218 F.

2d 226

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.
LOCAL UNION NO. 55; and Carpenters District Council of
Denver and Vicinity, Affiliated With United Brotherhood of
Carpenters and Joiners of America, A. F. of L., Respondents.
No. 4926.

United States Court of Appeals, Tenth Circuit.

December 31, 1954.

Samuel M. Singer, Atty., Washington, D. C. (George J. Bott, Gen.

Counsel, David P. Findling, Associate Gen. Counsel, Abraham Siegel,
Atty., Washington, D. C., were with him on the brief), for petitioner.
Wayne D. Williams, Denver, Colo., for respondents.
Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit
Judges.
PHILLIPS, Chief Judge.

This is a petition to enforce an order of the National Labor Relations Board.

The Professional and Business Men's Life Insurance Company1 is a Colorado
corporation with its principal offices in Denver, Colorado. It is primarily
engaged in the insurance business in a number of states, including Colorado. To
provide available investments for the funds received from the insurance
business, the Insurance Company engages in the construction and sale of
residential dwellings in Denver and vicinity and has over $1,000,000 invested
in mortgages on houses built and sold by it. Its construction operations are
controlled and supervised by James C. Ely, its Denver office manager. Acting
as its own general contractor, the Insurance Company completed 65 houses
during 1952, and from January 1, 1953 to June 30, 1953, had completed or was
in the process of constructing more than 100 houses in Denver and vicinity. In
1952 it expended $386,000 and during the first six months of 1953, $269,000,
exclusive of the cost of land and labor, in its building operations. These
amounts included $180,000 for building materials purchased in Colorado, but

manufactured in other states.

2

At the inception of its construction business the Insurance Company employed

Kirkland Brothers as its general contractor to construct its projects. However,
since May, 1952, it has acted as its own general contractor and as such has
employed carpenters, cabinet makers, painters, floor finishers and laborers. In
addition, it has contracted with various subcontractors to perform specialized
construction work on its projects. Although several of these subcontractors had
signed collective bargaining contracts with different building trades unions, the
Insurance Company operated an open shop, resulting in its appearing on the
Unfair List of Local Union No. 55 and Carpenters' District Council2 beginning
about March 27, 1953.

The respondents had long been disturbed by the fact that union members had
been working on projects of the Insurance Company alongside nonunion men,
in violation of the By-Laws and Working Rules of Local 55 and the Working
Rules of the District Council, both of which provide that "No member shall
work where a non-union man is employed on any work coming under our
jurisdiction * * *." Alex Mazaro, delegate of both respondents, took steps to
correct such practice by exerting pressure on the Insurance Company and
subcontractors of the Insurance Company, with the purpose to unionize the
employees of the Insurance Company.

At a meeting held on December 15, 1952, Mazaro advised a group of union

flooring contractors that they were violating union rules by working on
nonunion projects. Mazaro warned these contractors that by January 1, 1953,
unless the nonunion men on such projects were replaced by union members, the
subcontractors would have to cease doing their work with union members, so
that union members would not have to work with nonunion men. The flooring
contractors countered with a proposal that respondents modify their prohibition
against union carpenters working on projects employing nonunion men, but
such proposal was rejected by the respondents. Thereafter, Mazaro repeatedly
warned the flooring contractors that if their employees "were caught working
on a nonunion job with nonunion men, * * * that man would be warned first
and charges preferred against him, second, * * *." The Working Rules of both
respondents provide for the imposition of fines against or expulsion of members
violating the Rules. Mazaro warned Cromwell, a flooring subcontractor, that
the rest of his men would be taken away from him and he would be placed on
an Unfair List if he continued to work his men on nonunion projects. Despite
Mazaro's warning Cromwell continued his work on the Insurance Company
project until after January 1, 1953, the deadline set by Mazaro.

