A general contractor (Burns) subcontracted construction work to
three companies, all of which employed operating engineers who
belonged to respondent union. That union, disputing the assignment
by one of the subcontractors (White) of an operation involving an
electric welding machine to members of another labor organization,
advised Burns that all respondent's members on the jobsite would
strike unless Burns bound itself and the subcontractors to give
respondent jurisdiction over electric welding machines. The union
went on strike when the employers refused to accede to its demands.
After an arbitrator, to whom Burns had referred the matter, held
that there was no reason to change the disputed work assignment,
respondent union physically prevented operation of the welding
machine. Thereafter an unfair labor practices proceeding against
the union was brought. The National Labor Relations Board (NLRB)
found that, by inducing the subcontractors' employees to strike to
force White to assign the disputed work to the operating engineers,
the union had violated § 8(b)(4)(D) of the National Labor Relations
Act, which bars strikes for the object of
"forcing . . . any employer to assign particular work to
employee in a particular labor organization . . . rather than to
employees in another labor organization. . . ."
The NLRB also found that, by applying economic pressure on the
neutral employers the union had violated § 8(b)(4)(B), which bars a
union from exerting coercive pressure on a neutral or secondary
employer where "an object thereof" is forcing him,
inter
alia, "to cease doing business with any other person." On the
NLRB's petition for enforcement, the Court of Appeals sustained the
NLRB's § 8(b)(4)(D) finding but set aside its § 8(b)(4)(b) finding,
concluding that the union's objective was to force Burns "to use
its influence with the subcontractor to change
Page 400 U. S. 298
the subcontractor' conduct, not to terminate their
relationship."
Held:
1. In seeking to force Burn to bind all the subcontractors on
the project to a particular form of job assignment and implying by
its demand that Burns would have to force a change in White's
policy or terminate White's contract, respondent union engaged in
flagrant secondary conduct within the prohibition of § 8(b)(4)(b).
Pp.
400 U. S.
302-305
2. Section 8(b)(4)(D) is not an exclusive remedy for secondary
pressure aimed at involving a neutral employer in a jurisdictional
dispute over work assignments made by the primary employer. Pp.
400 U. S.
305-306.
410 F.2d 5, reversed and remanded.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BLACK, HARLAN, BRENNAN, WHITE, and BLACKMUN, JJ.,
joined. DOUGLAS, J., filed a dissenting opinion, in which STEWART,
J., joined,
post, p.
400 U. S.
306.
Page 400 U. S. 299
MR. JUSTICE MARSHALL delivered the opinion of the Court.
In this cause, we are asked to determine whether strikes by
Operating Engineers at the site of the construction of a nuclear
power generator plant at Oyster Creek, New Jersey, violated §
8(b)(4)(B) [
Footnote 1] of the
National Labor Relations Act. Although the National Labor Relations
Board found the strikes to be in violation of this section, the
Court of Appeals refused to enforce the Board's order. [
Footnote 2] We believe the Court of
Appeals construed the Act too narrowly. Accordingly, we reverse and
remand the case for consideration of the propriety of the Board's
order.
Page 400 U. S. 300
The general contractor for the project, Burns & Roe, Inc.,
subcontracted all of the construction work to three companies --
White Construction Co., Chicago Bridge & Iron Co., and Poirier
& McLane Corp. All three employed operating engineers who were
members of Local 825, International Union of Operating Engineers.
But White, unlike Chicago Bridge and Poirier, did not have a
collective bargaining agreement with Local 825.
In the latter part of September, 1965, White installed an
electric welding machine and assigned the job of pushing the
buttons that operated the machine to members of the Ironworkers
Union, who were to perform the actual welding. Upon learning of
this work assignment, Local 825's job steward and its lead engineer
threatened White with a strike if operating engineers were not
given the work. White, however, refused to meet the demand. On
September 29, 1965, the job steward and lead engineer met with the
construction manager for Burns, the general contractor. They
informed him that the members of Local 825 working at the jobsite
had voted to strike unless Burns signed a contract, which would be
binding [
Footnote 3] on all
three subcontractors as well as Burns, giving Local 825
jurisdiction over all power equipment, including electric welding
machines, operated on the jobsite. On October 1, after White and
Burns refused to
Page 400 U. S. 301
accede to the demands, the operating engineers employed by
Chicago Bridge and Poirier as well as those employed by White
walked off the job. They stayed out from 8 a.m. to 1 p.m.,
returning to work when negotiations over their demands started.
