181 F.2d 34 | 2d Cir. | 1950
Lead Opinion
A local union of the International Brotherhood of Electrical Workers (A. F. L.) has appealed — filed a petition for review— from an order of the Labor Board, enjoining it from carrying on what the Board has held to be a secondary boycott; the Board has answered and asks for an “enforcing order.” The appeal presents two questions: (1) whether the occurrences “affected” interstate commerce within the meaning of the Labor Relations Act, 1947 j
The examiner did not find whether Patterson “induced” or “encouraged” the two carpenters to leave the job; and it was unnecessary for him to do so because he held that in any event § 8(c) of the Act would excuse the picketing since it had consisted of no more than an expression of “views, argument, or opinion,” without “threat of reprisal or force or promise of benefit.” Three of the five members of the Board held that § 8(c) did not modify § 8(b) (4) (A); that Patterson did “induce or encourage” the two carpenters to refuse in concert to work on the job; and that he did so for the purpose of forcing Giorgi to “cease doing business” with Lang-er. The two other members of the Board did not pass upon these issues, because they held that the controversy involved only a “local enterprise,” whose effect upon interstate commerce was too remote to justify the Board’s taking jurisdiction. The union argues that, even though the Board had jurisdiction in the sense that Patterson’s act “affected” commerce, the occasion was too trivial to justify intervention, as the minority members thought. We should hesitate to say that we could have power ever to review the Board’s action because we thought the situation was unimportant; but we need not now decide more than that, if there may be such situations, they must be frivolous beyond rational question, and that the case at bar was certainly within the area of fair differences of opinion, which we must not invade.
In the case at bar we do not understand that any of the five members thought that Patterson’s acts did not “affect” commerce within the meaning of the Act; and at any rate we are altogether of the opinion that they did. It is now abundantly established that in the Labor Relations Acts Congress meant to exercise to the fullest extent its power over interstate commerce;
The two carpenters quit work because Patterson “induced” them to do so and they left in “concert.” They were not guilty themselves of “an unfair labor practice” it is true, because they were not together a “labor organization” or “agents” of such an organization, but Patterson was such an “agent” and he “induced” them to refuse “in the course of their employment * * * to perform * * * services” for Deltorto. Patterson’s purpose was to force Giorgi “to cease doing business with” Langer. We need not say whether Deltorto, as well as Giorgi, was “doing business with” Langer; it is enough that the purpose -was to put pressure on Giorgi through Deltorto, and that Giorgi was certainly “doing business with” Lang-er. The situation was therefore within § 8(b) (4) (A), unless it makes a difference that Giorgi, upon whom the “concerted refusal” indirectly impinged, was at work on the same job with Langer with whom the union had its dispute. In short, is a secondary boycott limited to pressure upon third parties who are not engaged in the same venture with the unyielding employer? We can see no basis for such a distinction. The gravemen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who hás no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees’ demands. We cannot see why it should make any difference that the third person is engaged in a common venture with the employer, or whether he is dealing with him independently. The phrase, “doing business,” would ordinarily cover doing any business which the third party is free to discontinue, regardless of whether he is merely supplying materials to the employer, or has subcontracted with him to perform part of a work which the third party has himself contracted to do. The third party cooperates as truly with one to whom he furnishes materials as with a subcontractor. Indeed, when the coercion is upon the third person to break a contract with the employer, his position is more embarrassing than if he may discontinue his relations with the employer without danger of liability. The phrase, “cease doing business,” is general and admits of no such evasion.
Certain situations are, however, to be distinguished. The work of the employer may be so enmeshed with that of the third party that it is impossible to picket one without picketing the other. The case at bar might have been of that sort, had Langer’s non-union employees been at work on the job, and Patterson’s only purpose been to induce them to quit. Apparently it is the opinion of the Board that the Act does not forbid picketing the employer,
The examiner found that Patterson’s acts: his picketing and talks with Deltorto and Giorgi did not contain any “threat of reprisal or force or promise of benefit,” and for that reason he held that § 8(c) was a defence to any violation of § 8(b) (4) (A). The Board accepted all his findings save such as were inconsistent with its own report; but held that § 8(c) did not immunize conduct forbidden by § 8(b) (4) (A), in this respect following its decision in In Re Wadsworth Co. and Klassen & Hodgson.
