rail cars. 26 Our colleagues cite the Ninth Circuit’s opinion in Piggyback to the effect that a union may picket a supplier only when its goods or services are for the direct and exclusive use of the primary. NLRB v. General Truck Drivers, 20 F.3d 1017, 1025–1026 (1994), citing Hoff Electric, 642 F.2d at 1275. With due respect to the court of appeals, that is not Board law. The Board has held, as our colleagues note elsewhere, that a union may picket a supplier providing mate- rials essential to the primary’s normal operations or solely for the use of the primary’s employees. Chris Crane, 294 NLRB at 183. Nor is the Ninth Circuit’s citation of Hoff Electric entirely accurate. The D.C. Circuit in Hoff found it ‘‘significant’’ that the supplier de- livered materials used only by the primary, but did not say that that was a necessary condition. 27 642 F.2d at 1274. 28 Id. at 1274–1275. 29 Id. at 1268. 30 Id. at 1275. 31 Id. 32 Id. 33 See Chris Crane, 294 NLRB at 183. 34 As we have already noted, such a contention is contrary to Board law. See Chris Crane, 294 NLRB at 183. 35 The majority note that it was foreseeable that the business of Texaco and Burlington would be adversely affected by the Union’s picketing. But that is beside the point. The picketing of suppliers of one construction subcontractor may adversely affect the work of oth- Continued object of producing the product in the first place—to sell to customers—would go unrealized. Second, if the finished coke were not moved out of the DCU, that fa- cility ultimately would fill up with the finished product and further production would be physically impos- sible.25 The contention that Burlington’s services are not for the sole use of WPS employees is similarly unsup- ported.26 The record reflects that Burlington delivers the empty rail cars to the DCU, where they are loaded by WPS employees; Burlington then removes the load- ed cars for delivery to customers. There is no evidence on this record that the employees of any entity at the refinery other than WPS use the cars in any way. It is immaterial that the customers and Texaco arrange for rail service with Burlington and that the customers pay for Burlington’s services. The D.C. Circuit in Hoff Electric squarely held that ‘‘[a]n ’ownership’ or ’con- tractual responsibility’ test . . . would be too narrow, and encroach on the Union’s legitimate rights.’’27 As the court observed, it would be unfair to unions, which normally are not privy to the complex contractual rela- tionships at a construction site, to assess the legality of picketing according to such contractual niceties.28 Ac- cordingly, even though the electrical fixtures delivered for the primary’s use in Hoff Electric were both owned and ordered by the neutral project owner,29 the picket- ing of the delivery of the fixtures was primary and lawful.30 In this case, the only distinction between the Union’s picketing at gate 7, from which independent trucking firms transport the coke to the Port of Anacortes pursuant to contracts with WPS, and the picketing at issue in this case, concerns the contractual arrangements for the transportation of the coke. For the reasons stated by the court in Hoff Electric, such a dis- tinction is legally insignificant. In fact, the General Counsel does not contend that the picketing at gate 7 was unlawful, and we agree that it was not. Nor is there any merit in our colleagues’ argument that, because WPS is not the sole producer of the coke, the Union’s picketing was unprotected. They rely on the following statement by the court in Hoff Electric: We find it significant that this supplier delivered products used only by Hoff, not other subcontrac- tors; therefore any disruption caused if the Union should be successful in its appeal to Consolidated’s deliveries would not spread to anyone but the primary employer.31 In making that statement, however, the court was re- sponding to the employer’s argument that its ruling ‘‘might be susceptible of covering virtually all suppli- ers or independent contractors in any integrated con- struction project, with ‘supplies’ including the plaster for the walls or ceilings into which the fixtures are in- stalled or the floors or beams on which the electricians stand to install them.’’32 The court thus recognized that, on a construction project, where the work of em- ployees of many employers is highly interdependent, the materials used by employees of almost any em- ployer could, in some sense, be viewed as ‘‘supplies’’ of the primary. Under such a view, the union could picket not only Hoff’s suppliers but also the supplier of steel beams to the steel erection contractor and the supplier of concrete to the masonry contractor. That in- terpretation is untenable, because it would cause the ‘‘supplier exception’’ to Moore Dry Dock to swallow the rule.33 Our colleagues, however, apparently read the court’s language to mean that, if the picketing was valid only because the supplier was delivering products solely to Hoff and not to other subcontractors,34 then the Union’s picketing here would be lawful only if WPS were the sole producer of the coke. But that conclusion does not follow from its premise. The cases plainly es- tablish that when the primary and other employers combine their efforts to produce a product at a com- mon situs, a union may picket employers that supply essential materials to the primary, even though it does not produce the entire product, and even though shut- ting down a primary (e.g., the structural steel erector at a construction site) might well result in the complete shutdown of the project.35 In light of that precedent, VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00335 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ers on the site, as we have shown. And the notion that picketing is unlawful if it has an adverse effect on a transport provider is obvi- ously incorrect, since it would require overruling not only Linbeck and Hoff Electric, but also Carrier and General Electric. 36 The majority ‘‘assum[e] arguendo’’ that WPS is the coke’s prin- cipal producer. We think that characterization is a valid reading of the record in this case. In any event, there can be no doubt that WPS plays a critical role in the production of coke. In these cir- cumstances, we would find that, as the party seeking to establish an 8(b)(4) violation, the General Counsel would have to show at least that Texaco, and not WPS, is actually the principal producer of the coke. The General Counsel has not made such a showing. a union may lawfully picket the entity that hauls away the final product, at least if the primary, like WPS, is the major producer of the product.36 The court’s state- ment furnishes no support for the asymmetrical ap- proach of the majority, who apparently would allow unions to picket the transporter of the final product only if the product is produced by one employer. Finally, the majority relies on the fact that the coke is owned by Texaco, even though it is produced chief- ly by WPS. In this regard, the majority simply ignores controlling Board and court decisions stating that own- ership of the material being transported is irrelevant. For all the foregoing reasons, we find that the Union did not violate Section 8(b)(4)(B) by picketing either at the Burlington gate to the Texaco refinery or, later, by the main rail line. As there is no allegation that any other conduct on the part of the Union indicated that the picketing had a secondary purpose, we would dis- miss the complaint. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT engage in, or induce or encourage any individual employed by Burlington Northern Railroad, or by any other person engaged in commerce or in an industry affecting commerce, to engage in, a strike or refusal in the course of his employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Burlington Northern Railroad, or any other neutral person engaged in commerce or in an in- dustry affecting commerce, to cease using, selling, handling, transporting, or otherwise dealing in the products of, or to cease doing business with, Texaco Refining and Marketing, Inc., other neutral persons, and Western Plant Services. WE WILL NOT threaten, coerce, or restrain Bur- lington Northern Railroad, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Bur- lington Northern Railroad, or any other neutral person engaged in commerce, to cease using, selling, han- dling, transporting, or otherwise dealing in the prod- ucts of, or to cease doing business with, Texaco Refin- ing and Marketing, Inc., other neutral persons, and Western Plant Services. OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, LOCAL 1-591 (BURLINGTON NORTHERN RAILROAD) VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00336 Fmt 0610 Sfmt 0610 D:\NLRB\325.034 APPS10 PsN: APPS10