NLRB v. Twin City Carpenters District Council

• Decision Date: 06 February 1970
• Docket Number: No. 19561.,19561.
• Citation: 422 F.2d 309
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TWIN CITY CARPENTERS DISTRICT COUNCIL, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

422 F.2d 309 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TWIN CITY CARPENTERS DISTRICT COUNCIL, Respondent.

No. 19561.

United States Court of Appeals, Eighth Circuit.

February 6, 1970.

Angelo V. Arcadipane, Atty., N.L.R.B., Washington, D. C., for petitioner, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Nancy M. Sherman, Atty., N.L.R.B., on the brief.

Willard L. Converse, of Peterson, Bell & Converse, St. Paul, Minn., for respondent, Erwin A. Peterson, on the brief.

Before VOGEL, BLACKMUN and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

In this case respondent Twin City Carpenters District Council (the Union), which bargains for and represents carpenters, cabinet makers and millworkers union locals in the Minneapolis-St. Paul (Twin Cities) area, directed the picketing of a general housing contractor, Pemtom, Inc. and its affiliated corporation, Pemble-Thompson, Inc., (Pemtom) with a sign declaring: "NOTICE TO PUBLIC — Cabinets being installed on this job were not made by members of the United Brotherhood of Carpenters and Joiners of America — TWIN CITY CARPENTERS DISTRICT COUNCIL". Pemton's continuing purchases of ready-to-hang, pre-assembled wooden cabinets for kitchens and bathrooms from Red Wing Wood Products, Inc. of Red Wing, Minnesota, (Red Wing) precipitated the picketing, which in turn generated unfair labor practice charges pressed by Red Wing and the non-carpenter unions which represent Red Wing's employees alleging the Union to be guilty of an unlawful secondary boycott in violation of § 8(b) (4) (ii) (B) of the National Labor Relations Act.

The Board sustained these charges in a decision reported at 167 N.L.R.B. No. 151 (1967). Pursuant to § 10(e) of the Act as amended (29 U.S.C. § 160(e)), the Board here seeks enforcement of its cease and desist order directed to the Union. We grant enforcement.

The genesis of this dispute lies in the objection by unions affiliated with the United Brotherhood of Carpenters and Joiners of America to competition from labor, unaffiliated with the brotherhoods, which produced wood products for the Twin City market.

Pemtom constructed approximately 1,200 dwellings at three housing projects known as Oakmount, Park Hills and River Hills in the suburban Twin Cities area between 1963 and 1966. It subcontracted all work on the homes except carpentry and its carpenters, affiliated with respondent, installed the pre-assembled cabinets in question. During the 1963-1965 period, the Union's representatives on several occasions urged Pemtom to purchase its wooden cabinet requirements from locally "recognized" manufacturers whose product carried the Brotherhood Union Label.¹ The Union claimed Red Wing failed to pay its "farmer" employees a normal living wage and consequently it possessed a competitive advantage over local manufacturers who paid union scale. In 1965, Union representatives suggested that if Pemtom continued purchasing cabinets from Red Wing it should make an effort to convince Red Wing to "organize under the right label".² Pemtom's management responded to the Union suggestions by discussing the subject of union organization with Red Wing's president. In late May of 1966,³ Red Wing's production and maintenance personnel terminated their relationship with the independent union which had been representing them and organized under the banner of Boot & Shoe Workers Local 527-C and Teamsters Local 160. About two months later, respondent Union commenced picketing Pemtom utilizing a single picket who appeared at the parking lot adjacent to Pemtom's sales offices at one or another of its three model-home construction sites each week Monday through Saturday⁴ between 8:00 a. m. and 4:30 p. m., the identical hours worked by Pemtom's carpenters and other laborers. No picket appeared during hours of primary sales activities, evenings and Sundays.

At an August meeting, Pemtom requested the Union to cease picketing the construction sites. The Union business representative responded: "* * * We do not recognize Boot & Shoe Workers building cabinets and selling them in Minneapolis and St. Paul". He advised that picketing would end when Pemtom stopped buying from Red Wing.⁵ The Trial Examiner categorized Red Wing as occupying a status of a primary employer and Pemtom as a neutral or secondary one. His crucial finding, approved by the Board, reads:

"Inasmuch as the picketing was not sufficiently identified with, or limited to, the operations of the primary employer to constitute primary activity, but was designed to inflict injury on the secondary employers\' business generally, for an object of forcing or requiring neutral employers to cease using the product of another producer, or manufacturer, in order to force or require the secondary employer to cease using the products of, or doing business with, the primary employer, I find that Respondent did threaten, restrain, and coerce Pemtom within the meaning of Section 8(b) (4) (ii) (B) of the Act."

