NLRB v. INTERNATIONAL BRO. OF ELEC. WKRS., & LOC. U. NO. 769

• Citation: 405 F.2d 159
• Decision Date: 11 December 1968
• Docket Number: No. 21407.,21407.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, and its LOCAL UNION NO. 769, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

405 F.2d 159 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, and its LOCAL UNION NO. 769, Respondents.

No. 21407.

United States Court of Appeals Ninth Circuit.

December 11, 1968.

Gary Green (argued), Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Charles W. Henderson, Director, N. L. R. B., Albuquerque, N. M., for petitioner.

Louis Sherman (argued), of Sherman & Dunn, Washington, D. C., Dushoff & Sacks, Phoenix, Ariz., Feldman & Waldman, Littler, Mendelson & Saltzman, San Francisco, Cal., for respondents.

Before HAMLIN, KOELSCH and BROWNING, Circuit Judges.

KOELSCH, Circuit Judge.

This proceeding, commenced by the N. L. R. B. to enforce an order against the IBEW and its affiliated Local 769, concerns several of the secondary boycott provisions of the National Labor Relations Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 158.

Briefly, the trial examiner's findings, approved by the Board, were substantially as follows:

For many years the IBEW and its affiliated locals have maintained collective bargaining relationships with Ets-Hokin, a general and electrical construction firm. During the period covered by this proceeding Ets-Hokin was party to labor agreements with a number of IBEW locals relating to work on construction jobs throughout the United States, including one with Local 769, whose territorial jurisdiction extended over the U. S. Bureau of Reclamation Glen Canyon Dam project in Northern Arizona. All of them contained the following clause (or one essentially the same):

"Local Union #____ is a part of the International Brotherhood of Electrical Workers and any violation or annulment of working rules or agreements of any other Local Union of the IBEW, or the subletting, assigning, or transfer of any work in connection with electrical work to any person, firm, or corporation not recognizing the IBEW as the collective bargaining representative on any electrical work in the jurisdiction of this or any such Local Union by the Employer, will be sufficient cause for cancellation of this agreement, after the facts have been determined by the International Office of the Union."

In October 1962 Ets-Hokin subcontracted to Rose Construction Co. part of the electrical installation work on the Glen Canyon project. Soon afterward Rose entered into a collective bargaining agreement with a non-IBEW union which recognized that union as the representative of its laborers and provided wage scales below the minimum fixed both in Ets-Hokin's bargaining agreement with Local 769 and its prime contract with the U. S. Bureau of Reclamation.

During the period from January through March 1963 Local 769 and the International (hereafter Respondents) repeatedly complained to Ets-Hokin concerning the subcontract, objecting particularly to the fact that Rose was dealing with a rival union and was paying sub-minimum wages. Pointing to the termination clause in their own bargaining agreements, Respondents threatened to terminate the Local 769 bargaining agent and assured Ets-Hokin that all other IBEW locals would do the same, unless Ets-Hokin immediately took Rose off the job. Ets-Hokin sought to effect some accommodation, but Respondents stubbornly refused, flatly rejecting all proposals and requests. When Respondents fixed a deadline Ets-Hokin capitulated and, after settling with Rose, undertook the work itself.

On these facts the Board concluded that Respondents violated sections 8(b) (4) (B), 8(e) and 8(b) (4) (A) of the National Labor Relations Act, 29 U.S.C. § 158. Ets-Hokin Corp., 154 N.L.R.B. 839 (1965).

1. The 8(b) (4) (B) Violation

In pertinent part section 8(b) (4) (B) makes it an unfair labor practice for a union "to threaten, coerce or restrain any person engaged in commerce * * * where * * * an object thereof is * * * forcing or requiring any person * * * to cease doing business with any other person * * *."

The trial examiner's finding that Respondents were seeking secondary boycott action is fully supported. Several witnesses gave testimony tending to show that Respondents demanded Ets-Hokin cease doing business with Rose; they also stated in substance that Respondents objected to a non-IBEW employer on the job; that Respondents flatly rejected all Ets-Hokin's requests to make some concession that would enable Rose to hire IBEW members; that Respondents repeatedly declared Rose was ineligible for an IBEW agreement and warned Ets-Hokin that its own agreements would be terminated if Rose stayed.¹

Likewise, we are satisfied that the evidence fully warrants the examiner's factual conclusion that Respondents' warning, in the circumstances of this dispute, constituted a threat prohibited by Sec. 8 (b) (4).