On January 27, 1953, Mazaro informed Cromwell he had found one of

Cromwell's employees, Vincent Rossi, working on the nonunion Insurance
Company project, contrary to union rules and beyond the January 1 deadline.
Mazaro repeated his warning that such practice would have to be discontinued
or he would take the rest of Cromwell's men away from him and that Cromwell
was placing his employees "in jeopardy of having charges filed against them
with Local 55." Cromwell protested that he had a written contract with the
Insurance Company and that he did not want to give up the work, which he very
much needed. Mazaro replied that he did not think it would be necessary for
Cromwell to lose the work, since if the respondents could make it difficult
enough for the Insurance Company to do its work, that possibly its employees
would join the Union and the Insurance Company's subcontractors could retain
and complete their contracts. As a result Cromwell removed Rossi from the
Insurance Company job. Later that day, or the next day, Cromwell dispatched
Employee Anderson to work on the Insurance Company project. Before
reporting for the job Anderson requested Union Shop Steward Holmes to get
Mazaro's permission for him to work. Holmes called Mazaro and the latter told
him that Cromwell's employees could not work on the Insurance Company's
project and that they would face Union charges if they did. Holmes transmitted
that information to Anderson and two other Cromwell employees who stood
nearby. Holmes also apprised Cromwell of his conversation with Mazaro and
Cromwell later reassigned his employees to other jobs. Cromwell then acceded
to respondents' pressures and informed the Insurance Company he could not
perform his contract, citing difficulties with the respondents as the cause. As a
result, the Insurance Company was forced to purchase floor surfacing and
polishing machines and do its own floor surfacing and laying.

Following his earlier warnings to the flooring contractors, on January 14, 1953,
Mazaro commenced to direct his attack against the Insurance Company. On that
day he requested Ely to recognize Local 55 as bargaining agent and to "work
union people on (the) job." Ely replied that it was a matter for the Insurance
Company employees to decide. Later, and at a time when Mazaro was
continuing pressure on Cromwell, Mazaro again met with Ely and requested
Union recognition and gave Ely a form of contract for recognition of Local 55.
That contract incorporated the Union's Working Rules. Mazaro also left Ely a
copy of the Union's Working Rules. Ely again replied that it was up to the
Insurance Company's employees to determine whether they wanted Local 55 as
a bargaining representative and gave Mazaro permission to talk to the Insurance
Company's employees. In February, 1953, Mazaro discussed the Union with the
Insurance Company's employees at the job site. Thereafter, he polled the
employees on the question whether they wished Local 55 to act as their
bargaining agent. The employees voted 19 to 1 against Local 55 acting as their

bargaining agent.
7

Following that, Mazaro again met with Ely and threatened to picket the
Insurance Company's project, because "there were union and nonunion men on
the job."

In February, 1953, Mazaro called a special meeting of union floor-laying

employees of various employers, including Cromwell, and warned them that
they would be subjected to penalties if they were caught working on nonunion
jobs.

Mazaro also exerted pressure on John Mullican, an Insurance Company

subcontractor and member of Local 55, to induce him not to work on the
Insurance Company's project. About January 31, 1953, at a time when Mullican
was engaged as a roofing subcontractor on the Insurance Company's project,
Mazaro notified Mullican that he was violating union rules by working on a
nonunion project. Sometime later, in a conversation at the job site, where
Mullican's employees were at work, Mazaro informed Mullican that he would
have to quit that work or face charges. Mullican refused to give up his contract
with the Insurance Company and his employees were at work on the project
when, on April 1, 1953, respondents' pickets appeared at the job site. On April
3, 1953, Mazaro preferred charges against Mullican, and on May 12, 1953, the
District Council fined him $500.

10

Unsuccessful in their efforts to force the Insurance Company to sign a

collective bargaining agreement, respondents on March 27, 1953, placed the
Insurance Company on their Unfair List. About that time Mazaro notified Cliff
Gould, a business agent of the Denver Building and Construction Trades
Council, that respondents would soon begin picketing the Insurance Company's
project. Shortly thereafter, John B. Chase, president of the Carpenters' District
Council, directed Mazaro to picket the project. On April 1, 1953, respondents
posted two pickets on the project with signs reading: "Working Conditions on
This Job Unfair to Carpenters' District Council." The sign did not name the
Insurance Company or otherwise identify it as the employer with which the
respondents were in controversy. At work on the project when the pickets
appeared were the Insurance Company's employees and employees of Price
Plumbing and Supplies, one of the Insurance Company's subcontractors. None
of these employees left their jobs at that time. On the following day Mazaro
also informed the business agent of the Electricians' Union that the respondents
had placed a picket line at the Insurance Company's project.

