National Labor Relations Board v. Local 825, International Union of Operating Engineers,Burns and Roe, Inc v. Local 825, International Union of Operating Engineers

• Citation: 400 U.S. 297,91 S.Ct. 402,27 L.Ed.2d 398
• Decision Date: 12 January 1971
• Docket Number: Nos. 40,42,AFL-CIO,s. 40
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 825, INTERNATIONAL UNION OF OPERATING ENGINEERS,BURNS AND ROE, INC., et al., Petitioners, v. LOCAL 825, INTERNATIONAL UNION OF OPERATING ENGINEERS,
• Court: U.S. Supreme Court

400 U.S. 297

91 S.Ct. 402

27 L.Ed.2d 398

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v LOCAL 825, INTERNATIONAL UNION OF OPERATING

ENGINEERS, AFL-CIO.

BURNS AND ROE, INC., et al., Petitioners,

v. LOCAL 825, INTERNATIONAL UNION OF OPERATING

ENGINEERS, AFL-CIO.

Nos. 40, 42.

Argued Nov. 18, 1970.

Decided Jan. 12, 1971.

Syllabus

A general contractor (Burns) subcontracted construction work to three companies, all of which employed operating engineers who belonged to respondent union. That union, disputing the assignment by one of the subcontractors (White) of an operation involving an electric welding machine to members of another labor organization, advised Burns that all respondent's members on the jobsite would strike unless Burns bound itself and the subcontractors to give respondent jurisdiction over electric welding machines. The union went on strike when the employers refused to accede to its demands. After an arbitrator, to whom Burns had referred the matter, held that there was no reason to change the disputed work assignment, respondent union physically prevented operation of the welding machine. Thereafter an unfair labor practices proceeding against the union was brought. The National Labor Relations Board (NLRB) found that by inducing the subcontractors' employees to strike to force White to assign the disputed work to the operating engineers the union had violated § 8(b)(4)(D) of the National Labor Relations Act, which bars strikes for the object of 'forcing * * * any employer to assign particular work to employees in a particular labor organization * * * rather than to employees in another labor organization * * *.' The NLRB also found that by applying economic pressure on the neutral employers the union had violated § 8(b)(4)(B), which bars a union from exerting coercive pressure on a neutral or secondary employer where 'an object thereof' is forcing him, inter alia, 'to cease doing business with any other person.' On the NLRB's petition for enforcement, the Court of Appeals sustained the NLRB's § 8(b)(4)(D) finding but set aside its § 8(b)(4)(B) finding, concluding that the union's objective was to force Burns 'to use its influence with the subcontractor to change the subcontractor's conduct, not to terminate their relationship.' Held:

1. In seeking to force Burns to bind all the subcontractors on the project to a particular form of job assignments and implying by its demands that Burns would have to force a change in White's policy or terminate White's contract, respondent union engaged in flagrant secondary conduct within the prohibition of § 8(b)(4)(B). Pp. 302—305.

2. Section 8(b)(4)(B) is not an exclusive remedy for secondary pressure aimed at involving a neutral employer in a jurisdictional dispute over work assignments made by the primary employer. Pp. 305—306.

410 F.2d 5, reversed and remanded.

Arnold Ordman, Washington, D.C., for National Labor Relations Board.

Vincent J. Apruzzese, Springfield, N.J., for petitioners, Burns and Roe, Inc., and others.

Earl S. Aronson for respondent, Local 825, International Union of Operating Engineers, AFL—CIO.

Laurence Gold, for American Federation of Labor and Congress of Industrial Organizations, amicus curiae.

Mr. Justice MARSHALL delivered the opinion of the Court.

In this cause we are asked to determine whether strikes by Operating Engineers at the site of the construction of a nuclear power generator plant at Oyster Creek, New Jersey, violated § 8(b)(4)(B)¹ of the National Labor Relations Act. Although the National Labor Relations Board found the strikes to be in violation of this section, the Court of Appeals refused to enforce the Board's order.² We believe the Court of Appeals construed the Act too narrowly. Accordingly, we reverse and remand the case for consideration of the propriety of the Board's order.

The general contractor for the project, Burns & Roe, Inc., subcontracted all of the construction work to three companies White Construction Co., Chicago Bridge & Iron Co., and Poirier and McLane Corp. All three employed operating engineers who were members of Local 825, International Union of Operating Engineers. But White, unlike Chicago Bridge and Poirier, did not have a collective-bargaining agreement with Local 825.

