The original charge lodged against the respondents was filed October 22, 1969, and on October 24, 1969 the placards used by the pickets were amended, as were the handbills distributed at the A&P food stores. The placards no longer assailed Sardec but were directed against Roupp, the masonry subcontractor.
Roupp, formerly of Todd and Roupp, Inc., with whom the respondents claim to have a grievance, began work on October 13 and continued until November 22, 1969, at which time he discontinued until December 28, 1969. The pickets continued their picketing from October 18, 1969 until December 22, 1969, at which time a tentative settlement was allegedly reached between the charging party and the respondents.
Work resumed at the Hepburn Street job after the settlement until March 12, 1970, when the pickets reappeared patrolling in front of the entranceways. Again the pickets focused on Roupp, but another amendment to the placard was allegedly made. Roupp worked at the site up to and including March 15, 1970. Subsequent thereto Roupp returned to the site only on April 7th and 8th to repair a wall. The picketing at the Hepburn job has continued to date of the last hearing on the within matter, May 1, 1970, at which time the respondents voluntarily agreed to cease picketing pending determination by the court.
In the interim period, to date, divers carriers have honored the picket, and Shamokin Lumber under contract with A&P, scheduled for work on March 16, 1970 has failed to work.
Picketing began sporadically at the Mansfield job site. The record indicates that on or about December 29, 1969, Engle and Dieffenderfer, representatives of the Building Trades Council, and Local 812, respectively, came on the job site. Engle allegedly spoke to members of the Bascaglia crew, a contractor for Flickinger, informing them that a picket was going to be put on the job site. In short, the Bascaglia men stopped work after a call was placed by Engle to their home office in New York.
The picketing at the Mansfield job was allegedly focused against Hollick, the electrical subcontractor. Hollick began his work at the site in late October and worked until March 27, 1970, at which time his work was completed. Hollick, however, was not on the site continuously, and the record indicates picketing occurred when Hollick was not on the site. It is admitted by respondent Local 812 that the picketing continued up to April 3, 1970 when it was discontinued.
Additionally, petitioner produced testimony indicating that on March 16, 1970 Engle came on the job site and induced the crew of Sandberg, a Flickinger subcontractor, not to work behind the picket, resulting in a work stoppage. Testimony was also introduced inferring that Engle, rather than Dieffenderfer, established the picket at the Mansfield project. Commensurate with the picketing, work stoppages arose and deliveries were not made.
The petition charges respondents with a violation of § 8(b)(4)(B) of 29 U.S.C. which generally is intended to protect an employer from becoming enmeshed in union disputes not his own, or the "secondary boycott." The application of these principles becomes most difficult when dealing with picketing conducted at a construction site or a common situs. Madden v. Int'l Hod Carriers, 277 F.2d 688 (7th Cir. 1960).
As succinctly defined in Nat'l Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 18 L. Ed. 2d 357, 87 S. Ct. 1250 (1967), rehearing denied 387 U.S. 926, 87 S. Ct. 2026, 18 L. Ed. 2d 985, a "secondary boycott" is the utilization of union pressure directed against a neutral employer intended to induce or coerce him to cease doing business with another employer with whom the union is engaged in a dispute. Essentially, the most difficult and crucial question involved herein is the "object" of the union activity. It is in the ascertainment of the union's object which is determinative of whether the union is conducting a valid primary strike which indirectly affects the secondary employer or an unlawful "secondary boycott" whose purpose is to directly enmesh secondary employers in the dispute resulting in a cessation of business.
Questions involving "common situs" picketing accentuate the difficulty in ascertaining the object of the union. The Moore Dry Dock test developed by the National Labor Relations Board, and approved in Int'l Union of Elec., Radio & Machine Wkrs, AFL-CIO v. Nat'l Labor Relations Board, 366 U.S. 667, 81 S. Ct. 1285, 6 L. Ed. 2d 592 (1961), establishes a standard, even though flexible, whereby common situs picketing is presumptively valid when:
1. the picketing is strictly limited to times when the situs of the dispute is located on the secondary employer's premises;
2. at the time of the picketing the primary employer is engaged in his normal business at the situs;