1. A decision of a district court in a preliminary proceeding
under § 10(1) of the National Labor Relations Act, as amended, that
the activities complained of did not affect interstate commerce and
were therefore not within the jurisdiction of the Board, was not
res judicata of that issue in a proceeding on the merits
under § 10(e) and (f). Pp.
341 U. S. 681-683.
2. A subcontractor engaged by a general contractor to do the
electrical work on a building being constructed purchased $86,560
of raw materials during the year, $55,745 of which were purchased
outside the state. It performed no services outside the state, but
shipped $5,000 of its products outside the state. It had expended
$315 for labor and $350 for materials on the project when its
services were terminated because of a strike. Both the National
Labor Relations Board and the Court of Appeals found that the
strike affected interstate commerce.
Held: this conclusion is sustained. Pp.
341 U. S.
683-685.
(a) The fact that the instant building, after its completion,
might be used only for local purposes does not alter the fact that
its construction, as distinguished from its later use, affected
interstate commerce. P.
341 U. S.
684.
(b) The maxim
de minimis non curat lex did not require
the Board to refuse to take jurisdiction of the instant case. P.
341 U. S.
685.
3. The National Labor Relations Board found that, by engaging in
a strike an object of which was to force the general contractor on
a construction project to terminate its contract with a
subcontractor employing nonunion labor on the project, respondent
labor organization committed an unfair labor practice within the
meaning of § 8(b)(4)(A) of the National Labor Relations Act, as
amended by the Labor Management Relations Act, 1947.
Held: this finding is sustained.
Labor Board v.
Rice Milling Co., ante p.
341 U. S. 665,
distinguished. Pp.
341 U. S.
685-692.
(a) It was an object of the strike to force the contractor to
terminate the contract of the electrical subcontractor. Pp.
341 U. S.
687-689.
Page 341 U. S. 676
(b) A strike with such an object is an unfair labor practice
within the meaning of § 8(b)(4)(A), even though that may not be the
sole object. Pp.
341 U. S.
689-690.
(c) Section 8(c) safeguarding freedom of speech has no
significant application to the picket's placard in this case, and
does not immunize respondent's action against the specific
provisions of § 8(b)(4)(A).
See Electrical Workers v. Labor
Board, post, p.
341 U. S. 694. Pp.
341 U. S.
690-691.
(d) The Board's findings on questions of fact in this field are
conclusive when supported by substantial evidence on the record as
a whole, and the Board's interpretation and application of the Act
in doubtful situations are entitled to weight. Pp.
341 U. S.
691-692.
(e) As applied in this case, the views of the Board conform with
the dual congressional objective 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. P.
341 U. S.
692.
87 U.S.App.D.C. 293, 186 F.2d 326, reversed.
The National Labor Relations Board found respondents guilty of
an unfair labor practice within the meaning of § 8(b)(4)(A) of the
National Labor Relations Act, as amended by the Labor Management
Relations Act, 1947, and ordered it to cease and desist. 82
N.L.R.B. 1195. The Court of Appeals denied enforcement. 87
U.S.App.D.C. 293, 186 F.2d 326. This Court granted certiorari. 340
U.S. 902.
Reversed, p.
341 U. S.
692.
Page 341 U. S. 677
MR. JUSTICE BURTON delivered the opinion of the Court.
The principal question here is whether a labor organization
committed an unfair labor practice, within the meaning of §
8(b)(4)(A) of the National Labor Relations Act, 49 Stat. 449, 29
U.S.C. § 151, as amended by the Labor Management Relations Act,
1947, [
Footnote 1] by engaging
in a strike an object of which was to force the general contractor
on a construction project to terminate its contract with a certain
subcontractor on that project. For the reasons hereafter stated, we
hold that such an unfair labor practice was committed.
In September, 1947, Doose & Lintner was the general
contractor for the construction of a commercial building in Denver,
Colorado. It awarded a subcontract for electrical work on the
building, in an estimated amount of $2,300, to Gould &
Preisner, a firm which, for 20 years, had employed nonunion workmen
on construction work in that city. The latter's employees proved to
be the only nonunion workmen on the project. Those of the general
contractor and of the other subcontractors were members of unions
affiliated with the respondent Denver Building and Construction
Trades Council (here called the Council).