11

On April 3, 1953, picketing ceased because of a state court temporary

11

On April 3, 1953, picketing ceased because of a state court temporary

restraining order, but was resumed April 27, 1953, upon the dissolution of that
order. Picketing continued from the latter date until the early part of June, 1953.
On April 27, 1953, employees of Price Plumbing and Supplies and of John
Mullican were at work on the project. Upon the resumption of picketing, the
employees of both subcontractors left their jobs.

12

The Board found that in view of respondents' failure to disclose on the picket
signs that the picketing was directed solely against the Insurance Company, and
in view of the respondents' past efforts to bring pressure upon subcontractors to
cease doing business with the Insurance Company, the picketing was directed
in part against the secondary employers.

13

The Board found that the purpose of respondents' picketing of the Insurance
Company's project was to induce and encourage the employees of Price
Plumbing and Supplies to withhold their services from their employer, in order
to force Price Plumbing and Supplies to cease doing business with the
Insurance Company, and by that means compel the Insurance Company to
recognize one of the respondents, neither of which was certified under 9 of
the National Labor Relations Act,3 as amended, 61 Stat. 136, 29 U.S.C.A.
151 et seq., as the bargaining agent of its employees.

14

The Board also found that since the contract which respondents undertook to
force the Insurance Company to enter into incorporated the Union's Working
Rules, prohibiting union members from working alongside of nonunion
employees, it in effect contained an illegal union-security arrangement calling
for discrimination against nonunion employees.

15

The Board concluded that by picketing to force the Insurance Company to enter
into the contract, respondents attempted to cause the Insurance Company to
violate 8(a) (3) of the Act, thereby themselves violating 8(b) (2) of the Act.

16

The Board ordered the respondents to cease and desist from the unfair labor
practices found and to post the usual notices.

The 8(b) (4) (A, B) Violations

17

Section 8(b) (4) (A) of the Act is designed to protect innocent third persons
from economic loss as a result of a labor dispute in which they have no
concern.4

18

"The gravamen of a secondary boycott is that its sanctions bear, not upon the

employer who alone is a party to the dispute, but upon some third party who
has no concern in it. Its aim is to compel him to stop business with the
employer in the hope that this will induce the employer to give in to his
employees' demands."5
19

Clearly, here, the dispute was between the respondents, who demanded that the
Insurance Company recognize one of them as the bargaining representative of
its employees and cease working nonunion men, and the Insurance Company
which resisted such demands.

20

Mere incidental effect on the secondary employer is not enough to constitute a

secondary boycott. Where there is no geographic separation between the work
situs of the primary employer and the work situs of a neutral employer, that is,
where the primary and secondary employers occupy a common work site, it is
not easy to draw the line between permissible primary action and proscribed
secondary action. It must be determined by balancing "the dual congressional
objectives of preserving the right of labor organizations to bring pressure to
bear on offending employers in primary labor disputes and of shielding
unoffending employers and others from pressures in controversies not their
own."6 To reconcile these conflicting interests, the Board in Sailors' Union of
the Pacific, 92 N.L.R.B. 547, 549, evolved criteria for determining when
picketing at a common situs would be considered legitimate primary picketing
or unlawful secondary picketing and the Board stated that picketing at such a
situs is primary and permissible only if it meets all of the four following
conditions:

21

"(a) The picketing is strictly limited to times when the situs of dispute is
located on the secondary employer's premises;

22

"(b) at the time of the picketing the primary employer is engaged in its normal
business at the situs;

23

"(c) the picketing is limited to places reasonably close to the location of the
situs; and

24

"(d) the picketing discloses clearly that the dispute is with the primary
employer."

25

In N. L. R. B. v. Service Trade Chauffeurs, Salesmen & Helpers, 2 Cir., 191

F.2d 65, 68, the court approved such criteria as a sound interpretation of the
Act.

