The opinion
LUMBARD, Chief Judge
(dissenting).
This case presents the question whether it is an unfair labor practice, prohibited by §§ 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, for a union to picket a railroad right of way adjacent to the employer’s premises, while the railroad is engaged in normal delivery and removal operations in the behalf of the struck employer, if there is no point of entry into the latter’s premises where the union can conduct such picketing. I would hold that picketing under such circumstances is not an unfair labor practice; accordingly, I dissent from the action of my colleagues in granting the employer’s petition to modify the Board’s order.
As I understand the cases in this area, the lawfulness of picketing depends on the legitimacy of the union’s objective; the place where the picketing occurs is controlling only insofar as it sheds light on the union’s objective. The legitimate objectives of picketing include publicizing a dispute to employees of neutral employers who are performing part of the everyday operations of the struck employer. Since the picketing which occurred here had that objective, and since there was no other place where the union could conduct such picketing, I agree with the National Labor Relations Board that there was no violation of the Act.
The railroad gate which was the locus of the disputed picketing affords access from Thompson Road, a public thoroughfare, to a right of way owned by the New York Central. The right of way is approximately thirty-five feet wide, and extends in an east-west direction along the southern boundary of the Carrier plant, which fronts on the eastern side of Thompson Road. New York Central maintains railroad trades on the right of way which by a series of spurs service Carrier and several adjacent plants also east of Thompson Road. The gate was cut into a fence which surrounded the railroad’s property on its southern boundary and was a continuation of a fence enclosing the Carrier plant along Thompson Road. It was padlocked when not open for railroad switching operations. Railroad personnel held the key to the gate, which could also be opened by a master key, held by Carrier employees, *150 to locks on Carrier property. 1 Carrier employees were not permitted access to the Carrier plant through the gate and right of way.
During the early days of the strike, the railroad provided regular service to the other plants located along the right of way. On March 10, about one week after the strike had commenced, Carrier made arrangements with New York Central for it to “spot” fourteen empty boxcars at the Carrier plant and remove the same number of loaded cars on the following day. On March 11, after the regular train crew had completed switching operations for other plants, supervisory personnel of the railroad who were willing to disregard the picket line took over the running of the train and started to perform the Carrier operations, which necessitated several switching maneuvers through the Thompson Road gate and onto Thompson Road. In the course of these operations, the striking Carrier employees congregated on Thompson Road outside the railroad gate, threatened railroad personnel running the train, and obstructed its passage by standing or lying in front of it and driving an automobile onto the track. These are the acts which Carrier claims were violations of §§ 8(b) (4) (i) and (ii) (B).
Section 8(b) (4) of the N.L.R.A., as amended by 73 Stat. 542 (1959), 29 U.S.C. § 158 (b) (4), makes it an unfair labor practice for a union
“(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to 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 person engaged in commerce or in an industry affecting commerce, where 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 * * * Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing * * *.”
It is evident that the acts complained of are covered by the terms of clauses (i) and (ii). It is equally plain that the-objective of the striking Carrier employees was to prevent the railroad from-performing its usual services for Carrier. However, the acts constituted “primary picketing” which is protected by the-proviso in clause (B).
That primary picketing is not an unfair labor practice was first made explicit in the N.L.R.A. by the 1959 amendments to that Act. Before that time, §8(b) (4) (A), the predecessor of the present provisions, if construed literally would have prohibited much picketing that lay within the domain of traditional union economic-warfare. To avoid that result, unintended by Congress, § 8(b) (4) (A) was held' to prohibit only “secondary” activity directed at someone other than the employer with whom the union had a grievance. The incidental coercive effects felt by a neutral employer when his employees-refuse to cross a picket line were declared outside the statutory prohibition. See Oil Workers Int. Union (The Pure Oil Co.), 84 N.L.R.B. 315 (1949); United Electrical, Radio & Machine Workers (Ryan Construction Corp.), 85 N.L.R.B. 417 (1949); N. L. R. B. v. International Rice Milling Co., Inc., 341 U.S. 665 , 71 S.Ct. 961 , 95 L.Ed. 1284 ; N. L. R. B. v. Local 294, International Brother *151 hood of Teamsters, 284 F.2d 887 (2 Cir. 1960).
