Denver Building and Construction Trades Council v. National Labor Relations Board

DENVER AND CONSTRUC BUILDING al. v. NA TION COUNCIL et TRADES TIONAL LABOR RELATIONS BOARD.

No. 10271. Court, Appeals

United States Circuit.

District Columbia

Argued Feb. 1950. Sept. 1,

Decided 11,1950.

Writ of Certiorari Granted Dec.

See 71 S.Ct. Judge, part Clark, Circuit dissented in and in the

and concurred result

Manoli, attorney, the National all of C., were D. Washington, Relations brief, respondent. on the for and EDGERTON, CLARK Before FAHY, Judges. Circuit FAHY, Judge. Circuit Building and Construction Denver The Council, Council, as the referred Elec- the International Workers, refer- Local A. F. trical L. W., B. E. red to as the I. Appren- Journeymen and

Association of Fitting Pipe Plumbing tices Canada, Industry of the United States petition F. L. this court A. Local set National Labor aside order of the Relations Board. Board answers The requests of its enforcement order. requires petitioners the order In essence from engaging to cease and desist in or inducing encouraging contractor, known as Doose & Lintner Co., engage in a strike with an forcing it “to cease doing business with” an electrical con- cern known as Gould & Preisner. contractor, Lintner, Doose & constructing a commercial building on Bannock Street Denver. Preisner were subcontractors some supplies. work and electrical Their em- ployees non-union. All were other em- job ployees on the including those of other subcontractors as well as of the contractor, were members of craft unions petitioning affiliated with the A Council. representative of the I. B. E. W. com- plained to the electrical subcontractor working job about non-union men on the reported representative to the business Council contractor was using services of this subcontractor. place decided picket Leahy, E. Washington, William Mr. stating the Bannock job Messrs. C., Louis with whom Sherman D. unfair the Council. After advising O’Donoghue, Washington, F. Martin contracting members brief, petitioners. C., on the were D. subcontracting firms that electrical union job men could not work with Winthrop Johns, A. non- Assistant Gen- Mr. if Counsel, Washington, C., union men and the subcontractor worked D. eral picket Somers, there Council would have to Messrs. A. Norman As- whom “unfair”, Counsel, began and Dominick fact General L. sistant & Preisner so de- placard reading with a “This Unfair chases .Gould Job percentage of the materials to Denver .and Construction rived like During period had used Bannock Street Trades Council”. report January through January like derivation. The trial picketing, examiner, adopted 1948, respect by union in this the no worked members widespread ap- the that “any found project. plication practices might of such re- well petitioners had en- The Board held that in substantially sult decreasing the inflow gaged labor violative unfair from points of materials” Colora- outside 8(b) Manage- of (4) (A) of the Labor § do; in- that annual “Gould & Preisner’s 1947, ment Act of 29 U.S.C.A. Relations $55,000 flow of over worth of materials pertinent part (4) (A), of the is negligible. an inflow suffi- is Such which, context, with its immediate is set jurisdiction”. to1 cient establish Board’s the margin.1 forth the ju We do not disturb the assertion of I. Jurisdiction though risdiction by the Board the deci question first We consider the regard sion in is close The this one. jurisdiction Board’s under the Commerce stated basis of rest would Clause, strongly petitioners. contested firmly upon enough principles the de authority The Board’s extends to unfair cided cases under the Labor Act had the commerce”, practices labor “affecting that question premises events in occurred at the is, commerce, or burdening “in or obstruct- incoming of Gould & Preisner. There the ing commerce or the free flow of com- interstate goods movement of would merce”, 152(7). 29 U.S.C.A. Com- obstructed or with obstruction threatened foreign merce is defined as interstate and relationship prac the forbidden 152(6). commerce. Id. § holding tices to industrial strife. The in National v. Labor Relations Board Fain alleged unfair practice The was not blatt, 601, 1939, 607, 306 307 U.S. U.S. as commerce itself defined in the Act. 1014, S.Ct. 83 L.Ed. 59 finding no is evidence or definite There perceive inferring can basis “we foreign any interstate or commerce any op of Congress intention to make only the Bannock Street location. depend any par eration Act commerce even in- interstate involved ticular volume of commerce affected more findings directly, as or so far the evidence apply than that to which courts would purchase us, the annual enlighten maxim de minimis” is more than broad approxi- subcontractor of électrical enough bring coverage to within goods move $56,000of to its mately concerned, quantity so far in Denver from place of business out purchases interstate Gould Preis to the Bannock As the State. ner. The fact that their movement finding is building itself $348.55 Colorado, out into rather of the State materials were used 'subcontractor’s than, change reverse, services termination of its prior to there impact of industrial strife result. and conse- result as a strike; destination, commerce at its interstate no evidence that on There is quent sufficiently origin, actually close came from as well as at material any this requirements the statute State, but it to meet was assumed without Commerce International pur- Clause. since of all the the Board 65% * person any employer self-employed ing or 8 1. “Sec. organiza- employer join any prac- labor “(bj unfair be an It sball to, any employer person organization or other tion or tice ** transport- handling,, using, selling, agents— cease ing, products dealing engage in, or otherwise or en- “(4) or to induce producer, processor, any employer or man- courage other ** doing ufacturer, business with engage cease in, where an a strike requir- person; forcing ***’’, (A) thereof is:

