The principal question here is whether a labor organization committed an unfair labor practice, within the meaning of § 8 (b) (4) (A) of the National Labor Relations Act, 49 Stat. 449, 29 U. S. C. § 151, as amended by the Labor Management Relations Act, 1947,
In September, 1947, Doose & Lintner was the general contractor for the construction of a commercial building in Denver, Colorado. It awarded a subcontract for electrical work on the building, in an estimated amount of $2,300, to Gould & Preisner, a firm which for 20 years had employed nonunion workmen on construction work in that city. The latter's employees proved to be the only nonunion workmen on the project. Those of the general contractor and of the other subcontractors were members of unions affiliated with the respondent Denver Building and Construction Trades Council (here called the Council).
January 8, 1948, the Council's Board of Business Agents instructed the Council's representative "to place a picket on the job stating that the job was unfair" to it.
January 9, the Council posted a picket at the project carrying a placard stating "This Job Unfair to Denver Building and Construction Trades Council."
On charges filed by Gould & Preisner, the Regional Director of the National Labor Relations Board issued the complaint in this case against the Council and the
Between the Board's receipt of the charges and the filing of the complaint based upon them, the Regional Director of the Board petitioned the United States District Court for the District of Colorado for injunctive relief.
I. Res Judicata.—Respondents not only attack the jurisdiction of the Board on the ground that the actions complained of did not affect interstate commerce, but they contend that the decision rendered on that point by the District Court for the District of Colorado in Sperry v. Denver Building Trades Council, supra, has made the issue res judicata.
II. Effect on Interstate Commerce.—The activities complained of must affect interstate commerce in order to bring them within the jurisdiction of the Board.
The Board found that, in 1947, Gould & Preisner purchased $86,560.30 of raw materials, of which $55,745.25, or about 65%, were purchased outside of Colorado. Also, most of the merchandise it purchased in Colorado had been produced outside of that State. While Gould & Preisner performed no services outside of Colorado, it shipped $5,000 of its products outside of that State. Up to the time when its services were discontinued on the instant project, it had expended on it about $315 for labor and about $350 for materials. On a 65% basis, $225 of those materials would be from out of the State. The Board adopted its examiner's finding that any widespread
The Board also adopted the finding that the activities complained of had a close, intimate and substantial relation to trade, traffic and commerce among the states and that they tended to lead, and had led, to labor disputes burdening and obstructing commerce and the free flow of commerce. The fact that the instant building, after its completion, might be used only for local purposes does not alter the fact that its construction, as distinguished from its later use, affected interstate commerce.
Even when the effect of activities on interstate commerce is sufficient to enable the Board to take jurisdiction of a complaint, the Board sometimes properly declines to do so, stating that the policies of the Act would not be effectuated by its assertion of jurisdiction in that case. Here, however, the Board not only upheld the filing of the complaint but it sustained the charges made in it.
The same jurisdictional language as that now in effect appeared in the National Labor Relations Act of 1935
III. The Secondary Boycott.—We now reach the merits. They require a study of the objectives of the strike and a determination whether the strike came within the definition of an unfair labor practice stated in § 8 (b) (4) (A).
The language of that section which is here essential is as follows:
While § 8 (b) (4) does not expressly mention "primary" or "secondary" disputes, strikes or boycotts, that section often is referred to in the Act's legislative history as one of the Act's "secondary boycott sections." The other is § 303, 61 Stat. 158, 29 U. S. C. (Supp. III) § 187, which uses the same language in defining the basis for private actions for damages caused by these proscribed activities.
Senator Taft, who was the sponsor of the bill in the Senate and was the Chairman of the Senate Committee on Labor and Public Welfare in charge of the bill, said, in discussing this section:
The Conference Report to the House of Representatives said:
At the same time that §§ 7 and 13
A. We must first determine whether the strike in this case had a proscribed object. The conduct which the Board here condemned is readily distinguishable from that which it declined to condemn in the Rice Milling case, ante, p. 665. There the accused union sought merely to obtain its own recognition by the operator of a mill, and the union's pickets near the mill sought to influence two employees of a customer of the mill not to cross the picket line. In that case we supported the Board in its conclusion that such conduct was no more than was traditional and permissible in a primary strike. The union did not engage in a strike against the customer. It did not encourage concerted action by the customer's
In the background of the instant case there was a longstanding labor dispute between the Council and Gould & Preisner due to the latter's practice of employing nonunion workmen on construction jobs in Denver. The respondent labor organizations contend that they engaged in a primary dispute with Doose & Lintner alone, and that they sought simply to force Doose & Lintner to make the project an all-union job. If there had been no contract between Doose & Lintner and Gould & Preisner there might be substance in their contention that the dispute involved no boycott. If, for example, Doose & Lintner had been doing all the electrical work on this project through its own nonunion employees, it could have replaced them with union men and thus disposed of the dispute. However, the existence of the Gould & Preisner subcontract presented a materially different situation. The nonunion employees were employees of Gould & Preisner. The only way that respondents could attain their purpose was to force Gould & Preisner itself off the job. This, in turn, could be done only through Doose & Lintner's termination of Gould & Preisner's subcontract. The result is that the Council's strike, in order to attain its ultimate purpose, must have included among its objects that of forcing Doose & Lintner to terminate that subcontract. On that point, the Board adopted the following finding:
We accept this crucial finding. It was an object of the strike to force the contractor to terminate Gould & Preisner's subcontract.