Page 341 U. S. 678
In November, a representative of one of those unions told Gould
that he did not see how the job could progress with Gould's
nonunion men on it. Gould insisted that they would complete the
electrical work unless bodily put off. The representative replied
that the situation would be difficult for both Gould & Preisner
and Doose & Lintner.
January 8, 1948, the Council's Board of Business Agents
instructed the Council's representative "to place a picket on the
job stating that the job was unfair" to it. [
Footnote 2] In keeping with the Council's
practice, [
Footnote 3] each
affiliate was notified of that decision. That notice was a signal
in the nature of an order to the members of the affiliated unions
to leave the job and remain away until otherwise
Page 341 U. S. 679
ordered. Representatives of the Council and each of the
respondent unions visited the project and reminded the contractor
that Gould & Preisner employed nonunion workmen, and said that
union men could not work on the job with nonunion men. They further
advised that, if Gould & Preisner's men did work on the job,
the Council and its affiliates would put a picket on it to notify
their members that nonunion men were working on it and that the job
was unfair. All parties stood their ground.
January 9, the Council posted a picket at the project carrying a
placard stating "This Job Unfair to Denver Building and
Construction Trades Council." [
Footnote 4] He was paid by the Council, and his picketing
continued from January 9 through January 22. During that time, the
only persons who reported for work were the nonunion electricians
of Gould & Preisner. January 22, before Gould & Preisner
had completed its subcontract, the general contractor notified it
to get off the job so that Doose & Lintner could continue with
the project. January 23, the Council removed its picket, and,
shortly thereafter, the union employees resumed work on the
project. Gould & Preisner protested this treatment, but its
workmen were denied entrance to the job.
On charges filed by Gould & Preisner, the Regional Director
of the National Labor Relations Board issued the complaint in this
case against the Council and the
Page 341 U. S. 680
respondent unions. [
Footnote
5] It alleged that they had engaged in a strike or had caused
strike action to be taken on the project by employees of the
general contractor and of other subcontractors, an object of which
was to force the general contractor to cease doing business with
Gould & Preisner on that project.
Between the Board's receipt of the charges and the filing of the
complaint based upon them, the Regional Director of the Board
petitioned the United States District Court for the District of
Colorado for injunctive relief. [
Footnote 6] That petition was dismissed on the
jurisdictional ground that the activities complained of did not
affect interstate commerce.
Sperry v. Denver Building &
Const. Trades Council, 77 F. Supp.
321. Such action will be discussed later under the heading of
res judicata. Hearings were held by the Board's trial
examiner on the merits of the complaint. The Board adopted its
examiner's findings, conclusions, and recommendations, with minor
additions and modifications not here material. It attached the
examiner's intermediate report to its decision and ordered
respondents to cease and desist from engaging in the activities
charged. 82 N.L.R.B. 1195. Respondents petitioned the United States
Court of Appeals for the District of Columbia Circuit for a review
under § 10(f). [
Footnote 7] The
Board answered, and asked for enforcement of its order. That court
held, with one judge dissenting, that
Page 341 U. S. 681
the conduct complained of affected interstate commerce
sufficiently to give the Board jurisdiction over it, but the court
unanimously set aside the order of the Board, and said:
"Convinced that the action in the circumstances of this case is
primary, and not secondary, we are obliged to refuse to enforce the
order based on § 8(b)(4)(A)."
87 U.S.App.D.C. 293, 304, 186 F.2d 326, 337. The Board claimed a
conflict between that conclusion and the reasoning of the Court of
Appeals for the Second Circuit in No. 108,
International
Brotherhood of Electrical Workers v. Labor Board, 181 F.2d 34,
and of that for the Sixth Circuit in No. 85,
Labor Board v.
