John A. Piezonki, D/B/A Stover Steel Service v. National Labor Relations Board, 219 F.2d 879, 4th Cir. (1955)
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Scribd Government DocsJohn A. Piezonki, D/B/A Stover Steel Service v. National Labor Relations Board, 219 F.2d 879, 4th Cir. (1955)
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Scribd Government Docs219 F.
2d 879
John A. PIEZONKI, d/b/a Stover Steel Service, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 6894.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 8, 1955.
Decided Feb. 26, 1955.
Sidney J. Barban and Earle K. Shawe, Baltimore, Md., for petitioner.
Norton J. Come, Atty., N.L.R.B., Washington, D.C. (David P. Findling,
Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and
Rosanna A. Blake, Atty. N.L.R.B., Washington, D.C., on brief), for
respondent.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PARKER, Chief Judge.
This is a petition to review and set aside a decision of the National Labor
Relations Board denying relief to a subcontractor on a construction project on a
complaint that certain activities engaged in by labor unions amounted to a
violation of secondary boycott provisions of section 8(b)(4)(A) of the Labor
Management Relations Act. 29 U.S.C.A. 158(b)(4)(A). The petitioner is John
A. Piezonki, doing business as Stover Steel Service, who was one of the
subcontractors on construction projects being carried on by Henry J. Knott,
Inc., and the Garden Construction Company, an affiliated corporation, near
Baltimore, Md. Knott and the Garden Construction Company were operating on
an open shop basis. Petitioner and a number of other subcontractors on the
projects were operating on the closed union shop basis. In an effort to force
Knott and Garden to operate 100% union shop, the Baltimore Building and
Construction Trades Council, an organization of labor unions, began an
organizing campaign at the Claremont and Jessups projects of Knott and
Garden and placed a picket line around the projects which the union employees
of the union subcontractors refused to cross. Petitioner contends that the object
of this picket line was to bring pressure on Knott and Garden to unionize their
business by means of the pressure exerted on the subcontractors as a result of
the stoppage of work by their employees. The trial examiner found the facts in
accordance with this contention and recommended that petitioner be granted
the relief prayed. The board refused to grant it, however, on the ground that the
effect of the picketing on the union subcontractors was to be regarded as merely
incidental to the organizing campaign conducted against Knott and Garden.
2
There is practically no dispute as to the facts, which are correctly summarized
in the reports of the trial examiner and the board, and which may be stated
briefly as follows: 'The Baltimore Builders Chapter of the Associated General
Contractors of America, composed of contractors committed to the employment
of union labor, had been urging the Trades Council, representing labor unions
in the construction field, to organize the businesses of the non-union or open
shop contractors in the Baltimore area; and early in 1953 the council decided to
undertake the organization of Knott and Garden, who were constructing the
Claremont and Jessups projects. An organizing campaign was accordingly
commenced and a picket line was thrown around these projects, the pickets
appearing at the time that the men went to work and bearing signs giving notice
that the job was being picketed for purposes of organization. No notice was
given that the picketing related only to Knott or Garden or that it was not
directed towards union subcontractors.1 The result was that, while the nonunion employees of Knott and Garden and of non-union subcontractors paid no
attention to the picket line, the employees of the union subcontractors, who
constituted a substantial number of those working on the projects, refused to
cross it. When they sought advice from their unions with regard to the matter,
they either received no advice at all or such advice as caused them to refuse to
work on the project so long as the picket line was maintained.2 This was, of
course, the result which was aimed at in establishing the picket line, for
everyone knew that the union employees would not cross it and that their
refusal to work thus brought about would result in pressure on the general
contractors to yield to the demands of the unions. The matter was well put in
the concluding findings of the trial examiner, wherein he said:
'The record shows that the Council had long been engaged in a campaign
directed at the nonunion general contractors in the Baltimore area (including
Knott and Garden) to require them to employ members of its affiliated building
crafts unions. The Council's tactics included both purely persuasive efforts
(e.g., the conferences between Ellis and Knott) and attempts to force the general
contractors to capitulate by depriving them of the services, i.e., business, of
union subcontractors by causing the removal of the latter's employees from the
job.
'The object of the latter tactics was not only to force or require such
subcontractors to cease doing business with the general contractors but in
practical effect it prevented them from doing business on the job sites during
the course of the dispute, since they were rendered helpless to proceed under
their contracts in the absence of labor supplied by the crafts unions.
'The Council's minutes and the other evidence herein establish clearly that the
activities which comprise the subject matter of this proceeding were only a part
and a continuation of the Council's campaign to require open shop contractors
to hire all their manpower through the Council's affiliated unions. Though the
evidence shows that the Council set upon its new course of action with full
awareness of the pitfalls and problems presented by the secondary boycott
provisions of the Taft-Hartley Act, as interpreted by recent Supreme Court
decisions, and that it sought, obtained, and acted upon the advice of counsel,
yet its objectives remained as before. What was changed was the quality of the
means it employed to attain them. I.B.E.W. case, supra.
'But the change in methods could not disguise the objects of the action which
was sought to be induced. Plainly, those methods still envisioned one objective
which was illegal, i.e., to force or require the union subcontractors, who were in
no way involved in the dispute, to cease performance-- indeed to prevent
performance-- of their contractual obligations to the general contractors. Thus
the subcontractors, helpless and impotent neutrals, became the chief victims of
a dispute which they were powerless to resolve.'