But although a distinction between primary and secondary picketing was drawn, no ready criteria for differentiating the two were available. The problem did not yield to a “quick, definitive formula,” but rather required the development of standards “on the basis of accumulating experience.” Local 761, International Union of Electrical, Radio & Machine Workers v. N. L. R. B., 366 U.S. 667, 674 , 81 S.Ct. 1285, 1290 , 61 L.Ed.2d 592 (1961). In the first cases, the touchstone of decision was ownership 2 of the picketed premises. Picketing at a secondary employer’s premises was held unlawful. E. g., United Brotherhood of Carpenters (Wadsworth Building Co.), 81 N.L.R.B. 802 (1949), enforced, N. L. R. B. v. United Brotherhood of Carpenters, etc., 184 F.2d 60 (10 Cir. 1950), cert. denied, 341 U.S. 947 , 71 S.Ct. 1011 , 95 L.Ed. 1371 (1951). Picketing at the primary employer’s premises was allowed, even if it occurred at a gate reserved for the exclusive use of employees of a neutral contractor doing construction work on the premises. Ryan Construction Corp., supra. In Ryan, the Board said. “When picketing is wholly at the premises of the employer with whom the union is engaged in a labor dispute, it cannot be called ‘secondary’. * * * ” Id. at 418. See also The Pure Oil Co., supra.
This simple ownership test of union objective proved too inflexible. Situations arose in which due regard for the union’s right to use its traditional weapons, including the inducement of neutral employees to support a strike by respecting picket lines, required that picketing be permitted elsewhere than at the primary employer’s premises. In International Brotherhood of Teamsters (Schultz Refrigerated Service, Inc.), 87 N.L.R.B. 502 (1949), the Board ruled that truck-driver employees could picket the primary employer’s trucks when replacement drivers were loading or unloading them on or in front of customers’ premises. In the Board’s view, such picketing was primary activity because “in view of the roving nature of its business, [this was] the only effective means of bringing direct pressure on” the employer. Id. at 506. The employees were “acting in a manner traditional to employees in all other industries, who choose to stand before their place of employment and point out their replacements to the interested public as strikebreakers, and their employer as unfair.” Id. at 507. In Sailors’ Union of the Pacific (Moore Dry Dock Co.), 92 N.L.R.B. 547 (1950), the Board upheld picketing of a neutral employer’s shipyard where the struck employer’s ship was undergoing construction work, the union having requested and been refused permission to place pickets at the dock where the primary employer’s ship was berthed. At the same time, in order to protect “the right of a secondary employer to be free from picketing in a controversy in which it is not directly involved,” the Board laid down standards to be applied in these “common situs” cases. Id. at 549 . The effect of these standards was to confine the picketing as narrowly as possible to the normal operations of the primary employer and to require the union to make plain that it had no dispute with the neutral employer. 3
*152 By parity of reasoning it was held in other cases that the mere fact of ownership by the primary employer would not justify picketing which unreasonably interfered with the rights of neutral employers. In Local 55 (PBM), 108 N.L.R.B. 363 , enforced N. L. R. B. v. Local Union No. 55, 218 F.2d 226 (10 Cir. 1954), the Board found a violation of § 8(b) (4) (A) when a union picketed a construction site owned by a general contractor on which employees of neutral subcontractors were working, because the union did not make clear that its dispute was solely with the general contractor. The Board said: “* * * [T]he fact that the picketing takes place at the situs of the primary employer’s regular place of business rather than at an ambulatory situs is not controlling; in both situations, picketing at a common situs is unlawful if the picketing sign fails to disclose that the dispute is confined to the primary employer.” PBM, supra, at 366. (Footnote omitted.) In Retail Fruit & Vegetable Clerks Union (Crystal Palace Market), 116 N.L.R.B. 856 (1956), enforced 249 F.2d 591 (9 Cir. 1957), the Board stated explicitly that the standards developed in Moore Dry Dock for common situs cases applied without regard to the ownership of the premises. It said: “We can see no logical reason why the legality of such [common situs] picketing should depend on title to property. The impact on neutral employees of picketing which deviates from the standards outlined above is the same whether the common premises are owned by their own employer or by the primary employer.” Crystal Palace Market, supra, at 859.
