NLRB v. BUILDING SERVICE EMPLOYEES INT. U. NO. 105

• Decision Date: 11 October 1966
• Docket Number: No. 8399.,8399.
• Citation: 367 F.2d 227
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL NO. 105, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

367 F.2d 227 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL NO. 105, Respondent.

No. 8399.

United States Court of Appeals Tenth Circuit.

October 11, 1966.

Elliott C. Lichtman, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Glen M. Bendixsen, Washington, D. C., Atty., on the brief), for petitioner.

Philip Hornbein, Jr., Denver, Colo. (Roy O. Goldin, Denver, Colo., with him on the brief), for respondent.

Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.

LEWIS, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order that the respondent Union, among other things, shall cease and desist from "threatening, coercing, or restraining Denver U. S. National Bank, or any other person engaged in commerce or in any industry affecting commerce, where an object thereof is to force or require Denver U. S. National Bank, or any other person, to cease doing business with Industrial Janitorial Service, Inc." The order followed determination by the Board that the Union had engaged in an unfair labor practice in violation of section 8(b) (4) (ii) (B) of the National Labor Relations Act,¹ by participation in peaceful secondary picketing of the Denver U. S. National Bank while engaged in a primary labor dispute with Industrial Janitorial Service, Inc. The Union resists enforcement and contends that its activities were not prohibited under the Act and that, additionally, the order of the Board is too broad. The evidentiary facts are not in dispute.

The Denver U. S. National Bank is engaged in the general banking business and occupies a four story building in downtown Denver. Beginning October 31, 1963 Janitorial Service began performance of a contract with the Bank to provide cleaning services at the Bank building. These services were performed by fifteen to seventeen employees of Janitorial Service working from 6:15 p. m. to 10:00 p. m. on Monday through Thursday and from 1:00 p. m. until 5:00 p. m. on Sundays. With few exceptions, the Bank's employees began work between 7:00 and 8:00 a. m. and quit between 4:00 and 6:00 p. m.

Beginning on February 26, 1964, and continuing until March 12, 1964, the Union distributed handbills at the Bank's premises between the hours of 10:00 a. m. and 3:00 p. m. The handbills were headlined as a "notice to the public" and protested that the janitorial work in "this bank building" was being performed by Janitorial Service who refused to pay its employees "a living wage." The handbills also stated that the respondent Union had no dispute with any person, firm or corporation other than Industrial Janitorial Service, Inc. On March 2, 1964, the pedestrian and motor entrances to the Bank were picketed by persons carrying signs with the legend:

Industrial Janitorial Service, Inc. refuses to pay its employees a living wage.

This picketing continued until March 12. At no time were the offices of Janitorial Service picketed nor did the respondent Union approach its management or employees.

Although the respondent Union emphatically states that the Board order is in complete disregard of the decision of the Supreme Court in NLRB v. Fruit and Vegetable Packers and Warehousemen, Local 760, 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (Tree Fruits), we find the contention to lack merit. In Tree Fruits, the Supreme Court concluded that the 1959 amendments to the National Labor Relations Act were intended by Congress to proscribe peaceful union activity only where experience had shown the activity to be one of those "isolated evils" not otherwise protected by the First Amendment. Broadly stated, the evil to which the 8(b) (4) amendments are directed is secondary union activity which does not encompass some direct action against the primary antagonist, whether that antagonist be an employer or a rival union. Local 761, International Union of Electrical, Radio and Mach. Workers v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592; National Maritime Union of America v. NLRB, 2 Cir., 342 F.2d 538; Seafarers International Union, etc. v. NLRB, 105 U.S.App.D.C. 211, 265 F. 2d 585. Thus, as in Tree Fruits, where peaceful picketing on the premises of a neutral employer can be identified, at least partially, as direct action against the primary party with whom the union has a dispute, it is not proscribed by section 8(b) (4) of the Act. In the case at bar, however, the union activity was directed in time and space so as to avoid the premises of Janitorial Service and to avoid the time when its employees were rendering services upon the premises of the Bank. In contrast with Tree Fruits, the picketing did not follow a product (or service) so as to continue as a primary...