National Labor Relations Board v. LOCAL 74, ETC., 10943.

Citation181 F.2d 126
Decision Date04 April 1950
Docket NumberNo. 10943.,10943.
PartiesNATIONAL LABOR RELATIONS BOARD v. LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, A. F. of L. et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Albert M. Dreyer, Washington, D. C. (Robert N. Denham, David P. Findling, A. Norman Somers, and Dominick L. Manoli, Washington, D. C., on brief), for petitioner.

Charles H. Tuttle, New York City (Francis X. Ward, Indianapolis, Ind., and Daniel F. O'Connell, New York City, on brief), also on docket, Herbert G. B. King, Chattanooga, Tenn., for respondents.

Before HICKS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order directing Local 74, United Brotherhood of Carpenters and Joiners of Ameria, A. F. of L., and its business agent, Jack Henderson, to "cease and desist from engaging in or inducing the members of Local 74 to engage in a strike or a concerted refusal in the course of their employment to perform services for any employer, where an object thereof is to require any employer or other person to cease doing business with Ira A. Watson, doing business as Watson's Specialty Store."

The authority for issuance of the Board's order is rested upon the following provisions of section 8(b) (4) (A) of the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U.S.C.A. § 141 et seq.: "Sec. 8 * * * (b) It shall be an unfair labor practice for a labor organization or its agents — * * * (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; * * *." 158(b) (4) (A), Title 29 U.S.C.A.

The Labor Board adopted the finding of the trial examiner that the respondent labor union and its business agent violated this section of the United States Code by participating in and inducing a strike at the residence of George D. Stanley near Chattanooga, Tennessee, with an objective of forcing him to cease doing business with Ira A. Watson Company, operating under the trade name "Watson's Specialty Store", which was found to be engaged in interstate commerce within the meaning of the Act.

In acting upon the petition of the Labor Board, this court must adhere to the mandate of Congress that the findings of the Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. See section 10(e) of the Act, § 160(e), 29 U.S.C.A.

The Ira A. Watson Company operates some 26 or 27 retail stores in seven different states. In February, 1947, it discontinued its general retail store in Chattanooga, Tennessee, and in March of that year opened Watson's Specialty Store, specializing, as a part of its operations, in the sale and installation of floor and wall coverings. From March to September, 1947, the Watson store purchased goods valued at approximately $93,000, of which some thirty-three percent represented purchases shipped to it in Chattanooga from states other than Tennessee, around thirty percent was material purchased through local sources but manufactured outside the state and shipped to distributors in Tennessee, and approximately thirty-five percent represented stock received from the closed Chattanooga general store. Most of such stock originated outside Tennessee. Watson's sales and installation jobs during this period amounted to around $100,000, whereof an approximated eight percent represented sales and installations in states other than Tennessee.

When Watson's Specialty Store was first opened, respondent Henderson, business agent for Local 74, tried to persuade Watson's installation employees to join the union; but they refused. Thereafter, Henderson requested Smith, manager of the store, to execute a closed shop contract with Local 74 as the bargaining agent of the installation employees. This, the store manager refused to do for the reason that the employees were not union members. Whereupon, the union began to picket the store. Though the picketing was conducted by persons not in the employ of Watson's, the Labor Board held that it was not unlawful.

Early in August, 1947, while the picketing was in progress, Stanley, who had purchased an old residence some eight miles from Chattanooga, contracted with D. F. Parker to improve and renovate the house. The contract provided that Parker should furnish the material and sufficient workmen to complete the job not later than August 15, 1947. Stanley obligated himself to pay the wages of the workers and the cost of necessary material, and to pay Parker a commission of ten per cent of the cost of such items and other expenditures necessary for the completion of the job.

All workmen hired by Parker were union members, including carpenters who were members of Local 74. In the course of the renovation, it became necessary to select floor and wall coverings for the house and neither Parker nor Stanley was able to find the type of coverings satisfactory to Stanley at any establishment in Chattanooga except Watson's store, which insisted upon installing the coverings sold by it. Parker discussed with Stanley the complications that might arise with the union employees if Watson's non-union men should install the coverings, with the result that it was agreed that Watson's men should do their work when the union men were off duty. Stanley then entered into a contract by letter with Watson's store for the purchase and installation of the floor and wall coverings.

The installation work was started on Sunday, August 17, when there were no union workers present. However, on the ensuing Monday, Tuesday and Wednesday, Watson's employees continued the installation during regular working hours when the union men were also on the job. On Thursday morning, August 21, Watson's store, at Parker's request, took its men off the job. Despite this, Business Agent Henderson appeared at the Stanley place Thursday afternoon and told the four union carpenters then working that they could not continue to work with non-union men, or where non-union men were employed. The union carpenters left the job that afternoon and did not return. Stanley sought unsuccessfully to have Henderson countermand his instructions. The Board found that, "according to Stanley's credible testimony, Henderson suggested that Stanley cancel his contract with Watson as a means of getting the carpenters to return to work."

There was substantial evidence to support this finding, for Stanley testified that, in appealing to Henderson on the spot to let the union carpenters finish the job, he begged: "Just what will I have to do? I'm willing to do anything to get into this house. I haven't a place to live and I've paid for this house and my wife's health is in bad condition and we need to get in." To this importunity, he swore that the union's business agent replied: "Go — if you cancel your contract with Watson and get union men to to sic your job, we'll go back to work." And, on cross-examination, Stanley testified that when he asked Henderson what he could do to get the business agent of the union to let his men finish the job, Henderson replied: "If you cancel your contract with Watson's." When pressed, Stanley stood fast to his statement that these were the "exact words" Henderson used. He stated positively that cancellation of his contract with Watson was the final condition imposed by Henderson under which "he would allow his men to continue the job."

Two or three days later, the men from Watson's store returned to the job and completed their work about August 28. All the renovating of the Stanley house was completed by the end of the month. The unfinished carpentry was, at the urgent request of Parker, completed by two of the four union carpenters who had been on the job. They did this completion work without the knowledge or consent of the respondents.

The Labor Board held that Watson's, a large chain store operating in seven states, is, as was found by the trial examiner, engaged in commerce within the meaning of the Act. The following decisions of the Supreme Court were cited as authority: National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 604, 605, 59 S.Ct. 668, 83 L.Ed. 1014; Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; Polish National Alliance of U. S. v. National Labor Relations Board, 322 U.S. 643, 648, 64 S.Ct. 1196, 88 L.Ed. 1509.

We think the Labor Board correctly decided the point. Indeed, the opinion of this court in National Labor Relations Board v. J. L. Hudson Co., 6 Cir., 135 F.2d 380, certiorari denied 320 U.S. 740, 64 S.Ct. 40, 88 L.Ed. 439, though not cited by the Board either in its opinion or in its brief filed with us, justifies its ruling. The Court of Appeals for the Eighth Circuit has approvingly cited our opinion in two cases. J. L. Brandeis & Sons v. National Labor Relations Board, 142 F.2d 977, 979, 981; and National Labor Relations Board v. May Department Stores Co., 146 F.2d 66, 68, affirmed, with modification not pertinent here, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145.

In the J. L. Hudson Company case, we held that where more than eighty percent of the total value of merchandise purchased by a very large retail store was shipped in interstate commerce and one and sixtenths percent of its...

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