National Labor Relations Board v. Denver Bldg Const Trades Council

Citation95 L.Ed. 1284,341 U.S. 675,71 S.Ct. 943
Decision Date04 June 1951
Docket NumberNo. 393,393
PartiesNATIONAL LABOR RELATIONS BOARD v. DENVER BLDG. & CONST. TRADES COUNCIL et al
CourtUnited States Supreme Court

[Syllabus from pages 675-676 intentionally omitted] Mr. David P. Findling, Washington, D.C., for petitioner.

Mr. William E. Leahy, Washington, D.C., for respondents.

Mr. Justice BURTON delivered the opinion of the Court.

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, 29 U.S.C.A. § 151, as amended by the Labor Management Relations Act, 1947,1 by engaging in a strike, an object of which was to force the general contractor on a construction project to terminate its contract with a certain subcontractor on that project. For the reasons hereafter stated, we hold that such an unfair labor practice was committed.

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 Coun- cil). In November a representative of one of those unions told Gould that he did not see how the job could progress with Gould's nonunion men on it. Gould insisted that they would complete the electrical work unless bodily put off. The representative replied that the situation would be difficult for both Gould & Preisner and Doose & Lintner.

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.2 In keeping with the Council's practice,3 each affiliate was notified of that decision. That notice was a signal in the nature of an order to the members of the affiliated unions to leave the job and remain away until otherwise ordered. Representatives of the Council and each of the respondent unions visited the project and reminded the contractor that Gould & Preisner employed nonunion workmen and said that union men could not work on the job with nonunion men. They further advised that if Gould & Preisner's men did work on the job, the Council and its affiliates would put a picket on it to notify their members that nonunion men were working on it and that the job was unfair. All parties stood their ground.

January 9, the Council posted a picket at the project carrying a placard stating 'This Job Unfair to Denver Building and Construction Trades Council.' 4 He was paid by the Council and his picketing continued from January 9 through January 22. During that time the only persons who reported for work were the nonunion electricians of Gould & Preisner. January 22, before Gould & Preisner had completed its subcontract, the general contractor notified it to get off the job so that Doose & Lintner could continue with the project. January 23, the Council removed its picket and shortly thereafter the union employees resumed work on the project. Gould & Preisner protested this treatment but its workmen were denied entrance to the job.

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 respondent unions.5 It alleged that they had engaged in a strike or had caused strike action to be taken on the project by employees of the general contractor and of other subcontractors, an object of which was to force the general contractor to cease doing business with Gould & Preisner on that project.

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.6 That petition was dismissed on the jurisdictional ground that the activities complained of did not affect interstate commerce. Sperry v. Denver Building & Const. Trades Council, D.C., 77 F.Supp. 321. Such action will be discussed later under the heading of res judicata. Hearings were held by the Board's trial examiner on the merits of the complaint. The Board adopted its examiner's findings, conclusions and recommendations, with minor additions and modifications not here material. It attached the examiner's intermediate report to its decision and ordered respondents to cease and desist from engaging in the activities charged. 82 N.L.R.B. 1195. Respondents petitioned the United States Court of Appeals for the District of Columbia Circuit for a review under § 10(f).7 The Board answered and asked for enforcement of its order. That court held, with one judge dissenting, that the conduct complained of affected interstate commerce sufficiently to give the Board jurisdiction over it, but the court unanimously set aside the order of the Board and said: 'Convinced that the action in the circumstances of this case is primary and not secondary we are obliged to refuse to enforce the order based on § 8(b)(4) (A).' 87 U.S.App.D.C. 293, 304, 186 F.2d 326, 337. The Board claimed a conflict between that conclusion and the reasoning of the Court of Appeals for the Second Circuit in No. 108, International Brotherhood of Electrical Workers v. National Labor Relations Board, 181 F.2d 34, and of that for the Sixth Circuit in No. 85, National Labor Relations Board v. Local 74, United Brotherhood of Carpenters, 181 F.2d 126. We granted certiorari in each case, 340 U.S. 902—903, 71 S.Ct. 281, and all were argued with No. 313, National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961.8 In another companion case, No. 387, United Brotherhood of Carpenters v. National Labor Relations Board, decided by the Court of Appeals for the Tenth Circuit, 184 F.2d 60, certiorari has been denied this day, 341 U.S. 947, 71 S.Ct. 1011.

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 & Const. Trades Council, supra, has made the issue res judicata.9 We do not agree. The District Court did not have before it the record on the merits. It proceeded under § 10(l)10 which is designed to assist a preliminary investigation of the charges before the filing of a complaint. If the officer or regional attorney to whom the matter is referred has reasonable cause to believe that a charge is true and that a complaint should issue, the statute says that he shall petition an appropriate District Court for injunctive relief, pending the final adjudication of the Board. Such proceeding is independent of that on the merits under § 10(a)(d). There is a separate provision for securing injunctive relief after the filing of the complaint. § 10(j). Court review is authorized in § 10(e) and (f). As held by the Board, 82 N.L.R.B. at 1203—1204, and the court below, 87 U.S.App.D.C. 297, 299, 186 F.2d at pages 330, 332, the very scheme of the statute accordingly contemplates that a decision on jurisdiction made in the independent preliminary proceeding for interlocutory relief under § 10(l), shall not foreclose a proceeding on the merits such as is now before us.11

II. Effect on Interstate Commerce.—The activities complained of must affect interstate commerce in order to bring them within the jurisdiction of the Board.12 The Board here found that their effect was sufficient to sustain its jurisdiction and the Court of Appeals was satisfied. We see no justification for reversing that conclusion.

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 application of the practices here charged might well result in substantially decreasing the influx of materials into Colorado from outside the State and it recognized that Gould & Preisner's annual purchase of over $55,000 of such materials was not negligible.

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...

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    • April 25, 2022
    ...work does not make the GC or CM liable for the subcontractor's actions. See N.L.R.B. v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 689-90 (1951)(holding that "the fact that the contractor and subcontractor were engaged on some construction project, and that the contractor had some ......
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    ...not be effectuated by its assertion of jurisdiction in that case.'" Id. at slip op. 3 (quoting NLRB v. Denver Building Trades Council, 341 U.S. 675, 684 (1951)). Here, the Board's decision to decline to exercise jurisdiction was "primarily premised on a finding that, because of the nature o......
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