Denver Building and Construction Trades Council

National Labor Relations Board - Board Decisions

Jun 16, 1950

90 N.L.R.B. 378 (N.L.R.B. 1950)

In the Matter of DENVER BUILDING AND CONSTRUCTION TRADES • COUN-
CIL and WILLIAM G. CHURCHES
In the Matter of DENVER BUILDING AND CONSTRUCTION TRADES COUN-
CIL and C. J. ST. PETER
In the Matter of DENVER BUILDING AND CONSTRUCTION TRADES COUN-
CIL and P. B. IMES
Cases Nos. 30-CC-5, 30-CC-6, and 30-CC-7.Decided June 16, 1950
DECISION AND ORDER
On August 8, 1949, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practice alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter the General Counsel and the Respondent
filed exceptions to the Intermediate Report and supporting briefs.
The requests for oral argument made by the General Counsel and the
Respondent are hereby denied, inasmuch as the record and the briefs,
in our opinion, adequately present the issues and the positions of the
parties.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case. It hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only insofar as they are consistent with
this Decision and Order.
As indicated in the Intermediate Report, the parties stipulated the
following facts : During the calendar year 1948, Churches, a general
contractor operating within the State, constructed six residences in
Denver which were valued at, and sold for, approximately $90,000.
Construction materials utilized by Churches in the same period cost
approximately $30,000. Of this amount, $20,000 represented the cost
of materials purchased by Churches, and $10,000 the cost of material
purchased by his subcontractors. In the case of both Churches and his
90 NLRB No, 66.
378
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 379
subcontractors, 60 percent of these amounts represented the cost of
the materials which, although obtained from local suppliers, origi-
nated outside the State. From January 1 to June 1, 1949, Churches
purchased materials in the amount of approximately $12,000, of which
sum 60 percent originated outside the State, although purchased
locally.
Imes & Ramstetter, herein called Imes, is a contractor engaged in
plastering. During the year 1948, Imes' gross business conducted
within the State amounted to approximately $49,000, of which amount
approximately $11,000, represented purchases of building materials
and supplies. Of the $11,000, approximately 60 percent represented
the cost of building. materials and supplies originating from points
outside the State, although purchased locally.
St. Peter is a contractor engaged in the business of roofing, lathing,
and plastering. During the year 1948, St. Peter's gross business con-
ducted within the State was $97,508, of which amount $32,590 repre-
sented purchases of building materials and supplies. Approximately
60 percent of the latter sum represented local purchases which origi-
nated outside the State.
Angerman Sheet Metal Works, Inc., herein called Angerman,l is
engaged in business as a sheet metal and heating contractor. During
the fiscal year, April 1, 1948, to March 31, 1949, Angerman purchased
materials valued at approximately $189,000. About $54,000 worth of
said materials were purchased and shipped from points outside the
State. During the calendar year 1948, Churches paid Angerman
$3,907 for subcontracting work. Of this amount $1,562 or 40 percent,
represented the cost of materials installed by Angerman in Churches'
buildings. Of the $1,562, in excess of 50 percent represented building
materials and supplies originating outside the State.2
On these commerce. facts, we are of the opinion that jurisdiction
should not be asserted. Both Churches and his subcontractors, en-
gaged in the construction of small residences within the State, pur-
' Angerman is not a charging party . The record is not clear as to whether the subcon-
tractors of Churches on the six residences completed in 1948, referred to above, included
Imes & Ramstetter and St . Peter.
8 The stipulation is silent as to commerce data with respect to the construction involved
herein known as the Xavier Street project which began late in 1948 . At the hearing,
Churches testified that, in addition to the 4 building units on which construction was then
going on, be planned to add it 5 family unit and 15 single units . Churches testified that,
as planned , the project would be valued at $240,000 , of which amount $ 80,000 would repre-
sent the cost of building materials and supplies to Churches . However, as of the time of
the hearing , only 1 of the 4 original units had been completed. ' It appears from the record
that the ultimate extent and the cost of the project are speculative . For this reason, the
Trial Examiner did not predicate his commerce findings upon the future plans of Churches,
but relied entirely upon the volume of business engaged in by Churches and his sub-
contractors in the most recent annual periods set forth in the stipulation . The General
Counsel 's exception to the Trial Examiner 's failure to incorporate in 'his findings the testi-
mony of Churches relative to future operations is therefore without merit.
380. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chased all their materials locally, with the exception of Angerman
whose connection with Churches, as shown by the business clone in 1948,
was insubstantial. We conclude, therefore, that while the operations
of Churches and his subcontractors are not unrelated to commerce,
they are essentially local in character, and their interruption by a labor
dispute could, at most, have only a very remote and insubstantial effect
on commerce.3
Our dissenting colleague would, however, assert jurisdiction here.
He would have the Board exercise the commerce power fully by assert-
ing jurisdiction in this and in all other cases in the building and con-
struction industry, absent a de minimis flow of materials. He urges,
in this connection, that because the building and construction industry
is characterized by relatively small business units, we must take for our
policy-criterion in matters of jurisdiction, the sizable annual aggregate
of business in the industry' Yet, nowhere in the legislative history
of the amended Act or in Board decisions, do we find support for this
view. The same logic would extend the Federal power to the corner
grocer, the neighborhood druggist, and the local restaurant, for each is
part of an industry which, in aggregate has an undeniably substantial
effect upon interstate commerce. Indeed, we fail to see how any busi-
ness enterprise, however purely local in character, would then be
free from Federal regulation.5
. Nor are we impressed by the related argument that because Con-
gress was concerned with certain practices of labor organizations in
the building and construction industry, it intended that we indis-
criminately exercise jurisdiction over every building contractor what-
ever the scope and size of the operation. From the outset we have
recognized and given effect to the legislative intent to proscribe cer-
tain unfair labor practices by. labor organizations in this industry.
In so doing, however, we did not then nor do we now regard Congress
as having ordered this Board, in the building and construction indus-
try, to cease to exercise a function inherent in the administrative proc-
ess, i. e., to temper power with policy considerations in appropriate cir-
cumstances 6 Indeed, in the very cases cited by the dissent as the high-
3 Building and Construction Trades Council of Pittsburgh, Pennsylvania , A. F. of L., et at.
(George Petredis and William S. Fryer ), 85 NLRB 241 ; Walter J. Mentzer,, 82 NLRB 389 ;
Row Construction Company, 88 NLRB 580; Denver Building and Construction Trades
Council (B. W. Fellers, Inc.), 88 NLRB 1321.
* The factor of aggregate effect on commerce is relevant in establishing the Board's
plenary commerce power under the Act. It is not , however, determinative of the question
of whether jurisdiction should be exercised in an y given case. See Walter J. Mentzer, supra;
Building and Construction Trades Council of Pittsburgh, Pennsylvania, A. F. of L., et at.
( George Petredis and William S. Fryer), supra.
The Board believes that budgetary limitations , as well as the need to avoid diffusion
of its time and energy , also justify it in not asserting jurisdiction to the maximum permis-
sible under the constitution.
4 See . Haleston Drug Store, Inc., 86 NLRB 1166.
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 381
water mark of Board consistency with legislative intent, far from
enunciating a rule of blanket jurisdiction, we set forth that it would
accord with the intent of Congress and effectuate the policies of the
amended At to assert jurisdiction over cases involving the local con-
struction industry, "where interference therewith would have a sub=
stantial effect on interestate commerce." [Emphasis supplied.]