329 Building and N. v. Denver Workers v. Electrical Cir., 1949, F.2d B., Cir., See, Council, 1950, 181 L. R. F.2d Dairy bar, there was Wrightwood in the case also, United v. States material. route of the definite break in the 121, 62 S.Ct. Co., 1942, U.S. Sullivan, material In each of last cited the v. the cases L.Ed. United States to1 origin interstate had come 92 whose 689, 698, 68 1948, 332 S.Ct. locally place of business of [regulation branding of arti rest at the L.Ed. locally ship moving completed boycotted concern before interstate cles have sale]; industrial building where the and are local site being ment held for Cir., Co., strife occurred. sustain N. R. B. L. L. Hudson Jurisdiction J. boycotted 1943, 380, 135 320 ed on the that con theory F.2d certiorari denied 740, quantities of 40, 439; L.Ed. cern received substantial U.S. 64 S.Ct. 88 L. J. B., Cir., inter goods from and this Brandeis & L. 8 out the State Sons N. R. v. adversely 977, 1944, 142 F.2d state business would be affected. denied 323 certiorari 751, 601; In 85, 65 L.Ed. N. Groneman v. International Brotherhood U.S. S.Ct. 89 L. Stores, Cir., Workers, May Department Cir., 1949, B. v. R. 8 10 177 Electrical 1944, 66, 995, however, jurisdiction 146 F.2d F.2d modified in other of the dis 203, 376, Act, 326 U.S. 145 29 66 S.Ct. L.Ed. trict court 90 under § practice department lacking in store to be 187(b), U.S.C.A. held [unfair purchasing large amounts stock in in such circumstances. terstate L. ; N. R. B. v. Van commerce] activity Of at course the fact that the Kamp’s Bakers, Cir., De Holland Dutch 9 bar Bannock Street was itself local is no 1946, Here, 152 however, F.2d 818. jurisdiction. Board Numerous Labor impact immediate controversy the) cases, leading including decisions place not the of Gould & Preis 1937, Laughlin, N. L. & 301 R. B. v. Jones ner but the Bannock Street location. 1, 615, 893, and 81 L.Ed. U.S. S.Ct. 57 None cases heretofore decided by companion cases, de as well as other Supreme Court under the Labor Act after, cisions before ex under other presents jurisdictional a similar situation. by Congress ercises the commerce each, as illustrated the Fainblatt power, including Wickard v. Filburn casé, practice the unfair labor occurred at 1942, 111, 82, 317 L.Ed. U.S. 63 S.Ct. 87 place of business where interstate com 122, leave as to may no doubt this. was engaged merce though the effect noted, however, principle basic practice the forbidden was felt first on ap underlying Wickard v. Filburn activity local such production or man plicable present to the case. There Con ufacturing. In some of the recent cases gress reg order properly found that appeals decided the courts involv ulate the interstate market wheat ing the building construction business the regulate was essential to the use of wheat impact has also point been immediate in farm, including consumption of location. Thus in International Broth regulation by Congress there. This was a erhood of Electrical Workers v. N. L. R. aspect particular of a local of the whole B., Cir., 1950, 2 34, 181 F.2d interstate particular commodity of a order directly commerce moved the site of protect aspects. control its interstate where the occurred. comparable principle ex So also in Shore v. & Construc pounded (see Shreveport in the cases rate tion Council, Cir., 1949, 3 173 F.2d case, Houston, & Ry. East West Co. Texas 678, 731, injunction 8 A.L.R.2d action S., 1914, 342, 351-353, U. v. 34 S. 10(7), under section 29 U.S.C.A. 160(7). 833, Ct. 1341). 58 L.Ed. In the hand, On the other in United however, Brotherhood finding made Con Carpenters, Sperry, Cir., gress practices etc. v. 10th that all unfair labor affect 170 F.2d N. R. B. L. Local L. (see v. N. R. B. commerce v. Jones 74, United Carpenters, Laughlin, supra, page 31, at 301 U.S. Cir., etc., required 615); F.2d 126 and Slater S.Ct. effect must be many others representative of page tion is (Id., 301 U.S. at in each case. shown throughout country, total incidence 615.) 57 S.Ct. be- of which well left if unohecked stated, bar, case at In the harm to com- far-reaching come in its upon basis relied as a commerce interstate Fainblatt, supra, merce. N. L. R. B. v. ended at the warehouse 607-608, page at pages 306 U.S. S.Ct. subcontractor offices of the electrical National Al- Polish 1014”. 83 L.Ed. location where not extend to the and did B., 1944, 322 U.S. liance N. L. R. practices We occurred. the unfair labor 1199, 88 L.Ed. 64 S.Ct. note, however, in addition to National quite It is that in the Polish true job in project another in- Alliance case the interstate commerce project Lo Denver known as the Sasso extensive, the considera- volved was but affecting controversy subject was the present pertinence. tions referred to have & Preisner. While the opinion is Fainblatt reference to the found no unfair made, no doubt to the statement there regarding used place the the material facts industries “There are not few jurisdictional there are relevant to the which, though conducted United States job, question. small com It too a relatively units, the by contribute in small Street, parable insofar the to Bannock aggregate com- a vast volume of interstate electrical & Preisner work of Gould ” * * * page merce. 