NLRB v. UNITED BROTHERHOOD OF CARPENTERS, ETC.

• Decision Date: 22 March 1960
• Docket Number: No. 12800.,12800.
• Citation: 276 F.2d 694
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, and its agent, J. Earl Welch; Local 347, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local 269, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and Local 505, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

276 F.2d 694 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, and its agent, J. Earl Welch; Local 347, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local 269, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and Local 505, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Respondents.

No. 12800.

United States Court of Appeals Seventh Circuit.

March 22, 1960.

Stuart Rothman, General Counsel, Thomas J. McDermott, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Frederick U. Reel, George Schatzki, Melvin Pollack, Attorneys, National Labor Relations Board, Washington, D. C., for petitioner.

Harold G. Talley, Alton, Ill., Francis X. Ward, William A. McGowan, Indianapolis, Ind., for respondents.

Before DUFFY and SCHNACKENBERG, Circuit Judges, and STECKLER, District Judge.

SCHNACKENBERG, Circuit Judge.

The National Labor Relations Board asks us to enforce an order which it issued on June 26, 1959¹ against the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and its agent, J. Earl Welch; Local 347, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local 269, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and Local 505, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, pursuant to § 10(e) of the National Labor Relations Act, as amended. 29 U.S.C.A. § 160(e).

Midwest Homes, Inc., an Illinois corporation,² manufactures prefabricated homes, in the erection of which it uses some window units produced and supplied by the Andersen Corporation, whose employees are not represented by any labor organization. Midwest's carpenter employees are members of respondent Local 347. When erecting homes outside the jurisdiction of Local 347, its employees get work permits from the local union having jurisdiction. These permits and their use are provided for by the bylaws of the local unions and are protected by the constitution and bylaws of the several respondents. From 1952 until June 4, 1958, Midwest had displayed respondents' union label on products manufactured in its plant.

Midwest was authorized to and did use the labor of members of respondents on products not manufactured in its plant until June 4, 1958, when J. Earl Welch, respondent, who was a general representative of the Brotherhood, and business agent Jesse P. Kingery, of Local 347, informed Midwest's president that the label was to be taken away because of the use of Andersen windows. This was done when the president stated that he had no intention of ceasing to do business with Andersen. Shortly thereafter, Kingery said to the company president, "Why don't you go along with Mr. Welch and get rid of those windows and let's all get along peacefully?"

On several occasions during the month of July, 1958, attempts were made by employees of Midwest to erect houses in Illinois, but business agents of respondents refused to authorize the issuance of permits and caused union members to refuse to work for Midwest. A charge was filed on July 18, 1958, with the Board. An amended charge was filed on July 30, 1958, reading:

On or about July 17 and 18, 1958, and at various other times, the said Labor Organization and their agent Welch induced and encouraged employees of Midwest Homes, Inc., Mattoon, Ill., to refuse to work or handle goods or to perform services with objects of forcing and requiring the said Employer to cease doing business with Anderson sic Corporation, Bayport, Minn., and to cease using or otherwise dealing in the products of the said Anderson sic Corporation.

At the same time a complaint was filed, naming Midwest as the charging party and the respondents therein as shown in the caption of this opinion. No other parties were named in the complaint.

Following a hearing before a trial examiner, who filed an Intermediate Report, the Board entered the order which it now asks us to enforce. The order directs that respondents —

Cease and desist from engaging in a strike, or refusing to issue work permits or introductory slips to employees, or applying the constitution of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or the bylaws of the Respondent Locals, or engaging in other conduct to induce and encourage the employees of Midwest Homes, Inc., or of any other employer to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, transport or otherwise handle or work on any goods, articles, materials or commodities or to perform any services for their employer, where an object thereof is to force or require Midwest Homes, Inc., or any other employer, to cease using or dealing in the products of, or to cease doing business with Andersen Corporation, or any other producer, processor or manufacturer whose products do not bear the Union label issued by United Brotherhood of Carpenters and Joiners of America, AFL-CIO. (Emphasis supplied.)