Local 74, United Brotherhood of Carpenters, 181 F.2d 126. We
granted certiorari in each case, 340 U.S. 902-903, and all were
argued with No. 313,
Labor Board v. International Rice Milling
Co., ante, p.
341 U. S. 665.
[
Footnote 8] In another
companion case, No. 387,
United Brotherhood of Carpenters v.
Labor Board, decided by the Court of Appeals for the Tenth
Circuit, 184 F.2d 60, certiorari has been denied this day, 341 U.S.
947.
I.
Res Judicata. -- Respondents not only attack the
jurisdiction of the Board on the ground that the actions complained
of did not affect interstate commerce, but they contend that the
decision rendered on that point by the District Court for the
District of Colorado in
Sperry v. Denver Building & Const.
Trades Council, supra, has made the issue
res
judicata. [
Footnote 9] We
do not agree. The District Court did not have before it the record
on the
Page 341 U. S. 682
merits. It proceeded under § 10(
l), [
Footnote 10] which is designed to assist a
preliminary investigation of the charges before the filing of a
complaint. If the officer or regional attorney to whom the matter
is referred has reasonable cause to believe that a charge is true
and that a complaint should issue, the statute says that he shall
petition an appropriate District Court for injunctive relief,
pending the final adjudication of the Board. Such proceeding is
independent of that on the merits under § 10(a)-(d). There is a
separate provision for securing injunctive relief after the filing
of the complaint. § 10(j). Court review is authorized in § 10(e)
and (f). As held by the Board, 82 N.L.R.B. at 1203-1204, and the
court below, 87 U.S.App.D.C. 297, 299, 186 F.2d at 330, 332, the
very scheme of the statute accordingly contemplates that a decision
on jurisdiction made in the independent preliminary proceeding for
interlocutory relief,
Page 341 U. S. 683
under § 10(
l), shall not foreclose a proceeding on the
merits such as is now before us. [
Footnote 11]
II.
Effect on Interstate Commerce. -- The activities
complained of must affect interstate commerce in order to bring
them within the jurisdiction of the Board. [
Footnote 12] The Board here found that their
effect was sufficient to sustain its jurisdiction, and the Court of
Appeals was satisfied. We see no justification for reversing that
conclusion.
The Board found that, in 1947, Gould & Preisner purchased
$86,560.30 of raw materials, of which $55,745.25, or about 65%,
were purchased outside of Colorado. Also, most of the merchandise
it purchased in Colorado had been produced outside of that State.
While Gould & Preisner performed no services outside of
Colorado, it shipped $5,000 of its products outside of that State.
Up to the time when its services were discontinued on the instant
project, it had expended on it about $315 for labor and about $350
for materials. On a 65% basis, $225 of those materials would be
from out of the State. The Board adopted its examiner's finding
that any widespread
Page 341 U. S. 684
application of the practices here charged might well result in
substantially decreasing the influx of materials into Colorado from
outside the State, and it recognized that Gould & Preisner's
annual purchase of over $55,000 of such materials was not
negligible.
The Board also adopted the finding that the activities
complained of had a close, intimate, and substantial relation to
trade, traffic, and commerce among the states, and that they tended
to lead, and had led, to labor disputes burdening and obstructing
commerce and the free flow of commerce. The fact that the instant
building, after its completion, might be used only for local
purposes does not alter the fact that its construction, as
distinguished from its later use, affected interstate commerce.
Even when the effect of activities on interstate commerce is
sufficient to enable the Board to take jurisdiction of a complaint,
the Board sometimes properly declines to do so, stating that the
policies of the Act would not be effectuated by its assertion of
jurisdiction in that case. Here, however, the Board not only upheld
the filing of the complaint, but it sustained the charges made in
it.
The same jurisdictional language as that now in effect appeared
in the National Labor Relations Act of 1935, [
Footnote 13] and this Court said of it in that
connection:
"Examining the Act in the light of its purpose and of the
circumstances in which it must be applied, we can perceive no basis
for inferring any intention of Congress to make the operation of
the Act depend on any particular volume of commerce affected more
than that to which courts would apply the maxim
de
minimis."
