ON PETITION FOR REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (Board No. 22-CC-675)
Before Seitz, Chief Judge and Gibbons and Weis, Circuit Judges.
Area standards picketing by a construction union directed at a contractor but carried on at a housing developer's sales office is the subject of this appeal. A divided National Labor Relations Board refused to find that the union's activity was within the prohibition against secondary picketing included in the 1959 amendments to the National Labor Relations Act. We conclude that the Board erred in characterizing the picketing as primary and failing to apply the settled merged product rule. Accordingly, the Board's order will be set aside and the case will be remanded for appropriate action.
The Panther Valley construction site in Allamuchy, New Jersey encompasses an irregularly shaped area about two and a half miles long and two miles wide. It is owned by Panther Valley, Ltd. which over a period of time had constructed a number of homes in the area. A subcontractor, K & K Construction Co., Inc., performed the carpentry work involved in framing the houses. In 1975, Local Union No. 399, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, having learned that K & K, a nonunion organization, paid wages below union scale, began a program of peaceful informational picketing at several locations. These sites included a shopping mall several hundred feet from the main gate to the development, the area behind the shopping center, and the development's main gate. Panther Valley's sales office was located in the shopping mall and prospective customers were taken through the main gate to the housing site. K & K filed a complaint with the Board alleging that Local 399 was violating §§ 8(b)(4)(i)(B) and 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C. §§ 158(b)(4)(i)(B), (ii)(B).
After a hearing, an administrative law judge (ALJ) dismissed the § 8(b)(4)(i) (B) charge, but found a violation of § 8(b)(4)(ii)(B). By a divided vote the Board reversed, finding that the picketing was directed at the primary employer and, hence, was protected activity.
During the time of the picketing, access to the construction area was by the main gate and two reserved gates located at the other extreme of the property, two to three miles from the shopping mall. One of the reserved gates was designated for the use of K & K employees and the other was for the other construction trades personnel. The housing areas where K & K was working were about equidistant from the boundaries of the property but were not visible from any of the gates because of the terrain. The two reserved gates were left unattended during the daytime but were secured at night. Neither was ever picketed by Local 399.
Security personnel of Panther Valley controlled the main gate. At times a truck with a K & K decal was seen in the shopping mall and using the main gate. The evidence did not disclose whether construction employees driving in private automobiles used the main gate, or, if so, who their respective employers might have been.
Before the picketing began, Local 399 had written to K & K about its wage standards and the possibility of picketing. The company responded, stating separate reserved gates for K & K and for all other construction workers would be designated and that the main gate would be used by neutral employees as well as others not involved in the primary dispute.
On two dates in November, 1975, and on Saturdays and Sundays in April and June of 1976, pickets appeared at the main gate and the shopping center. Three pickets patrolled the main entrance of the construction site, at the southeastern edge of the property, and two were stationed behind the shopping center, south of the main entrance. On Sunday, April 4, 1976, pickets were also present in the shopping center entrance near the sales office of Panther Valley Ltd. The pickets carried signs reading: