Before LUMBARD, Chief Judge, MAGRUDER*fn* and WATERMAN, Circuit Judges.
LUMBARD, C.J.: The question for decision is whether the Union, which was engaged in a lawful strike against the Phelps Dodge Refining Corporation, hereafter Phelps Dodge, committed an unfair labor practice under § 8(b)(4)(A) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(b)(4)(A), by picketing an entrance gate to the Phelps Dodge plant which Phelps Dodge had reserved for the exclusive use of the employees of several contractors who were constructing a gas handling and dust collecting device necessary to bring the plant into compliance with the requirements of the New York City Board of Air Pollution Control. Considering the location of the gate, the relationship between Phelps Dodge and the independent contractors, and the nature of the work being performed by those contractors, we hold that the labor statute prohibits such picketing even though it took place at the premises of the struck employer.
The labor dispute occurred during the summer of 1959 in Maspeth, New York, where Phelps Dodge has a copper ore refinery. Local 4355 of the United Steelworkers of America hereafter referred to as the Union*fn1, represented the approximately 1,000 production employees of Phelps Dodge.*fn2 During July, Phelps Dodge and the Union engaged in fruitless negotiations for a new contract which were broken off on July 31 after an impasse had been reached. On August 3, the Monday following July 31, the Union put pickets at all gates to the refinery including the one reserved for the employees of the independent contractors to whose activities we now turn.
In April 1959, Phelps Dodge had decided to construct a new gas handling and dust collecting system that would conform the refinery to the requirements of the New York City Board of Air Pollution Control. The company contracted with several contractors each of which was to perform some portion of the work; all of these contractors had begun work by August 3, when the Union began to picket.
The contractors and their employees at first entered the Phelps Dodge plant at a gate which was also used by the Phelps Dodge production employees represented by the Union. Approximately a week before the picketing began, however, Phelps Dodge had a new gate cut in the chain-link fence which surrounded its plant. A sign facing out reading "CONTRACTORS ONLY" was affixed to the gate and the contractors were told that in the event of the strike they were to use the new gate and that no regular employees were to use the new gate.
The new gate was cut into the southeast corner of the fence at a point diagonally opposite the established gates. It was approximately 440 feet as the crow flies and 1,200 feet by road from the gate generally used by the Phelps Dodge employees. It was slightly closer to three other gates which were in the north edge of the fence. The record does not establish whether the contractors' gate could be seen from any other gates.
On July 31, during the last negotiation meeting preceding the strike, Phelps Dodge's chief negotiator told the Union that the gate had been cut; that it was to be used by the contractors and their employees; and that company employees would not be permitted to use it. The company then put guards at the gate whose function it was to see that no one but the contractors and their employees used the gate.
When the strike began, the Union placed pickets, carrying signs which read "On Strike, Phelps Dodge Local No. 4355, United Steelworkers of America, AFL-CIO," "Don't Scab" or "Keep Away," at the contractors' gate and the approaches thereto.*fn3 The Union was successful, as it was at the gate used by the Phelps Dodge employees, for most of the contractors' employees refused to cross the picket line and all construction work was thereupon shut down*fn4 until August 11 following a temporary injunction issued the day before by the United States District Court for the Eastern District of New York. Two days later, the general counsel for the Board filed the complaint which led to the Board's order here appealed from. The Board adopted the findings and recommendations of its trial examiner and, ruling that the Union had violated § 8(b) (4)(A), ordered that it cease and desist from picketing the contractors' gate or the approaches thereto and that it post appropriate notices.
The Union's petition asks that the Board's order be set aside. The Board cross-petitions for enforcement of its order. 126 NLRB No. 168.
I. At the time of the strike, § 8(b)(4) (A), which the Board held was violated when the Union picketed the contractors' gate, made it an unfair labor practice for a Union
"* * * to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to * * * perform any services, where an object thereof is: (A) forcing or requiring * * * any employer or other person * * * to cease doing business with any other person * * *"
The Union's conduct quite obviously comes within the statute; an object of the picketing at the contractors' gate was to induce the contractors' employees to refuse to work and thereby force their employers, the contractors, to cease doing business with Phelps Dodge.
However, the Union argues that the challenged picketing was primary and therefore lawful because it was done at the premises of Phelps Dodge, the primary employer whom the Union was attacking with a lawful strike. While the fact that picketing occurs at the premises of the primary employer is significant, cf. NLRB v. International Rice Milling Co., Inc ., 341 U.S. 665, 671 (1951), we do not believe that it is for that reason necessarily permissible. In some cases the policy of protection to neutrals will outweigh the policy preserving the Union's right to fight the industrial battle with traditional tools. We believe that this is such a case and we therefore enforce the Board's order.
As was pointed out in NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 692 (1951), we must draw the line between protected primary conduct and illegal secondary conduct*fn5 by balancing the dual Congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and ...