National Labor Relations Bd. v. GENERAL DRIVERS, ETC.

• Decision Date: 02 August 1955
• Docket Number: No. 15305.,15305.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL 968, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and M. W. Miller, Trustee, General Drivers, Warehousemen and Helpers, Local 968, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

225 F.2d 205 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL 968, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and M. W. Miller, Trustee, General Drivers, Warehousemen and Helpers, Local 968, Respondents.

No. 15305.

United States Court of Appeals Fifth Circuit.

August 2, 1955.

Miss Rosanna A. Blake, Atty., N. L. R. B., Silver Springs, Md., Owsley Vose, Asso. Ch. Enf. Br., David P. Findling, Asso. Gen. Cnsl., Marcel Mallet-Prevost, Asst. Gen. Cnsl., N. L. R. B., Washington, D. C., Samuel M. Singer, Attorneys, N. L. R. B., Washington, D. C., for petitioner.

Chris Dixie, Houston, Tex., Mullinax & Wells, Dallas, Tex., Dixie, Ryan & Schulman, Houston, Tex., for respondents.

Before RIVES, Circuit Judge, and DAWKINS and DE VANE, District Judges.

RIVES, Circuit Judge.

The Board petitions for enforcement of its order issued against respondents on July 22, 1954, based on findings that respondent union and its trustee individually had violated Section 8(b) (4) (A), 29 U.S.C.A. § 158(b) (4) (A), through inducing the employees of certain neutral employers, by means of picketing certain construction projects, to strike in order to force those neutral employers to cease doing business with the Otis Massey Company, the charging party and primary employer with whom the union's dispute arose. The Board's decision and order are reported at 109 N.L.R.B. 61.

The material facts found by the Board¹ reveal that the Otis Massey Company is a co-partnership engaged at Houston, Texas, in the distribution and installation of insulation and other building materials; that in January, 1954, it was acting as subcontractor in the installation of certain materials at St. Luke's Hospital, the University of Texas Dental Clinic and Battlestein's Service Center, which three buildings were then undergoing construction at various locations in Houston; that at the first two building locations aforementioned, Otis Massey was a subcontractor of C. Wallace Plumbing Co., which company was in turn a subcontractor of the general contractors, Tellepsen Construction Company and Manhattan Construction Company, and at the last mentioned construction site, Otis Massey was acting as subcontractor for the general contractor, O'Rourke Construction Company; that Massey employed at all three locations various craftsmen, among which were asbestos workers, carpenters and flooring men, all of which were represented in collective bargaining with Otis Massey by their particular craft unions, and none of which were represented by the respondent union.

It was further found that Otis Massey also operates a warehouse located several miles from each of the above construction projects, where it employs four truck drivers and warehousemen for whom the respondent union is the certified bargaining representative; that these four employees occasionally deliver building materials to the construction projects, but otherwise have no duties at the building locations; that in January, 1954, a dispute arose between Otis Massey and the respondent union concerning the terms of a bargaining contract applicable only to the four truck drivers and warehousemen, as a result of which the respondent union called a strike on January 13 and commenced picketing the warehouse; that no dispute existed between Otis Massey and respondent or any other union with respect to the various craftsmen employed by it at the three construction projects, but the union nevertheless commenced picketing the construction projects at the same time it began picketing the warehouse²; that, except in one or two instances, none of the truck drivers or warehousemen here involved were making deliveries at the construction sites when the picketing occurred, though the various other craftsmen were present and engaged in construction duties on every occasion; that the picketing continued until February 11, 1954, when it ceased as a result of the injunction proceeding mentioned above (footnote 1, supra), and on January 27th and 29th, the various craftsmen working for the neutral contractors, as well as those employed by Otis Massey, engaged in a concerted walk-out from the dental clinic and hospital construction jobs as a result of the picketing; that on January 27 a number of electricians also left the dental clinic job but subsequently returned after the Otis Massey insulators left, and on that same day a work stoppage at the hospital construction site occurred when all craftsmen except the cement finishers quit work.

