CONE BROS. CONTRACT. CO. v. BRICKLAYERS, MASONS, ETC., 17246.

• Decision Date: 11 March 1959
• Docket Number: No. 17246.,17246.
• Citation: 263 F.2d 297
• Parties: CONE BROTHERS CONTRACTING COMPANY, Appellant, v. BRICKLAYERS, MASONS, PLASTERERS, MARBLE MASONS, TILE LAYERS, TERRAZZO WORKERS, AND CEMENT FINISHERS' UNION NO. 3, FLORIDA, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

263 F.2d 297 (1959)

CONE BROTHERS CONTRACTING COMPANY, Appellant, v. BRICKLAYERS, MASONS, PLASTERERS, MARBLE MASONS, TILE LAYERS, TERRAZZO WORKERS, AND CEMENT FINISHERS' UNION NO. 3, FLORIDA, Appellee.

No. 17246.

United States Court of Appeals Fifth Circuit.

February 3, 1959.

Rehearing Denied March 11, 1959.

Erle Phillips, Atlanta, Ga., L. Robert Frank, Tampa, Fla., Fisher, Phillips & Allen, Atlanta, Ga., Allen, Dell, Frank & Trinkle, Tampa, Fla., for appellant.

Richard E. McGee, Frank A. McClung, Brooksville, Fla., for appellee.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

RIVES, Circuit Judge.

Pursuant to Section 303 of the Labor Management Relations Act, 29 U.S.C.A. § 187,¹ appellant-employer filed a complaint against appellee-union seeking to recover damages sustained by reason of a violation of said section. The complaint alleged that a dispute existed between the Union and Acme Tile & Terrazzo Company, a subcontractor working under a contract from the employer; that the Union picketed the employer's job site for the purpose of forcing the employer to cease doing business with Acme so that Acme would be compelled to recognize the Union, although it had not been certified as representative of Acme's employees; that the picket line induced various employees of the employer and of its subcontractor to leave the job, and the employer incurred a loss in the amount of $9,800.00 from the interruption of its business.

The critical averment was that made to support the conclusion that the employer "is and has been engaged in an industry affecting commerce within the meaning of Section 303(a) of the Act." To sustain that conclusion, the complaint averred:

"* * * At all times hereinafter mentioned it was engaged in the general contracting business, in construction and improvement of highways, roads, buildings and other structures. During the 12-month period next preceding the filing of this action, plaintiff purchased directly from sources outside the State of Florida goods the value of which was in excess of $500,000.00."

The Union moved to dismiss the complaint on the grounds that the court lacked jurisdiction of the subject matter and that the complaint failed to state a claim upon which relief can be granted. The district court granted that motion, and, after the employer had declined to amend, dismissed the complaint. The trouble which the district court found with the complaint was thus expressed:

"* * * the Complaint fails to allege that any goods purchased by the plaintiff from outside the State of Florida were used in the construction of the motel referred to in the Complaint, and, therefore, the Complaint does not contain sufficient allegations that the plaintiff was an industry or activity affecting Interstate Commerce at the time the acts of the defendant were committed, * * *."

We do not agree. It seems clear to us that the interstate commerce intended to be protected by the Act is not confined to the particular job but extends to all of the activities of the employer. For that reason, the proscribed conduct was made unlawful "in an industry or activity affecting commerce." (Emphasis supplied.) See, footnote 1, supra. Section 2 of the Act, captioned "Definitions," provides in part:

"When used in this subchapter —

* * * * * *

"(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."

29 U.S.C.A. § 152(7). By that definition, "Congress meant to reach to the full extent of its power under the Commerce Clause." Guss v. Utah Labor Relations Board, 1957, 353 U.S. 1, 3, 77 S.Ct. 598, 599, 609, 1 L.Ed.2d 601; see also, Polish Nat. Alliance of United States of North America v. National Labor Relations Board, 1944, 322 U.S. 643, 647, 64 S.Ct. 1196, 88 L.Ed. 1509; International Brotherhood of Elec. Workers, Local 501 v. National Labor Relations Board, 2 Cir., 1950, 181 F.2d 34, 36. In National Labor Relations Board v. Denver Building & Const. Trades Council, 1951, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284, in deciding a similar question the Supreme Court considered all activities of the employer and not just those activities on the job site where the picketing occurred.

The judgment of the district court dismissing the complaint was erroneous. That judgment is reversed and the cause remanded for disposition on its merits.

Reversed and remanded.

CAMERON, Circuit Judge (dissenting).

"The Congress shall have power * * * To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes."

By these carefully chosen words of Section 8, Article I of the Constitution, the Sovereign States which formed the Union delegated to the national government all the power it has ever possessed over commerce between the States. To make sure that nobody would construe this and other like grants as...