CEI. On or about January 1, 1994, CEI established a reserve gate system at the CEI facility's entrance points along Pleasant View Terrace. At the southern entrances on Pleasant View Terrace ("Gates B and C"), CEI posted signs reserving the entrances for the exclusive use of Houbigant, its employees, suppliers and visitors. The northern entrance on Pleasant View Terrace ("Gate A") was marked in similar fashion and was identified as the exclusive entrance for CEI employees, contractors, suppliers and visitors.
With a number of individuals, ranging from fifty-five to one hundred at a time, the Union has continued to picket the CEI Facility, allegedly at both the neutral Gate A and the primary Gate B, by walking a circular path over the approximately 400 yards that separate the two gates. The pickets patrol this area seven days a week, commencing at 6:00 a.m. and concluding at 9:00 p.m., daily.
In March 1994, CEI filed an administrative complaint against the Union, alleging that the Union's activities at Gate A constituted secondary picketing which is proscribed by Section 8(b)(4) of the National Labor Relations Act, as amended ("NLRA"), 29 U.S.C. § 158(b). The complaint was amended on April 18, 1994. Director Pascarell subsequently filed the pending application pursuant to Section 10(1) of the NLRA, 29 U.S.C. § 160(1), seeking a temporary injunction restraining the Union from picketing at the CEI facility pending final disposition of the administrative action before the NLRB.
When considering an application under section 10(1) of the NLRA, a district court is not called upon to determine the merits of the unfair labor practice charge, or whether, in fact, such a violation has occurred. Schaufer v. Local 1291, Int'l Longshoremen's Ass'n, 292 F.2d 182, 186 (3d Cir. 1961); Kobell v. Amalgamated Council of Greyhound Unions, 758 F. Supp. 1060, 1063 (W.D. Pa. 1990). The task of resolving the legal and factual questions is reserved exclusively to the NLRB, subject to review by a federal court of appeals under section 10(e) and 10(f) of the NLRA. N.L.R.B. v. Denver Building & Constr. Trades Council, 341 U.S. 675, 681-83, 71 S. Ct. 943, 95 L. Ed. 1284 (1950).
On a section 10(1) application, this Court's inquiry is limited to the following three factors: (1) whether the Director has presented a "substantial and nonfrivolous legal theory" that would support a legal conclusion that an unfair labor practice had occurred; (2) whether the facts support the Director's the legal theory and (3) whether injunctive relief is the just and proper remedy. Hoeber v. Local 30, United Slate, Tile & Composition Roofers, 939 F.2d 118, 121-25 (3d Cir. 1991) (quoting Kobell v. Suburban Lines, Inc., 731 F.2d 1076, 1085 (3d Cir. 1984)).
The burden of proof confronted by Director Pascarell under section 10(1) is "relatively insubstantial" and requires only that he have "reasonable cause" to believe that the proffered facts and legal theory support a finding of an unfair labor practice. Hirsch v. Building and Constr. Trades Council, 530 F.2d 298, 302 (3d Cir. 1976). With these standards in mind, the Court turns to the instant application.
1. Substantial and Non-Frivolous Legal Theory
In substance, Section 8(b) of the NLRA states that "it shall be an unfair labor practice" for labor unions to engage -- or threaten to engage -- in picketing, strikes, or refusals to perform in furtherance of secondary boycotts. 29 U.S.C. § 158(b)(4)(i), (ii)(B). These provisions seek to advance the "dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes . . . [while] shielding unoffending employers and others from pressures and controversies not their own." Denver Building, 341 U.S. at 692, 71 S. Ct. at 953.
Director Pascarell has presented a substantial and non-frivolous legal theory upon which this Court may grant injunctive relief under section 10(1). See N.L.R.B. v. International Brotherhood of Elec. Workers, Local Union No. 903, 574 F.2d 1302, 1304 (5th Cir. 1978) (upholding N.L.R.B. decision to enjoin failure of union to limit picketing to gate expressly established by a neutral party for the use of employees and suppliers of the party directly involved in the labor dispute).
2. Factual Support for Secondary Boycott Theory
To receive temporary injunctive relief under section 10(1), Director Pascarell also must establish that the facts of the instant case would satisfy the elements of an unfair labor practice charge -- here, a secondary boycott. See Hoeber, 939 F.2d at 124. The parties have submitted affidavits on the pending petition, and the Court will look to these to determine whether the facts fit the secondary boycott theory, keeping in mind the "relatively insubstantial burden of proof" confronting Director Pascarell.
When a union has a dispute with a certain employer, the "primary" employer, here Houbigant, it must direct its picketing toward that employer and may not apply pressure to an unrelated "secondary" employer, here CEI, in order to force that secondary employer to discontinue it dealings with the primary employer. Mautz & Oren v. Teamsters Local No. 279, 882 F.2d 1117, 1121 (7th Cir. 1989). The Union's picketing will ultimately be construed as an unlawful labor practice if it can be shown that the Union sought to exert pressure on Houbigant via coercive tactics directed toward CEI. N.L.R.B. v. Enterprise Ass'n of Steam Pipefitters, Local 638, 429 U.S. 507, 530 n.17, 97 S. Ct. 891, 904 n.17, 51 L. Ed. 2d 1 (1977).
Separating secondary and primary activity appears straightforward, but may become rather complex when the primary and secondary employer occupy the same work site. In this "common situs" situation, if the union's activity has substantial and foreseeable effects upon the secondary employer, the activity will be held unlawful if it is established that the union "intended to cause disruption of the secondary employer's business." Mautz & Oren, 882 F.2d at 1121 (emphasis in original).
To evaluate claims of illegal secondary activity, federal courts have adopted an evidentiary framework established by the N.L.R.B. in Sailors Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547, 549 (1950). Under the Moore Dry Dock standards, a union's picketing is presumed lawful if:
(a) The picketing is strictly limited to times when the situs of the dispute is located on the secondary employer's premises;
(b) At the time of the picketing the primary employer is engaged in its normal business at the situs;