NLRB v. INTERNATIONAL HOD CARRIERS, ETC.

• Decision Date: 22 December 1960
• Docket Number: No. 16538.,16538.
• Citation: 285 F.2d 397
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL NO. 1140, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

285 F.2d 397 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL NO. 1140, AFL-CIO, Respondent.

No. 16538.

United States Court of Appeals Eighth Circuit.

December 22, 1960.

Allan I. Mendelsohn, Atty., N. L. R. B., Washington, D. C., for National Labor Relations Board. Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., and Richard J. Scupi, Attys., N. L. R. B., Washington, D. C., on the brief.

Mozart G. Ratner, Washington, D. C., for respondents. David D. Weinberg, Omaha, Neb., on the brief.

Before WOODROUGH, VAN OOSTERHOUT, and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

This is what is commonly referred to as a secondary boycott case. Gilmore Construction Company was the general contractor for the construction of a new building at South High School, Omaha, Nebraska. Simpson Company was a subcontractor for Gilmore at the project. Upon complaint of Gilmore, the Board filed charges against respondent, herein called "Union," charging that in furtherance of a labor dispute with Simpson, Union had engaged in unfair labor practices within the meaning of § 8(b) (4) (i) and (ii) (B) of the Labor Management Relations Act, 1947, as amended by the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 158 (b) (4) (i) (ii) (B), hereinafter referred to as "Act." The same activities of the Union also caused the Board to petition the United States District Court for the District of Nebraska for an injunction (which was granted) and upon stipulation, the parties hereto waived a hearing before a Trial Examiner, and submitted this case to the Board upon certain documents and the transcript of the proceeding in the injunction action, Hugh E. Sperry, Regional Director v. International Hod Carriers, etc., Local 1140. The case is now before us on petition of the Board for enforcement of its order against Union, the Board having found that Union had violated the aforementioned section of the Act.

There is no controversy as to the facts, which disclose that on November 20, 1959, Gilmore had eight subcontractors working on the school building, and among them was Simpson. On that day Simpson hired several non-union "day laborers" through the Nebraska Unemployment Bureau, for work on what was otherwise an all-union project. Union's business agent Otte appeared on the job at about 2:00 P.M. and instructed the non-union laborers to stop work. At the same time he told Joe Tripp, one of Gilmore's laborers, and a member of Union, to discontinue working and Tripp complied. When Simpson's foreman inquired of Otte, "What do we have to do to keep from having a picket put on the job?", he was told to "(m)eet wages and conditions." When the foreman indicated he was willing to pay the men wages based on Union's scale, Otte informed him further "(y)ou will have to pay them all for eight hours, and the company will have to sign a contract with the Union." On the same afternoon, November 20, Union picketed the job with a sign carrying the legend:

Simpson Co. Refuses to Pay Union Wages & Conditions Laborers Local 1140 This Dispute With Above Employer Only

On the following day, Saturday, November 21, Otte telephoned Mr. Van Scoy, secretary of Gilmore, and advised him the project would be picketed the following Monday unless the non-union laborers were paid union scale for their work the previous day, and Simpson signed a union contract. On the same day, when the owner of Simpson received similar advice from Otte, he agreed to comply with the wage demand but refused to sign a contract.

On Monday, November 23, picketing by Otte brought the project to a standstill as none of the employees of any employer would cross the picket line. On that day, Van Scoy advised Otte that there would be no more non-union laborers on the job, that Gilmore would furnish laborers for all unloading work which Simpson might require, and he requested Otte to discontinue picketing, but Otte refused. When Van Scoy asked Otte, "What do we have to do?" Otte replied, "You will have to get the AGC contractors to blacklist Simpson and not allow him on any of your jobs."¹ Van Scoy further testified that on this occasion Otte stated: "If Kiewit or any other contractor in Omaha had Simpson on his job and he had non-Union laborers we would picket the job just the same as yours."² It also appears without dispute that on the following Friday, November 27, George Gilmore discussed the situation with Leonard Schaeffer, assistant business agent of Union. Apparently Schaeffer was complaining because the injunction proceeding had been instituted, and when Gilmore indicated that such action was necessary to get the pickets off the job, Schaeffer stated: "Well, you can run Simpson Company off the job."

Pickets remained on the job site daily from November 20 to December 4, 1959, when they were removed pursuant to the temporary restraining order issued by the United States District Court for the District of Nebraska.

Upon these facts, the Board found 1 that Union had "induced and encouraged" secondary employees to cease work within the meaning of § 8(b) (4) (i) (B); 2 that there was "coercion and restraint" of a secondary employer within the meaning of § 8(b) (4) (ii) (B); 3 that Union's picketing had the unlawful "secondary boycott" objective of forcing Gilmore to cease doing business with Simpson; 4 that, inasmuch as Union was not certified as the bargaining representative of Simpson's employees, the picketing had the unlawful "recognition" objective proscribed by the Act.

Broadly stated, the question is whether the challenged activities of Union fall within the practices proscribed by § 8(b) (4) (i) and (ii) (B) of the Act. Insofar as pertinent here, that section provides:

"(b) It shall be an unfair labor practice for a labor organization or its agents — * * *

"(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce * * * to engage in, a strike or a refusal * * * to perform any services; or

"(ii) to threaten, coerce, or restrain any person engaged in commerce * * * where in either case an object thereof is —

* * * * * * "(B) forcing or requiring any person to * * * cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of § 9 * * * Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing."³

The narrow question is, — what was the real purpose of the challenged conduct? Union contends that the picketing was primary, aimed solely at Simpson, and that viewing the record as a whole, there is no substantial evidence to support the Board's findings. To implement this assertion, the argument is advanced that Union was engaged in a primary labor dispute with Simpson, which in essence involved Simpson's method of employing casual laborers. In the words of Union's brief: "The Union demanded that Simpson sign a contract binding itself, inter alia, to hire such laborers, when it needed them, through the Union hiring hall; Simpson refused. The Union picketed to induce Simpson to yield."

While it has long been recognized that picketing, otherwise lawful, will not run afoul of the statute simply because employees of neutral employers do honor the picket line, and that this is one of the lawful benefits which may be expected to accrue from such union activities, nevertheless, § 8(b) (4) (i) (ii) (B) specifically sets out the legal limits of such picketing, i. e. the union may not "induce, coerce, or restrain" neutral employees or employers with the unlawful object of effecting secondary boycotts.

The issue we have for determination is less complicated in instances in which the picketing is directed against the primary situs of the dispute, but becomes more difficult of resolution when a common situs is involved. Concededly, this is a "common situs" case, i. e., one where a neutral employer is engaged along with the primary employer, in different activities on the same premises. National Labor Relations Board v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284, presented such a situation. The Supreme Court sustained the Board in its finding that the strike had a proscribed object and came within the ambit of § 8(b) (4) (A), the predecessor to § 8(b) (4) (i) and (ii) (B), stating, 341 U.S. at page 692, 71 S.Ct. at page 953:

"In the views of the Board as applied to this case we find conformity with the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own."

To resolve the numerous problems which stem from common situs activities, and in order to protect the Union's right to carry on its lawful activities against the primary employer, as well as to adequately protect the neutral employers and employees, strangers to the dispute, certain evidentiary standards were evolved for distinguishing between primary and secondary picketing at a common situs. These may be stated as the "Moore Dry Dock tests," Sailors' Union of the Pacific, AFL and Moore Dry Dock Company, 92 N.L.R.B. 547. Under the situation presented in that case, the Board ruled that picketing the premises of a secondary employer is primary if it meets the following conditions:

"a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer\'s premises; b) at the time of the picketing the primary

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