It is no answer to this to say that the campaign was an organizational campaign
and that the picket signs so indicated. The picketing was done at premises
where business of the subcontractors as well as business of the contractors was
being carried on; and everyone knew that it would affect, not the non-union
employees of the general contractors, but the union employees of the
subcontractors, and it is idle to suggest that it was not engaged in for this
purpose. As the object was to bring pressure on the general contractors by the
pressure exerted on the subcontractors, through concerted action of their
employees, we think that the conduct complained of is clearly an unfair labor
practice within the meaning of section 8(b)(4)(A) of the Labor Management
Relations Act, 29 U.S.C.A. 158(b)(4)(A), which provides that it shall be an
unfair labor practice for a labor organization,
'to engage in, or to induce or encourage the employees of any employer to
engaged in, a strike or a concerted refusal in the course of their employment to
use, manufacture, process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any services, where an object
thereof is: (A) forcing or requiring any employer or self-employed person to
join any labor or employer organization'.
9
Directly in point, we think, is the very recent case of N.L.R.B. v. Local Union
55, 10 Cir., 218 F.2d 226, 231. In that case, as here, a picket line was
established at a construction site where construction was being carried on by a
non-union insurance company, as general employer, and a number of union
subcontractors; and there, as here, no notice was given that the picketing was
not directed at the union subcontractors, with the result that their employees
refused to work on the job. In sustaining the board, which held such picketing
to be an unfair labor practice, the court, speaking through Judge Phillips, said:
10
'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.
11
'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.'
12
Directly in point, also, is the decision of the Supreme Court in N.L.R.B. v.
Denver Building Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284, although
in that case the general contractor was a union employer and the picketing was
engaged in because of the employment of nonunion men by a subcontractor. In
holding the picketing there to be an unfair labor practice within the meaning of
the section above quoted, the court held that the contractor and the
subcontractor were to be held independent contractors doing business at the
common site and that the picketing was to be judged accordingly. In point, also,
the decision of the Supreme Court in International Brotherhood of Electrical
Workers v. N.L.R.B., 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299, in which
picketing by labor unions was condemned as an unfair labor practice where the
picketing took place at a construction project and the object was to force the
general contractor to terminate a contract with a subcontractor who employed
non-union labor. In the case last cited the pressure resulted from union
employees of another subcontractor refusing to cross the picket line.
13
The board has recognized the difficulty of distinguishing between picketing
which is proper, because directed at obtaining relief from the person picketed,
and picketing which is improper because directed at one person with a view of
creating pressure on another, where both are operating at the same work site;
and in the Moore Drydock case, Sailors Union of the Pacific 92 N.L.R.B. 547,
549, the following were laid down as conditions which must be observed if the
picketing is not to be condemned as unfair, viz.:
14
'(a) The picketing is strictly limited to times when the situs of dispute is located
on the secondary employer's premises;
15
'(b) at the time of the picketing the primary employer is engaged in its normal
business at the situs;
16
'(c) the picketing is limited to places reasonably close to the location of the
situs; and
17
'(d) the picketing discloses clearly that the dispute is with the primary
employer.'
18
These conditions have been approved by the Court of Appeals of the 10th
Circuit in N.L.R.B. v. Local Union 55, supra, by the Court of Appeals of the 7th
Circuit in N.L.R.B. v. Chauffeurs, Teamsters, etc., 7 Cir., 212 F.2d 216, 219,
and by the Court of Appeals of the 2d Circuit in N.L.R.B. v. Service Trade
Chauffeurs, etc., 2 Cir., 191 F.2d 65, 68. The fourth condition was clearly
violated here, as the picketing did not disclose clearly that the dispute was with
the primary employer, the general contractor. It resulted and was manifestly
intended to result in interfering with the employees of the union subcontractors,
who, so far as the evidence shows, were the only ones affected by it.
19
This is not a case like N.L.R.B. v. Rice Milling Co., 341 U.S. 665, 71 S.Ct.
961, 95 L.Ed. 1277, where the picketing was directed solely at the
manufacturing company whose plant was picketed and where interference by
the picket line with trucks attempting to make deliveries to the plant was
incidental to the primary picketing. Here the main purpose as well as the effect
of the picketing was to drive the employees of the union subcontractors from
the job. This was clearly engaging in a secondary boycott within the prohibition
of the statute, and the consequences thereof may not be avoided by reason of
the fact that the ultimate purpose was to organize the workers of the general
contractors at the work sites where the picketing was carried on.
20
For the reasons stated, the order of the board will be set aside and the cause
will be remanded for proceedings in conformity with this opinion.
21
Order set aside and cause remanded to board.
For Labor Board cases holding that somewhat similar signs were not sufficient
to inform employees as to the limitation of the dispute, see Brotherhood of
Porters, A.F.L. etc., 109 N.L.R.B. No. 166, and Chauffeurs, Teamsters,
Warehousemen, etc., 106, N.L.R.B. No. 111
For cases dealing with somewhat similar replies to questions as to crossing
picket lines, see International Brotherhood of Boilermakers, etc., 95 N.L.R.B.
1191, and Glaziers Union Local No. 27, 99 N.L.R.B. 1391
