Section 19 Moore Dry Dock Co. (1950)?Common Situs Picketing

• Library: Employer-Employee Law 2008

Common situs situations—i.e., those in which the neutral and the primary occupy the same location—are the most common cases arising under NLRA § 8(b)(4)(B), 29 U.S.C. § 158(b)(4)(B). Thus, picketing may occur at the primary premises when neutrals are present, at a common site jointly occupied by the primary and neutrals—most often a construction site—or at an ambulatory site where the primary is only temporarily present, such as a delivery site by a trucking company.

The NLRB’s most far-reaching effort to establish guidelines for common situs picketing was its decision in In re Sailors’ Union of the Pacific (Moore Dry Dock Co.), 92 N.L.R.B. 547 (1950). In Moore Dry Dock Co., a union had a dispute with the owners of a ship that was undergoing dry dock repairs. When the owner of the dry dock refused to allow the union to enter its property to picket at the dock where the ship was berthed, the union established pickets outside the dry dock gate with signs reading: “S.S. Phopho unfair to the Sailors’ Union of the Pacific, A.F.L.” Id. at 561. The NLRB found that the picketing did not violate the NLRA and also set out the rules for determining when picketing at a secondary site will be deemed primary and, as a result, lawful:

we believe that picketing of the premises of a secondary employer is primary if it meets the following conditions:

(a) The picketing is strictly limited to times when the situs of 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;

(c) the picketting [sic] is limited to places reasonably close to the location of the situs; and

(d) the picketing discloses clearly that the dispute is with the primary employer.

Id. at 549.

Following the adoption of the Moore Dry Dock Co., 92 N.L.R.B. 547, standards, the NLRB repeatedly determined that picketing was for a secondary purpose and unlawful when a union failed to adhere to any one of the standards. For example, when an employer established a system of gates for various contractors on a construction site, picketing at a gate designated for a neutral was automatically unlawful. Chauffeurs, Teamsters & Helpers Local Union No. 175, 128 N.L.R.B. 522 (1960). But the Supreme Court firmly rejected the automatic, per se approach in Local 761, International Union of Electrical, Radio & Machine Workers, AFL-CIO v. NLRB, 366 U.S. 667 (1961).

More recent cases have continued to uphold the...