Section 20 Electrical Workers (1961)?Common Situs Picketing and the Related-Work Doctrine

• Library: Employer-Employee Law 2008

In Local 761, International Union of Electrical, Radio & Machine Workers, ALF-CIO v. NLRB, 366 U.S. 667 (1961), the respondent, General Electric, limited various contractors who performed work such as new construction, equipment installation and repair, refitting of production lines, and overall maintenance to gates specifically designated for each contractor. In July 1958, the union representing General Electric’s employees struck and began picketing the entire plant, including the gates reserved for independent contractors. Employees of the contractors refused to cross the picket lines. Under its per se application of the In re Sailors’ Union of the Pacific (Moore Dry Dock Co.), 92 N.L.R.B. 547 (1950), rules, the NLRB determined that the picketing violated the NLRA. Rejecting the per se approach urged by the NLRB as well as the union’s argument that it was proper to try to induce employees who approach the primary at its place of business from doing work for the primary, the Court focused on the type of work being performed by the independent contractors:

Where the work done by the secondary employees is unrelated to the normal operations of the primary employer, it is difficult to perceive how the pressure of picketing the entire situs is any less on the neutral employer merely because the picketing takes place at property owned by the struck employer.

Local 761, Int’l Union of Elec., Radio & Mach. Workers, 366 U.S. at 679.

Insulation of the neutral required the following:

There must be a separate gate marked and set apart from other gates; the work done by the men who use the gate must be unrelated to the normal operations of the employer and the work must be of a kind that would not, if done when the plant [was] engaged in its regular operations, necessitate curtailing those operations.

Id. at 681.

Failure to meet any of the criteria meant that picketing could lawfully be done at that gate. In practical terms, delivery drivers, customers, replacement employees, and suppliers of goods and services who approached the employer’s premises in the normal course of business could be induced by picketing at their reserved gate to refuse to deal with the employer during the strike. But others who did not routinely deal with the employer and whose work would not require a shut down—i.e., work that was not made feasible only by a strike—could not be picketed. Thus, for example, new construction and capital improvements are typically protected from...