A related development was the reversal of the rule announced in Ryan, supra, pertaining to separate gate cases. In Crystal Palace Market, the Board overruled Ryan to the extent that it was inconsistent with the later case. Id. Thereafter, in United Steelworkers, etc. v. N. L. R. B., 289 F.2d 591 (2 Cir. 1961), we granted enforcement of a Board order finding a violation of § 8(b) (4) (A) in the picketing of a separate gate to the primary employer’s premises, which gate was used exclusively by employees of neutral contractors doing construction work. The conditions which justified the finding of a violation were stated:
“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 were engaged in its regular operations, necessitate curtailing those operations.” Id. at 595.
This development of the distinction between primary and secondary picketing was reviewed and approved by the Supreme Court in Local 761, International Union of Electrical, Radio & Machine Workers v. N. L. R. B., 366 U.S. 667 , 81 S.Ct. 1285 , 61 L.Ed.2d 592 (1961), a separate gate case similar to United Steelworkers v. N. L. R. B., supra. General Electric maintained a separate gate to its premises for the use of employees of independent contractors doing a variety of tasks including construction and maintenance work. During a strike against General Electric, pickets were placed at this gate as well as other plant entrances. The Board held that by picketing a gate used only by employees of neutral employers, the union had violated § 8(b) (4) (A). The Supreme Court ap *153 proved the tests laid down in United Steelworkers, and remanded the case to the Board for a determination whether the workers using the gate “performed conventional maintenance work necessary to the normal operations of General Electric.” Local 761, supra, at 682 , 81 S.Ct. at 1294 .
In reaching its decision, the Court noted that its holding “would not bar the union from picketing at all gates used by the employees, suppliers, and customers of the struck employer.” Id. at 680 , 81 S.Ct. at 1293 . The Court said:
“The Union claims that, if the Board’s ruling is upheld, employers will be free to erect separate gates for deliveries, customers, and replacement workers which will be immunized from picketing. This fear is baseless. The key to the problem is found in the type of work that is being performed by those who use the separate gate. It is significant that the Board has since applied its rationale, first stated in the present case, only to situations where the independent workers were performing tasks unconnected to the normal operations of the struck employer— usually contruetion work on his buildings. In such situations, the indicated limitations on picketing activity respect the balance of competing interests that Congress has required the Board to enforce. On the other hand, if a separate gate were devised for regular plant deliveries, the barring of picketing at that location would make a clear invasion on traditional primary activity of appealing to neutral employees whose tasks aid the employer’s everyday operations.” (Footnote omitted.) Id. at 680-681 , 81 S.Ct. at 1293 .
The pattern which emerges from these cases requires affirmance of the Board’s ruling. It is true that none of them precisely anticipates the facts here. This case does not involve a common situs, since none of Carrier’s employees worked on the New York Central premises. But so long as the picketing is strictly confined to the objectives which justify picketing a neutral employer’s premises in common situs cases and involves no greater interference with the neutral employer than is involved there, I see no reason why the picketing should be labelled “primary” in one case and not in the other. Where there is not a common situs, the picketing is not necessary to publicize the dispute to the employees of the primary employer. But as the Supreme Court explicitly recognized in Local 761, it is as legitimate a union objective to publicize the dispute to neutral employees making deliveries and performing other ordinary services for the primary employer as it is to publicize it to his own employees. Nor is this the case hypothesized by the Supreme Court in Local 761, where the primary employer has established a separate delivery gate leading onto his own premises. But the controlling issue being always whether the union’s objective was one within the traditional scope of primary picketing, I see no more reason to accept as conclusive an ownership test when it works against the union than when it works in its favor, if other facts point to a contrary result.