Consistent with this test, we have invoked our administrative dis-
cretion in this and related industries on a case to case basis, asserting
jurisdiction where the facts pointed to a direct and substantial effect
on commerce, though the operations involved were, in isolation, in-
trastate;" and declining to assert jurisdiction where the facts pointed
to a remote and insubstantial effect on commerce.° Similarly, when
confronted with essentially small or characteristically local enter-
prises, whatever the industry, the Board has refrained from asserting
the Federal power where to do so, in its opinion, would exceed the
bounds of wisdom and fail to effectuate the policies of the Act 10
4 United Brotherhood of Carpenters and Joiners of America, District Council of Kansas
City, Missouri, and Vicinity, A. F. of L., et at. (Wadsworth Building Company, Inp.,.c(nd
Klassen ct Hodgson, Inc.), 81 NLRB 802, 804. In certain representation cases involving
the building materials industry cited by the dissent, such as J. H. Patterson Co., 79
NLRB 355 and Akron Brick & Block Co., 79 NLRB 1253, the Board indicated as an addi-
tional reason for asserting jurisdiction , that jurisdiction had been asserted in the building
and construction industry. Viewed in its context, this statement was intended to convey
nothing more than that the Board had abandoned its Wagner Act rule of not customarily
asserting jurisdiction in this industry at all. The Board did not, however, in this line
of cases, imply that it would assert jurisdiction merely because the case arose in the
building and construction or related industries. See Local 74, United Brotherhood of
Carpenters and Joiners of America, A. F. of L., at al . (Ira A. Watson d/b/a Watson's
Specialty Store ), 80 NLRB 533, 534, footnote 1. Cf. Makins Sand & Gravel Co., Inc.,
85 NLRB 213 , where a majority of the Board, including our dissenting colleague, declined
to assert jurisdiction.
e International Brotherhood of Electrical Workers, Local 501, A. F. of L. ( Samuel
Langer), 82 NLRB 1028, involving a small residence but with direct inflow of materials
and contractors operating in more than one State ; Denver Building and Construction
Trades Council, et at. (Earl C. Gould and John C. Preisner d/b/a Gould & Preisner), 82
NLRB 1195, involving small projects as to which the charging party's operations were
slight, but the charging party's business in general depended upon a substantial direct
inflow of materials ; Denver Building and Construction Trades Council, et at. (The Grauman
Company), 87 NLRB 215, involving the installation of a soda fountain in a local store,
but directly affecting the operations in general of the charging party, itself in interstate
commerce.
O Building and Construction Trades Council of Pittsburgh, Pennsylvania, A. F. of L.,
et al . (George Petredis and William S. Fryer), supra, involving a local theatre as to which
the materials used by the contractorwere purchased locally, though originating in part
outside the State with one insubstantial exception, and the charging party's business'
was relatively small ; Walter J. Mentzer, supra, involving an apartment house as to which
the materials used were purchased locally, though originating in part outside the State,
and the charging party's business was relatively small ; Row Construction Company, supra;
involving small municipal buildings as to which the materials used were purchased locally,
though originating in part outside the State and the charging party's business was rela-
tively small ; Denver Building and Construction Trades Council (B. W. Fellers, Inc.), supra,
Involving a local contractor engaged principally in residential construction as to which
virtually all the materials used were purchased locally, though originating in part outside
the State.
10 See, for example , Waitresses and Cafeteria Workers, Local No. 305, et al . ( Haleston
Drug Stores , Inc.), supra; Local 905 of the Retail Clerks International Association (AFL),
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"When the conduct of an enterprise affects commerce among the
States," in the words of the Supreme Court, "is a matter of practical
judgment not to be determined by abstract notions."
Our dissenting colleague prescribes that the Board exercise its power
in this industry wherever "reasonably practicable." Unless the quoted
phrase has subtleties which we do not discern, this, we believe, is
the,very course that the Board has followed.
On the facts of this case and in the light of the foregoing consid-
erations, we find that it would not effectuate the policy of the Act to
assert jurisdiction in' the instant proceeding, and we shall, therefore,
dismiss the complaint.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein
against the Respondent, Denver Building and Construction Trades
Council, be and it hereby is, dismissed.
MEMBER REYNOLDS, dissenting :
I am constrained to disagree with the action taken herein by my
colleagues. Because I deemed myself bound by the majority decision
in the Mentzer ease '12 I have refrained from dissenting in several recent
cases 13 involving the building and construction industry where the
Board has refused to exercise jurisdiction. However, a careful reex-
amination of all the cases concerning this or closely related industries
compels my reluctant conclusion that the Board's rulings reflect serious
inconsistencies 14 I therefore deem it necessary to indicate why I
et at . (H. TV. Smith d/b/a A-1 Photo Service), 83 NLRB 564; Bangor Auto Body Shop,
82 NLRB 688; Superior Baking Company, 86 NLRB 912; Pearl Bookbinding Co., Ina.,
ST NLRB 1554; Quigley's Department Store, No. 3, 89 NLRB 381 ; Golden Seal Farina,
Inc., 89' NLRB 440.
11 Polish 2Vational Alliance v . N. L. R. B., 322 U. S. 643, 650.
"'See footnote 3, supra.
"Building and Construction Trades Council of Pittsburgh , Pennsylvania, AFL, et at.
(George Petredis and William S. Fryer), footnote 3, supra ; Las Vegas Lumber Company,
88..NLRB 9; Row Construction Company, 88 NLRB 580; Denver Building and Construction
Trades Council (B. W. Fellers, Inc.), 88 NLRB 1321.
14 The Board has asserted or refused to assert jurisdiction in this industry upon coin.
lnerce factors that afford no real basis for distinction. Reference herein is made only to
some of the outstanding examples among innumerable cases that might be mentioned.
Thus the Board exercised jurisdiction in : Central Sash and Door Company, 77 NLRB
418; J. H. Patterson Co., 79 NLRB 355; John A . Denie's Sons Co., 86 NLRB 682; Local 7¢
United Brotherhood of Carpenters and Joiners of America, A. F. of L., et at. (Ira A. A.
Watson d/b/a Watson's Specialty Store), 80 NLRB 533 ; United Brotherhood of Carpen-
ters and Joiners of America, District Council of Kansas City, Missouri, and Vicinity,
A. F. of L., at al. (Wadsworth Building Company , Inc., and Klassen h Hodgson, Inc.).
.81 NLRB 802; International Brotherhood of Electrical Workers, Local 501 , A. F. of L.,
et al. ( Samuel Langer ), 82 NLRB 1028; Denver Building and Construction Trades Council,
et al . (Earn C. Gould and John C. Preisner, d/b/a Gould & Preisner), 82 NLRB 1195) ;
Denver Building and Construction Trades Council, et al . ( The Grauman Company), 87
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 383
consider these rulings to be contradictory and to reiterate my position
in as explicit terms as possible.
Before the amendments to the Act, the Board did not customarily
exercise jurisdiction over operations in the building and construction
industry because it did not believe that it would effectuate the poli-
cies of the Act to assert jurisdiction over an industry which it viewed
as relatively local in character.15 Shortly after the passage of the
amended Act, however, the Board, in accordance with what it deemed
to be the -manifest intent of Congress, asserted jurisdiction in both
representation and unfair labor practice cases arising in this industry.
In those decisions the Board did not rely only on its conventional
commerce factors, but placed emphasis on the fact that the enterprises
concerned were either a part of the building and construction indus-
try or closely allied to it.16 Thereafter, the Board only intermittently
and to a limited extent departed from this view by refusing to exercise
jurisdiction over some cases, particularly in representation proceed-
ings, in which the enterprises had a close relationship to this industry.17
NLRB 755 ; Lumber and Sawmill Workers Union , Local Union No. 1407 affiliated with
United Brotherhood of Carpenters and Joiners of America, A. F. of L., et at. (Santa Ana
Lumber Company ), 87 NLRB 937.
On the other hand, the Board declined to exercise jurisdiction in : Cordele Sash, Door
and Lumber Company , 79 NLRB 578 ; Texas Construction Material Company , 80 NLRB
1248 ; Makins Sand & Gravel Co., Inc., 85 NLRB 213 ; Walter J. Mentzer, footnote 3, supra;
Building and Construction Trades Council of Pittsburgh , Pennsylvania, AFL, et at.
(George Petredis and William S. Fryer), footnote 3, supra ; Row Construction Company,
footnote 13, supra ; Denver Building and Construction Trades Council (B. W. Fellers,
Inc.), footnote 13, supra. It should be noted that no distinction is made herein with
respect to the assertion of jurisdiction based upon whether a representation or unfair
labor practice proceeding is involved.