Labor Board v. Fainblatt, 306 U.
S. 601,
306 U. S. 607;
see also Labor Board v. Jones & Laughlin Steel Corp.,
301 U. S. 1.
Page 341 U. S. 685
The maxim
de minimis non curat lex does not require the
Board to refuse to take jurisdiction of the instant case. [
Footnote 14]
III.
The Secondary Boycott. -- We now reach the merits.
They require a study of the objectives of the strike and a
determination whether the strike came within the definition of an
unfair labor practice stated in § 8(b)(4)(A).
The language of that section which is here essential is as
follows:
"(b) It shall be an unfair labor practice for a labor
organization . . ."
"
* * * *"
"(4) to engage in . . . a strike . . . where an object thereof
is: (A) forcing or requiring . . . any employer or other person . .
. to cease
Page 341 U. S. 686
doing business with any other person. . . ."
61 Stat. 141, 29 U.S.C. (Supp. III) § 158(b)(4)(A).
While § 8(b)(4) does not expressly mention "primary" or
"secondary" disputes, strikes or boycotts, that section often is
referred to in the Act's legislative history as one of the Act's
"secondary boycott sections." The other is § 303, 61 Stat. 158, 29
U.S.C.(Supp.III) § 187, which uses the same language in defining
the basis for private actions for damages caused by these
proscribed activities.
Senator Taft, who was the sponsor of the bill in the Senate and
was the Chairman of the Senate Committee on Labor and Public
Welfare in charge of the bill, said, in discussing this
section:
". . . under the provisions of the Norris-LaGuardia Act, it
became impossible to stop a secondary boycott or any other kind of
a strike, no matter how unlawful it may have been at common law.
All this provision of the bill does is to reverse the effect of the
law as to secondary boycotts. It has been set forth that there are
good secondary boycotts and bad secondary boycotts. Our committee
heard evidence for weeks, and never succeeded in having anyone tell
us any difference between different kinds of secondary boycotts. So
we have so broadened the provision dealing with secondary boycotts
as to make them an unfair labor practice."
93 Cong.Rec. 4198.
The Conference Report to the House of Representatives said:
"Under clause (A) [of § 8(b)(4)], strikes or boycotts, or
attempts to induce or encourage such action, were made unfair labor
practices if the purpose was to force an employer or other person
to cease using,
Page 341 U. S. 687
selling, handling, transporting, or otherwise dealing in the
products of another, or to cease doing business with any other
person. Thus, it was made an unfair labor practice for a union to
engage in a strike against employer A for the purpose of forcing
that employer to cease doing business with employer B. Similarly,
it would not be lawful for a union to boycott employer A because
employer A uses or otherwise deals in the goods of, or does
business with, employer B."
H.R.Rep. No. 510, 80th Cong., 1st Sess. 43. [
Footnote 15]
At the same time that §§ 7 and 13 [
Footnote 16] safeguard collective bargaining, concerted
activities, and strikes between the primary parties to a labor
dispute, § 8(b)(4) restricts a labor organization and its agents in
the use of economic pressure where an object of it is to force an
employer or other person to boycott someone else.
A. We must first determine whether the strike in this case had a
proscribed object. The conduct which the Board here condemned is
readily distinguishable from that which it declined to condemn in
the
Rice Milling case,
ante, p.
341 U. S. 665.
There, the accused union sought merely to obtain its own
recognition by the operator of a mill, and the union's pickets near
the mill sought to influence two employees of a customer of the
mill not to cross the picket line. In that case, we supported the
Board in its conclusion that such conduct was no more than was
traditional and permissible in a primary strike. The union did not
engage in a strike against the customer. It did not encourage
concerted action by the customer's
Page 341 U. S. 688
employees to force the customer to boycott the mill. It did not
commit any unfair labor practice proscribed by § 8(b)(4).
In the background of the instant case, there was a longstanding
labor dispute between the Council and Gould & Preisner due to
the latter's practice of employing nonunion workmen on construction
jobs in Denver. The respondent labor organizations contend that
they engaged in a primary dispute with Doose & Lintner alone,
and that they sought simply to force Doose & Lintner to make
the project an all-union job. If there had been no contract between
Doose & Lintner and Gould & Preisner, there might be
substance in their contention that the dispute involved no boycott.
If, for example, Doose & Lintner had been doing all the
electrical work on this project through its own nonunion employees,
it could have replaced them with union men, and thus disposed of
the dispute. However, the existence of the Gould & Preisner
subcontract presented a materially different situation. The
nonunion employees were employees of Gould & Preisner. The only
way that respondents could attain their purpose was to force Gould
& Preisner itself off the job. This, in turn, could be done
only through Doose & Lintner's termination of Gould &
Preisner's subcontract. The result is that the Council's strike, in
order to attain its ultimate purpose, must have included among its
objects that of forcing Doose & Lintner to terminate that
subcontract. On that point, the Board adopted the following
finding:
"That
an object, if not the only object, of what
transpired with respect to . . . Doose & Lintner was to force
or require them to cease doing business with Gould & Preisner
seems scarcely open to question, in view of all of the facts. And
it is clear, at least
Page 341 U. S. 689
as to Doose & Lintner, that that purpose was achieved."
(Emphasis supplied.) 82 N.L.R.B. at 1212. [
Footnote 17]
We accept this crucial finding. It was an object of the strike
to force the contractor to terminate Gould & Preisner's
subcontract.
B. We hold also that a strike with such an object was an unfair
labor practice within the meaning of § 8(b)(4)(A).
It is not necessary to find that the sole object of the strike
was that of forcing the contractor to terminate the subcontractor's
contract. This is emphasized in the legislative history of the
section. [
Footnote 18]
See also Labor Board v. Wine, Liquor & Distillery Workers
Union, 178 F.2d 584, 586.
We agree with the Board also in its conclusion that the fact
that the contractor and subcontractor were engaged on the some
construction project, and that the contractor had some supervision
over the subcontractor's work, did not eliminate the status of each
as an independent contractor
Page 341 U. S. 690
or make the employees of one the employees of the other. The
business relationship between independent contractors is too well
established in the law to be overridden without clear language
doing so. The Board found that the relationship between Doose &
Lintner and Gould & Preisner was one of "doing business," and
we find no adequate reason for upsetting that conclusion. [
Footnote 19]
Finally, § 8(c), [
Footnote
20] safeguarding freedom of speech has no significant
application to the picket's placard in this case. Section 8(c) does
not apply to a mere signal by a labor organization to its members,
or to the members of its affiliates, to engage in an unfair labor
practice such as a strike proscribed by § 8(b)(4)(A). That the
placard was merely such a signal, tantamount to a direction to
strike, was found by the Board.
". . . the issues in this case turn upon acts by labor
organizations which are tantamount to directions and instructions
to their members to engage in strike action. The protection
afforded by Section 8(c) of the Act to the expression of 'any
views, argument or opinion' does not pertain where, as here, the
issues
Page 341 U. S. 691
raised under Section 8(b)(4)(A) turn on official directions or
instructions to a union's own members."
82 N.L.R.B. at 1213. [
Footnote 21]
The further conclusion that § 8(c) does not immunize action
against the specific provisions of § 8(b)(4)(A) has been announced
in other cases.
See No. 108,
International Brotherhood
of Electrical Workers v. Labor Board, post, p.
341 U. S. 694.
[
Footnote 22]
Not only are the findings of the Board conclusive with respect
to questions of fact in this field when supported by substantial
evidence on the record as a whole, [
Footnote 23] but
Page 341 U. S. 692
the Board's interpretation of the Act and the Board's
application of it in doubtful situations are entitled to weight. 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.
For these reasons, we conclude that the conduct of respondents
constituted an unfair labor practice within the meaning of §
8(b)(4)(A). The judgment of the Court of Appeals accordingly is
reversed, and the case is remanded to it for procedure not
inconsistent with this opinion.
It is so ordered.
MR. JUSTICE JACKSON would affirm the judgment of the Court of
Appeals.