306 U.S. at concerned. But the circumstance page S.Ct. at same con affecting two controversies the See, also, Filburn, supra, Wickard v. appear cern or about the same time page 124, page 63 S.Ct. at same the record illustrates the recurrent where is is said: stop problem. character the Such of “ pages in work this the of concern Once an economic measure ad practical sense economic power granted of of the reach the to Con- business, versely including accepted, affect its total gress in the is Commerce Clause purchases. While the ac its out-of-state questions power federal be de- of cannot are goods tual involved at the two sites simply activity in by finding cided the derived satisfactorily shown to have question ‘production’ can consid- to be nor commerce, the threatened from interstate eration of its be fore- economic effects ” stoppage of work on these and actual by calling closed ‘indirect.’ them projects reasonably should be held similar record, indirect, On this while the eco- significantly of to affect the total business justifies as- nomic effect is there and the concern, the a substantial of which from a constitutional jurisdiction sertion of is interstate. The closeness of the case standpoint. Though in our of the evi- view part no us due in the record before ju- findings case is on the dence and the to all doubt to the of evidence as absence borderline think the has risdictional we line proved, that could have been such as not been crossed. Bannock origin goods at the used Question of II. The Res Judicata. whole, not alone as a those Street Preisner, by and the used there question petitioners contend The proof of source also of clearer absence jurisdiction judicially has been deter- by adversely materials used Gould & Preisner at mined the Board in a manner precludes Bannock Street and Lo Sasso sites. its reconsideration. The which jurisdiction Regional pe- should through think Director we Board Nevertheless judg “Appropriate for Court the District of the United not be denied. titioned situa- for the of Colorado under that the immediate States District ment is the fact assumption of materials used on the ex- of the $348.55 trial Even origin, by apparently approved aminer, were of like was longer purchases interstate this material its total 65% commerce. interstate therefore were 65% sought behalf, when 10(9 section is on its U.S.C.A. § sought, enjoin granted. two remedies (l), margin,3 set in the Since forth provided purpose adjudica- are in the statute for the questioned pending final conduct though re- separate accomplishing two court by tion the matter the Board. Dis- purely purposes Congress, lated one held the matters involved interlocutory preliminary trict Court local and did not affect commerce within character, Appeal was taken the other before the Act. by character, the appeals courts, dismissed reviewing to the court of o'f final consent. separate Congress Board with that court’s designed by means as- judicata said the res bars doctrine accomplishment purposes must these in these sertion of the Board impair freedom permitted not be proceedings subsequently initiated. one case effectiveness either. In the reject requires scheme the statute us attorney or through regional the Board this view. litigant seeking an inter- other officer is locutory injunction against the continuance Proceedings the District Court practice pending alleged of an unfair independ and those are before the Board n final adjudication by Board. In the ent. The Board’s now under review action initial tribunal the Board is itself the exam is on a made record before trial subject to re- makes a final decision brought iner and the Board deci before appropriate view correction authority sion accordance with the set Supreme appeals court Court. forth in 10 of the The Board is statute. 