DENVER BLDG. AND CONST. TR. C. v. National Labor Rel. B.

• Citation: 186 F.2d 326
• Decision Date: 01 September 1950
• Docket Number: No. 10271.,10271.
• Parties: DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL et al. v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

186 F.2d 326 (1950)

DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL et al. v. NATIONAL LABOR RELATIONS BOARD.

No. 10271.

United States Court of Appeals District of Columbia Circuit.

Argued February 15, 1950.

Decided September 1, 1950.

Writ of Certiorari Granted December 11, 1950.

Mr. William E. Leahy, Washington, D. C., with whom Messrs. Louis Sherman and Martin F. O'Donoghue, Washington, D. C., were on the brief, for petitioners.

Mr. Winthrop A. Johns, Assistant General Counsel, Washington, D. C., with whom Messrs. A. Norman Somers, Assistant General Counsel, and Dominick L. Manoli, attorney, all of the National Labor Relations Board, Washington, D. C., were on the brief, for respondent.

Before EDGERTON, CLARK and FAHY, Circuit Judges.

Writ of Certiorari Granted December 11, 1950. See 71 S.Ct. 281.

FAHY, Circuit Judge.

The Denver Building and Construction Trades Council, referred to as the Council, the International Brotherhood of Electrical Workers, A. F. L. Local 68, referred to as the I. B. E. W., and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, A. F. L. Local 3, petition this court to set aside an order of the National Labor Relations Board. The Board answers and requests enforcement of its order.

In essence the order requires petitioners to cease and desist from engaging in or inducing or encouraging the employees of a contractor, known as Doose & Lintner Construction Co., to engage in a strike with an object of forcing it "to cease doing business with" an electrical concern known as Gould & Preisner.

The contractor, Doose & Lintner, was constructing a commercial building on Bannock Street in Denver. Gould & Preisner were subcontractors for some electrical work and supplies. Their employees were non-union. All other employees on the job including those of other subcontractors as well as of the contractor, were members of craft unions affiliated with the petitioning Council. A representative of the I. B. E. W. complained to the electrical subcontractor about non-union men working on the job and reported to the business representative of the Council that the contractor was using the services of this subcontractor. The Council decided to place a picket stating that the Bannock Street job was unfair to the Council. After advising members of the contracting and of the electrical subcontracting firms that union men could not work on the job with nonunion men and if the subcontractor worked there the Council would have to picket the job as "unfair", picketing in fact began with a placard reading "This Job Unfair to Denver Building and Construction Trades Council". During the period of picketing, from January 9 through January 22, 1948, no union members worked on the project.

The Board held that petitioners had engaged in an unfair labor practice violative of § 8(b) (4) (A) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 158(b) (4) (A), the pertinent part of which, with its immediate context, is set forth in the margin.¹

I. Jurisdiction

We consider first the question of the Board's jurisdiction under the Commerce Clause, strongly contested by petitioners. The Board's authority extends to unfair labor practices "affecting commerce", that is, "in commerce, or burdening or obstructing commerce or the free flow of commerce", 29 U.S.C.A. § 152(7). Commerce is defined as interstate and foreign commerce. Id. § 152(6).

The alleged unfair practice was not in commerce itself as defined in the Act. There is no evidence or definite finding of any interstate or foreign commerce at the Bannock Street location. The only interstate commerce involved even indirectly, so far as the evidence or findings enlighten us, is the annual purchase by the electrical subcontractor of approximately $56,000 of goods which move to its place of business in Denver from out of the State. As to the Bannock Street building itself the finding is that $348.55 of the subcontractor's materials were used there prior to termination of its services as a result of the picketing and consequent strike. There is no evidence that any of this material actually came from without the State, but it was assumed by the Board that since 65% of all the purchases of Gould & Preisner were so derived a like percentage of the materials used on the Bannock Street job had a like derivation. The report of the trial examiner, adopted in this respect by the Board, found that "any widespread application of such practices might well result in substantially decreasing the inflow of materials" from points outside Colorado; that "Gould & Preisner's annual inflow of over $55,000 worth of materials is not negligible. Such an inflow is sufficient to establish the Board's jurisdiction".

