National Labor Relations Bd. v. United Steelworkers

• Decision Date: 05 December 1957
• Docket Number: No. 5237.,5237.
• Citation: 250 F.2d 184
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED STEELWORKERS OF AMERICA, AFL-CIO, AND LOCAL 5246, United Steelworkers of America, AFL-CIO, Respondents.
• Court: U.S. Court of Appeals — First Circuit

250 F.2d 184 (1957)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED STEELWORKERS OF AMERICA, AFL-CIO, AND LOCAL 5246, United Steelworkers of America, AFL-CIO, Respondents.

No. 5237.

United States Court of Appeals First Circuit.

December 5, 1957.

Arnold Ordman, Washington, D. C., with whom Jerome D. Fenton, Gen. Counsel, Stephen Leonard, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., were on brief, for petitioner.

James McC. Harkless, Boston, Mass., with whom Robert D. Manning and Grant & Angoff, Boston, Mass., were on brief, for respondents.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

This petition for enforcement of an order of the National Labor Relation Board presents questions with respect to the application of the so-called "secondary boycott" provision embodied in § 8(b)(4)(A) of the Labor Management Relations Act, 1947, known as the Taft-Hartley Act, 61 Stat. 141, 29 U.S. C.A. § 158(b)(4)(A), quoted as far as material in the margin.¹

The facts are virtually undisputed. For present purposes they may be briefly summarized as follows:

The respondents, referred to hereinafter collectively as the Union, is the duly certified bargaining representative of well over 100 production and maintenance workers employed by Barry Controls, Inc., at its plant in Watertown, Massachusetts, where it manufactures shock absorbers of one kind or another. The Union called a strike of these employees in January, 1956, and lawful picketing of the employer's plant ensued. In addition, the Union detailed pickets to follow a truck driver, one Yorke, who although a member of the bargaining unit did not go out on strike, and to picket his truck when he made stops in the course of picking up materials from and making deliveries to other employers in the area. Specifically this picketing occurred at the terminals in the adjoining city of Cambridge, Massachusetts, of three interstate motor carriers used by Barry to transport its products to customers, and at the premises, also in Cambridge, of a concern used by Barry and others to package goods for shipment. All of these premises, although in Cambridge, were within five or six miles of the Barry plant in Watertown.

General Counsel for the Board issued a complaint against the Union on charges filed by Barry and the complaint was processed by the Board in the usual way. The trial examiner found the facts essential to the jurisdiction of the Board and of this court, indeed those facts are conceded, and then went on to find further facts which need not be detailed here as to the character of the picketing of Yorke's truck. On the basis of the evidence as to the manner in which that picketing was conducted he found that there was neither the intent to show nor any clear indication that the strike was against Barry only, but instead that there was both the intent and the hope that the strike would be construed as against the secondary employers on or near whose premises the picketing took place. Wherefore he concluded that the requirements for legal picketing on neutral employers' premises as laid down by the Board in Sailors' Union of the Pacific (Moore Drydock Company), 92 N.L.R.B. 547, had not been met. In consequence he found that the Union had been guilty of an unfair labor practice as defined in the section of the act quoted above in the margin, and he therefore recommended that the Board order the Union to cease and desist from its picketing on or near the secondary employers' places of business and to take the usual affirmative remedial action.

The Board on exceptions filed by the Union agreed with the ultimate conclusion reached by the trial examiner but not with his reason therefor. Relying for its authority upon Brewery and Beverage Drivers and Workers etc. (Washington Coca-Cola Bottling Works, Inc.), 107 N.L.R.B. 299, 302-303, enforced sub nom. Brewery and Beverage Drivers and Workers, etc. v. N.L.R.B., 1955, 95 U.S. App.D.C. 117, 220 F.2d 380; Local 657, International Brotherhood of Teamsters etc. (Southwestern Motor Transport, Inc.), 115 N.L.R.B. No. 155; and Sheet Metal Workers International Association Local No. 51 (W. H. Arthur), 115 N.L. R.B. No. 183, it said:

"We agree with the Trial Examiner that the Respondents violated Section 8(b)(4)(A) of the Act by picketing the trucks of Barry, with whom the Respondents had a labor dispute, at the terminals and the packaging plant of secondary employers on April 25, 1956. In so doing however, we, unlike the Trial Examiner, do not rely upon the Respondents\' alleged failure to observe the Moore Drydock requirement that the picketing at the secondary employers\' premises be conducted in a manner clearly disclosing that it was directed only against the primary employer. Apart from the fact that we believe that the Trial Examiner\'s finding that the Moore Drydock standard was not met is factually incorrect, the Board has held that the Moore Drydock doctrine is inapplicable to a situation where as here the primary employer has a permanent place of business at which the union could adequately publicize its labor dispute. In these circumstances, we find, in accordance with the reasoning in Washington Coca Cola and Southwestern cases, that the fact that the picketing was conducted at the premises of secondary employers, plainly reveals that it was designed, at least in part, to induce and encourage the employees of these secondary employers to engage in a concerted refusal in the course of their employment to handle Barry\'s freight with an object of forcing or requiring the secondary employers

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