In the latter part of September 1965, White installed an electric welding machine and assigned the job of pushing the buttons that operated the machine to members of the Ironworkers Union, who were to perform the actual welding. Upon learning of this work assignment, Local 825's job steward and its lead engineer threatened White with a strike if operating engineers were not given the work. White, however, refused to meet the demand. On September 29, 1965, the job steward and lead engineer met with the construction manager for Burns, the general contractor. They informed him that the members of Local 825 working at the jobsite had voted to strike unless Burns signed a contract, which would be binding³ on all three subcontractors as well as Burns, giving Local 825 jurisdiction over all power equipment, including electric welding machines, operated on the jobsite. On October 1, after White and Burns refused to accede to the demands, the operating engineers employed by Chicago Bridge and Poirier as well as those employed by White walked off the job. They stayed out from 8 a.m. to 1 p.m., returning to work when negotiations over their demands started.

On October 6, Burns submitted the work assignment dispute to the National Joint Board for the Settlement of Jurisdictional Disputes for the Construction Industry.⁴ The same day, Local 825 threatened Burns and all the subcontractors with another work stoppage unless the contracts were signed and the work transferred to the operating engineers. The employers again refused, and the operating engineers walked off the project. This strike lasted from October 7 to October 11.

On October 20, the Joint Board notified the parties that there was no reason to change the assignment of the disputed work. Local 825 did not accept this resolution; and when the welding machine was started on November 4, the operating engineers surrounded the machine and physically prevented its operation. On November 8, the NLRB Regional Director obtained from the United States District Court a temporary injunction under § 10(l)⁵ of the Act restraining the union from coercing a cessation of business on the project or to compel White to change the work assignment.⁶

An unfair labor practice proceeding against Local 825 subsequently ensued. The Board found that the union had violated § 8(b)(4)(D)⁷ of the Act by inducing employees of White, Chicago Bridge, and Poirier to strike to force White to take the disputed work away from the Ironworkers and assign it to the Operating Engineers. The Court of Appeals' approval of this finding is not questioned here. But the Board's finding that Local 825's encouragement of the Chicago Bridge and Poirier employees to strike and the union's coercion of Burns violated § 8(b)(4)(B) of the Act was not approved by the Court of Appeals and is in issue here.

I

Congressional concern over the involvement of third parties in labor disputes not their own prompted § 8(b)(4)(B). This concern was focused on the 'secondary boycott,'⁸ which was conceived of as pressure brought to bear, not 'upon the employer who alone is a party (to a dispute), but upon some third party who has no concern in it'⁹ with the objective of forcing the third party to bring pressure on the employer to agree to the union's demands.¹⁰

Section 8(b)(4)(B) is, however, the product of legislative compromise and also reflects a concern with protecting labor organizations' right to exert legitimate pressure aimed at the employer with whom there is a primary dispute. ¹¹ This primary activity is protected even though it may seriously affect neutral third parties. United Steelworkers of America, AFL—CIO (Carrier Corp.) v. NLRB, 376 U.S. 492, 502, 84 S.Ct. 899, 905, 11 L.Ed.2d 863 (1964); Union of Local 761, International Electrical, Radio and Machine Workers, AFL—CIO (General Electric) v. NLRB, 366 U.S. 667, 673, 81 S.Ct. 1285, 1289, 6 L.Ed.2d 592 (1961).

Thus there are two threads to § 8(b)(4)(B) that require disputed conduct to be classified as either 'primary' or 'secondary.' And the tapestry that has been woven in classifying such conduct is among the labor law's most intricate. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969). But here the normally difficult task of classifying union conduct is easy. As the Court of Appeals said, the 'record amply justifies the conclusion that (Burns and the neutral subcontractors) were subjected to coercion in the form of threats or walkouts, or both.' 410 F.2d, at 9. And, as the Board said, it is clear that this coercion was designed 'to achieve the assignment of (the) disputed work' to operating engineers. 162 N.L.R.B. 1617, 1621.

Local 825's coercive activity was aimed directly at Burns and the subcontractors that were not involved in the dispute. The union engaged in a strike against these neutral employers for the specific, overt purpose of forcing them to put pressure on White to assign the job of operating the welding machine to operating engineers. Local 825 was not attempting to apply the full force of primary action by directing its efforts at all phases of Burns' normal operation as was the case in United Steelworkers of America, AFL—CIO (Carrier) v. NLRB, 376 U.S. 492, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964), and Local 761, International Union of Electrical, Radio and Machine Workers, AFL—CIO (General Electric) v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961). It was instead using a sort of pressure that was unmistakably and flagrantly secondary. NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951).

The more difficult task is to...