10(a), (e), (f). Review de- (b), §§ empowered prevent there to unfair judiciary juris- termination practices, power and “This shall question arising dictional under the Com- by adjustment any affected other means of final available; merce is but a and Clause prevention may that has be been or es binding regard may in that determination law, agreement, or otherwise” by tablished compelled initial be until an decision (ibid). Dis We do not think action of the has made Board on the record been the trict is in (Z) under intended to Court § it, perchance before the Board unless authority terfere the dominant procedures abandons the available to it appeals Board courts and of the formula 10(a), pursues (f), under and (b) and §§ 10(a) (b) tion of orders under and and § only those set forth in 10(Z). § 10(e) in their enforcement under and (f). Resort to the District Court under statutory distinguishes This scheme only “appropriate injunctive is for 10(Z) the case Sunshine Anthracite Coal adjudication pending Adkins, 1940, 381, relief final the U.S. Co. v. 60 S.Ct. authority 907, 1263, *.” The Board’s L.Ed. Otis & Co. limited, expressly by implication, is Commission, and Exchange Securities injunction to cases in which an under this U.S.App.D.C. 176 F.2d 34.4 In charged any per- Columbia) any it is that “Whenever trict of within district engaged prac- has in an unfair practice son labor ques- where tbe unfair labor paragraph occurred, alleged within the of tice tion has to have oc- (4) (A), (B), (O) 8(b), curred, person of section the wherein such resides investigation preliminary charge business, appropriate of such or transacts in- given pri- be made forthwith junctive adjudica- shall ority pending relief the final except all other over cases cases respect tion of the Board with to such of like character the office it is where Upon filing any peti- matter. the of such If, it filed or to which is referred. after jurisdic- tion the district court shall have investigation, regional officer or such grant injunctive tion to such relief or attorney to whom the matter be re- temporary restraining order as it deems has ferred reasonable cause to believe just proper, notwithstanding oth- charge complaint such true that provision er of law: issue, shall, should he on behalf of the Board, petition any district court of the 4. The Otis case was reversed the Su- (including preme Court, 1949, United States the District 338 U.S. 70 S.Ct. of Court the United States for the Dis- of failure to admin- because exhaust comparable quit these struc of work for cases there was Gould & Preisner about time, inde by Congress ture two erected for two At end weeks. of pendent appli had their proceedings. Where the before Gould & finished Preisner subcontract, cation ad- judicial judicata doctrine a letter sent to them res would be the method vising inconsistent with their services were terminated by Congress appears your devised will not since now “It the doctrine employees. Feuer perform courts. Kalb v. services enforced are unable to stein, 1940, 60 S.Ct. employees while the other subcontractors premises”. is for reason we L.Ed. this are All union working on the petitioners, hold contention thereupon employed, picket labor was the ele completed. and not because of lack of job removed which, usually case for ments out a make picketing, while Gould prior Just judicata. doc application res working, & the contrac- Preisner were still trine is where the circum not to be used tor, picketing, anticipation took stances conditions create semblance upon carpenters his union another - apply application but to it would for its of unions which all the men were members ad submerge plan Congress for the carpen- affiliated with the Council. These policy. ministration and enforcement employees their ters arid other continued the Ban- during work there III. Unfair Practice. project though non- nock Street even adequately as- this A. order treat union Preisner point repeti- pect this some of the case at place. working then at the latter summary indulged. A tion facts appears foregoing From adopted trial examiner findings of to the fact that non- picketing was due principal contrac- is that the employed on the same union labor was arrange- tor, Lintner, entered into Doose & with the with the union men affiliated latter ments with Gould & Preisner for the Council. work, including the certain electrical do un- 8(b) (4) (A) makes it an B. Section materials, furnishing organiza- fair job. were also Other subcontractors a strike where an engage tion brickwork, steel cement and engaged for employer require any or thereof is to force em- work, plumbing. The electricians trans- using, selling, handling, “to cease non-union ployed by & Preisner were Gould dealing prod- in the or otherwise porting, employed directly by Doose & all men but processor, producer, any ucts of other employees subcontractors all Lintner and doing to manufacturer, cease Preisner were members than other Gould &' adopt- The Board any person”. other with Lint- affiliated with Council. of unions examiner trial the conclusion ed representative of the by a ner advised was en- agents petitioners that the ‘notify have to “that he would enterprise object gaged in “of an an which that non-union members’ his ** * forcing Doose Lintner job. on working men were doing business with Gould & Preis- to cease worked if & Preisner