On October 6, Burns submitted the work assignment dispute to the
National Joint Board for the Settlement of Jurisdictional Disputes
for the Construction Industry. [
Footnote 4] The same day, Local 825 threatened Burns and
all the subcontractors with another work stoppage unless the
contracts were signed and the work transferred to the operating
engineers. The employers again refused, and the operating engineers
walked off the project. This strike lasted from October 7 to
October 11.
On October 20, the Joint Board notified the parties that there
was no reason to change the assignment of the disputed work. Local
825 did not accept this resolution, and when the welding machine
was started on November 4, the operating engineers surrounded the
machine and physically prevented its operation. On November 8, the
NLRB Regional Director obtained from the United States District
Court a temporary injunction under § 10(
l) [
Footnote 5] of the Act restraining the union
from coercing a cessation of business on the project or to compel
White to change the work assignment. [
Footnote 6]
Page 400 U. S. 302
An unfair labor practice proceeding against Local 825
subsequently ensued. The Board found that the union had violated §
8(b)(4)(D) [
Footnote 7] of the
Act by inducing employees of White, Chicago Bridge, and Poirier to
strike to force White to take the disputed work away from the
Ironworkers and assign it to the Operating Engineers. The Court of
Appeals' approval of this finding is not questioned here. But the
Board's finding that Local 825's encouragement of the Chicago
Bridge and Poirier employees to strike and the union's coercion of
Burns violated § 8(b)(4)(B) of the Act was not approved by the
Court of Appeals, and is in issue here.
I
Congressional concern over the involvement of third parties in
labor disputes not their own prompted § 8(b)(4)(B). This concern
was focused on the "secondary boycott," [
Footnote 8] which was conceived of as pressure brought
to
Page 400 U. S. 303
bear not "upon the employer who alone is a party [to a dispute],
but upon some third party who has no concern in it" [
Footnote 9] with the objective of forcing the
third party to bring pressure on the employer to agree to the
union's demands. [
Footnote
10]
Section 8(b)(4)(b) is, however, the product of legislative
compromise, and also reflects a concern with protecting labor
organizations' right to exert legitimate pressure aimed at the
employer with whom there is a primary dispute. [
Footnote 11] This primary activity is
protected even though it may seriously affect neutral third
parties.
Steelworkers (Carrier Corp.) v. NLRB,
376 U. S. 492,
376 U. S. 502
(1964);
Electrical Workers (General Electric) v. NLRB,
366 U. S. 667,6
366 U. S. 73
(1961).
Thus, there are two threads to § 8(b)(4)(b) that require
disputed conduct to be classified as either "primary" or
"secondary." And the tapestry that has been woven in classifying
such conduct is among the labor law's most intricate.
See
Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co.,
394 U. S. 369
(1969). But here the normally difficult task of classifying union
conduct is easy. As the Court of Appeals said, the
"record amply justifies the conclusion that [Burns and the
neutral subcontractors] were subjected to coercion in the
Page 400 U. S. 304
form of threats or walkouts, or both."
410 F.2d at 9. And, as the Board said, it is clear that this
coercion was designed "to achieve the assignment of [the] disputed
work" to operating engineers. 162 N.L.R.B. 1617, 1621.
Local 825's coercive activity was aimed directly at Burns and
the subcontractors that were not involved in the dispute. The union
engaged in a strike against these neutral employers for the
specific, overt purpose of forcing them to put pressure on White to
assign the job of operating the welding machine to operating
engineers. Local 825 was not attempting to apply the full force of
primary action by directing its efforts at all phases of Burns'
normal operation, as was the case in
Steelworkers (Carrier) v.
NLRB, 376 U. S. 492
(1964), and
Electrical Workers (General Electric) v. NLRB,
366 U. S. 667
(1961). It was, instead, using a sort of pressure that was
unmistakably and flagrantly secondary.
NLRB v. Denver Building
& Construction Trades Council, 341 U.
S. 675 (1951).
The more difficult task is to determine whether one of Local
825's objectives was to force Burns and the other neutrals to
"cease doing business" with White, as § 8(b)(4)(b) requires. The
Court of Appeals concluded that the union's objective was to force
Burns "to use its influence with the subcontractor to change the
subcontractor's conduct, not to terminate their relationship," and
that this was not enough. 410 F.2d at 10. That court read the
statute as requiring that the union demand nothing short of a
complete termination of the business relationship between the
neutral and the primary employer. Such a reading is too narrow.
Some disruption of business relationships is the necessary
consequence of the purest form of primary activity. These
foreseeable disruptions are, however, clearly protected.
Steelworkers (Carrier), 376 U.S. at
376 U. S. 496;
Electrical Workers (General Electric), 366 U.S. at
366 U. S.
682.
Page 400 U. S. 305
Likewise, secondary activity could have such a limited goal and
the foreseeable result of the conduct could be, while disruptive,
so slight that the "cease doing business" requirement is not
met.
Local 825's goal was not so limited, nor were the foreseeable
consequences of its secondary pressure slight. The operating
engineers sought to force Burns to bind all the subcontractors on
the project to a particular form of job assignments. The clear
implication of the demands was that Burns would be required either
to force a change in White's policy or to terminate White's
contract. The strikes shut down the whole project. If Burns was
unable to obtain White's consent, Local 825 was apparently willing
to continue disruptive conduct that would bring all the employers
to their knees.
Certainly, the union would have preferred to have the employers
capitulate to its demands; it wanted to take the job of operating
the welding machines away from the Ironworkers. It was willing,
however, to try to obtain this capitulation by forcing neutrals to
compel White to meet union demands. To hold that this flagrant
secondary conduct with these most serious disruptive effects was
not prohibited by § 8(b)(4)(b) would be largely to ignore the
original congressional concern.
NLRB v. Carpenters Dist.
Council, 407 F.2d 804, 806 (CA5 1969).
II
In addition to its argument that § 8(b)(4)(b) does not cover its
conduct, Local 825 argues that § 8(b)(4)(D) provides the exclusive
remedy. Clearly, § 8(b)(4)(D) is, as the Board and Court of Appeals
held, applicable. But that section is aimed at protecting "the
employer trapped between the . . . claims" of rival unions.
National Woodwork Mfrs. Assn. v. NLRB, 386 U.
S. 612,
386 U. S. 625
(1967). Although § 8(b)(4)(D) also
Page 400 U. S. 306
applies to neutrals, the basic purpose is different from that of
§ 8(b)(4)(B). The practices here were unfair under both sections,
and there is no indication that Congress intended either section to
have exclusive application.
III
Since the Court of Appeals did not believe that § 8(b)(4)(b) was
applicable, it did not consider the propriety of the portion of the
Board's order relating to that section. But the order was not
narrowly confined to the conduct involved here, so we must remand
these cases for the Court of Appeals to consider whether the order
is necessary to further the goals of the Act.
See
Communications Workers v. NLRB, 362 U.
S. 479 (1960);
NLRB v. Express Publishing Co.,
312 U. S. 426
(1941).
Reversed and remanded.
* Together with No. 42,
Burns & Roe, Inc., et al. v.
Local 826, International Union of Operating Engineers, AFL-CIO, et
al.
[
Footnote 1]
Sec. 8(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 or in an industry
affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or
commodities or to perform any services; or (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 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. . .
."
61 Stat. 141, as amended, 73 Stat. 542, 29 U.S.C. §
158(b)(4)(b).
[
Footnote 2]
410 F.2d 5.
[
Footnote 3]
The proposed contract provided in part:
"This Agreement shall bind all sub-contractors while working for
an Employer who is a party to this Agreement. Any Employer who
sublets any of his work must sublet the same subject to all the
terms and conditions of this Agreement."
"The Employer agrees that he will not subcontract any of his
work, which is covered by the terms of this Collective Bargaining
Agreement, to any subcontractor, unless said subcontractor agrees
in writing to perform said work subject to all terms and conditions
of this Agreement between the Employer and the Union, including an
agreement to submit work jurisdictional disputes for determination
as provided below."
[
Footnote 4]
A private organization that arbitrates jurisdictional disputes
in the construction industry.
[
Footnote 5]
29 U.S.C.§ 160(
l).
[
Footnote 6]
The Operating Engineer's activity did not stop with the issuance
of the injunction. White's engineers struck again on November 17,
this time ostensibly over a dispute concerning the number of
employees assigned to operate a recently installed electrical pump.
Local 825 representatives in a discussion with White said, however,
that this walkout "was more or less because of the electric welding
machine being in operation." The strike lasted until December 21.
Of course, the activity, like that on November 4, did not involve §
8(b)(4)(b) violations, since only the engineers working for White
were involved.