We do not disturb the assertion of jurisdiction by the Board though the decision in this regard is a close one. The stated basis of jurisdiction would rest firmly enough upon the principles of decided cases under the Labor Act had the events in question occurred at the premises of Gould & Preisner. There the incoming interstate movement of goods would be obstructed or threatened with obstruction by the relationship of the forbidden practices to industrial strife. The holding in National Labor Relations Board v. Fainblatt, 1939, 306 U.S. 601, 607, 307 U.S. 609, 59 S.Ct. 668, 672, 83 L.Ed. 1014, that "we can perceive no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimis" is more than broad enough to bring within the coverage of the Act, so far as quantity is concerned, the interstate purchases of Gould & Preisner. The fact that their movement was from out of the State into Colorado, rather than the reverse, would not change the result. The impact of industrial strife on interstate commerce at its destination, as well as at its origin, is sufficiently close to meet the requirements of the statute and the Commerce Clause. International Brotherhood of Electrical Workers v. N. L. R. B., 2 Cir., 1950, 181 F.2d 34. See, also, United States v. Wrightwood Dairy Co., 1942, 315 U.S. 110, 121, 62 S.Ct. 523, 86 L.Ed. 726; United States v. Sullivan, 1948, 332 U.S. 689, 698, 68 S.Ct. 331, 92 L.Ed. 297 regulation of branding of articles that have completed interstate shipment and are being held for local sale; N. L. R. B. v. J. L. Hudson Co., 6 Cir., 1943, 135 F.2d 380, certiorari denied 320 U.S. 740, 64 S.Ct. 40, 88 L.Ed. 439; J. L. Brandeis & Sons v. N. L. R. B., 8 Cir., 1944, 142 F.2d 977, certiorari denied 323 U.S. 751, 65 S.Ct. 85, 89 L.Ed. 601; N. L. R. B. v. May Department Stores, 8 Cir., 1944, 146 F.2d 66, modified in other part 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 unfair labor practice in department store purchasing large amounts of stock in interstate commerce; N. L. R. B. v. Van De Kamp's Holland Dutch Bakers, 9 Cir., 1946, 152 F.2d 818. Here, however, the immediate impact of the controversy was not the place of business of Gould & Preisner but the Bannock Street location. None of the cases heretofore decided by the Supreme Court under the Labor Act presents a similar jurisdictional situation. In each, as illustrated by the Fainblatt case, the unfair labor practice occurred at a place of business where interstate commerce was engaged in though the effect of the forbidden practice was felt first on a local activity such as production or manufacturing. In some of the recent cases decided by the courts of appeals involving the building construction business the impact has also been immediate in point of location. Thus in International Brotherhood of Electrical Workers v. N. L. R. B., 2 Cir., 1950, 181 F.2d 34, interstate commerce moved directly to the site of the job where the picketing occurred. So also in Shore v. Building & Construction Trades Council, 3 Cir., 1949, 173 F.2d 678, 8 A.L.R.2d 731, an injunction action under section 10(l), 29 U.S.C.A. § 160(l). On the other hand, in United Brotherhood of Carpenters, etc. v. Sperry, 10th Cir., 1948, 170 F.2d 863; N. L. R. B. v. Local 74, United Brotherhood of Carpenters, etc., 6 Cir., 1950, 181 F.2d 126 and Slater v. Denver Building and Construction Trades Council, 10 Cir., 1949, 175 F.2d 608, as in the case at bar, there was a definite break in the route of the material. In each of the cases last cited the material whose origin was interstate had come to rest locally at the place of business of the boycotted concern before moving locally to the building site where the industrial strife occurred. Jurisdiction was sustained on the theory that the boycotted concern received substantial quantities of goods from out of the State and this interstate business would be adversely affected. In Groneman v. International Brotherhood of Electrical Workers, 10 Cir., 1949, 177 F.2d 995, however, jurisdiction of the district court under § 303(b) of the Act, 29 U.S.C.A. § 187(b), was held to be lacking in such circumstances.

Of course the fact that the activity at Bannock Street was itself local is no bar to jurisdiction. Numerous Labor Board cases, including the leading decisions of N. L. R. B. v. Jones & Laughlin, 1937, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, and companion cases, as well as other decisions before and after, under other exercises by Congress of the commerce power, including Wickard v. Filburn 1942, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122, leave no doubt as to this. It may be noted, however, that the basic principle underlying Wickard v. Filburn is not applicable to the present case. There Congress found that in order properly to regulate the interstate market in wheat it was essential to regulate the use of wheat on the farm, including its consumption there. This was a regulation by Congress of a particular local aspect of the whole of a particular commodity in order to control and protect its...