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December 11, 2020 Workplace Chatter & On In-House Counsel’s Desk

The Dual Gate System in Construction Labor Relations: Primary, Neutral, and Contamination

Brendan Carter

One of the idiosyncrasies of union construction is that a signatory general contractor (GC) can consider itself to be a good union company, but if a client requires an award to an open shop subcontractor, that GC can find picket lines at its jobsite villainizing the project for unfair wages and poor treatment of workers. 

The presence of a picket line could grind a project to a halt with members of other unions recognizing it and refusing to cross in solidarity with their striking brethren. Fortunately, the construction industry has developed a compromise to deal with this scenario through a Dual-Gate, sometimes referred to as a Reserve Gate system To make the solution work, and avoid the labor situation from unraveling, it must be properly implemented and carefully maintained.

Physical Set-up or Dual-Gate System

A Dual-Gate system is a procedure recognized under the National Labor Relations Act (NLRA) for creating separate entrances to a worksite for both Primary Employers (the company being picketed in the labor dispute) and Neutral Employers (a company not directly involved in the labor dispute).  These Dual-Gates allow a union to picket against the Primary Employer but not interfere with Neutral Employers' business at a multi-company jobsite.

The practical implementation of a Dual-Gate system requires a GC to install a secondary entrance in a jobsite fence and to further identify which gate will be the 'Primary Gate' (Gate A) and which will be the 'Neutral Gate' (Gate B).

The "Primary Gate" will be reserved for the picketed employer's tradesman, management, and vendors to access the jobsite.  This is where the union's picket line will be established. This gate should be clearly identified and direct all personnel not employed or doing business with the Primary to Gate B. Gate B will be the entrance for all other jobsite personnel and should be free from union obstruction.

Additionally, before a Dual-Gate system is put in place, it is necessary to provide notice to the picketing union's local that a Dual-Gate system will be in place and direct them to the Primary Gate.  The GC should also inform other unions on the jobsite that a Dual-Gate system will be in place and their members are expected to enter the jobsite through the neutral gate and report to work.

A GC must be diligent in policing a Dual-Gate system once it has been established whether the union is picketing that day or not.  Failure to enter the jobsite at the properly identified gate can result in 'contamination' and allows the picketing union to establish Primary pickets at both gates.  As an example, if a supplier for the Primary employer were to deliver materials through Gate B, that gate would no longer be Neutral. Once a gate is contaminated, the GC can reconstitute the Dual-Gates but it needs to start the establishment and notification process all over again. 

Moore Dry Dock and Shared Jobsites

The underlying theory of the Dual-Gate system is that a Primary employer and a neutral employer can share the same jobsite, or situs, and be legally picketed.  This concept comes from 1950 National Labor Relations Board (Board) case entitled Sailors' Union of the Pacific (Moore Dry Dock), 92 NLRB 547 (1950).<\/u>  In Moore Dry Dock, a ship was berthed at Moore Dry Dock in San Francisco for repairs.  The repair contract had a prevision which allowed the owner to train the ship's new crew onboard during the last two weeks of construction.  The Sailors Union of the Pacific had a dispute with the ship's owner over seaman's working conditions and requested that Moore allow it to set up a picket outside the drydock where the ship was located.  Moore refused and the union set up their picket line at the main entrance to the facility. 

In its decision, the Board acknowledged that with typical picketing activities, the situs of a labor dispute is the premises of the primary employer. The Board further recognized, "the difficulty in the present case arises\u2026from the fact that the [ship] was not tied up at its own dock but at that of Moore, while the picketing was going on in front of the Moore premises."

The Court then identities there are times when the situs in not a fixed location but rather ambulatory and provides the example of a truck being the situs of a dispute between a truck driver and the truck owner.  Accordingly, the Board found when the ship's crew boarded for training, it became the situs of the dispute between the ship's owner and the Sailor's Union, and both Moore and the ship's owner "were simultaneously engaged in their separate businesses in the Moore yard."

The Board then provided guidelines for the picketing of a primary employer on the premises of a secondary (or neutral) employer.

"[P]icketing of the premises of a secondary employer is primary, if it meets the following conditions:<\/blockquote>
a.       The picketing is strictly limited to times when the situs of the dispute is located on the secondary employer's premises;<\/blockquote>
b.      at the time of the picketing the primary employer is engaged in its normal business at the situs;<\/blockquote>
c.       the picketing is limited to places reasonably close to the location of the situs; and<\/blockquote>
d.      the picketing discloses clearly that the dispute is with the primary employer."<\/blockquote>

It is through condition (c) that the establishment of a secondary gate is allowable as picketing at the neutral gate runs afoul of the requirement that picketing at a common situs be limited to places reasonably close to the site of the dispute with the primary employer.  In essence, the gate identifies the location of the primary employer and a picket at any other location would cause the four part test to fail consequently making the picket illegal.

The Neutral Gate & Strike Clauses

From a statutory perspective, Moore Drydock interprets the NLRA's Section 8(b)(4) and its prohibition on secondary boycotts. 8(b)(4) was passed in 1947 as part of the Taft-Hartley amendment and contains an additional proviso that preserves the rights of a secondary employer's employees refusal to cross a primary picket line.  This proviso is what lawfully allows a union member not to cross a picket line and maintain their job.  

Twelve years later in 1959, Section 8(e) of the NLRA was incorporated to fill in some gaps of 8(b)4 by addressing so called "hot cargo" agreements.  These agreements circumvented 8(b)4's prohibition on secondary boycotts and were utilized to disallow an employer from handling, using, selling, transporting any products of another employer with whom a union was involved in dispute.

 Section 8(e) not only made these agreements illegal, it further disallowed strike clauses in collective bargaining agreements (CBA) worded so broadly they permitted employees not to cross a picket line in support of a secondary boycott. This of course has implications for the Dual-Gate system as without such a prohibition, the neutral gate would be useless.

In most building trade collective bargaining agreements, there is some type of language that addresses the crossing of picket lines.  The below is taken from a basic trades CBA in Southern California:

No employee covered hereby may be discharged by an individual Employer for refusing to cross a primary picket line sanctioned by the Building and Construction Trades Council in the area or for engaging in any conduct protected by Sections 7 or 502 of the Labor-Management Relations Act of 1947, as amended.<\/blockquote>

If a jobsite is struck against a primary employer, and there is no Dual-Gate established, then the above CBA definition of primary picket line would apply and this union's members would not have to cross the picket line.  Conversely, if there is a second gate at the jobsite, then the tradesman would be required to utilize the neutral gate to enter the project as not doing so would be a violation of 8(e)'s strike clause requirements.

As part of the notification process for a Dual-Gate, other unions working onsite are to be told about the Dual-Gate.  If those unions elect not report to work or cross the picket line, then they can be disciplined by their employer including termination.  If a union refuses to allow their members to utilize the Neutral Gate, or the GC believes that there is an agreement between the striking and other unions not to work, an unfair labor practice can be filed with the NLRB.

The Dual-Gate system is an approach the construction industry has adopted as the standard to mitigate onsite labor disputes.  The Dual-Gates allows the picketing union to address the targeted employer while not disrupting the entire unionized workforce. The NLRA and NLRB have laid down the statutory and caselaw framework for this compromise to be implemented, but it is incumbent upon a GC to diligently manage the gates to ensure the integrity of the system is maintained in order for their and their subcontractor's work to continue at an orderly jobsite.

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Brendan Carter

Vice President of Labor Relations, AGC of California, Sacramento, CA, Division 6 (Workforce Management & Human Resources)