26

Here, at the common situs, construction work was being carried on by the
Insurance Company, the primary employer, and by certain subcontractors. The
object of the picketing was to compel the Insurance Company to recognize one
of the respondents as the bargaining agent for its employees and to cease
working nonunion men alongside of union members. The picketing signs were
not directed at the primary employer alone, but at the project, at which
secondary employers were also working. It read: "Working Conditions on This
Job Unfair to Carpenters' District Council." It is a reasonable inference from the
evidence that a primary purpose of the picketing was to cause the employees of
the subcontractors to cease working on the project and prevent the
subcontractors from completing the construction under their subcontracts, as a
means of compelling the Insurance Company to recognize one of the
respondents as the bargaining agent for its employees and to cease working
nonunion men on the project. That was the only way that the respondents could
accomplish their objectives, so long as union employees of the subcontractors
were willing to work on the project with nonunion employees of the Insurance
Company and the nonunion employees of the Insurance Company were
unwilling to recognize either of the respondents as their bargaining agent and to
become members of the Union.

27

We conclude that under the undisputed facts and the reasonable inferences
deductible therefrom, which it was the peculiar province of the Board to
determine, the Board was fully warranted in concluding that the picketing was
designed to create pressures that would cause the subcontractors to stop the
work on their subcontracts with the Insurance Company, as well as to compel
the Insurance Company to recognize one of the respondents as the bargaining
agent of its employees. We think that conclusion must follow, when
consideration is given to the pressure that had theretofore been directed at the
secondary employers, the purpose of which plainly was to induce them to cease
doing business with the primary employer and thus compel the latter to
unionize its employees and recognize the respondents as their bargaining agent.

The 8(b) (2) Violations

28

Section 8(a) (3) of the Act makes it an unfair labor practice for an employer by
discrimination, in regard to hire or tenure of employment, or any term or
condition of employment, to encourage or discourage membership in any labor
organization, except insofar as permitted by a valid union-security agreement.
By 8(a) (3) (i) of the Act, the employer is forbidden to enter into a union shop
contract with a labor organization, unless such labor organization "is the
representative of the employees as provided in Section 9(a), in the appropriate
collective-bargaining unit covered by such agreement when made". Neither of

the respondents was the representative of the employees of the Insurance

Company as provided in 9(a) of the Act.
29

The question presented is whether the respondents, by demanding and using

pressure to enforce their demands that only members of the Union be employed
on the Insurance Company's project, attempted to cause the Insurance Company
to discriminate against nonunion employees in violation of 8(a) (3) of the Act,
thereby violating 8(b) (2) of the Act. The evidence established that the
respondents repeatedly endeavored, both through direct and indirect pressures,
to induce the Insurance Company to abandon its open shop policy and employ
only members of the respondents, and that in the midst of such pressures the
respondents urged the Insurance Company to sign a collective bargaining
contract which was tantamount to a closed shop agreement and an illegal unionsecurity agreement.

30

The respondents contend that their demands upon the Insurance Company
would not have required the dismissal of any of its employees currently on the
job. Certainly, the objective of the respondents was to compel the Insurance
Company to cease employing nonunion men, including both its present and its
future employees. But, if the demands of respondents went only so far as they
contend, they would still have been a violation of 8(b) (2) of the Act. That
section proscribes union attempts to cause discrimination based on union
membership, not only against specific employees, but also against potential
employees. The "prohibition is not confined to those instances in which specific
non-union employees are unlawfully discriminated against. It extends as well to
instances in which the union, or its agents, seeks to cause the employer to
accept conditions under which any non-union employee or job applicant will be
unlawfully discriminated against."7

31

Accordingly, we conclude that the findings of the Board, on a consideration of

the record as a whole, are supported by substantial evidence and afford a sound
basis in law for its order.

32

The order will, therefore, be enforced.

Notes:
1

Hereinafter called the Insurance Company

Hereafter called respondents

Hereinafter called the Act

N. L. R. B. v. United Brotherhood of Carpenters and Joiners, 10 Cir., 184 F. 2d

60, 64

International Brotherhood of Electrical Workers, Local 501 v. N. L. R. B., 2

Cir., 181 F.2d 34, 37

N. L. R. B. v. Denver Building & Construction Trades Council, 341 U.S. 675,

692, 71 S.Ct. 943, 953, 95 L.Ed. 1284

N. L. R. B. v. National Maritime Union of America, 2 Cir., 175 F.2d 686, 689;

N. L. R. B. v. George D. Auchter Co., 5 Cir., 209 F.2d 273, 276-277