[
Footnote 1]
"SEC. 8. . . ."
"
* * * *"
"(b) It shall be an unfair labor practice for a labor
organization or its agents --"
"
* * * *"
"(4) to engage in, or to induce or encourage the employees of
any employer to engage in, a strike or a concerted refusal in the
course of their employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or
commodities or to perform any services, where an object thereof is:
(A) forcing or requiring any employer or self-employed person to
join any labor or employer organization or any employer or other
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.
. . ."
61 Stat. 140-141, 29 U.S.C. (Supp. III) § 158(b)(4)(A).
[
Footnote 2]
Denver Building Trades Council, 82 N.L.R.B. 1195,
1210.
[
Footnote 3]
The Council's bylaws provided in part:
"
ARTICLE I-B"
"Section 1. It shall be the duty of this Council to stand for
absolute
closed shop conditions on all jobs in the City of
Denver and jurisdictional surroundings. . . . [Emphasis in
original.]"
"Section 2. The Board of Business Agents . . . shall have the
power to declare a job unfair and remove all men from the job. They
shall also have the power to place the men back on the job when
satisfactory arrangements have been made."
"Section 3. Any craft refusing to leave a job which has been
declared unfair or returning to the job before being ordered back
by the Council or its Board of Agents shall be tried, and if found
guilty, shall be fined the sum of $25.00."
"Section 4. Refusal of any organization to pay said fine shall
be followed by expulsion from this Council. An organization so
expelled shall pay said fine and one complete back quarter dues and
per capita before being reinstated."
"
ARTICLE XI-B"
"Section 1. Strikes must be called by the Council or the Board
of Agents in conformity with Article I-B, Sections 1-2. When
strikes are called, the Council shall have full jurisdiction over
the same, and any contractor who works on a struck job or employs
non-union men to work on a struck job shall be declared unfair, and
all union men shall be called off from his work or shop."
"Section 2. The representative of the Council shall have the
power to order all strikes when instructed to do so by the Council
or Board of Agents. . . . All employees on a struck job shall leave
the same when ordered to do so by the Council Agent, and remain
away from the same until such time as a settlement is made, or
otherwise ordered."
82 N.L.R.B. at 1214-1215.
[
Footnote 4]
82 N.L.R.B. at 1211.
[
Footnote 5]
Originally, the complaint was directed also against another
union, and included incidents at two other construction projects in
Denver on which Gould & Preisner had subcontracted to do
electrical work. The trial examiner recommended that the Board
issue a cease and desist order based upon one of those incidents,
but the Board dismissed the complaint as to all conduct except that
on the project before us.
[
Footnote 6]
Under § 10(1), 61 Stat. 149-150, 29 U.S.C. (Supp. III) §
160(1).
[
Footnote 7]
61 Stat. 148-149, 29 U.S.C. (Supp. III) § 160(f).
[
Footnote 8]
For a collection and review of the Board and lower court cases
dealing with these and related issues under § 8(b)(4),
see
Dennis, The Boycott under the Taft-Hartley Act, N.Y.U. Third Annual
Conference on Labor (1950), 367-460.
[
Footnote 9]
An appeal to the Court of Appeals in that proceeding was
dismissed by the Board with that court's consent.
[
Footnote 10]
"(l) Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4)(A), (B),
or (C) of section 8(b), the preliminary investigation of such
charge shall be made forthwith and given priority over all other
cases except cases of like character in the office where it is
filed or to which it is referred. If, after such investigation, the
officer or regional attorney to whom the matter may be referred has
reasonable cause to believe such charge is true and that a
complaint should issue, he shall, on behalf of the Board, petition
any district court of the United States (including the District
Court of the United States for the District of Columbia) within any
district where the unfair labor practice in question has occurred,
is alleged to have occurred, or wherein such person resides or
transacts business, for appropriate injunctive relief pending the
final adjudication of the Board with respect to such matter. Upon
the filing of any such petition, the district court shall have
jurisdiction to grant such injunctive relief or temporary
restraining order as it deems just and proper, notwithstanding any
other provision of law. . . ."