contend the action ner”. Petitioners picket they put have on it to a to secondary and taken was and not notify was un- their members statutory therefore outside invoked “ job’ a for teg It ‘too the unions fair”. was prevent secondary provisions designed to to work non-union electricians permit to boycotts secondary strikes. placard, picket The carried “This it”.5 quite true we think that to Denver and Con- It Unfair Job provisions involved 8(b) (4) (A) here As a result all struction Trades Council”. secondary boycotts and except against are directed electricians the non-union judicata excerpts quoted are the Find- res 5. The remedies. istrative ings examiner, adopt- question Supreme trial of Fact of the reached was not ed the Board. Oourt. strike, doing any way “cease right The words diminish in to secondary strikes. be or person” qualifications must to affect business with the limitations or interpreted right.” in on that with this in mind read Section U.S.C.A. § might setting. every Not strike which their forc- as an be construed to 'have history give of the statute aids to doing “cease business” ing of someone to Taft, meaning to the words. Senator co- prohibited. Douds v. with else is someone author of Bill manager and its etc., Architects, Metropolitan Federation Senate, explained floor of the that § 675; D.C.S.D.N.Y.1948, F.Supp. (4) (A) boycott secondary was to make Electrical, Machine Radio and practice.6 an unfair The Conference Workers, Ryan Cor- etc. and Report is to like effect.7 The Senate Com- 29, 1949, poration, July 85.N.L.R.B. No. (Sen- inittee on Labor and Public Welfare Oil Union Workers International Report Sess., ate Cong., No. 1st 80th Company, 84 N.L.R.B. 315. Pure Oil page 3) pur- likewise shows this intent and contra, cf., Rice Mills But International v. pose.8 Cir., National Labor Relations In other adopted cases Board has clause be 183 F.2d 21. The must provision to ascribed Sen- right provision preserving read with the ator Taft: specifically provided except to strike oth- “* : erwise Section 8(b) (4) (A) .* “Nothing except specifi- not by Congress, legisla- in this intended as the cally provided history herein, clear, shall constru- tive abundantly makes so impede ed as either interfere primary picketing. curb It was intended practice boycott 6. “The fourth unfair labor be lawful for a union to em- extremely important ployer one. is made an A if be uses or otherwise deals in goods unfair labor union to en- of or does em- business with gage secondary boycott.” Cong. ployer Report in a B." House No. 80th (1947). Sess., Cong., p. Rec. 3838 1st Later he also said: major changes 8. “The which the bill would provision “This makes it unlawful make in the National Labor Relations secondary boycott injure resort may Act be summarized as follows: person the business of third who is $ }ji wholly disagreement unconcerned gives employers “3. It and individual employer employees. between an his employees rights processes to invoke the provision All this of the bill does of the Board which en- unions is to reverse the effect of the law as to gaged in certain enumerated unfair labor secondary boycotts. It has been set forth practices, including secondary boycotts good boycotts there are jurisdictional strikes, re- secondary boycotts. and bad Our com- applying sult in itself for re- mittee heard evidence for weeks nev- straining orders in certain cases.” . having anyone any er succeeded tell us Page report goes say: 22 of the on to difference between different kinds of sec- paragraph (A) boy- “Under strikes or ondary boycotts. So we have so broad- cotts, attempts or to induce or encour- provision dealing secondary ened with age action, such are made violations of boycotts as to make them an unfair labor purpose the act if the is to an force em- practice.” Cong.Rec. (1947). ployer person using, or other to cease (A) boycotts, selling, handling, transporting, “Under clause strikes or or other- attempts encourage dealing products or to or another, induce such wise action, practices doing were made unfair labor or to cease with business other purpose employer person. Thus, if the was to force an it not lawful for person using, selling, engage or other to cease a union to in a strike em- handling, transporting, ployer purpose forcing deal- otherwise A for the ing products another, employer doing in the or to cease to cease with doing employer person. B; business with other nor would it be lawful for boycott prac- employer it was Thus an made unfair labor a union to A because engage employer for a tice union to in a A strike uses otherwise deals in against employer purpose goods A for the the ployer of or does business with em- forcing employer L_s doing (with to cease busi- B whom the union ” * * * employer Similarly dispute). ness with B. it would