It has been a well -established practice for a Board member where he disagrees with a
decision to specifically dissent ; then , when a similar case arises to indicate that he con-
siders himself bound by the majority decision in the earlier case ; and , finally when other
similar cases are presented for Board decision to participate in such cases without further
attempting to preserve his position . Thus, with respect to the afore-mentioned jurisdic-
tional cases , I have noted my dissent in some of them ( e. g., Texas Construction Material
Company and Walter J . Mentzer ) ; in others , I have deemed myself bound by prior Board
rulings with which I disagreed ( e. g., Building and Construct -ion Trades Council of Pitts-
burgh, Pennsylvania , AFL, et at . ( George Petredis and William S. Fryer ) ; and in others,
I have participated with the majority , although I would have been inclined to assert
jurisdiction if the facts involved were not similar to previously decided cases where the
Board refused to exercise jurisdiction ( e. g., Makins Sand & Gravel Co ., Inc., and Row
Construction Company).
u Johns -Manville Corporation and Johns -Manville Sales Corporation , 61 NLRB 1. ;
Brown and Root, Inc., et al., 51 NLRB 820.
16 See for example J. H. Patterson Co., footnote 14, supra; Akron Brick & Block Co.,
79 NLRB 1253 ; United Brotherhood of Carpenters and Joiners of America, District Coun-
cil of Kansas City, Missouri, and Vicinity, A. F. of L., et at., (Wadsworth Building Company,
Inc., and. Klassen & Hodgson, Inc.) footnote 14, supra; Oettinger Lumber Company, 81
NLRB 632; National Lumber Co., 82 NLRB 565 ; Spickelmeier Company, et at ., 83 NIdtB
452; Howard -County Lumber Co., Inc., 86 NLRB 512. See also footnote 3 of the dissent
in Liddon White Truck Company, Inc., 76 NLRB 1181.
17 See for example, Cordele Sash, Door and Lumber Company , footnoth 14, supra;
Richter Transfer Company, 80 NLRB 1246; Texas Construction Material Company, foot-
note 14 , supra ; Hanawalt Bros., 80 NLRB 1302 ; Knoxville Sangravl Material Company,
.'Inc., 82 NLRB 1223; Hartman Concrete Materials Company , 82 NLRB 1388; The Southern
Company , 82 NLRB 1388 ; Las Vegas Lumber Company, 88 NLRB 9.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, in some of its most recent decisions which involved enter-
prises clearly a part of the building and construction industry, the
Board has declined to assert jurisdiction because of the local character
of the operations and their insubstantial effect on commerce.18 Thus,
the Board is apparently receding from the position adopted shortly
after the amendments to the Act and, although it is not reverting com-
pletely to its former view that all enterprises in the building and con-
struction industry are local in character, it is at least limiting the
exercise of jurisdiction solely on the ground of the particular com-
merce factors in each case. I am unaware of any compelling basis for
this change.
In recent building and construction industry cases, my colleagues
have again averted to the long recognized distinction between the
Board's power to take jurisdiction and its discretion to determine
whether the exercise of that power will effectuate the policies of the
Act is At the outset, I wish to state that there is no disagreement as to
the validity of this distinction or that the Board has the power to assert
jurisdiction in this industry. In fact, it is quite clear that under, the
commerce provision the Board had this power under the Act before
the amendments.20 However, I differ from my colleagues as to the
extent to which the Board in its discretion should utilize its power with
respect to the building and construction industry in order to effectuate
the policies of the amended Act.
The 80th Congress recognized that the Board always had the power
to assert jurisdiction over this industry. Furthermore, Congress was
fully cognizant of the Board's refusal to exercise its power in the past,
but nevertheless expressed a clear mandate that such power be used in
order to reach and eliminate certain practices which were considered
detrimental to the public interest.21 In so doing, Congress was well
aware not only of the peculiarly local characteristics of the industry,
but also of its great impact upon interstate commerce.
18 Walter J. Mentzer, footnote 3, supra; Building and Construction Trades Council of
Pittsburgh, Pennsylvania, AFL, et al. (George Petredis and William S. Fryer), footnote 3,
supra; Row Construction Company, footnote 13, supra ; Denver Building and Construc-
tion Trades Council (B. W. Fetters, Inc.), footnote 13, supra.
19 [bid, footnote S. supra.
s° Polish National Alliance v. N. L. R. B., 322 U. S. 643 (1944) ; N. L. R. B. v. Fainblatt,
306 U. S. 601 (1939) ; N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937). It
should be noted that when the Board declined to assert jurisdiction over the building and
construction industry before the amendments to the Act, it did so not because of any lack
of power, but because it did not believe it would effectuate the policies of the Act to exercise
its power. Note also the statement of the Board in Ozark Dam Constructors, 77 NLRB
1136, 1138, to the effect that our abstention from exercising our jurisdiction in construction
cases was a matter of administrative choice and not of legal necessity.
21 See Local-711, United Brotherhood of Carpenters and Joiners of America, A. F. of L ., et al.
(Ira A. Watson d/b/a Watson's Specialty Store), footnote 14, supra; United Brotherhood of
Carpenters and Joiners of America, District Council of Kansas City, Missouri, and Vicinity,
A. F. of L., et al. (Wadsworth Building Company, Inc., and Klassen h Hodgson, Inc.),
footnote 14, isspro.
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 385,
It cannot be gainsaid that the operations of a considerable number-
of contractors in the industry are individually rather small ; however,..
it likewise cannot be denied that the effect on commerce is very great;
for in 1946 the total volume of new construction in the United States.
was over ten billion dollars 22 These figures lead to the conclusion
that, as the United States Court of Appeals for the Third Circuit so•
aptly put it, "what affects the building industry in a given community,,.
affects interstate commerce and that the total effect of a ten billion
dollar industry on interstate commerce is obviously very appreciable...
One small stoppage may 'not have an immediately perceptible effect
upon the flow of the whole stream. But many small stoppages will
have such effect." 23 My colleagues now apparently construe Congres-
sional intent with regard to the building and construction industry as
merely indicative of a reaffirmation of the Board's power to assert-
jurisdiction. I would not so construe it. I believe that the intent of
Congress should be interpreted as expressive of a sanction to exercise
the power in this industry wherever reasonably practicable because of
its appreciable effect on commerce; therefore, the Board's original ap-
proach of not confining its jurisdictional determinations in this in-
dustry to its usual commerce criteria was more nearly in accord with
this interpretation of Congressional intent.
It is true that in dealing with the commerce question, the United
States Courts of Appeal have been concerned primarily with the power-
of Congress to regulate labor practices in this industry.24 However,,
in my opinion, the same factors which have led the Courts to conclude
that Congress not only has the power, but also has chosen to exercise it,..
are equally persuasive as reasons why the Board should utilize the .
power to the fullest possible extent.
In view of the special concern Congress had with the building and.
construction industry and because of the industry's considerable and
far-reaching effects on commerce , I believe that it would effectuate the .
policies of the Act for the Board to exercise its powers fully in assert-
ing jurisdiction, absent a de minimis flow of material in commerce..
I would therefore assume jurisdiction in this case.
22 Construction and Construction Materials: Dollar Construction Estimates, 1915-46,
p. 36 (U. S. Dept. of Commerce, Bureau of Foreign and Domestic Commerce, Statistical
Supp. May 1947).
22 Shore v. Building and Construction Trades Council of Pittsburgh, Pennsylvania, et al.,.
173 F. 2d 678 (C. A. 3, 1949).
24 United Brotherhood of Carpenters and Joiners of America, A. F. of L., et at . v. Sperry,.
170 F. 2d 863 (C. A. 10, 1948) ; Shore v. Building and Construction Trades Council of
Pittsburgh, Pennsylvania, et at., footnote 23, supra; Slater v. Denver Building and Con-
struction Trades Council et at., 175 F. 2d 608 (C. A. 10, 1949) : International Brotherhood-
of Electrical Workers, Local 501, et at. v. N. L. R. B., 181 F. 2d 34 (C. A. 2).
903847-51-vol. 9 0--2 6
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
For.the General Counsel: Martin Sacks, Esq.
For the Respondent: Philip Hornbein, Jr., Esq., Denver, Colo.
