International Brotherhood v. National Labor Rel. Bd.

• Citation: 181 F.2d 34
• Decision Date: 24 February 1950
• Docket Number: Docket 21365.,No. 102,102
• Parties: INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 501, et al. v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

181 F.2d 34 (1950)

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 501, et al. v. NATIONAL LABOR RELATIONS BOARD.

No. 102, Docket 21365.

United States Court of Appeals Second Circuit.

Argued January 4, 1950.

Decided February 24, 1950.

S. A. Syme, White Plains, N. Y., L. Sherman, P. R. Collins, Washington, D. C., for petitioner.

A. N. Somers, Asst. Gen. Counsel, Washington, D. C., Robert N. Denham, General Counsel, David P. Findling, Associate General Counsel, Dominick L. Manoli, Albert M. Dreyer, Attorneys, National Labor Relations Board, Washington, D. C., James V. Altieri, New York City, for respondent.

Louis Sherman, Washington, D. C., for Brotherhood of Elect. Workers (A.F.L.), Amicus Curiæ.

Before L. HAND, Chief Judge, and SWAN and CLARK, Circuit Judges.

L. HAND, Chief Judge.

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;¹ (2) whether the evidence before the Board supported its finding that the "local" had engaged in conduct which constituted a secondary boycott, forbidden by the Act. The facts as the Board found them are amply supported by evidence; and in outline they are as follows. A contractor, named Giorgi, who had agreed to build a house for the owner of a lot in Greenwich, Connecticut, let out the carpentry to a contractor, named Deltorto, and the electrical work to another contractor, named Langer. Giorgi and Langer had their business in Port Chester, New York; Giorgi himself did the masonry work, and bought the materials which he used from a Port Chester dealer who delivered them to the job at Greenwich; Deltorto bought his lumber from a Connecticut dealer, who imported it from New York; Langer had already finished the "roughing" of the electrical work, but still had some work to do on the job. On the days here involved Deltorto had two carpenters on the job, members of an A. F. L. union; but Langer, who was a non-union employer, had none. Patterson — one of the respondents to the Board's complaint — was the business representative of the "local" — the other respondent —; and a few days before April 16, 1948, he had learned that the electrical work on the house was being done by non-union labor. He went to Deltorto and to one of his two carpenters and told them of this, to which each answered that he had not known it. On the 16th he went again to the job where he found Deltorto and both carpenters, and in the hearing of the other carpenter, he then told Deltorto that the job was "unfair" because the electrical work was being done by non-union labor. Deltorto repeated that he had not known it, and Patterson replied that he was "sorry" and left; but very shortly thereafter came back with a placard, bearing the legend: "This job is unfair to organized labor," with which he began picketing the premises. The second carpenter who had overheard the talk between Deltorto and Patterson, saw Patterson picketing the site, and told the other. They both got down from the scaffold, where they had been working, and, after reading the legend, quit work and went home. Patterson thereupon stopped picketing; but he called up Giorgi the same night and told thim that he would have to replace Langer with a union contractor or he could not complete the job. Giorgi told Langer of this, who agreed to throw up his contract and did no further work on the house. A few days later Giorgi told Deltorto that Langer had done so, and the two carpenters went back to the job.

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 Langer. 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;² and there can no longer be any doubt that the constitutional scope of that power covers occasions such as this. Langer's activities would alone be enough. In order to perform his part of the work, small though it was, he had to go from New York to Connecticut; and the materials which he used upon the job he had to bring from New York. Besides, his general business required him continuously to import substantial amounts of material from other states into New York, and he did a substantial amount of work in Connecticut in addition to the job in question, as well as work for large contractors whose own interstate activities were very large indeed. Giorgi's headquarters were also in New York, whence, like Langer, he had to travel to Greenwich to supervise his employees; moreover, the materials which he used upon the job he had brought from New York; and his business, again like. Langer's, extended into other states in substantial amount. It was Patterson's purpose to put an end to Langer's activities on the house by preventing Deltorto from proceeding with his contract, and thus compelling Giorgi to get rid of Langer. It is idle to argue therefore that Patterson's acts did not immediately "affect," or that they were not designed to "affect," these interstate activities. Insignificant as they were, they were enough to satisfy the demands of the Act.³ Moreover, since the decision may determine Langer's general operations which extend to many other interstate transactions, it may well be that the Board would have had jurisdiction, even though this particular dispute had involved no more than if the house had been in Port Chester, New York.⁴ On any view it is plain that the appeal must be decided on the merits.

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" Langer. 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 has 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...