61 Stat. 149, 29 U.S.C. (Supp. III) § 160(
l).
[
Footnote 11]
See also Labor Board v. Local 74, United Brotherhood of
Carpenters, 181 F.2d 126,
aff'd, 341 U. S. 341 U.S.
707;
Denver Building Trades Council, 82 N.L.R.B. 93.
[
Footnote 12]
"SEC. 10(a) The Board is empowered . . . to prevent any person
from engaging in any unfair labor practice (listed in section 8)
affecting commerce. . . ."
61 Stat. 146, 29 U.S.C. (Supp. III) § 160(a).
"SEC. 2. When used in this Act --"
"
* * * *"
"(6) The term 'commerce' means trade, traffic, commerce,
transportation, or communication among the several States. . .
."
"(7) The term 'affecting commerce' means in commerce, or
burdening or obstructing commerce or the free flow of commerce, or
having led or tending to lead to a labor dispute burdening or
obstructing commerce or the free flow of commerce. . . ."
61 Stat. 137-138, 29 U.S.C. (Supp. III) § 152(6)(7).
[
Footnote 13]
49 Stat. 450, 29 U.S.C. § 152(6) and (7).
[
Footnote 14]
". . . Congress gave the Board authority to prevent practices
'tending to lead to a labor dispute burdening or obstructing
commerce or the free flow of commerce.' . . . Congress therefore
left it to the Board to ascertain whether proscribed practices
would in particular situations adversely affect commerce when
judged by the full reach of the constitutional power of Congress.
Whether or no practices may be deemed by Congress to affect
interstate commerce is not to be determined by confining judgment
to the quantitative effect of the activities immediately before the
Board. Appropriate for judgment is the fact that the immediate
situation is representative of many others throughout the country,
the total incidence of which, if left unchecked, may well become
far-reaching in its harm to commerce."
Polish National Alliance v. Labor Board, 322 U.
S. 643,
322 U. S. 648.
See also United Brotherhood of Carpenters v. Sperry, 170
F.2d 863, 867-868.
For the current practice,
see Mimeograph Release of
National Labor Relations Board, dated October 6, 1950, entitled
"N.L.R.B. Clarifies and Defines Areas In Which It Will and Will Not
Exercise Jurisdiction."
See also Hotel Assn. of St. Louis,
92 N.L.R.B. 1388, 27 L.R.R.M. 1243.
[
Footnote 15]
See also Hearings before the Senate Committee on Labor
and Public Welfare on S. 55 and S.J.Res. 22, 80th Cong., 1st Sess.
14, 568, 688, 983, 1614, 1814, 1838; S.Rep. No. 105, 80th Cong.,
1st Sess. (Pt. 1) 3, 22, 54, (Pt. 2) 19; 93 Cong.Rec. 4844, 4845,
4858.
[
Footnote 16]
61 Stat. 140, 151, 29 U.S.C. (Supp. III) §§ 157, 163.
[
Footnote 17]
The Board further stated:
"2. The Trial Examiner found that the Council and the other
three Respondents, by picketing Doose & Lintner's . . . project
as alleged in the complaint and thereby causing members of local
unions affiliated with the Council to quit work on that project,
with an object of forcing Doose & Lintner to cease doing
business with Gould & Preisner, engaged in strike action in
violation of Section 8(b)(4)(A). We find merit in the Respondents'
exceptions only with respect to Carpenters [not involved here], and
otherwise agree in substance with the Trial's Examiner's
finding."
82 N.L.R.B. at 1196.
[
Footnote 18]
Senator Taft, sponsor of the bill, stated in his supplementary
analysis of it as passed:
"Section 8(b)(4), relating to illegal strikes and boycotts, was
amended in conference by striking out the words 'for the purpose
of' and inserting the clause 'where an object thereof is.'"