The majority’s decision rests on the premise that the only lawful objective of picketing is to reach the employees of the primary employer. I am totally unable to square this with the Supreme Court’s statement in Local 761, supra, that “appealing to neutral employees whose tasks aid the employer’s everyday operations” is “traditional primary activity.” Id. at 681 , 81 S.Ct. at 1293 . The majority denies that there is a conflict, saying that “in both cases union picketing activities are held to violate § 8(b) (4) of the Act because of their appeal to neutral employees.” But the Supreme Court stated, again explicitly, that the picketing was not unlawful if, as here, it reached neutral employees who performed work “necessary to the normal operations” of the employer. Id. at 682, 81 S.Ct. at 1294 .
The sole basis of distinguishing this case is that the gate involved here did not lead immediately to the primary em *154 ployer’s premises. Nowhere in the opinion in Local 761 can I find the “special solicitude” for picketing the premises of a primary employer which the majority finds, except insofar as the location of the picketing indicates its motive. So far as I can see, the majority’s distinction between “fully legitimate objectives of a union in picketing a primary employer’s premises, and those hoped-for results which are not permissible unless only incidentally achieved” is one of those “finely spun factual distinctions having no basis in legislative history or in reason” which the majority condemns. What the alleged distinction comes down to is that the union can seek to influence neutral employees at the premises of the primary employer and not elsewhere (which in this case means, of course, that it cannot use pickets to influence the railroad workers at all). But this makes the test not the union’s objective but the location of the picketing, a test which the majority itself admits to be obsolete.
Of course the question of ownership will usually be of great significance. Legitimate union objectives can ordinarily be accomplished by picketing around the employer’s premises. Such picketing is usually the most direct and a sufficient means of publicizing the union’s grievance to customers and suppliers and their employees, who can then, if they choose, respect the picket line and support the union’s cause. Ordinarily, therefore, if the union extends its pickets to other premises, there is a reasonable basis for the inference that the union has attempted more elaborate methods of interference with neutral employers and has sought to embroil them in a dispute not their own. But just as the facts of a particular case may be such that even picketing solely around the primary employer’s premises does not conclusively demonstrate that the union has stayed within bounds, so there may be cases where picketing elsewhere does not justify the inference that the union has gone too far.
In this case, it is undisputed that the railroad’s operations for Carrier were in furtherance of Carrier’s normal business. It is equally clear from the record that the picketing employees made no attempt to interfere with any of the railroad’s operations for plants other than Carrier. The railroad employees were not encouraged, to, nor did they, refuse to serve the ' other plants. The picketing was designed to accomplish no more than picketing outside one of Carrier’s own delivery entrances might have accomplished. Because the fence surrounding the railroad’s right of way was a continuation of the fence surrounding the Carrier plant, there was no other place where the union could have brought home to the railroad workers servicing Carrier its dispute with Carrier. This fact serves to distinguish the present case from those where a union, able to picket at company entrances, would commit an unfair labor practice if it were to picket the home bases of delivery services.
