## Facts

- General Electric (GE) operated an unfenced, square-shaped manufacturing facility (“Appliance Park”) outside Louisville, Kentucky, with access effectively limited to five roadway gates.
- GE designated Gate 3-A for employees of independent contractors only, posted a sign directing GE employees to use other gates, and instructed GE employees not to use Gate 3-A.
- Independent contractors performed varied work at the site, including construction of new buildings, retooling and rearranging operations for new models, installation/repair of equipment, and general maintenance work.
- Local 761 represented most GE employees at the facility, called a strike, and picketed all gates, including Gate 3-A.
- Contractor employees largely refused to cross the picket line at Gate 3-A, interrupting contractors’ work at the plant.
- The NLRB found the Gate 3-A picketing was intended to involve neutral contractor employees in the union’s dispute with GE and therefore violated NLRA § 8(b)(4)(A).

## Issues

1. When an employer establishes a gate reserved for independent contractors, under what circumstances is union picketing at that gate unlawful secondary activity under NLRA § 8(b)(4)(A)?
2. Whether the legality of separate-gate picketing turns on the actual use of the gate and the nature and extent of contractors’ work tied to the primary employer’s normal operations.

## Decision

- The Supreme Court reversed the court of appeals’ enforcement of the NLRB order and remanded.
- The Court held the Board’s order could be sustained unless the contractor gate was used to a substantial extent by contractor employees performing conventional maintenance work necessary to the manufacturer’s normal operations.
- Because the record showed some mixed use of the gate but did not establish its extent, the Court directed the NLRB to determine the extent of such mixed use and reassess whether the picketing was secondary.

## Legal Principles

- The primary/secondary distinction under NLRA § 8(b)(4)(A) depends on whether union conduct is directed at the primary employer’s operations or instead pressures neutral employers to cease doing business with the primary employer.
- A separate or reserved gate may be treated as a neutral gate only if, in fact, it serves employees of neutral employers performing work sufficiently separate from the primary employer’s normal operations.
- Formal gate designation and employer instructions are relevant but not controlling; the decisive inquiry is the gate’s actual use and the functional relationship between the contractors’ work and the primary employer’s ongoing business.
- If a reserved gate is used to a substantial extent by contractors performing conventional maintenance and similar work necessary to the primary employer’s normal operations, picketing at that gate is treated as primary rather than proscribed secondary activity.
- Where the evidentiary record is insufficient to measure the extent of mixed gate use, the NLRB must make the needed factual findings before concluding that separate-gate picketing is an unlawful secondary boycott.

## Conclusion

The Court required the NLRB to base separate-gate secondary-boycott findings on concrete evidence of how a contractor gate is actually used, remanding for findings on whether Gate 3-A was substantially used for conventional maintenance necessary to GE’s normal operations, which would make picketing there primary rather than unlawful secondary activity.


Local 761, Int’l Union of Elec., Radio & Mach. Workers v. NLRB, 366 U.S. 667 (1961)