No Reserved Gate? No Problem: Use Of Reserved Hours To Isolate Labor Disputes At A Common Situs

Wednesday, October 1, 2008 - 01:00

The disruption of work which often accompanies a labor dispute may be exacerbated where the employer that is a party to the dispute - the target or primary employer - conducts its normal business at the same work site as neutral or secondary employers. When picketing occurs at a common work site, such as a construction site, an entire project may be affected if the unionized employees of neutrals and their suppliers decline to cross the picket line set up against the primary. As such, neutral employers often urge the use of a "reserved gate system" in an effort to isolate the labor dispute to the primary employer's separate gate. In theory, a reserved gate system restricts picketing activity to the primary's entrance, while employees of neutrals and their suppliers may enter by a separate gate unaffected by the picket.

In some instances however, the work site cannot accommodate a reserved gate system. Where no separate entrance is available or feasible, employers may consider establishing "reserved hours." Because a picket generally must be limited to the time the primary employer is about its normal business at the site, restricting the primary to working hours different from those of neutrals likewise may restrict the union's picketing to only those hours reserved for the primary.

Prohibited Secondary Activity

As a general principle, the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151-169, requires a union to limit its picketing activity to only that employer with which it has a dispute. Section 8(b)(4) provides, in part:

It shall be an unfair labor practice for a labor organization or its agents -

(4)(i) to engage in, or to induce or encourage any individual employed by any personto engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any personwhere in either case an object thereof is -

(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person

29 U.S.C. § 158(b)(4). "Congressional concern over the involvement of third parties in labor disputes not their own prompted § 8(b)(4)(B). This concern was focused on the 'secondary boycott,' which [is] pressure brought to bear, not 'upon the employer who alone is a party [to a dispute], but upon some third party who has no concern in it' with the objective of forcing the third party to bring pressure on the employer to agree to the union's demands." NLRB v. International Union of Operating Engineers , 400 U.S. 297, 302-03 (1971) (internal citations omitted). As such, when "an object" of the union is to pressure neutrals who do business with or share a common work site with the primary employer, thereby securing for the union an advantage with respect to the labor dispute, the union's picket is unlawful secondary activity.

Moore Dry Dock Standards

Discerning a union's objectives is made more difficult where the primary and two or more neutral employers are engaged in normal business operations at a "common situs," or the primary is temporarily on the premises of a neutral employer, i.e. , an "ambulatory situs."1 In both cases, tension exists between the union's right to lawfully picket the primary employer and the neutral employer's right to be free of labor disputes which do not concern it. As the National Labor Relations Board ("the Board") explained in Sailors' Union of the Pacific (Moore Dry Dock Co.) , 92 NLRB 547 (1950), "[w]hen a secondary employer is harboring the situs of a dispute between a union and a primary employer, the right of neither the union to picket nor of the secondary employer to be free from picketing can be absolute. The enmeshing of premises and situs qualifies both rights." Id . at 549. In Moore Dry Dock , a labor dispute arose between the union and the owner of a ship temporarily in dry dock at a secondary employer's work site. Unable to picket alongside the ship, aboard which the primary's non-union employees were training, receiving supplies and so on, the union picketed the entrance to the secondary's work site. Finding no violation of § 8(b)(4), the Board announced the conditions - later dubbed the Moore Dry Dock standards and met with approval by federal courts - which, if satisfied, establish a presumption of legality with respect to the union's picketing. The Moore Dry Dock standards are:

(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 picketing 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 .

Reserved Gate System

When picketing occurs or is threatened, neutral employers at a common work site often urge the use of a "reserved gate system," that is, separate entrances for use by neutrals and for use by the primary, its employees and suppliers. As noted, picketing must be "limited to places reasonably close to the location of the situs." Thus, a union that has notice of the reserved gate system and still chooses to picket a gate used exclusively by neutrals violates the third Moore Dry Dock standard and is subject to an unfair labor practice charge. When the union respects the reserved gate system, employees and suppliers of neutrals may pass through their designated gates without crossing a picket.