The italicized language was inserted by the Board and was not suggested by the trial examiner, who rejected the proposal when it was made by general counsel for the Board in the form of an exception to the Intermediate Report.

Counsel for the respondents now concentrate their attack in the case before us on the italicized language.³

The facts establish that respondents induced Midwest's employees to engage in a concerted refusal to work and that respondents' object was to force Midwest to cease using Andersen products. This is the kind of activity which Congress proscribed by § 8(b) (4) (A) of the National Labor Relations Act, as amended,⁴ and the part of the cease and desist order not in italics, as above set forth, is limited accordingly. However, the Board, evidently as a basis for including the italicized language, found "* * * that Respondents' unlawful conduct herein was not directed exclusively against Andersen Corporation products but was rather against nonunion or unlabeled material regardless of origin." The Board also recited in its decision:

"The record also indicates that Respondents\' conduct was in furtherance of the International\'s general policy to discourage the use of unlabeled products regardless of source. Accordingly, we shall modify the Trial Examiner\'s Recommended Order so as to enjoin Respondents from engaging in the prohibited conduct where an object involves any employer not permitted to use the union label."

An examination of the proceedings before the Board demonstrates that, in the part of the order now under attack, it attempted to adjudicate upon a case which, first, was never presented to it for decision, and secondly, was an abstract case. See Times Film Corp. v. City of Chicago, 7 Cir., 272 F.2d 90.

The scope of the proceedings before the Board was delineated by the amended charge and the complaint, both of which were limited to acts and conduct of the respondents inducing and encouraging employees of Midwest and other employers to engage in strikes or concerted refusals to handle materials and perform services for Midwest, an object thereof being to force Midwest and other employers to cease handling Andersen products. That is the only object stated.

The purpose of the proceeding was thus definitely to protect the products of Andersen from the unfair labor practices charged in the complaint.

That was the case which was presented and tried before the hearing examiner and brought before the Board upon his Intermediate Report. At that late stage the Board acceded to the importunity of its general counsel and introduced the new matter in the italicized portion of the order. That language clearly has no reference to Andersen but deals with any other producer, processor or manufacturer, whose products do not bear respondents' label. These strangers to the proceeding are not involved in the issue upon which the case was tried and their rights were not adjudicated therein. N. L. R. B. v. Express Pub. Co., 312 U.S. 426, 435, 61 S.Ct. 693, 85 L.Ed. 930. International Brotherhood of Teamsters, etc. v. N. L. R. B., 104 U.S.App.D.C. 359, 262 F.2d 456, 462. The distinction between the case involving the use of Andersen products, on the one hand, and a case dealing with the products of other producers, as a class, on the other hand, may be recognized by reading International Brotherhood of Electrical Workers, Local 501, A. F. of L. v. N. L. R. B., 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299. The Electrical Workers Union objected to the breadth of the Board's order, and the court stated, 341 U.S. at page 705, 71 S.Ct. at page 960:

"* * * They contend that its language prohibits inducement not only of employees of Deltorto but also the inducement of employees of any other employer to strike, where an object thereof is to force Giorgi or any other employer or person to cease doing business with Langer. To confine the order solely to secondary pressure through Giorgi or Deltorto would leave Langer and other employers who do business with him exposed to the same type of pressure through other comparable channels. The order properly enjoins petitioners from exerting this pressure upon Langer, through other employers, as well as through Giorgi and Deltorto. We may well apply here the principle stated in International Salt Co. v. United States, 332 U.S. 392, 400 68 S.Ct. 12, 17, 92 L.Ed. 20: `When the purpose to restrain trade appears from a clear violation of law, it is not necessary that all of the untraveled roads to that end be left open and that only the worn one be closed.\'" (Emphasis supplied.)

In upholding the order in that case, the emphasis of the court was placed upon the fact that it enjoined the union petitioners from exerting pressure upon Langer (a nonunion electrical subcontractor), through other employers, as well as through Giorgi (the general contractor) and Deltorto (a carpenter subcontractor).

This court in N....