## Facts

- Markwell & Hartz, Inc. (M&H) was the general contractor on a project to expand a water-filtration plant in Jefferson Parish, Louisiana.
- M&H subcontracted parts of the work to neutral employers, including piledriving to Binnings Construction Company, Inc. (Binnings) and electrical work to Walter J. Barnes Electrical Company (Barnes).
- The Building and Construction Trades Council of New Orleans, AFL-CIO (Council) had a labor dispute with M&H, but no dispute with Binnings or Barnes.
- The jobsite had three vehicular entrances: a main gate, a warehouse gate, and a rear gate.
- The Council began picketing at the plant entrances with signs directed against M&H, and employees of Binnings and Barnes did not cross the picket line.
- In response, M&H instituted a reserved-gate arrangement:
  - M&H first marked the main and warehouse gates for use by subcontractors and project delivery persons, and required M&H employees to use the rear gate.
  - The Council moved its pickets to the rear gate only briefly, then returned to picketing at the main gate.
- Binnings’s employees entered through the main gate and performed work when the pickets were absent, but did not enter once the Council resumed picketing there.
- M&H then tightened the gate system by posting signs barring M&H employees and all project delivery persons from using the main and warehouse gates and directing them to use only the rear gate.
- Even after the main and warehouse gates were marked for the exclusive use of neutral subcontractors, the Council continued to picket at those reserved gates, and neutral employees again refused to enter.

## Issues

1. Whether, at a common construction situs where the primary employer establishes gates reserved exclusively for neutral subcontractors, the union commits an unfair labor practice under NLRA § 8(b)(4)(i) and (ii)(B) by picketing the neutral reserved gates to further its dispute with the primary employer.
2. Whether M&H’s reserved-gate arrangement was sufficiently clear and maintained so that picketing could be limited to the gate used by M&H employees.

## Decision

- The Board held that the Council violated NLRA § 8(b)(4)(i) and (ii)(B) by continuing to picket at gates reserved for the exclusive use of neutral subcontractors.
- The Board treated the main and warehouse gates, after M&H’s final posted restrictions, as neutral entrances and found that picketing there constituted a prohibited appeal to neutral employees to withhold services in order to pressure M&H.
- The Board concluded that, given the reserved-gate setup, the Council could lawfully picket at the entrance designated for M&H (the rear gate), but not at the neutral gates.
- The Board issued a cease-and-desist order with customary remedial requirements.

## Legal Principles

- Section 8(b)(4)(i) and (ii)(B) prohibits union conduct that induces or encourages employees of a neutral employer to stop work, or coerces a neutral employer, where an object is to force the neutral to cease doing business with the primary employer.
- At a common construction situs with multiple employers, a general contractor may designate separate entrances to separate the primary employer’s traffic from neutral subcontractors’ traffic.
- When a gate is clearly marked and reserved for the exclusive use of neutral employers and their employees (and the reservation is actually enforced), picketing at that gate is treated as secondary picketing because it predictably pressures neutrals rather than the primary employer.
- Under common-situs rules (including the Moore Dry Dock framework), the availability of a distinct entrance for the primary employer supports limiting lawful primary picketing to that primary entrance, not neutral reserved gates.

## Conclusion

The NLRB held that after M&H established and enforced gates reserved exclusively for neutral subcontractors, the Council’s continued picketing at those neutral gates amounted to unlawful secondary activity under NLRA § 8(b)(4)(i) and (ii)(B), requiring the Council to confine any lawful primary picketing to the entrance used for M&H’s own operations.


Building & Construction Trades Council (Markwell & Hartz, Inc.), 155 N.L.R.B. 319 (1965)