93 Cong.Rec. 6859.
[
Footnote 19]
See note 17
supra, and
see also:
"What the issue really boils down to is this: does Section
8(b)(4)(A) apply to normal business dealings between a contractor
and subcontractor, both engaged in the same general business, where
boycott pressure is applied against the subcontractor in aid of a
dispute with the principal contractor? Clearly it does under the
wording of the statute."
Metal Polishers Union, 86 N.L.R.B. 1243, 1252.
And see Labor Board v. Wine, Liquor & Distillery Workers
Union, 178 F.2d 584.
[
Footnote 20]
"The expressing of any views, argument, or opinion, or the
dissemination thereof, whether, in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act if such expression
contains no threat of reprisal or force or promise of benefit."
61 Stat. 142, 29 U.S.C. (Supp. III) § 158(c).
[
Footnote 21]
"This strike action, of which the picketing was an integral and
inseparable part, had the planned and expected effect of denying
the services of all union workmen to Doose & Lintner while they
continued to utilize the services of Gould & Preisner. Yet, as
soon as the illegal objective of the Respondents' strike action had
been achieved, the picket, the signal to union workmen that a
strike was in progress, was removed. Thereupon, union workmen were
again available to Doose & Lintner. Thus, the joint enterprise
of the Respondents was accomplished within the framework and intent
of the Council's bylaws, but in violation of Section 8(b)(4)(A) of
the Act."
82 N.L.R.B. at 1216.
And see reference to this finding
by the same trial examiner in
International Brotherhood of
Electrical Workers, 82 N.L.R.B. 1028, 1046, n. 55.
[
Footnote 22]
"We therefore conclude that Section 8(b)(4)(A) prohibits
peaceful picketing, as well as other peaceful means of inducement
and encouragement, in furtherance of an objective proscribed
therein and that Section 8(c) does not immunize such conduct."
United Brotherhood of Carpenters, 81 N.L.R.B. 802, 815;
see also pp. 807-816;
enforcement order issued in
Labor Board v. United Brotherhood of Carpenters, 184 F.2d 60,
certiorari denied this day as No. 387,
post, p.
947.
See United Brotherhood of Carpenters v. Sperry, 170
F.2d 863, 868-869;
Printing Specialties Union, 82 N.L.R.B.
271, 290;
Bricklayers Union, 82 N.L.R.B. 228;
Local
1796, United Brotherhood of Carpenters, 82 N.L.R.B. 211.
[
Footnote 23]
Universal Camera Corp. v. Labor Board, 340 U.
S. 474;
Labor Board v. Pittsburgh Steamship
Co., 340 U. S. 498.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE REED joins,
dissenting.
The employment of union and nonunion men on the same job is a
basic protest in trade union history. That was the protest here.
The union was not out to destroy the contractor because of his
anti-union attitude. The union was not pursuing the contractor to
other jobs. All the union asked was that union men not be compelled
to work alongside nonunion men on the same job. As Judge Rifkind
stated in an analogous case, "the union was not extending its
activity to a front remote from the immediate dispute but to one
intimately and indeed inextricably united to it." [
Footnote 2/1]
The picketing would undoubtedly have been legal if there had
been no subcontractor involved -- if the general
Page 341 U. S. 693
contractor had put nonunion men on the job. The presence of a
subcontractor does not alter one whit the realities of the
situation; the protest of the union is precisely the same. In each,
the union was trying to protect the job on which union men were
employed. If that is forbidden, the Taft-Hartley Act makes the
right to strike, guaranteed by § 13, dependent on fortuitous
business arrangements that have no significance so far as the evils
of the secondary boycott are concerned. I would give scope to both
§ 8(b)(4) and § 13 by reading the restrictions of § 8(b)(4) to
reach the case where an industrial dispute spreads from the job to
another front. [
Footnote 2/2]
[
Footnote 2/1]
Douds v. Metropolitan Federation, 75 F. Supp.
672, 677.
[
Footnote 2/2]
See the opinion of Judge Fahy below, 87 U.S.App.D.C.
293, 186 F.2d 326, and the dissenting opinion of Judge Clark,
International Brotherhood of Electrical Workers v. Labor
Board, 181 F.2d 34, 40.