NLRB v. CARPENTERS DISTRICT COUNCIL OF KANSAS CITY & VIC.

• Decision Date: 19 September 1967
• Docket Number: 18582.,No. 18552,18552
• Citation: 383 F.2d 89
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARPENTERS DISTRICT COUNCIL OF KANSAS CITY AND VICINITY, AFL-CIO, Respondent. KAAZ WOODWORK COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Carpenters District Council of Kansas City and Vicinity AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — Eighth Circuit

383 F.2d 89 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARPENTERS DISTRICT COUNCIL OF KANSAS CITY AND VICINITY, AFL-CIO, Respondent.

KAAZ WOODWORK COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Carpenters District Council of Kansas City and Vicinity AFL-CIO, Intervenor.

Nos. 18552, 18582.

United States Court of Appeals Eighth Circuit.

September 19, 1967.

Charles M. Steele, Atty., N.L.R.B., Washington, D. C., for the Labor Board; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Gary Green, Atty., N.L.R.B., Washington, D. C., were with him on the brief for the Labor Board.

Charles K. Thompson, Kansas City, Mo., for Kaaz Woodwork Company, Inc.; Landon Rowland, and Watson, Ess, Marshall & Enggas, Kansas City, Mo., were with him on the brief for Kaaz Woodwork Company, Inc.

Charles A. Werner, St. Louis, Mo., for Carpenters' District Council of Kansas City and Vicinity, AFL-CIO; Gibson Langsdale, Kansas City, Mo., was with him on the brief.

Before MATTHES, BLACKMUN and MEHAFFY, Circuit Judges.

BLACKMUN, Circuit Judge.

We again are confronted with an issue of secondary picketing and an alleged violation of § 8(b)(4)(B) of the National Labor Relations Act, as amended by the Landrum-Griffin Act of 1959, 29 U.S.C. § 158(b)(4)(B).

The National Labor Relations Board seeks enforcement of its order, issued April 21, 1966, and reported at 158 N.L. R.B. No. 29, directed to Carpenters District Council of Kansas City and Vicinity, AFL-CIO. The respondent union seeks review and requests that enforcement be denied and that the Board order be set aside or at least modified. The employer, Kaaz Woodwork Company, Inc., seeks review and a broadening of the remedy devised by the Board against the union. Jurisdiction is established.

Except for expanding the cease and desist provisions of the order to specify three construction companies, rather than only one, and except for a corresponding broadening of the notice, the Board panel unanimously adopted the findings, conclusions and recommendations of the trial examiner. It thereby determined that the union had violated § 8(b) (4) (B) of the Act¹ by picketing and threatening to picket construction sites in order to force construction companies with which it had no dispute to cease doing business with Kaaz which the union had struck. The Board also held that the evidence did not substantiate an allegation that a letter written by the Council in January 1965 to contractors and other millwork users violated the Act.

The basic facts are not in dispute:

Kaaz manufactures millwork, including trim, doors and cabinets, at its plant in Leavenworth, Kansas. It effects delivery of its products f. o. b. jobsite by its own trucks and drivers and, to an extent, by commercial carriers.

Since April 1948 the Carpenters Council has been the certified representative of Kaaz production and maintenance workers at the Leavenworth plant. There are about 40 of these workers. Kaaz, in addition, has three truck drivers who are not part of the bargaining unit and who have never been represented by the Council. Successive collective bargaining agreements were negotiated by the union and Kaaz. The last of these expired April 30, 1963. Negotiations for a new contract were not successful. On September 17, 1963, the union called a strike and began picketing the Leavenworth plant. The strike and the picketing there were still in progress at the time of the hearing before the examiner in July 1965.

J. E. Dunn Construction Co., the charging party, filed its unfair labor practice charges on March 17, 1965. The General Counsel issued the complaint against the union on May 5. The six month period specified by § 10(b) of the Act, 29 U.S.C. § 160(b), thus extends back to September 1964 and any unfair labor practice occurring prior thereto could not be a basis for the issuance of the complaint.

The picketing incident is one which took place March 16, 1965, at Dunn's construction project for an addition to St. Luke's Hospital in Kansas City, Missouri. The addition lies between J. C. Nichols Highway and Wornall Road. These streets are roughly parallel to each other and are connected north of the hospital by 43rd Street. The 8-story addition, essentially complete in March 1965, is set back about 110 feet from Nichols. On the date in question a load of Kaaz cabinets arrived at the project on a trailer of Graham Ship-By-Truck Co. There were no Kaaz employees on the jobsite. The driver parked on Nichols opposite the addition and checked in with the superintendent for unloading instructions. He then returned and moved the truck north on the Highway and on to 43rd Street.