33á “ * * * boycotts, only secondary to Congress outlaw certain has now undertak- en, whereby sought enlarge unions to the eco- in the power exercise of its under the premises battleground beyond nomic Clause, 1, 8, pro- Commerce art. cl. primary Employer. picketing altogether When hibit sharply to curtail the premises employer is wholly at the use organizations of certain eco- engaged whom the union in a labor weapons nomic they which have hereto- dispute, ‘secondary’ be called cannot even employed. fore freely effort nar- an though, case, virtually always as is an row strife, the area of industrial and thus object of the picketing safeguard is to dissuade all the national interest persons premises from such entering commerce, free flow it has in effect ” business reasons. United Elec- banned when utilized to con- trical, Workers, script Radio and Machine etc. in given struggle the Ryan Corporation, supra. employer an party who is not himself a dispute. Such we understand to be Union, In Oil Workers International etc. purport of 8(b) (A) (4) of the Act.” Company, Pure supra, Oil the Board See, said: also, International “ * * * Electrical Workers v. National Labor Re- any accompanying picketing Cir., lations 181 F.2d employer’s premises necessarily Judge where Learned said Hand designed encourage induce third court: persons to doing cease business with the “ picketed employer. follow, * * does appeal presents two however, that such picketing is therefore questions: (2) evi- whether the proscribed by 8(b) (4) (A) Section supported dence before the Board its find- Act. ing that the engaged ‘local’ had in conduct “It is legislative history clear secondary boycott, constituted a for- * * * ”9 the Act that Section (4) (A) was bidden the Act. unlawful opinion, have inducing Standard primary pressure tion. aimed at «* * * The fact ^[******] also had employers convert lawful secondary Oil premises, encouraging employees to cease secondary on Standard Oil action within the another. The effective sense must be that does doing effect, primary not, business on action into Union’s namely in our may ac- ing uted to them the ary tion even when an doing business” require employer Act, by boycott as an unfair labor be construed to be to force or The context of the words “cease they the Board and to cease strike but not be construed as condemn legislative history the meaning attrib doing in a limited sense business with primary a second require courts, ac 8(b) (4) (A). of Section To hold of the statute. We realize that when a might virtually otherwise well ev- outlaw statute sufficiently broad in terms to ery strike, consequence effective for a of cover situation it ordinarily will be con all is some strikes interference with busi- though strued to do so even other and relationships ness between the struck em- different situations were in the mind of ployer and others.” Congress at the time of enactment. Nev uniformly