Carrier argues that it is inappropriate in this case to work a balance of interests between the union’s right to engage in primary picketing and the neutral employer’s right to be free of interference, because the picketing of the railroad gate was attended by threats and coercion of railroad personnel. Such conduct, it is urged, is prohibited in any event. But this misconceives the point at which the balance of interests becomes relevant. The proviso which protects primary activities relates to the prohibited objectives of clause (B). This makes plain that the distinction between primary and secondary picketing is based, as it was in cases arising under the statute prior to the 1959 "amendment, on a consideration of the union’s objectives. If further demonstration were needed, the legislative history of the 1959 amendments clearly indicates congressional approval of the earlier cases. See H.R.Rep. No. 741, 86th Cong., 1st Sess. 21 (1959); H.R.Rep. No. 1147, 86th Cong., 1st Sess. 38 (1959), U.S.Code Congressional and Administrative News 1959, p. 2318; 105 Cong.Rec. 16588-89 (Aug. 20, 1959) (analysis of Sen. Kennedy and Rep. Thompson). It is this distinction, not a *155 •distinction between peaceful and violent means, which adjusts the conflicting interests of the union and neutral employers for purposes of § 8(b) (4). If the union’s objectives are within the ambit of primary picketing, there is no violation of § 8(b) (4) whatever the means employed. Some other provision of the act may, of course, be violated, as was the case here. 4
Finally, it is urged that to uphold the union’s activity in this case would thwart congressional intent in the 1959 amendments to extend the protection against secondary boycotts to railroads and their employees. Such protection was intended to be given. See 105 Cong.Rec. 16589 (Aug. 20, 1959) (analysis of Sen. Kennedy and Rep. Thompson); 105 Cong. Rec. 18022 (Sept. 3, 1959) (analysis of ■conference agreement by Rep. Griffin). But nothing in the statute or its history indicates an intent to give railroads greater protection in this regard than other employers because of their status as common carriers or for any other reason. The Board’s order legitimates only that picketing directed at railroad operations which service the normal business of the primary employer; it does not legitimate all picketing of a railroad right of way located adjacent or near to the premises of a primary employer.
I would deny Carrier’s petition to modify the Board’s order.
. The right of way had been owned by Carrier, which deeded it to New York Central in 1949..
. “Ownership” in this context, here and elsewhere in the opinion, refers not only to absolute legal title, but also to the occupation of premises through some legal right less than absolute ownership.
. Picketing the premises of a secondary employer was declared to be “primary” if the following conditions were met: “(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.” Moore Dry Dock, supra, at 549. (Footnotes omitted.) Later Board decisions made explicit a further condition which, at least as a relevant factor, was implicit in the rationale which underlay the Dry Dock standards; it must be shown that there was no reasonable opportunity *152 for the union to accomplish its lawful objectives by picketing the premises of the primary employer. See Brewery & Beverage Drivers (Washington Coca Cola Bottling Works, Inc.), 107 N.L.R.B. 299 (1953), affirmed, 95 U.S.App.D.C. 117 , 220 F.2d 380 (1955); International Brotherhood of Teamsters (Ready Mixed Concrete Co.), 116 N.L.R.B. 461 , 473 (1956). Still later, the Board declared that failure to meet tbis condition was not conclusive but was only “one circumstance among others, in determining an object of the picketing.” International Brotherhood of Electrical Workers (Plauche Electric, Inc.), 135 N.L.R.B. No. 41 (1962). See also N. L. R. B. v. Local 294, International Brotherhood of Teamsters, 284 F.2d 887 (2 Cir., 1960).
. In another portion of the case, the Board found that the union had violated § 8(b) (1) (A) of the N. L. R. A., 29 U.S.C. § 158 (b) (1) (A), “by the use of threats and physical force against employees of the Carrier Corporation, by obstructing, blocking and preventing the ingress and egress of Carrier employees at entrances to the Carrier plant, by obstructing the ingress and egress of New York Central Railroad Company personnel in the presence of Carrier employees, and by assaulting peace officers in the presence of Carrier employees.” The Board issued an appropriate order and an uncontested decree of enforcement had been entered. Pending the Board’s determination, the Regional Director of the N. L. R. B. obtained temporary injunctive relief against picketing of the railroad’s promises. Ramsey v. Local 5895, United Steelworkers of America, 40 (CCH) Labor Oases 70, 275 (N.D.N.Y. April 16, 1960). The union was also subject to an injunction issued in state court proceedings which, inter alia, limited the places and extent of picketing and enjoined violent or disorderly conduct. Carrier Oorp. v. Brewster, order entered in the Supreme Court of Onondaga County, April 12, 1960.