STATEMENT OF THE CASE
Upon charges filed respectively by William G. Churches, C. J. St. Peter, and
P. B. Imes, the General Counsel of the National Labor Relations Board, called
herein respectively the General Counsel and the Board, by the Regional Director
of the Seventeenth Region (Kansas City, Missouri), issued his complaint dated
May 24, 1949, against Denver Building and Construction Trades Council, Denver,
Colorado, herein called the Council or Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section S (b) (4) (A) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Rela-
tions Act, 1947, 61 Stat. 136, herein called the Act. Copies of the charges and
the complaint, together with notice of hearing, were duly served upon the
Respondent.
With respect to unfair labor practices, the complaint alleged that Respondent
"has engaged in, and is engaging in, and by picketing, orders, instructions, direc-
tions, and like or related acts, induced and encouraged, and is inducing and
encouraging employees of Churches, various subcontractors, and other persons
in and near Denver, Colorado, to engage in a strike or a concerted refusal, in
the course of their employment, to handle or work on any goods, articles, ma-
terials, or commodities of, or to perform services for their employers, an object
thereof being to force or require Churches, his subcontractors, and other per-
sons to cease doing business with C. J. St. Peter and Imes and Ramstetter," all
in violation of Section 3 (b), subsection (4) (A) of the Act.
In its duly filed answer, Respondent admitted the placing of a picket on the
public highway adjoining the premises involved, but denied the allegations of
unfair labor practices, and moved for the dismissal of the complaint on various
grounds set forth with particularity under Section III, B of this Report, together
with rulings thereon.
Pursuant to notice a hearing was held at Denver, Colorado, on June 21, 22,
1949, before the undersigned Trial Examiner duly designated by the Chief Trial
Examiner. The General Counsel and the Respondent were represented by coun-
sel and participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. After the taking of the evidence, the undersigned
granted the General Counsel's motion to conform the pleadings to the proof in
formal matters, and reserved ruling on Respondent's motion to dismiss the com-
plaint for insufficiency of proof. This latter motion is disposed of in accordance
with the findings of fact and conclusions of law made below. The parties argued
briefly before the Trial Examiner at the close of the hearing, and have filed
briefs with the undersigned.
Upon the entire record in the case, and from my observation of the witnesses,
I, the undersigned Trial Examiner, make the following:
DEINVER , BUILDING AND CONSTRUCTION TRADES COUNCIL 387
FINDINGS OF FACT
1. COMMERCE ; THE BUSINESS OF THE EMPLOYERS
By stipulation of the parties the following are the facts :
William G. Churches, herein called Churches, is engaged in the business of
general contracting in Denver, Colorado. During the calendar year of 1948,
Churches constructed six residences in Denver, which were valued at and sold
for approximately $90,000,
Construction materials utilized. by Churches during the year 1948 cost approx-
imately $30,000. Of this amount; representing the cost of materials purchased
by Churches as well as by his subcontractors, 60 percent represents the cost
of materials which, although purchased from local suppliers, originate in States
other than the State of Colorado. The materials having such out-of-State origin
were chiefly lumber, hardware, paint, steel products, glass, plumbing materials,
linoleum, electrical equipment, insulating material, and plastic tile.
Of the $30,000 worth of building materials and supplies utilized by Churches
in his construction business during the year 1948, in addition to the materials
and supplies listed above as having been directly purchased by Churches, approxi-
mately $10,000 represents building materials purchased directly by subcontractors
for use on Churches' buildings. During the year 1948, the total amount paid by
Churches for building materials and to subcontractors was $55,000. Among the
subcontractors used by Churches during said year was the Angerman Sheet Metal
Works, Inc., to whom Churches paid $3,907. Of this latter amount $1,562 or 40
percent, represents the cost of materials installed by Angerman in Churches'
buildings. Of the amount of $1,562, in excess of 50 percent represents building
materials and supplies originating outside the State of Colorado.
Imes and Ramstetter herein called Imes, is a partnership engaged in plastering
subcontracting with its principal place of business in Denver, Colorado. During
the year 1948, Imes' gross business amounted to approximately $49,000, of which
approximately $11,000 represents purchases by it of building materials and sup-
plies. Of said amount of $11,000, approximately 60 percent represents building
materials and supplies originating from points outside the State of Colorado.
C. J. St. Peter, an individual doing business as Pierre Roofing Company at Den-
ver, Colorado, herein called St. Peter, is engaged in the business of roofing, lathing,
and plastering subcontractors. During the year 1948, the. gross value of St.
Peter's business was $97,508, of which $32,590 represents purchases of building
materials and supplies. Of the amount of building materials and supplies pur-
chased from local suppliers, approximately 60 percent represents shipments, from
sources outside the State of Colorado.
Angerman Sheet Metal Works, Inc., herein called Angerman, is engaged in the
business of a sheet metal and heating contractor, with its principal place of
business in Denver, Colorado. During the fiscal year April 1, 1948, to March 31,
1949, Angerman purchased materials valued at approximately $189,000. Ap-
proximately $54,000 of said materials were purchased and shipped from points
outside the State of Colorado.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing stipulated facts, it is found, contrary to the con-
tentions of Respondent, that Churches, Imes, C. J. St. Peter, Angerman, and each
of them, are engaged in commerce within the meaning of the Act. (See Slater
v. Denver Building and Construction Trades Council,. (C. A. 10) Case No. 3812,
decided July 6, 1949.) It would not in my opinion effectuate the policies of the
Act to assert jurisdiction on the facts of this case, but this being a matter of
policy is best left to the determination 'of the Board itself.
II. THE LABOR ORGANIZATION INVOLVED
Denver Building and Construction Trades Council, an unincorporated associa-
tion composed of local unions representing employees in the building trades in-
dustry and affiliated with the American Federation of Labor, is a labor organiza-
tion within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
This case arises from the Respondent's action in picketing a building construc-
tion job in the city of Denver, Colorado. This job involves the construction of
four building units on the twenty-seven hundred block of Xavier Street and is
referred to as the Xavier Street project. The general contractor in charge of
the job is William G. Churches. Work on the Xavier Street project was com-
menced in September 1948.
In. 1947, while engaged on another construction job,' Churches was approached
on the job by James Bolger, Respondent's president. Bolger asked Churches if
he was "union" and Churches replied that he belonged to the carpenters union.
'There was discussion concerning the other employees on the job and Bolger asked
if Churches wanted his name listed in the "union book," presumably as a union
contractor? Churches said that he would think it over.
In the summer of 1948, while engaged on a construction job at West Thirtieth
and Wolf Street in Denver, Churches was approached by a delegate of the paint-
ers union, one of the locals affiliated with Respondent, who suggested to Churches
that the latter discharge the painter then on the job and subcontract the work
to a union contractor. Presumably, the painter was nonunion. Shortly there-
after certain union contractors visited Churches and submitted estimates on the
job.
In December 1948, Clifford Goold, Respondent's business agent, sent Churches a
memo which stated inter alia, "I have a report that you have a mix up on 30th
and Wolf. Trust you will straighten out same immediately." It is inferred that
this was a reference to the matter set forth above.
In November 1948, Goold visited Churches at the Xavier Street project.
Churches testified that Goold told him that it was his, Goold's, job to see con-
tractors and "keep them in line" ; that Goold wanted to know if he., Churches, was
going to be union or nonunion ; that Goold stated : "Churches, if you declare
union, you have to he union ; if you declare non-union, you have to be non-union.
' Churches testified that this conversation occurred at a job on Xavier Street, but since
he also testified that the Xavier Street project, with which we are primarily concerned
here, was not commenced until September 1948, it is inferred that this conversation related
to another building project.
2 The Respondent issues a quarterly publication in which it lists union contractors.
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 389
Think it over" ; that on leaving, Goold said, "If I come out on your job and catch
any non-union men on your job, I can picket you." ' This testimony is credited.
Admittedly, Goold made no mention of subcontractors during this conversation.
Goold's December memorandum, mentioned above, stated in addition to the
language already quoted, "You recall my conversation of some weeks ago. I
am sure you did not think I was kidding you." It is inferred that this was
a reference to the conversation which Gold himself had with Churches on
the Xavier Street project.
On February 25, 1949, Goold again saw Churches on the Xavier Street project.