"The statute in its present form deals with secondary boycotts and its provisions are not restricted to the use of force or violence as a means of bringing pressure against the secondary employer, but includes economic sanctions also." N. L. R. B. v. Local 825, Int'l Union of Operating Engineers, 315 F.2d 695, 697 (3d Cir. 1963). Nor are the latter limited to strikes and picketing. As the Supreme Court has said in N. L. R. B. v. Fruit and Vegetable Packers and Warehousemen, Local 760, 377 U.S. 58, 68, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964), "the prohibition of § 8(b) (4) is keyed to the coercive nature of the conduct, whether it be picketing or otherwise." Thus, even granting that the record is totally lacking in evidence direct or circumstantial that Respondents themselves would have followed the termination by economic action against Ets-Hokin, it does contain proof which if viewed realistically tends to show that termination would have set in motion a chain reaction attributable to them which had that effect. In a brief filed with the Board, Respondents, in arguing that it would be improper to infer that a strike action would follow termination of the agreement, said:

"Because the so-called annulment clause contained in the IBEW\'s contract with Ets-Hokin was repeated in the union\'s agreements with other contractors, cancellation of the Ets-Hokin agreement would have immediately made that company an ineligible business associate in the eyes of these other contractors. Thus, whether or not the union continued to refer workmen to Ets-Hokin in a position where other contractors wishing to comply with their own IBEW agreements would not have made contracts with Ets-Hokin. Under such circumstances, there was no motivation for the union to take the strike action the General Counsel considers inevitable."

We are not impressed with Respondent's argument that cancellation could only "affect" Ets-Hokin as a subcontractor and, this being so, no adverse consequences could be inferred even if the threat was carried out because the record showed only that during the initial period Ets-Hokin was a prime contractor for "numerous large U. S. or State governmental enterprises and numerous large private enterprises throughout the United States." Prime contractors, whose freedom to engage subcontractors is curtailed, suffer economically in much the same manner as subcontractors who are prevented from securing work.

2. The 8(e) Violation

Section 8(e) makes it an unfair labor practice for a union and an employer to enter into a secondary boycott agreement and declares such an agreement unenforceable and void; it contains two provisos, one of which, often referred to as the "construction industry proviso," excepts from the general operation of the section a secondary agreement in that industry which relates to on-site construction.

The Board recognized that the IBEW agreement was one in the construction industry and that the secondary boycott agreement therein related to the matter of on-site construction. But it nevertheless concluded that the terms of the agreement exceeded the scope of the proviso and to that extent was not saved. We agree.

In the so-called Sand Door decision Local 1976, United Brotherhood of Carpenters v. N. L. R. B., 357 U.S. 93, 78 S. Ct. 1011, 2 L.Ed.2d 1186 (1958), the Supreme Court held that "hot cargo" agreements cannot be enforced by economic action prohibited by the then existing secondary boycott provision, section 8(b) (4) (A). But it pointed out that 8(b) (4) (A) did not prohibit all forms of union coercion calculated to compel a neutral employer to take secondary action against a primary employer. Rather it merely forbade a union to induce the neutral's employees to engage in a strike or refuse to handle the unfair employer's goods and left the union free to "approach an employer to persuade him to engage in a boycott. * * *" (357 U.S. at 99, 78 S.Ct. at 1016). Further, the Court noted that the law nowhere made secondary boycott agreements unlawful. In the Court's words: "the contractual provision * * * may * * * have legal radiations affecting the relations between the parties." (357 U.S. at 108, 78 S.Ct. at 1020).²

By means of the 1959 Landrum-Griffin Amendments Congress moved to close these "major loopholes in the present ban on secondary boycotts." (I Legis.Hist., Labor-Management Reporting and Disclosure Act of 1959 at 475 hereinafter cited as Legis.Hist.). It broadened the prohibition of 8(b) (4), making it an unfair labor practice for a union to approach a secondary employer with threats of labor trouble or other economic retaliation as well as to induce his employees to strike. Additionally, Congress moved directly against secondary boycott agreements and enacted section 8(e), which generally prohibited them.

In our view these 1959 amendments clearly reflect a Congressional attitude that unions should have no power over neutral employers to compel secondary action. And even though the construction industry proviso provided a...