[
Footnote 7]
Sec. 8(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 or in an industry
affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, transport,
or otherwise, handle or work on any goods, articles, materials, or
commodities or to perform any services; or (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 -- "
"
* * * *"
"(D) forcing or requiring any employer to assign particular work
to employees in a particular labor organization or in a particular
trade, craft, or class rather than to employees in another labor
organization or in another trade, craft, or class, unless such
employer is failing to conform to an order or certification of the
Board determining the bargaining representative for employees
performing such work. . . ."
29 U.S.C. § 158(b)(4)(D).
[
Footnote 8]
See Brotherhood of Railroad Trainmen v. Jacksonville
Terminal Co., 394 U. S. 369,
394 U. S.
386-390 (1969);
National Woodwork Mfrs. Assn. v.
NLRB, 386 U. S. 612,
386 U. S. 624
(1967).
[
Footnote 9]
Electrical Workers, Local 501 v. NLRB, 181 F.2d 34, 37
(CA2 1950),
aff'd, 341 U. S. 694
(1951).
[
Footnote 10]
The House Conference Report explained this idea:
"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.Conf.Rep. No. 510, 80th Cong., 1st Sess., 43 (1947)
[
Footnote 11]
The section contains a specific proviso, which was added by the
1959 amendment to the Act, that protects a "primary strike or
primary picketing" that is "not otherwise unlawful."
See
n 1,
supra.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE STEWART concurs,
dissenting.
If we take the words of the Act, rather than what the courts
have interpolated, and lay them alongside the facts of this cause,
I do not see how we can fairly say that Local 825 engaged in an
"unfair labor practice" within the meaning of § 8(b)(4)(b). Local
825 did use coercion to get jobs from White for its workers. The
Board termed it "causing a disruption of the business relationship
among the various employers at the jobsite," which it held was
within the ban of § 8(b)(4)(b) since Local 825's aim, though not "a
total cancellation of a business relationship" with White,
constituted a "cease doing business" purpose. The Board said:
"an object of the Respondent was to force Burns to cease doing
business with White, and to force Chicago Bridge and Poirier to
cease doing business with Burns in order to compel
Page 400 U. S. 307
Burns to cease doing business with White."
162 N.L.R.B. 1617, 1621-1622.
Yet, as the Trial Examiner found:
"Respondent never indicated it wanted White off the job -- it
wanted to harass White to gain compliance with its requests. Nor
was any demand made upon Burns to cease doing business with White.
. . . All Respondent wanted was the work, not a substitution of
contractors nor a termination of contractual relationships between
the contractors."
Our question turns not on the findings of fact, but on the
question of law which emerges, whether what was done had as its
purpose to induce the general contractor and subcontractor to
"cease doing business" with White.
We held in
NLRB v. Denver Building & Construction Trades
Council, 341 U. S. 675,
341 U. S. 688,
that an effort "to force" a subcontractor in the position of White
"off the job" satisfied the "cease doing business" test though that
purpose was not the exclusive one. A strike to achieve that end, we
held in
Electrical Workers v. NLRB, 341 U.
S. 694,
341 U. S. 700,
also brought the coercive means within the same ban. And in
Steelworkers v. NLRB, 376 U. S. 492,
376 U. S. 496,
we held that a union on strike against an employer, Carrier, had
not violated the "cease doing business" ban, when it picketed at an
entrance used exclusively by railroad personnel "to induce the
railroad to cease providing freight service to Carrier for the
duration of the strike."
The case here is plainly different. The aim was not to freeze
out White or to close it down for an hour or for the duration. It
was merely to get the work, whose assignment it controlled, for
members of Local 825. The case is therefore the classic
jurisdictional conflict covered by § 8(b)(4)(D), which makes
"forcing or requiring any employer to assign particular work to
employees
Page 400 U. S. 308
in a particular labor organization" an unfair labor
practice.
The Board properly issued a cease and desist order concerning
the jurisdictional dispute condemned by § 8(b)(4)(D). The fact that
(D) may be involved does not necessarily mean that (B) may not also
be involved, as the two are not "mutually exclusive."
Local 6,
Plumbing Pipe Fitting Industry, 137 N.L.R.B. 828, 832.* But
where the facts show only the jurisdictional dispute condemned by §
8(b)(4)(D) and no plan to close down White either permanently or
for a day or even an hour, we should not only hold that §
8(b)(4)(b) is not satisfied; we should also hold that (D) cannot do
service for (b) where there is no element of "ceasing" to do
business present.
*
And see Local 5, Plumbing & Pipe Fitting
Industry, 145 N.L.R.B. 1580; Millwrights Local 1102, 162
N.L.R.B. 217.