TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

Supreme Court Rulings 157
by the present order were union members when employed on the job in
question So far as we know they may have been members for years on
end No evidence was offered to show that even a single person joined
the union with the view of obtaining work on this project Nor was
there any evidence that any who had voluntarily joined was kept from
resigning for fear of retaliatory measures against him" The Court
concluded, "Where no membership in the union was shown to be influenced
or compelled by reason of any unfair labor practice, no 'consequences
of violation' are removed by the order compelling the union to
eturn all dues and fees collected from the members, and no 'dissipation'
of the effects of the prohibited action is achieved The order
in those circumstances becomes punitive and beyond the power of the
Board"
3. Common Sims Picketing—'Separate Gate"
In the General Electrze case,22 the union picketed the premises of
General Electric, with whom it was engaged in a labor dispute, at gates
used by the primary employees and also at a gate reserved exclusively
for independent contractors and their employees, who were regularly
working on those premises The Board found that the picketing and
'elated appeals at the contractors' gate exceeded the bounds of legitimate
primary activity and violated section 8(b) (4) (A) ,23 and its findmg
was upheld by the District of Columbia Circuit 24 In an opinion
written by Justice Frankfurter, the Supreme Court sustained the
Board's "separate gate" doctrine, with certain qualifications, and remanded
the case to the Board for further proceedings.
The Court observed that the "distinction between legitimate 'primary
activity' and banned 'secondary activity,' "—which is essential
to the application of section 8(b) (4) (A)—"does not present a
glaringly bright line," and thus the Board and the courts have been
required to devise reasonable criteria for distinguishing between the
two types of activity The Court pointed out that, in cases where the
primary situs was ambulatory or the primary and neutral employers
were at work on common premises, the Board had determined that
"there must be a balance between the union's right to picket and the
interest of the secondary employer in being free from picketing"
It had formulated "four standards for picketing in such situations
which would be presumptive of valid primary activity," known as the
° Local 761, international Union of Bleetrtca/ Workers v NLRB, 368 U S 667
23 123 NLRB 1547 Twenty fourth Annual Report, pp 105-106
24 278 1' 2d 282 Twenty-fifth Annual Report, p 140