Just as the union must adhere to the Moore Dry Dock standards, the primary employer must honor the reserved gate system once established. Generally, this involves notifying the union of the reserved gate system, posting signs at all entrances indicating that each gate is either reserved for the exclusive use of the primary or that the primary is barred from using it, and monitoring entrances to ensure that the primary, its employees and suppliers restrict themselves to the appropriate gate. Importantly, the primary's use of neutral gates may, under certain circumstances, allow for lawful picketing at those gates, at least until such time as the primary employer re-establishes the integrity of the reserved gate system.

Reserved Hours Schedule

Though the reserved gate system can be a useful means of isolating labor disputes, the configuration of a particular work site may not lend itself to the use or creation of separate entrances. In that case, the Moore Dry Dock standards suggest another possible solution. The second Moore Dry Dock standard provides that, "at the time of the picketing the primary employer is engaged in its normal business at the situs." Thus, reserved hours may confine picketing to only those hours during which the primary employer is engaged in its normal business. Establishing a schedule of working hours for the primary, its employees and suppliers different from that of neutrals may effectively shield neutrals from the dispute.

Though recent case law concerning this issue is somewhat sparse, earlier decisions which still appear viable suggest that both "[t]he Board and courts have also approved the use of reserved time schedules during which the primary is scheduled to work on a common situs on the ground that they serve the same purpose as reserved gates in attempting to isolate and restrict the labor dispute to the parties immediately involved so as not to unnecessarily enmesh neutrals." Linbeck Constr. Co. , 219 NLRB 997, 998 (1975). For example, in Painters Dist. Council No. 38 , 153 NLRB 797 (1965), a general contractor and non-union painting subcontractor, anticipating that labor difficulties might arise, scheduled the painters to work at night and on weekends. Finding the union was aware of the separate work schedule and still chose to picket during daytime hours, the Board concluded that the union's activity "cannot be said to have had as its object reaching the employees of the primary employer" and the union's "insistence on picketing during the work hours of other crafts warrants an inference that their objective [was to engage in prohibited secondary activity]." Id . at 800. The U.S. Court of Appeals for the D.C. Circuit enforced a similar ruling in Plumbers & Pipe Fitters Local 519 , 416 F.2d 1120 (D.C. Cir. 1969). There, the contractor notified the union that the non-union plumbing subcontractor would no longer be on the job site during daytime, weekday hours, and requested that the union discontinue picketing during that time. The court explained that it "perceive[d] no real distinction between 'separate gates' and 'separate hours,'" and concluded that while having the subcontractor conduct its "normal business" on nights and weekends was "certainly not conventionalthe fact remains that 'normal business' would be conducted during those new hours." That the union, despite being aware of the changed schedule, continued to picket at other times, "was clearly a substantial departure from the standards of Moore Dry Dock ." Id . at 1125.

Because a reserved hours schedule restricts picketing to specific times, it may be more effective than a reserved gate in reducing the overall impact of the picket because it denies the union an opportunity to publicize its dispute during the working hours of neutrals. As cases concerning reserved hours suggest however, notice to the union appears critical to the integrity of a reserved hours schedule. Moreover, picketing during temporary or intermittent absences of the primary may not, without more, establish an unlawful secondary object, particularly where the union has no way of knowing when the primary's employees will return. Finally, just as the reserved gate system may be defeated if the physical separation is not honored by the primary, so too may a reserved hours schedule be tainted if, for example, the primary fails to observe the established schedule communicated to the union or carries on normal business activities, such as receipt of deliveries, at other times.


The lawful picketing of a primary employer at a work site shared by one or more neutral employers tends to disrupt all work at the site. This is particularly true when employees, suppliers, delivery drivers and others performing work for neutrals may themselves refuse to cross the picket line, delaying or shutting down work. Where a reserved gate system is not feasible, restricting the primary, its employees and suppliers to a reserved hours schedule may effectively isolate neutrals from the labor dispute and reduce the overall impact of the picket.

Suzanne K. Brown is an Associate in the Employment Law Department of Gibbons P.C.

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