The courts have scope construed the ertheless the of a statute must still provision secondary aimed interpreted carry as action. be so as to out the intent Thus, Specialties Paper Printing Apex in 'Congress. Hosiery See Co. v. Baron, Cir., Leader, 469, 489, Union v. Le 310 Converters 9 60 S.Ct. 331, 334, F.2d the court said: 171 84 L.Ed. 128 A.L.R. 1044. Since court, up- prohibited. See, also, 9. In that ease the as elaborated fore to like effect infra, Carpenters, in circumstances somewhat com- etc. parable involved, Sperry, Cir., 1948, to those here held that 10 170 F.2d v. 863. secondary picketing the was there- Specialties Paper business” Union v. doing is clear the “cease Converters Baron, Le Denver preserv- supra, clause, Slater v. when read with the clause specifically- except Trades ing right the to strike Coun cil, Cir., construed, all these provided, literally 175 F.2d 608. In is not to be history sought. practice of cases where an was its bounds must be unfair labor held before, enact- to have during object the clause and since occurred the was ment, 'Congress, bring pressure the Board and employer in before the with whom courts, dispute by “conscript action union had places primary ing neutrals”, activity of innocent outside those bounds. (b) (4) (A) prevent. is devised to In therefore, problem, final is to C. The each case the location the strike was determine whether the action here was of separate entirely of the concern If the character. against pressure which the ultimate was properly ordered its former ces- sought to be directed. The action If latter order should not sation. employees against was job where secondary boy- approved. The usual the non-union men employed, in cott who is not a or strike one the case at bar. following none of the original party dispute. to the It is de- district court cases as well was the al signed doing to cause neutral to cease leged premises unfair with, pressure bring upon, or to where complained the conditions of arose: dispute. the one with whom labor has the Styles 760, etc., Local v. D.C.E.D.Tenn. It seeks to enlist this outside influence to F.Supp. 119; Cranefield v. Brick employer peace force an to make with the etc., layers, D.C.W.D.Mich.1948, 78 F. organization contesting or labor 611; Supp. Brown v. Oil Workers Inter Report, with him. the Conference See su- Union, national D.C.N.D.Cal.1948, 80 F. pra, footnote The situation before us Supp. Confectionery Douds v. & To is not of picketing this character. The bacco Employees Union, D.C.S.D. premises Jobbers resulting strike were at the N.Y.1949, F.Supp. Compare, how the contractor where subcontractor’s ever, Shore v. Building & Construction grew men were at work. out of a con- Council, supra; Labor Board v. troversy over the conduct of the contractor Local Carpen United Brotherhood of participating bringing of the non- ters, etc., supra, and International Broth job union men as well onto as over the erhood of Electrical Workers of the electrical conduct subcontractor in Board, Cir., 1950, In the F.2d 34. purpose them. The employing latter a divided court held that particular job to render carpenters on a house-construction require all It was union. not to in an effort to force them to force the shop Preisner unionize their located get contractor to rid of a non-union elec bring pressure against elsewhere or to trical prohibited subcontractor was second place Doose & Lintner at be- ary action under (4) (A). The employment cause of Gould & Preis- placard picket read: “This Accordingly ner at Street. unfair organized labor”. The case is literal sense to re- present; not unlike the but reaching its quire Doose & to cease doing Lintner busi- the majority carpen conclusion treated the pres- ness with Gould & Preisner. The principal contractor, ters job, was limited to the one sure pressure latter of whom the was exerted picketed as whole to make it whol- through carpenters, party as third neu ly protest against employ- union and trals who dispute concern in had there of the non-union ment electricians. with the electrical Judge subcontractor. help It is some to contrast this case accept separation not could this Clark with, example, Wine, Board v. parties. part: In his dissent he said in Liquor Distillery Workers, etc., Cir., and Carpenters, 1949, F.2d etc. v. 584; Sperry, United supra; Printing employment, applied by the Board and dis- “ ^[*] doctrine of enmeshed to the "it was not an presents Manifestly tinguished opinion, contest. away in the . bystander, innocent nor It was .of Thus a neutral. perhaps anomaly all. greatest its con- employ- firmly allied to Ebasco and it was against directed main a picketing pro- duct as ally directly of Ebasco which though it primary er even remains still voked the union’s action. special in- picketing directed include the term are within the intent and which Act—then it would seem- that ties. the main contractor oan be held a causative thereupon picketed. tentionally against ployees tially Architects, fortiori equally picketing After meaningful sense ground that here involved to be cases are sound—and it is believed “with the contracting work the law Oil ing a Denver Project, struction 90 N.L.R.B. declined to assume port in declined fore not within § and therefore did factor etc. large part The trial examiner In Douds v. “* interest, Company, remain thereof would be local character practice. lengthy discussion of the ** in the non-union be reaches and William G. should employees is to look Pettus-Banister jurisdiction because which had N.L.R.B. Corp., “doing strike aid the main another engineering secondary ¡boycott”, etc., supra, No. blind t0 ” 84 N.L.R.B. Metropolitan this be so Association of 85 N.L.R.B. No. To the began, Ebasco transferred 8(b) (4) (A). The Board business” suggest that 181 F.2d for Ebasco. and Construction remaining against to substance. No. dispute a subcontractor engineering in which the Board main employer. had made itself Holding the previously done sub- action, of the business done. glossary pass upon permissible. ¡firm there primary contrary Churches, Co., employer’s No. 38. If these contractor as between held was to he read purpose of the the court called Ebasco. work and em- June Federation subcontractor of the essen- was a strike page more at the form Project Project was provided Journeymen continuing: in the case Ryan Con- firm called action like subject, in the unfair is the re- 76; 24, 1950, June at follow- Ebasco And closely activi- there- every party Pure Project least they said also had a penters union labor onto working plicable. Doose Lintner was not neutral. tween Doose Lintner and Gould & Preis .S. take the ery you we will action than the one with which we are work with mediate graphical men. Petitioners did not ner. by Gould & a cessation work if 769, non-union men”. concerned; Lintner, in controversy. strued Council and activity' to a front remote from the im petitioners indeed Oil & cal, Workers Ryan Construction ner”. Supp. «* * * jn 13 that brought Lintner could petitioners envisaged it change Company, employment only Drivers Local v. ^[******] if Radio Only by ceasing at you you inextricably They That was a Union Ritter’s S.Ct. the union not work for dispute pages International conduct interfere nothing S.Ct. separation and Machine the situation do non-union bring Gould & effect, but the Preisner. See United Electri Doose & said, 816, 86 Gould Preisner’s non-union supra. The picketing was (4) (A) of a & petitioners’ but job. encouraging & outside the We think this action of “We with the clearer case united Preisner with 86 L.Ed. 1143.” 75 job. to one Corporation, reasoning of union labor on the Clearer Wohl, 1942, L.Ed. effect, Union with Gould & Preis There was' no you men, to work for Doose Lintner into direct Workers, etc., will not work for Cafe, 1942, not Act shall be con This to it. say might at the bringing about members intimately character even right Preisner with and therefore particular job language than “We will not extending provisions of location to Doose & brought needed to See strike result in 315 U.S. here to strike designed and Oil place cf. primary avoid Bak Pure Car non geo be ap its U F. at