Accompanying him at this time was the business agent of the roofers union,
a local affiliated with Respondent. Churches' version of this meeting, which
the undersigned credits as substantially accurate, follows:
Mr. Goold come in and asked me if I remembered him. I said, "Yes,
I do." He says, "Who is doing your plastering?" I told him, "lines and
Ramstetter." He says, "Are they contracting it?" I told him, "No." Or,
he says, "Day work?" I said, "No, contract." He said, "If it's day work
everything will be all right." I said, "No, they are contracting." "Are
the bricklayers," he said, "contracting?" I says, "Go over and ask them."
He said, "Well, they are, aren't they?" I didn't answer him. Then he
introduced me to this roofing man and the roofing delegate asked me who
was doing my roofing. . . . I told him, "I am tired of you fellows telling
me all my business. I have told you all I am going to. Find out for your-
self if you want to find out who is doing my roofing." . . . Goold asked
me, then, he says, that you know that these union fellows got to pay dues
in and it is only fair for you to hire union help. I said, "Well, that is up
to them, not me." I said, "If we are going to have trouble we might just
as well have it." He says, "Churches, it looks like we are going to force
you to go non-union." "Well," I said, "We are going to have trouble. You
might just as well send your man out." Goold said, "Well, we are used to
trouble so I guess we will have some more of it, then." Then he left.
In mid-afternoon of February 28, a single picket appeared on the Xavier
'Street project. "He got out of his car, put a sign on his back. and started walking
up and down".' The sign bore the following wording :
'THIS JOB IS UNFAIR TO THE BUILDING AND CONSTRUCTION
TRADES COUNCIL.
Shortly thereafter a man , somewhat dubiously identified as a delegate of the
plasterer' s union, whose name sounded like "Mussolini," drove up in a car,
entered the Xavier Street project, and after a short visit to the units under
construction, left the project. He declined to talk to Churches. Immediately
;after this person had left the premises, the two tinners came off the job and
asked Churches what was wrong. Churches said be didn't know. One of the
tinners shouted at the picket to determine what was wrong. The picket replied
that the bricklayers were nonunion. Churches replied that the bricklayers
were union, and the bricklayers showed their union cards. According to
Churches, a yellow car then drove up and the picket talked to the man in the
car. Then one. of the tinners talked to' the picket. After this second conver-
sation with the picket, the two tinners packed their tools and left the job. There
3 "Of course , we don't do that," is the balance of this quote. To me, it is unintelligible.
4 Churches' testimony.
390 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
were no plasterers at work on the job on February 28, the day on which the
picket was placed on the Xavier Street project, and the only persons to quit
their jobs on that date were the two tinners. On the following day, however,
the bricklayers, all of whom were union members, failed to report for work.
And although the plumbing job had been started, the plumbers thereafter refused
to continue on the job.
As of February 28, Churches himself worked on the Xavier Street project,
together with his son and nephew ; he also employed three bricklayers. All of
these persons directly employed by Churches were affiliated with unions. The
rest of the work on the project was being done by subcontractors. Imes and
Ramstetter, the subcontractors in charge of plastering, themselves worked on
the project and, in addition, employed five plasterers. lines and Ramstetter
were known to Respondent as nonunion contractors. They continued to work
on the project after February 28, with some delay attributable to the failure of
union craftsmen to complete their assignments. The tinners working on the-
pr oject were employed by subcontractor, Angerman Sheet Metal Works, a union
contractor. They refused to cross the picket line. The roofing on the project
was done by subcontractor C. J. St. Peter, doing business as the Pierre Roofing
Company, known to Respondent as a nonunion contractor. St. Peter's employees
continued on the job despite the picketing of the project. Churches and St..
Peter appear on Respondent's unfair list.
Work on the Xavier Street project was continuing at the time of the hearing,
as was the picketing of the project. Churches testified that of the four houses
started on this project in the fall of 1948, the work on one had been completed,
while work was continuing on the other three. He testified that asp of the
present time-that is, the time of the hearing-there were four persons at
work on the project, himself and three other carpenters employed by himself.
It is assumed that all of these present employees are nonunion, since union.
craftsmen normally would not cross the picket line.
In addition to the foregoing, the following evidence has bearing on Respondent's
purpose in placing a picket on the Xavier Street project.
Harley Diltz, one of the bricklayers employed directly by Churches, testified
credibly that on the day the picket was placed on the project, he talked to,
Goold who told him that a reason for placing a picket on the project was that,
there were nonunion plasterers working on the job.
Shortly after the picket was placed on the project, Milton F. Ramstetter, sub-
contractor with Phillip Imes, and St. Peter, roofing subcontractor, had a con-
versation with Bolger, Respondent's president. Ramstetter testified that during
this conversation, Bolger, in explaining why the picket was on the job, referred
to ex-GI's who "go out to fight something and then they get the kind of a deal like
Churches gives me." " St. Peter testified that during this conversation, Bolger
asked him why he did not join the union, and he, St. Peter, referred to some
complication he had previously encountered when considering becoming a union
contractor. St. Peter further testified that Bolger said there wouldn't be any
need for pickets "if there wasn't guys" like Churches and Ramstetter. "I
imagine be included me," St. Peter testified.
Goold, questioned concerning Respondent's purpose in placing a picket on the
Xavier Street project, testified:
I discovered that the job, that this job, was not in conformity with the
rules of the Building Trades Council and . . . therefore, was unfavorable
5 This testimony , as reported , is on the whole incoherent. Apparently , the picket was
an ex-GI.
DERVVER BUILDING AND COINTSTRUCTI0N TRADES COUNCIL 391
to our membership, so I placed a picket upon it, notifying the membership
of such.
Q. And will you state specifically what conditior_s you considered to be
undesirable at the job?
A. There were non-union men working on the job.
Questioned concerning Respondent's contention that substandard wages were
being paid on this project, Goold testified :
We are prepared to try to show that. I don't have any record to prove
that. I was satisfied in my own mind that that condition existed and that
was part of my reason for placing the picket.
Q. And you discovered that condition existed?
A. I was satisfied, that is right.
The following examination ensued on the question of whether or not a reason
for the picketing of the Xavier Street project was to force or require Churches
to cease doing business with other persons,
Q. Well, now, was the purpose of this picket to cause Churches to quit
doing business with anybody?
A. I didn't even know who Churches was doing business with at the
time we placed the picket there. I am not interested in who Churches
does business with ; I am only interested in the union membership and the
wage scales on the job.
Q. (By Trial Examiner SPENCER.) It is your testimony that you did
not have the knowledge when you were dealing with Churches that he was
subcontracting a portion of that work?
A. Oh, yes, I assumed that he was, most of them do, most of the building
contractors sublet most of their work, but I hadn't taken the trouble to find
out who was on the job.
Goold further testified that while he had determined that certain nonunion work-
men were employed on the project, he was not "interested" in whether they
were employees of the contractor or the subcontractor, and did not in fact
know whether the nonunion employees on the job were employees of Churches
or of a subcontractor. It is clear, however, that from his February 25 conversa-
tion with Churches, he knew that some of the work was being subcontracted
and the identity of at least some of the subcontractors. Whether or not he
considered this of paramount importance is another matter.
Of the subcontractors engaged on the project, Imes and Ramstetter had a sign
on the premises stating that their firm was doing the plastering on the job.
B. The issues
The Respondent argues that the Board lacks jurisdiction because this is not a
labor dispute affecting commerce within the meaning of the Act. I have found
that the employers here involved are engaged in commerce within the meaning
of the Act. The Respondent argues further, however, that assuming the Board
has jurisdiction, nevertheless the Board has declined in representation and other
proceedings under the Act which do not involve an alleged violation of Section
8 (b) (4) to assert jurisdiction in comparable enterprises which are predomi-
nantly intrastate in character ; in short, that inasmuch as Respondent, and other
labor organizations similarly situated, are denied the protection of the Act, the
Board should not, as a matter of equity and public policy, assert jurisdiction on
.1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the basis of charges brought against such labor organizations under Section
8 (b) (4).-
Respondent seeks the dismissal of the complaint on the further ground that the
peaceful picketing here involved falls within the purview of Section 8 (e) of
the Act, which provides that the expressing of any view or opinion may not be
,used as "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." I find, upon consideration of the entire evidence in this case, that the
-picketing here involved was an expressing of views or opinion which contained
no threat of reprisal or force or promise of benefit. This finding, however, is
not, under the Board's decisions on the point, dispositive of the issue.