It appears to us therefore highly unlikely that by § 8(c) Congress meant to abolish a doctrine, so deeply embedded in our civil and criminal law. Nor is it necessary to give the words that revolutionary significance. The Supreme Court had decided under the Labor Relations Act that it was not an “unfair labor practice” for an employer to address a meeting of his employees, if he went no further than to put his side of the case against collective bargaining :
Although it follows that § 8(c) would not have protected Patterson’s utterances, had it been an “unfair labor practice” for the carpenters to quit, the question remains whether it makes a difference that they did not commit any wrong in doing so. We think not. We see no reason to suppose that the same words: “the expressing of any views, argument, or opinion,” should have one meaning as an excuse for inducing a union to strike, and another for inducing members individually to strike. Section 8(b) (4), which defines the wrong, draws no such distinction, and the evil against which it is directed is precisely the same in either alternative: drawing a neutral into an industrial dispute. Congress might not indeed have made it unlawful for a union to induce individuals to strike in aid of a boycott; it might have thought that until the sanction invoked was a strike by some corporate body, like a union, the evil was not serious enough to call -for legislative intervention. It did not so limit its purpose; it made it a wrong to induce employees individually to strike, and, while it did not declare its reason for making unlawful only a strike by the corporate body itself — the union— the reason is not far to seek. Almost certainly Congress did not wish to expose individual employees to an action for an injunction or for damages.
If, as arguendo we are assuming, § 8(c) covers all utterances which contain more than bare inducements and are accompanied by discursive argument, no constitutional doubts can arise as to the validity of § 8(b) (4) when applied to the facts at bar. It never has been held, save by the most extreme partisans, if indeed even by them, that the First Amendment protected all verbal acts as such. The interest, which it guards, and which gives it its importance, presupposes that there are no orthodoxies — religious, political, economic, or scientific — which are immune from debate and dispute. Back of that is the assumption — itself an orthodoxy, and the one permissible exception — that truth will be most likely to emerge, if no limitations are imposed upon utterances that can with any plausibility be regarded as efforts to present grounds for accepting or rejecting propositions whose truth the utterer asserts, or denies. No doubt it is difficult to know when an equivocal utterance has plainly emerged out of its penumbra into the full light of unalloyed incitement; and that difficulty may justify protecting all that are within the ambivalent area. Be that as it may, the last decision of the Supreme Court
Order affirmed; an enforcement order will be entered.
. Title 20 U.S.C.A. § 141 et seq.
. N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 393; N. L. R. B. v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Polish National Alliance v. N. L. R. B., 322 U.S. 643, 64 S.Ct. 1196, 88 L.Ed. 1509; United Brotherhood etc. v. Sperry, 10 Cir., 170 F.2d 863, 867.
. N. L. R. B. v. Fainblatt, supra, 306 U.S. 601, 606, 59 S.Ct. 668, 671.
. Polish National Alliance v. N. L. R. B., supra, 322 U.S. 643, 64 S.Ct. 1196.
. N. L. R. B. v. Pure Oil Co., 84 N.L.R.B. No. 38; N. L. R. B. v. Ryan Construction Corp., 85 N.L.R.B. No. 76.
. D.C., 75 F.Supp. 672.
. In re United Brotherhood of Carpenters, 81 N.L.R.B. No. 127.
. Barker v. Braham, 2 W.Blacks, 866, 868.
. § 876(a).
. Ewald v. Lane, 70 App.D.C. 89, 104 F.2d 222; Hickman v. Taylor, D.C., 75 F.Supp. 528, 531, 532, affirmed 3. Cir., 170 F.2d 327, 329.
. Angle v. Chicago & St. Paul Railway Co., 151 U.S. 1, 14 S.Ct. 240, 38 L.Ed. 55; Bitterman v. Louisville & Nashville R. R. Co., 207 U.S. 205, 28 S.Ct. 91, 52 L.Ed. 171, 12 Ann.Cas. 693; Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S. Ct. 134, 72 L.Ed. 290.
. Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 38 S.Ct. 65, 62 L.Ed. 260, L.R.A.1918C, 497, Ann.Cas.19.18B, 461.
. § 2, Title 18 U.S.C.A.
. Nye & Nisson v. United States, 336 U.S. 613, 618, 619, 69 S.Ct. 766.
. United States v. Peoni, 2 Cir., 100 F.2d 401.
. Pollack & Maitland, Vol. II, p. 507.
. N. L. R. B. v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348.
. 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430.
. § 187(b), Title 29 U.S.C.
. Giboney v. Empire Storage Co., 336 U.S. 490, 69 S.Ct. 684.
. Abrams v. United States, 250 U.S. 616, 627, 40 S.Ct. 17, 21, 63 L.Ed. 1173.
Dissenting Opinion
(dissenting).