It is undisputed, however, that the pickets at the construction projects carried signs reading: "General Drivers, Local 968, AFL, On Strike Against Otis Massey"; that on February 11, the day before the hearing in the aforementioned district court injunction proceeding (footnote 1, supra), a notation to "See our pamphlet" was added to the picket signs, and the pamphlet or handbill referred to, which was distributed by the pickets, expressly advised any interested parties that the respondent union's dispute was with Otis Massey only, and not with any other employer engaged in construction work at the projects, and that the picket line should be considered as directed only toward those locations within the projects where the Otis Massey craftsmen were working.³

The Board concluded from the above summarized facts that the union's activity in picketing the construction projects violated Section 8(b) (4) (A) of the Act, because it was conducted, "at least in part," to force the secondary and neutral employers "to cease doing business with Otis Massey, by inducing and encouraging the employees of said employers to engage in a strike." That ultimate conclusion was predicated mainly upon findings, vigorously attacked here, that the drivers and warehousemen involved were employed "not at the construction projects but at the Otis Massey warehouse," so that the warehouse location was the sole "situs of the union's dispute," and the place where it could "adequately publicize" its private controversy with Massey without disrupting work of the other neutral employers. In reaching its ultimate conclusion that the union's activity was secondary and unlawful, rather than primary and lawful under the Act, the Board relied strongly on the union's supposed failure to justify its picketing at the common premises as "harboring the situs of a dispute between a union and a primary employer" under its Moore Dry Dock Co. case, 92 N.L.R. B. 547.⁴

Respondents insist the Board's findings, that the warehouse was the sole situs of the dispute and that the picketing was for an unlawful object, are not supported by that substantial evidence on the record considered as a whole here required for enforcement of its order;⁵ that the Board is without authority, statutory or otherwise, arbitrarily to make such findings in disregard of contrary, undisputed testimony that the construction sites were among several locations at which Otis Massey conducted its normal business activities, and that the picketing of those sites was justifiably directed solely against that company as the primary employer; and, finally, that the Board's order, under the facts proven, violates respondents' right of free speech, contrary to the First Amendment and is especially unjustified insofar as it purports to hold the individual respondent, Trustee Miller, personally responsible for the alleged 8(b) (4) (A) violation.

Section 8(b) (4) (A) of the Act, insofar as here material, makes it an unfair labor practice for a labor union or its agents to induce or encourage a strike by neutral employees "where an object thereof" is to force or require any neutral employer "to cease doing business with any other person". That section was enacted to outlaw secondary boycotts, and has been construed as proscribing secondary, concerted activity at the common premises of neutral employers and an employer with whom a union has a labor dispute,⁶ though it does not prohibit a union from taking appropriate concerted action against a primary employer whose employees it represents for collective bargaining purposes.⁷ As the Board recognized, the crucial problem in these cases, where both the primary and neutral employers occupy a common work site, is in distinguishing between "permissible primary action and proscribed secondary action." See N.L.R.B. v. Local Union No. 55, etc., 10 Cir., 218 F.2d 226, 231. In a commendable effort to balance "the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own",⁸ the Board, in its Moore Dry Dock Company case, supra, has devised certain evidentiary tests to aid in determining the ultimate issue of whether common-situs picketing is primary and lawful or secondary and unlawful.⁹ Cf. Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 741, 69 S.Ct. 1210, 93 L.Ed. 1659. And while four circuits have approved the criteria evolved by the Board in its Moore Dry Dock case, supra,¹⁰ we think such approval was necessarily based upon substantial evidence that the unlawful objective denounced by the statute actually existed, rather than upon the inferentially suggested theory that this ultimate and controlling statutory inquiry may be effectually supplanted merely by Board findings that the real "situs" of a labor dispute exists at a location other than that determined by the conduct of the parties, at which place alone it may be "adequately" publicized with impunity under the Act, and thereby inferring from such findings, as here, that the unlawful objective exists.¹¹ Indeed, such a theory would, we think, elevate the Board formulated "criteria" by judicial fiat to a vantage point from which it could, in effect, circumvent the statute, for in this...