The union's business agent, Willard Edwards, and Frank Miller, a union employee, were parked on Nichols at the time the truck arrived. When the truck moved north Edwards sent Miller to the Wornall side to picket the truck if it entered the hospital property there. The truck did not go to the Wornall side, however, but turned around and came back on the Nichols side. Edwards walked up, inspected the delivery ticket, and learned that the cargo was from Kaaz. Dunn's superintendent directed that the cabinets be unloaded. Edwards then began walking back and forth on the sidewalk of Nichols the entire length of the new addition. He carried a picket sign which stated that it was a notice to only the public that Kaaz was on strike and that the Council did not seek to induce a strike by any other employees. Edwards' picketing was 90 feet from the trailer at the closest point and 175 feet at the most distant. Meanwhile, Miller carried a similar but not identical sign up and down the sidewalk on Wornall Road on the other side of the 8-story addition where the truck was not parked. There were neutral jobsite employees working on the Wornall side of the building. No one working near the truck could see Miller's sign.

Shortly after the two men started picketing, Dunn employees, including laborers who were unloading the truck, stopped work. A superintendent then conferred with Edwards who agreed to stop the picketing if the truck left. It did and the picketing ceased. The employees returned to work. The stoppage lasted about 45 minutes. From then until late May Miller watched the hospital site daily and investigated the contents of trucks which entered the premises.

The threats concern other construction sites:

Wade Johnson was the superintendent for Callageri-Kahn Construction Co. which had a project at Oak Park High School in Kansas City, Missouri. Johnson, who was also a union member, was called before the Council's executive board in December 1964 to discuss a possible violation of the union's bylaws when Johnson had ordered workers to unload Kaaz goods. He was questioned about what he intended to do in regard to installation of Kaaz products. He was warned by the board that "they would plan on possibly picketing the job to prevent unloading". On March 15, 1965, a load of Kaaz millwork was delivered to the same high school project. Edwards picketed and the work stopped. The superintendent told the Kaaz driver to pull the load away because he did not want the job shut down. A further attempt to deliver on April 2, 1965, resulted in a similar stoppage. The superintendent complained to Edwards, "You are hurting me". Edwards then told the superintendent, "We are accomplishing what we are after". The Kaaz loads were eventually delivered at night when no picketing took place.

In the middle of June 1965 the union's business agent Epp asked an Eldridge Construction Company superintendent to disclose who was furnishing millwork for that company's project at the Bishop O'Hara High School in Kansas City, Missouri. When informed that Kaaz was the supplier, Epp told the superintendent that "if they saw Kaaz's truck out there, they would have a banner on it".

The change which the Board made in the trial examiner's recommended order and notice was the addition of the Callageri-Kahn and Eldridge names to that of Dunn.

The Board concluded that the Council's picketing at the hospital project constituted an inducement of neutral employees to cease work, and a restraint and coercion of Dunn with the object of forcing Dunn to cease doing business with Kaaz. It found that the union's threats to picket at the Callageri-Kahn and the Eldridge sites were for the same purpose. The Board's order requires the Council to cease and desist from engaging in such conduct with respect to the three named construction companies or any other person where the object is the same, and to post appropriate notices.

The Board urges here that it properly found that the Council violated § 8(b)(4) (B) and that the union's conduct amply warranted the Board's inferences that the picketing and threats were in furtherance of an illegal object. The union urges that it was engaged in lawful and peaceful primary picketing at a common situs, that the weight of the probative evidence supports this position, and that the record does not support the Board's broad order against the union. Kaaz argues that the Board's order is insufficient to remedy the Council's unfair labor practices and that it should be amended to require the Council to notify customers of Kaaz that they are free to deal with Kaaz without fear of picketing or other reprisals from the Council.

1. This court had occasion recently again to review the principles which have been developed in connection with § 8(b) (4) and primary and secondary picketing. National Maritime Union of America v. NLRB, 367 F.2d 171, 175-176 (8 Cir. 1966), cert. denied 386 U.S. 959, 87 S.Ct. 1030, 18 L.Ed.2d 108. We noted there, among other things, that Congress consistently has refused to prohibit peaceful picketing except where it is used as a means to achieve specific ends which experience has shown are undesireable; that Congress by the statute did not...