Respondent Union opposes enforcement of the Board's order urging:

(1) That the Board lacked jurisdiction since no labor dispute existed between any of the parties to the controversy, and (2) That the Board erred in determining the merits of the controversy; the Union's banner truthfully informed Pemtom's customers that cabinets had not been constructed by carpenters affiliated with the Brotherhood and such message constitutes protected consumer picketing under doctrines enunciated in N.L.R.B. v. Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964), (Tree Fruits), and N.L.R.B. v. Upholsterers Frame & Bedding Workers Twin City Local 61, 331 F.2d 561 (8th Cir.1964) (Twin City Upholsterers).

The relevant statute reads:

"It shall be an unfair labor practice for a labor organization or its agents —

* * * * * *

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

* * * * * *

(B) forcing or requiring any 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, 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 section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing * * *." (29 U.S.C. § 158(b) (4) (ii) (B))

In rejecting the jurisdictional attack, the Examiner and the Board relied on National Maritime Union of America. AFL-CIO v. N.L.R.B., 342 F.2d 538 (2d Cir.), cert. denied, 382 U.S. 835, 86 S.Ct. 78, 15 L.Ed.2d 78 (1965), and National Maritime Union of America, AFL-CIO v. N.L.R.B., 120 U.S.App.D.C. 299, 346 F.2d 411, cert. denied, 382 U.S. 840, 86 S.Ct. 90, 15 L.Ed.2d 82 (1965). In these cases, the National Maritime Union of America, AFL-CIO (NMU), vexed by Marine Engineers Beneficial Association's (MEBA) picketing of a vessel manned by NMU personnel, retaliated by picketing MEBA-manned vessels in several United States ports including those in Philadelphia and New Orleans. Admittedly, NMU bore no grievance against the ships' owners. The court in each case rejected the claim that the Board lacked jurisdiction to determine NMU's alleged unfair labor practices. The Second Circuit noted:

"* * * By affirmative action of its own, NMU was seeking to fend off or retaliate for picketing of the S. S. Maximus by MEBA in their continuing warfare to gain or retain the upper hand in representing maritime employees. Several employers and their employees were directly affected. Both the purposes of the Act and the definition of `labor dispute\' are broad and encompass the factual circumstances here presented." 342 F.2d at 541.

The Union relies on N.L.R.B. v. International Longshoremen's Association, 332 F.2d 992 (4th Cir.1964), a case in which the Longshoremen's Union refused to load the "Tulse Hill", an ocean-going vessel, because it had operated in trade with Cuba during the Cuban missile crisis. Judge Sobeloff, writing for the majority, characterized the boycott activity as relating to a "general political question" outside of the purview of the Board's jurisdiction. The facts in Tulse Hill range far afield from the instant controversy. The complaint in this proceeding, in statutory language, charged that the Union "threatened", "coerced" and "restrained" Pemtom with the object of forcing Pemtom to cease doing business with Red Wing. These charges relate to no political dialogue but concern a controversy completely indigenous to union activity; one affecting its own members, members of other unions and employers of both. See, e. g., Allen-Bradley Co. v. Local 3, Int'l Bhd. of Electrical Workers, 325 U. S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945). Section 10(a) of the Act grants the Board jurisdiction to prevent any person from engaging in an unfair labor practice affecting commerce. 29 U.S.C. § 160(a). Though the Union and Red Wing have not engaged in a classic, direct confrontation over terms and conditions of employent or bargaining representation — activities included within the statutory definition of "labor dispute" as contained in § 2(9) of the Act, 29 U.S.C. § 152(9), the Union's objection to Red Wing's employees organizing as Teamsters and Boot & Shoe Workers falls within the general ambit of a labor controversy. The picketing in this case falls within the range of the Board's jurisdiction as established by statute. See National Maritime Union of America, AFL-CIO v. N.L.R.B. (both cases), supra; cf. Bedding, Curtain & Drapery Workers Union,...