33T not, not, here- do the Board did “except specifically provided for We because as pass upon possible of other specifically violation not the Act as in”. We do read upon provisions Convinced that the against a based Act. providing strike premises brought in case action of this conditions the struck circumstances obliged principal primary con- we are about the activities and If to tractor as well as of the subcontractor. refuse to enforce the order based against (4) (A). was Gould & picketing directed Preisner it as it. Its effect raised, questions Other in view change others would foregoing, are to be decided. unnecessary If character. it aimed at Doose & For the stated the order should be reasons through employees Lintner of other sub- aside, set and employees through contractors or their own. It is so ordered. it was aimed at conditions at the site of the picketing for which that firm was at least CLARK, Judge Circuit in (dissenting responsible. pri- part in This also be would part concurring in re- part mary action. We think in fact the sult) . against must be both considered Doose regret I that I am unable to concur insepara- & Lintner and Gould & Preisner — my opinion the able and painstaking bly; and bring was to Fahy. colleague, Judge part I do concur in job to a standstill until the non-union elec- myself III and in the result. I find com- replaced. tricians were said . .was pletely parts unable to concur in I and II. to be sep- The contractor cannot “unfair”. Judge I do not believe that on the face arate itself from the conditions there so Fairy's facts, excellent statement of the to make the action it showing repeated, which need not be secondary; nor can the subcontractor. appears whatever of interstate commerce n * * * “ n Congressional view of the Indeed, ap- quite this case. contrary History and the debates pears. op- It is conceivable that a building Senate, relationship it would seem that the might degree eration be affected in some principal between a and a subcontractor in interstate commerce but this would arising out of a awarding subcon operation most unusual. The described tract would not within characteristically majority an intra- ‘doing Act be par business’ as between the Therefore, state transaction. the National true, ties. If that were it easily could result Labor Relations jurisdiction. Board had no in a subterfuge and princi would enable a Congress power Indeed have pal contractor, whose relations with labor jurisdiction. confer such unfavorable, II, part opinion As to I am of the hide behind a more relationship favorable ” the action of the United States District of a sub-contractor. Mills v. Court in Denver rendered the matter res Journeymen Ap Association of judicata. competent It was a court of ju- prentices Plumbing, etc., D.C.W.D.Mo. risdiction —indeed the is ex- F.Supp. 240, 245. pressly conferred the statute. The is- The converse is require also To true. identically sues were the same. action the contractor to cease the ac- interwoven of the court was to the directly adverse tivities that the relationship close between appeal contentions of the Board. No it involves, and the subcontractor leaving it taken. buy goods free to subcontractor, from the it, sell reasons, employ locations, For these I cannot concur in require not to the contractor parts I II but I do concur in III cease do- ing business with the in the result. subcontractor.

Case Details

Case Name: Denver Building and Construction Trades Council v. National Labor Relations Board

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 11, 1950

Citation: 186 F.2d 326

Docket Number: 10271_1

Court Abbreviation: D.C. Cir.