Carpenters Local No. 33, A/w United Brotherhood of Carpenters and Joiners of America, Afl-Cio v. National Labor Relations Board

WALD, Chief Judge,

concurring in the judgment only:

I concur in the decision to affirm the Board’s finding that the Union violated § 8(b)(4). I do so, however, on the narrow ground that there is substantial evidence in the record to support the Board’s factual determination that the back-alley primary gate was not effectively hidden from the “general public.” 1 I wish, however, to voice strong disagreement with Judge Ginsburg’s rationale that area standards picketing can legally be restricted by the employer to a location which affords the Union no access whatsoever to the general public. 2 The Board itself has not adopted such a sweeping position 3 and, indeed, such a position is totally at odds with both Board precedent and our decision in Local Union No. 501 v. NLRB (Pond), 756 F.2d 888 (D.C.Cir.1985).

The central flaw in Judge Ginsburg’s position is its premise that the neutral employer here (the Vanderweil Trust) has an absolute right under Moore Dry Dock principles, Sailors Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547 (1950), to establish a reserved gate system and confine area standards pickets to one gate; since there was only one possible configuration of gates, Judge Ginsburg reasons, the Union’s access to the public at the primary gate is “irrelevant.” But there is no absolute right to establish the reserved gate system in the first place. As the Board has repeatedly stated:

*324 When a concerned labor organization finds itself, consistently with Moore Dry Dock's requirements, presumptively constrained to picket “reasonably” close to some primary employer’s reserved gate effectively hidden from public view, or so remotely located as to substantially impair the effectiveness of the labor organization’s otherwise lawful picketing calculated to reach the primary employer’s personnel, suppliers, visitors and the general public — no circumscription, designed to confine or restrict the area within which permissible common situs picketing may be conducted, would be warranted.

United Brotherhood of Carpenters, Local 354 (Sharp & Tatro), 268 N.L.R.B. 382 , 387 (1983) (emphasis added); see also International Brotherhood of Electrical Workers, Local 453 (Southern Sun), 237 N.L.R.B. 829 , 830 (1979); Joint Appendix (“J.A.”) 267 (Board Decision). I can find no support, whatsoever, for the proposition that if there is no gate system practically available that would afford adequate public exposure to the Union, the neutral’s “right” to be free of picketing wins out over the Union’s “right” to picket:

When confronted with “common situs” situations, such as the situation presented herein, this Board and the courts require the labor organizations concerned to accommodate the right of neutral employers to remain immune from the full impact of the labor dispute by making reasonable efforts to limit those inducements and restraints which are inherent in common situs picketing to the primary employer, so far as the common situs makes that practical.

Sharp & Tatro at 386 (emphasis added).

The Board has clearly said that the primary object of area standards picketing, which is “not only lawful, but affirmatively protected under § 7 of the Act,” is to communicate the area standards dispute to the public, and in particular those members of the public who purchase goods and services from and compete with the primary employer. Giant Food Markets, Inc., 241 N.L.R.B. 727 (1979). See also Polly Drummond Thriftway, Inc., 292 N.L.R.B. No. 44 (1989) (ALT description of area standards picketing). 4 Therefore a reserved gate system is not properly established for the purposes of applying the Moore Dry Dock presumptions if it substantially impairs the effectiveness of the Union’s protected area standards picketing by cutting off essentially all access to the relevant public. The fact that there is only one possible gate system obviously cannot alter this basic legal standard.

Our decision in Pond was based on the Board’s precedents establishing this point. We said there:

[A union’s] refusal to confine its picketing to a back entrance hidden from virtually all public view does not by itself imply an unlawful intent to enmesh neutrals. ... If [the neutral gate] constituted the only location at or near the job site at which the union could obtain reasonable public exposure, the neutral gate presumption could not accommodate the union’s legitimate interests.

756 F.2d at 896 (emphasis added). There was no intimation in Pond that this principle would not apply to cases in which the neutral gate is also the only entrance practically available to the neutral employer and the choice of a primary gate is constrained by the needs of the primary employer. 5 Nor can such a novel construction *325 be premised, as Judge Ginsburg tries to do, on a supposed “functional equivalence” between this common situs case and the wholly different case in which the Union seeks to picket at a secondary location from which the primary employer is totally absent. See Maj. op. at 320. A common situs case arises precisely because the Union is entitled to follow the primary employer to a secondary location where he is working; and the entire jurisprudence of reserved gate systems has arisen precisely to determine when the Union’s pickets at this secondary location may be legitimately restricted to the particular entrance used by the primary employer. Judge Ginsburg’s supposed “functional equivalence” would render this entire jurisprudence superfluous and evade our clear holding in Pond: the Union has a protected interest in communicating area standards disputes to the public and the Board must weigh this factor in determining whether any gate system has been or can be properly established.

. The Board concluded that there was light pedestrian traffic in the alley-way consisting of people taking a shortcut between the boardwalk at one end of the alley through to Congress Street and people who might be travelling from the public parking lot behind Vanderweil's building either to one of the back entrances of Summer Street businesses or passing through to Congress Street. While I find the evidence supporting this conclusion unpersuasive, I cannot conclude that it is insubstantial.

. It appears to me that Judge Starr’s concurrence is, like mine, based on the substantiality of the evidence supporting the Board’s conclusion that the Union had sufficient access to the public at the primary gate. I, therefore, do not regard Judge Ginsburg’s primary rationale that public access was "irrelevant,” as a majority opinion in this case.

. The Board nowhere in its opinion suggests the broad principle asserted by Judge Ginsburg that the amount of public traffic in the back-alley behind Vanderweil’s building is "irrelevant.” There is no question from my reading of the decision, that, had the Board agreed with the AU that there was too little public exposure in the alley, the Union would have been entitled to picket at the front door on Summer Street, regardless of the fact that C.B. Construction itself was physically constrained to use the back door.

. Indeed, the Union cannot use such picketing for purposes other than informing the public, such as to organize the non-unionized employees of the primary employer or to obtain recognition for the Union. Giant Food Markets. In this case the Union’s lawful audience would presumably include other businesses or individuals in the area who might employ C.B. Construction and C.B.’s potential competitors in the area.

. I note that even in this case, there was no evidence before the Board that it was impossible for the primary employer, C.B. Construction, to use the front entrance, only that it would have been very costly to the neutral employer, Van-derweil, to have C.B. use the front entrance and then carry its materials, etc., to the back elevator down a narrow corridor, use a crane, etc. Vanderweil testified: “If we had put in our contract that C.B. was to use the passenger elevator or use that [front] entrance, there’s *325 absolutely no question in my mind that it would have had a substantial slowing down of the whole construction project and it would have escalated the cost to me substantially.” J.A. 71. The same could be said of the gate system in Pond where a shift in the gates would have required the neutral employer, a private school, to reroute students, teachers, parents and visitors to a dead-end unmarked back entrance and reserve the main entrance on a busy street for a single contractor working on the campus.