Finally, Respondent urges that to construe the picketing in this case as viola-
tive of Section 8 (b) .(4) (A), as alleged, would be to deprive Respondent of the
-constitutional guarantee of free speech ; or, stated otherwise, if the Act compels
such a decision the Act, or that portion of the Act under which this case is
brought, is unconstitutional.
Whatever persuasiveness these arguments might have were the undersigned
considering them as a matter of first impression, is dissipated by decisions in
which the Board has already ruled on each of these issues contrary to the con-
tentions of the Respondent.? Accordingly, I find the Respondent's contentions
to be without merit. Via trita est tittissinia.8
The sole remaining issue is whether Respondent's action in placing a single
-picket on a building construction job known as the Xavier Street project, is
-violative of Section 8 (b) (4) (A) of the Act° The picket was placed on this
project on the afternoon of February 28, 1949, was continuing at the time of the
hearing, and, presumably, is still there. It is agreed.that the picketing has been
conducted in a peaceful orderly manner, that no one has been accosted or in
.any way threatened or intimidated either on entering or leaving the picketed
premises, and that the placard borne by the solitary picket carries the simple
text that the job is unfair to the Building and 'Construction Trades Council.
A reason for Respondent's action in placing a picket on the Xavier Street
-project was that certain nonunion employees were employed on this project. It
is accepted as fact that Respondent inferred that substandard wages-that is,
less than the union scale-were being paid on this project, and that this was an
additional reason for the picketing.
I further find that the placing of a picket on the project was a clear signal to
:all employees working on the project who were affiliated with one of the unions
comprising the Respondent, to cease work. Therefore, the placing of the picket
-on the project both encouraged and induced the employees, or some of them, to
engage in a strike or other concerted activity within the meaning of Section
:8 (b) (4) (A).
8 This contention is disposed of in International Brotherhood of Electric Workers, Local
501 (AFL), et al., 82 NLRB, 1028.
7 Rite-Form Corset Company, Inc., 75 NLRB 174; United Brotherhood of Carpenters and
Joiners of America, District Council of Kansas City, Missouri, and vicinity, A. F. of L.,
et al., 81 NLRB 802; see also, footnote 6, supra.
8 Broom, Max. 134 ; 10 Coke 142.
° The applicable portion of the Act provides :
Section 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 perform any services, where an object thereof is : (A) forcing or requiring . . .
nny employer or other person . . . to cease doing business with any other person ; .
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 393
This much I believe to be beyond question, but "this much" is not sufficient
to constitute a violation of Section 8 (b) (4) (A) of the Act. The gravamen of
the case at bar, is whether the said inducement had as "an object" the "forcing
or requiring" Churches l0 to "cease doing business with" his nonunion sub-
contractors, all within the meaning of the Act.
To give Section 8 (b) (4) (A) its widest literal application would set it at
variance with over-all policies of the Act and, particularly, Section I, 7, and
13 thereof. The Board has, therefore, properly construed the term "cease
doing business with" in the light of the legislative history of the Act, and has
concluded, rightly I believe, that Congress in Section 8 (b) (4) (A) intended to
outlaw only those union activities of an indirect character known as the sec-
ondary boycott." In the case at bar, therefore, it is only necessary to determine
whether Respondent's action in placing a picket on the Xavier Street project,.
was of that indirect character known as a secondary boycott. The ease with.
which the problem is stated, however, is very quickly dissipated when one under-
takes to arrive at a precise and proper definition of terms, with the additional.
and paramount duty. of relating any definition arrived at to the intent of
Congress-for it is the intent of Congress which must prevail and not some
abstraction out of a lexicon, unless, of course, the two be identical.12 Were it not
for this additional duty, the problem would still be studded with pitfalls for
neither the courts nor the general authorities have been able to agree, in situa-
tions similar to the one presented here, whether a boycott is primary or sec-
ondary in character 13
It has been said, with more temerity than I would care to venture here, that
on the problem of secondary boycotts "those who would restrict as well as those
who defend labor's use of economic coercion have each charged into the arena
equipped with many confused visceral reactions but little economic or legal
anaylsis." 14 Whether or not one agrees with this commentary, it can hardly
be doubted that it "is particularly important in the field of labor law . . .
that the activities coming before the courts in the so-called secondary boycott
cases be carefully analyzed." 16 Duly admonished, we come to the problem at.
hand.
Diagnosis of an obscure disorder is sometimes achieved through a process of
elimination. We may narrow our inquiry immediately by eliminating from
any further consideration a major portion of those activities commonly called
10 The complaint alleges that an object of the picketing •was to "force or requite Churches,
his subcontractors , and other persons to cease doing business with C. J. St. Peter and Imes
and Ramstetter ." It is clear , however , that subcontractors other than St. Peter and Imes
and Ramstetter were not "doing business with " St. Peter and Imes and Ramstetter , within
the meaning of the Act, and there is no showing as to "other persons."
11 "It is clear from the legislative history of the Act that Section 8 ( b) (4) (A) was
aimed at secondary and not primary action." The Pure Oil Company, 84 NLRB 315.
12 "The term ['doing business '] has, of course , received a vast amount of judicial con-
struction but always in a context so different that it is pointless to explore that field for
help in construing the term in its present context. Nor is it possible to attach legal conse-
quences to all the relationships which the dictionary meaning of the term embraces. . . .
"Examination of these expositions of Congressional purpose indicated that the pro-
vision was understood to outlaw what was heretofore known as a secondary boycott. It is
to the history of the secondary boycott, therefore , that attention should be directed and it is
in the light of that history that the term 'doing business ' should be evaluated." Douds v.
Metropolitan Federation of Architects , 75 F. Supp. 672.
12 "The most casual observation will disclose that scarcely any two courts treating of the
subject formulate the same definition ." Gill Engraving Co. v. Doerr, 214 Fed. III, 118.
1415 George Washington Law Review, 327.
1147 Yale Law Journal, 341.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secondary boycotts. These are the situations where the actions complained of
are directed against either the supplier or the customer of the employer with
whom the union has its primary dispute. Included in these situations are the
so-called "product" boycott." No contention is made, and there is not a scintilla
of evidence to support such a contention, that an object of the placing of the
picket on the Xavier Street project was to force or require Churches to cease
doing business with either his suppliers or his customers, if any. If injury re-
sulted from the placing of the picket to either supplier or customer of Churches
or any of his subcontractors, such injury was incidental to and not an object of
the picketing.
In eliminating consideration of this very large body of secondary activities, we
also eliminate from consideration, as a matter of elementary logic, all that por-
tion of legislative history which deals with that character of secondary actions,
for the reason that it is not applicable to the situation at hand. In short, legis-
lative history which shows an intent to bring that species of secondary actions
against customers and suppliers of the disputing employer, including the product
boycott, within the purview of Section 8 (b) (4) (A), is irrelevant to a considera-
tion of the case at bar.17 Any attempt to make "subcontractor" synonoinous with
,either "customer" or "supplier" would, obviously, be a perversion of terms, com-
pletely at variance with meanings commonly understood and historically estab-
lished.
We come now to that category of secondary actions in which our present
situation falls, if, indeed, it in truth reflects a true secondary action : i. e. ac-
tivities directed against third parties who are neither suppliers nor customers of
the employer with whom the union has its primary dispute. Subcontractors may
be said to be such third parties, being neither suppliers nor customers of the
principal contractor, and activities of this character frequently occur in the
building construction industry.3s There is no agreement' among the courts, how-
ever, as to whether or not this type of activity constitutes a true secondary boy-
cott, and decisions may be cited to support either view. There is no such thing
as a "prevailing" view which fits the case at bar, and therefore no basis
for inferring a congressional intent to bring this type of activity within the pur-
view of Section 8 (b) (4) (A). To say here that Congress intended to outlaw
all "secondary boycotts," is to beg* the question, since the term is not amenable
to precise definition and in the welter of definitions that have been attempted,
10 Both the Watson ( Ira A . Watson Company, d/b/a Watson Specialty Store, 80 NLRB
533) and Wadsworth ( Wadsworth Building Company ), 81 NLRB 802 ) cases are "prpduct"
boycott cases , distinguishable for that reason from the case at bar. In the Watson case
the Board stated : ". . . It is not necessary to decide , nor do we here decide , whether a
union's mere inducing of its members to refuse to work on a common project with non-
union employees of another employer constitutes per se a strike proscribed by Section 8
(b) (4) (A)."