B. We hold also that a strike with such an object was an unfair labor practice within the meaning of § 8 (b) (4) (A).
It is not necessary to find that the sole object of the strike was that of forcing the contractor to terminate the subcontractor's contract. This is emphasized in the legislative history of the section.
We agree with the Board also in its conclusion that the fact that the contractor and subcontractor were engaged on the same construction project, and that the contractor had some supervision over the subcontractor's work, did not eliminate the status of each as an independent contractor
Finally, § 8 (c)
The further conclusion that § 8 (c) does not immunize action against the specific provisions of § 8 (b) (4) (A) has been announced in other cases. See No. 108, International Brotherhood of Electrical Workers v. Labor Board, post, p. 694.
Not only are the findings of the Board conclusive with respect to questions of fact in this field when supported by substantial evidence on the record as a whole,
For these reasons we conclude that the conduct of respondents constituted an unfair labor practice within the meaning of § 8 (b) (4) (A). The judgment of the Court of Appeals accordingly is reversed and the case is remanded to it for procedure not inconsistent with this opinion.
It is so ordered.
MR. JUSTICE JACKSON would affirm the judgment of the Court of Appeals.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE REED joins, dissenting.
The employment of union and nonunion men on the same job is a basic protest in trade union history. That was the protest here. The union was not out to destroy the contractor because of his antiunion attitude. The union was not pursuing the contractor to other jobs. All the union asked was that union men not be compelled to work alongside nonunion men on the same job. As Judge Rifkind stated in an analogous case, "the union was not extending its activity to a front remote from the immediate dispute but to one intimately and indeed inextricably united to it."
The picketing would undoubtedly have been legal if there had been no subcontractor involved—if the general
"(b) It shall be an unfair labor practice for a labor organization or its agents—
"(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; . . . ." 61 Stat. 140-141, 29 U. S. C. (Supp. III) § 158 (b) (4) (A).
"Section 1. It shall be the duty of this Council to stand for absolute closed shop conditions on all jobs in the City of Denver and jurisdictional surroundings. . . . [Emphasis in original.]
"Section 2. The Board of Business Agents . . . shall have the power to declare a job unfair and remove all men from the job. They shall also have the power to place the men back on the job when satisfactory arrangements have been made.
"Section 3. Any craft refusing to leave a job which has been declared unfair or returning to the job before being ordered back by the Council or its Board of Agents shall be tried, and if found guilty, shall be fined the sum of $25.00.
"Section 4. Refusal of any organization to pay said fine shall be followed by expulsion from this Council. An organization so expelled shall pay said fine and one complete back quarter dues and per capita before being reinstated.
"Section 1. Strikes must be called by the Council or the Board of Agents in conformity with Article I-B, Sections 1-2. When strikes are called the Council shall have full jurisdiction over the same, and any contractor, who works on a struck job, or employs non-union men to work on a struck job, shall be declared unfair and all union men shall be called off from his work or shop.
"Section 2. The representative of the Council shall have the power to order all strikes when instructed to do so by the Council or Board of Agents. . . . All employees on a struck job shall leave the same when ordered to do so by the Council Agent and remain away from the same until such time as a settlement is made, or otherwise ordered." 82 N. L. R. B. at 1214-1215.
"SEC. 2. When used in this Act—
"(6) The term `commerce' means trade, traffic, commerce, transportation, or communication among the several States . . . .
"(7) The term `affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. . . ." 61 Stat. 137-138, 29 U. S. C. (Supp. III) § 152 (6) (7).
For the current practice see Mimeograph Release of National Labor Relations Board, dated October 6, 1950, entitled "N. L. R. B. Clarifies and Defines Areas In Which It Will and Will Not Exercise Jurisdiction." See also, Hotel Assn. of St. Louis, 92 N. L. R. B. 1388, 27 LRR Man. 1243.
"2. The Trial Examiner found that the Council and the other three Respondents, by picketing Doose & Lintner's . . . project as alleged in the complaint and thereby causing members of local unions affiliated with the Council to quit work on that project, with an object of forcing Doose & Lintner to cease doing business with Gould & Preisner, engaged in strike action in violation of Section 8 (b) (4) (A). We find merit in the Respondents' exceptions only with respect to Carpenters [not involved here], and otherwise agree in substance with the Trial's Examiner's finding." 82 N. L. R. B. at 1196.
"What the issue really boils down to is this: Does Section 8 (b) (4) (A) apply to normal business dealings between a contractor and subcontractor, both engaged in the same general business, where boycott pressure is applied against the subcontractor in aid of a dispute with the principal contractor? Clearly it does under the wording of the statute." Metal Polishers Union, 86 N. L. R. B. 1243, 1252.
And see Labor Board v. Wine, Liquor & Distillery Workers Union, 178 F.2d 584.