The question which to me seems decisive is whether Patterson’s picketing constituted only a “secondary” boycott. This is not analyzed to any extent in the opinion; there is only an acceptance of the premise that a primary boycott must be against Langer, the employer of the electricians. Then appear, at least by implication, the subordinate premises that boycotts against Giorgi and Deltorto are against not “the employer who alone is a party to the dispute,” but “some third party who has no concern in it.” And there is a suggestion of a different case where “the work of the employer may be so enmeshed with that of the third party that it is impossible to picket one without picketing the other,” as might have been true here “had Langerjs non-union employees been at work on the job, and Patterson’s only purpose been to induce them to quit.” This assumption as to the nature of the picketing, which is so decisive of the case, seems to me at variance with economic reality. For Giorgi’s giving Langer the contract is the
In a practical sense the immediate cause of trouble for the union is Giorgi in bringing onto this job — which he initiates and controls — a non-union subcontractor. Gi-orgi does it presumably for the natural reason that he thus obtains a low rate. If he can thus secure low rates as desired and the union is enjoined by act of the federal government from any protesting action, he has a tremendous incentive to employ not one, but many a non-union contractor. And if the union is restricted from doing anything other than picketing the subcontractor, it may be left in a decidedly weak condition. In fact the smaller the job, the weaker it is likely to be. If Langer employed two or three hundred workmen, a picket line might well achieve some success with at least some of these workmen. Here, however, Langer’s total contract for both labor and material was $325. It surely will not be a problem to obtain the two or three non-union men needed to carry through this job, particularly if his contract with Giorgi is to have the sanction of the governmental injunction behind it. And then the union is quite remediless. But all the reasons for allowing it to strive for economic security against Langer apply equally — if not more so in view of his crucial relation in the job — to a like strife against Giorgi.
The contrary view leads also to other anomalies. Thus the union is to be enjoined from picketing Giorgi when Langer has one or two employees; if, however, Langer’s contract is so small that he does all the work himself, then the union can picket Giorgi for hiring a non-union man. On the other hand, whenever the work is parceled out among groups, picketing of any but the limited electrical group is prevented. Is the mere form of separate or non-separate legal entities to be made thus decisive? Suppose the contract to be with a very large contracting concern working through departments. Would the picketing then also be confined to its electrical department, or would this lack of separate legal personality serve to prevent the result? Surely economic substance, rather than form, should control. The doctrine of enmeshed employment, applied by the Board and distinguished away in the opinion, presents perhaps the greatest anomaly of all. Thus picketing directed against a main employer remains still primary even though it may include special picketing directed intentionally against a subcontractor on the ground of the main employer. Ryan Construction Corp., 85 N.L.R.B. No. 76; Pure Oil Company, 84 N.L.R.B. No. 38. If these cases are sound —and it is believed they are within the intent and purpose of the Act — then it would seem that at least equally picketing against a subcontractor which reaches the main contractor as a part thereof would be permissible. And a fortiori should this be so the more closely the main contractor can be held a causative factor in the non-union employer’s activities. And yet in this present decision by a bare majority of the Board these decisions were not cited, although its counsel here attempts to distinguish them as referring to acts only “incidental” to the picketing of the “primary employer.”
Perhaps the difficulty comes from the use of those vague terms “primary” and “secondary,” which are not terms of either science or art or of the statute and which serve only to confuse and to contradict. True, an avowed purpose of the Act was to prohibit “secondary” boycotts; but the implied limitation of § 8(b) (4) (A), 29 U.S.C.A. § 158(b) (4) (A), to permit “primary” boycotts is thus being properly held to include situations where other employers are at least incidentally affected. Indeed, it seems hardly possible to think of Giorgi and Deltorto, particularly the
We have already had occasion to discuss this problem of the extent of the primary boycott in N. L. R. B. v. Wine, Liquor & Distillery Workers Union, 2 Cir., 178 F.2d 584. There we actually held that there was not enough connection between the employers involved to make the boycott anything but secondary. In so doing, we distinguished, thus' accepting the force of, Judge Rifkind’s carefully reasoned decision in Douds v. Metropolitan Federation of Architects, Engineers, Chemists and Technicians, Local 231, D.C.S.D.N.Y., 75 F.Supp. 672, to the effect that the limits of a primary boycott extend to include the activities of a business “ally” of the employer. This, of course, does not include merely a sympathizing employer, but rather, as here, one closely tied up in the very business itself. This doctrine seems rational in itself and also to have the. desirable result of settling all doubts as to the constitutionality of the Act on this score. As was pointed out in Mills v. United Association of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry of U. S. and Canada, D.C.W.D.Mo., 83 F.Supp. 240, 245, this Act should not be construed to permit of a subterfuge enabling “a principal contractor, whose relations with labor and with employees were unfavorable, to hide behind a more favorable relationship of a sub-contractor.” Neither should the converse be true. On the basis of these authorities, including the two Board decisions, and of this reasoning, I think the picketing here should be held permissible and enforcement of the order refused.
. See Senator Taft’s statement concerning § 8(b) (4) (A): “This provision makes it unlawful to resort to a secon- • dary boycott to injure the business of a third person who is wholly unconcerned in the disagreement between an employer and his employees.” 93 Daily Cong.Rec. 4323, April 29, 1947.