1TI am aware of course that it is not necessary , in order to show Congressional intent,
that the legislative history show an intent to cover the particular facts of a given case;
nevertheless , in determining what Congress meant by the " secondary boycott, " we can have
no better guide than the concrete examples given in the legislative debates and in the
reports of the committees.
"The "product " boycott is , of course , equally prevalent in the building construction
industry , and therefore Congressional intent to have S (b) (4) apply to the building trades
carries with it no assurance that Congress intended to bring within the purview of that
section of the Act the type of action with which we are confronted here.
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 395
there is no agreement that the term is applicable to a situation such as is here
presented "
The very term "secondary boycott," as well as the terms associated with it,
such as "neutrals," "third parties," "strangers to the dispute," etc., suggest
that its application to a given situation is a matter of degree: i. e. the degree
to which the party or parties against whom the boycott activities are imme-
diately directed are removed from responsibility for the primary dispute.
Where the boycott activities are directed against customers or suppliers of the
disputant employer, there is normally a degree of removal sufficient to justify
the application of the term "secondary boycott," since neither customer nor
supplier is responsible for the conditions which gave rise to the primary dispute.
The situus of the boycott activities is also a factor not to be ignored in any
realistic appraisal of a given situation. Normally, boycott activities directed
against customers and suppliers of the disputant employer occur at the place
where the customer or supplier, as the case may be, has his seat of business.
such action emphasizes the degree of removal from the primary dispute of the
person or persons boycotted, and purposefully inflicts injury on 'strangers to
the dispute.
The situation presented by the instant case stands on a different footing.
Here we have a single building project, closely integrated, with employees
of both the principal contractor and his subcontractors working side by side.
'Some of these employees are union, some are nonunion. There is nothing
which identifies them to the public as being the employees of the principal con-
tractor or of the subcontractor.20 Except that they are engaged in different
craft operations they are indiscriminately intermingled on the job. Both the
principal contractor and certain of his subcontractors are themselves at work
on the job in their separate crafts. The Respondent had no dispute with either
the suppliers or the customers of either the principal contractor'or his subcon-
tractors. The Respondent objected to nonunion craftsmen working on this job,
together with what it reasonably assumed to be nonunion conditions of employ-
rnent, and for that reason, and for that reason alone, placed a picket on the job.
The placard borne by the solitary picket did not read, this contractor or that
subcontractor is unfair, but "This job is unfair. . ." In short, it was the job
that was picketed, and it was because nonunion conditions existed on the
job that the picket was placed there. While it may be said that the general
contractor, Churches, was in charge of this particular project, as he indubitably
was, the job was actually being performed by both Churches and his subcon-
tractors, working side by side, and it was the entire job that was being picketed.
The picket was therefore placed at the situs of the dipute which, as long as the
work continued, was a seat of operations for every employer engaged on the
project.
The unity of interest among these several employers, their interdependence,
and the integration of their activities in time and place, is far more tightly knit
11 For instance , Wolman in his book, The Boycott in American Trade Unions , ( The Johns
Hopkins Press , Baltimore) defined "boycott " as "a combination formed for the purpose of
.restricting the markets of an individual or group of individuals ." [ Emphasis supplied.]
"As far as the record shows, only Imes and Ramstetter had a sign on the property
which advertised that they were engaged on the project.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than the unity of interest which normally binds a primary disputant to big
suppliers and customers.21 Similarly, the unity of interest among craftsmen.
working side by side on the same project, though under different employers,
is as tight-knit as if they worked for a single employer. If there is a form of-
self-help traditionally and historically employed by labor organizations, it is.
the refusal of, union craftsmen to work alongside nonunion craftsmen of the
same or allied crafts.22 To the Respondent, and to the general public for that.
matter, there is no true distinction between the picketing of this single build-
ing project and the picketing of any large department store or other business
establishment, which has its separate divisions where practitioners of different
crafts or professions are employed, but all under a single management, and'
where the dispute is limited to a single division or craft. But this latter type
of boycott, being clearly primary in character, does not fall within the pur-
view of Section 8 (b) (4) (A).
In view of all these circumstances, Goold's testimony that Respondent was-
not interested in whether employees working on the Xavier Street project
were employed by Churches or one of his subcontractors, but was solely interested
in whether or not union conditions prevailed on the job, is entirely credible..
"From the standpoint of economic realities it makes no difference whether the
workers on the Xavier Street project were employed directly by Churches or
were employed by some `subcontractor.' " 83
It is argued, however, that the action complained of was secondary in charac-
ter because Respondent had no dispute with -Churches, the principal contractor.
Assuming that the picketing was directed against Churches and none other,
I still am unable to agree that Churches merits the appellation of disinterested
third party, neutral, stranger to the dispute, innocent bystander, or any of the
descriptive terms appropriately applied to the victim of a true secondary boy-
cott. The record is clear that Churches deliberately, after having been fore-
warned of the probable consequences of such action, elected to. bring about
a nonunion condition of employment on the Xavier Street project. The Respond-
ent gave him fair notice that he could either "go union" or "nonunion," and
he chose the latter course 24 That he did so by subcontracting most of the
work on the project to nonunion employers does not serve to remove him from
the primary dispute to a degree that is normally required to constitute him
a truly disinterested party. Were this not true, any employer similarly situ-
ated, faced with a primary dispute with a labor organization, could -evade
21 Illustrative , is Senator Taft's example of the degree to which a customer is removed
from his manufacturer -supplier : "Just because the retailer buys soap from a soap manu-
facturer it does not seem to me he can be reasonably accused of helping that soap manu-
facturer . He is not helping him manufacture soap ." Senate Hearings on S. 55 and
S. J. Res. 22, 80th Cong., 1st Sess., p. 486.
22 "In the absence of any affirmative legislative history indicating that Section 8 (b)
(4) (A) was intended to curb traditional primary action by labor organizations, and be-
cause the only available legislative history indicates the contrary , we conclude that the
section does not outlaw any of the primary means which unions traditionally use to press
their demands on employers ." The Pure Oil Company, 84 NLRB 315.
11 Respondent ' s Brief.
21 "The notification by the defendants to the general contractors and owners, of the
probability of a strike by them in case the plaintiff was employed on any job on which they
were engaged , was no more than a notice that if nonunion labor was employed on jobs on
which the defendant union men were employed the defendants would strike . . . . The
notice was the course of fair dealing. It did not take away the free choice from the con-
tractor or owner ; it possessed him of the facts which might affect his decision ." Cohn cf
Roth Electric Co., 92 Conn. 161.
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 397
responsibility in the matter by subcontracting all but a negligible portion of the
work on the project involved in the dispute, and by retaining two or more union
members in his employ, could invoke the protection of 8 (b) (4) (A) against
strike or other boycott activity brought by the union to attain the very objec-
tives it sought in its primary dispute."
From any realistic appraisal of the situation, it is apparent that Churches
stands at the very fountainhead of the dispute which ultimately gave rise to
the picketing of the Xavier Street project. Under the circumstances of this
case, it seems unrealistic to assume that he had no responsibility in the estab-
lishing and maintenance of the conditions which constitute the subject-matter
of the dispute, or had no control over these conditions. It is true that the extent
to which he, as principal contractor, could control the employment policies of
his subcontractors under the existing contracts, does not appear. The contracts
are not in evidence. St. Peter testified that he had an "oral agreement" to work
on Churches' projects as long as his work was "satisfactory." From this it
may be inferred that there were only oral agreements between . Churches and
the subcontractors. Whether the agreements were oral or written does not
seem material. It would appear, however, that in support of the General
Counsel's theory of the case, some showing might appropriately have been made
on the degree of control over employment policies of the subcontractors, if any,
allowed Churches under the several agreements, and it is observed in this
connection, that on another building project in Denver, where one of the unions
affiliated with Respondent demanded the removal of a, nonunion craftsman, it
was the general contractor who required his removal, although the craftsman
in question was employed by a subcontractor "" But whether or not Churches,
under existing contracts with his subcontractors, could require the removal of
nonunion craftsmen from the job, as general contractor he clearly had the
requisite authority and means to so organize and conduct the Xavier Street
project that union conditions would prevail, and his failure to do so gave rise
to the primary dispute. And though he now appears to be the sole employer
working on the project, the picketing continues.-' To suggest that he had no
interest in the dispute "is to look at the form and remain blind to substance.
In every meaningful sense" he had made himself a "party to the contest."
Therefore, in picketing the Xavier Street project, the Respondent "was not
extending its activity to a front remote from the immediate dispute but to one
intimately and indeed inextricably united to it.,, 28
Upon. consideration of the entire record in this case, I am disposed to view
the picketing of the Xavier Street project as primary rather than secondary
activity, and for that reason not within the purview of Section 8 (b) (4) (A)
25 See, Mill v. Plumbers Union, 23 L. R. R. M. 2559 (W. D. Mo.).
25 Testimony of Hubert Plante.
27 Cf. : Denver Building and Construction Trades Council, et at, 82 NLRB 1195, where once
the subcontractor objectionable to the union left the job, the pickets were withdrawn.
25Douds v. Metropolitan Federation of Architects, 75 F. Supp. 672 (S. D. N. Y.), citing:
Bakery Drivers Local v. Wohl, 315 U. S. 769; cf. Carpenters Union v. Ritter's Cafe, 315
U. S. 722. While I regard the language quoted from the Douds case applicable to the
instant situation, the case itself is distinguishable from the case at bar. A case more
nearly in point, is Mills v. Plumbers Union, 23 LRRM 2559 (W. D. Mo.). District Court
orders in injunction proceedings have no binding effect on the Board, however, and do not
constitute precedents for complaint cases. See Sperry v. Denver Building and Construc-
tion Trades Council, et at, 77 F. Supp. 321 (U. S. D. C., Colo.) ; Graham v. Boeing Airplane
Co., 22 LRRM 2343.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, unless legislative history requires a contrary conclusion. It is
difficult for me to see that it does 29
The authorities in viewing legislative history of this section of the Act, tend
to place great stress on the utterances of Senator Taft, and particularly his
statement: "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 sec-
ondary boycotts as to make them an unfair labor practice." [Emphasis supplied.]
From this, and like statements, it has been assumed in some quarters that
Congress intended to outlaw activity of the general character of that present in
the case at bar. I can see little basis for the assumption. The complete text
from which the above quotation was taken demonstrates its limitations :
Mr. TAFT. I do not quite understand the case which the Senator has put.
[The case put by Senator Pepper was an example of a product boycott.]
This provision makes it unlawful to resort to a secondary boycott to injure
the business of a third person who is wholly unconcerned in the disagree-
ments between an employer and his employees. The Senator will find a
great many decisions written by my father which hold that under the common
law a secondary boycott is unlawful. Subsequently, under the provisions
of the Norris-LaGuardia Act, it became impossible to stop a secondary boy-
cott 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 boycott?' (The quotation given in the paragraph,
next above follows.) [Emphasis supplied.]
Clearly, there is not in the text of this statement, nor is there in any other
statement of Senator Taft on the matter that has been called to my attention, any
basis for assuming that Congress regarded the type of activity present in the case
at bar a secondary boycott. Senator Taft's remarks are liberally interspersed
with concrete examples of the secondary boycott, most if not all of which are
"product" boycotts or other boycott activities against customers or suppliers of
the disputant employer3' And the body of law prior to the Taft-Hartley Act,
including the opinions of the Senator's father to which lie refers," which gives
" "Section 8 (b) (4) together with Section 303 of the 1947 Act are usually referred to.
as the boycott sections. Congress in passing these sections seems to have had three
principal types of situations in mind. The first is . . . the refusal of a union to work on
products manufactured by non-union labor or by members of another union. The second
was the jurisdictional dispute. The third was the situation where a strong union used its.
superior economic strength to force an employer to violate the National Labor Relations.
Act." The Secondary Boycott First Annual Conference on Labor, New York University,.
at p. 364.
30 Congressional Record, Vol. 93, at p. 4323.
$1 For instance, Senator Taft's references to practices of the "New York Electrical Work-
ers' Union," clearly referred to a product boycott. Footnote 30, supra. Similarly, the
Senate Committee Report at p. 22 refers to a product boycott by Local No. 3 of the IBEW,.
apparently the same matter referred to by Senators Taft and Ball.
32 See, for example, American Steel Foundries v. Tri City Central Trades Council, 257
U. S. 184, 209, in which, in distinguishing Duplex Printing Press Co. v. Deering, 254 U. S..
443, the Supreme Court says of the latter case : "It was a palpable effort on the part of the
International Association of Machinists to institute a secondary boycott, that is, by coercion,.
to use the right of trade of persons having nothing to do with the controversy between
the Duplex Company and the Machinist's Union, and having no interest in it, to injure the-
Duplex Company in its interstate trade." [Emphasis supplied.] See also, Wright et al..
v. Teamsters' Union, Washington Supreme Court, No. 30505, 24 LRRM 2329: "In defining:
the term `secondary boycott', we have said : `While the term secondary boycott is of
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 399
definition to the term "secondary boycott," is signally lacking, at least in its
higher branches, in any support for finding that the term properly embraces
the category of activities here under scrutiny.
I am convinced, therefore, that neither the facts presented by the case at bar,
nor the legislative history of Section S (b) (4) (A), justify a finding of a
secondary boycott. For that reason, I shall recommend the dismissal of the
complaint.
CONCLUSIONS OF LAW
1. William G. Churches, Imes and Ramstetter, C. J. St. Peter d/b/a Pierre
Roofing Company, Angerman Sheet Metal Works, Inc., and each of them, are
employers engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. The Respondent, Denver Building and Construction Trades Council, Denver,
Colorado, has not engaged in, and is not engaging in, any of the alleged unfair
labor practices, within the meaning of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it
is recommended that the complaint, against Denver Building and Construction
Trades Council, Denver, Colorado, be dismissed in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order or to any other part of
the record or proceeding (including rulings upon all motions or objections) as
he relies upon, together with the original and six copies of a brief in support
thereof ; and any party may within the same period, file an original and six
copies of a brief in support of the Intermediate Report and Recommended Order.
Immediately upon the filing of such statement of exceptions and/or briefs,
the party filing the same shall serve a copy thereof upon each of the other
parties. Statements of exceptions and briefs shall designate by precise citation
the portions of the record relied upon and shall be legibly printed or mimeo-
graphed, and if mimeographed shall be double spaced. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as
required by Section 203.85. As further provided in said Section 203.46 should
any party desire permission to argue orally before the Board, request therefor
somewhat vague signification and has no precise and exclusive denotation, the courts, both
Federal and State, are agreed that any combination will be held to be a secondary boycott
if its purpose and effect are to coerce customers or patrons, through fear of loss or bodily
harm, to withhold or withdraw their business relations from the employer who is under
attack. (Citing, Union Brewing Co. v. Beck, 200 Wash. 474, 490, 93 P. 2d 772.) This
definition is equally in point where the parties coerced are suppliers rather than customers
and patrons." [Emphasis supplied.]
sa In making this recommendation, I am not unaware that a violation of 8 (h) (4) (A)
has been found in certain cases which bear an over -all factual resemblance to the case at
bar. It is possible, as the General Counsel argues in his cogent and persuasive brief, that
certain of these, cases are not distinguishable from the case at bar, but inasmuch as every
case of alleged secondary boycott must be tested upon its own facts, the central problem in
each case being a matter of degree, I have felt that the decisions in these cases have not
foreclosed me from an independent survey of the facts and the applicable law.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must be made in writing to the Board within ten (10) days from the date of
service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and rec-
ommended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 8th day of August 1949.
WILLIAM E. SPENCER,
Trial Examiner.