Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board – Oral Argument, Part 2: NLRB cases – March 12, 1958

Media for Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

Audio Transcription for Oral Argument, Part 1: NLRB cases – March 11, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 3: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Earl Warren:

Number 127, Local 1976, United Brotherhood of Carpenters and Joiners of America versus National Labor Relations Board.

Mr. Garrett, you may proceed.

Arthur Garrett:

If Your Honors please, there is no question of carriers in this case and it involves doors, rather than sand and gravel.

The locale of this case is Los Angeles, California and all of the relevant actions and declarations occurred on a billing job in East Los Angeles.

The only other location in the area relevant to the facts in this case is Glendale, California.

The jurisdiction of another carpenter’s local union and I think I would like to say that because distance is a rather large in the City of Los Angeles, there is a distance of some 15 or more miles between this construction site and the headquarters of the Glendale Carpenters Union.

Now the construction in East Los Angeles in which carpenters as well as other trades were employed was under a general contractor whom I will, Havstad and Jen — Jensen whom I would refer to as Havstad.

Havstad was a party to an area agreement made for him with the carpenters’ union by his employer’s association called the Building Contractors Association and that is the terms of that agreement, the essential parts of which are set up in the transcript here.

And as to the fact that that agreement was at all times binding, upon both Havstad and the unions and Havstad’s agents and the members of the unions as to the existence and effect of that contractor is no dispute in this record.

Pursuant to certain contract provisions on the — on the 17th day of August 1954, Nathan Fleisher, the business agent of Carpenters Local Union, number 1976 in East Los Angeles, the area of this construction, called at the office of Havstad and Jensen, which was on the jobsite.

He had been there the previous day and waited three hours to talk to someone in authority apparently not being successful in doing so, he had returned on August 17th, 1954.

His visit on the previous day is established by the testimony of the office girl for Havstad and Jensen, which is in the record.

Now, when Fleisher went there, he got there reasonably early in the morning at which time the only person in authority for Havstad and Jensen, was one Arnold Steinert, the foreman and that’s where this Glendale location comes in, because Steinert was not a member of any union in East Los Angeles, but he was a member and only a member that is he held no other union position and not of mere membership.

In the Glendale Local, which is Local 563, there are many other carpenters on this job, all of which were members of Nathan Fleisher’s East Los Angeles Local Union 1976.

And the testimony of Mr. Nicholson, the General Superintendent for Havstad, establishes that not only had he secured all of his carpenters from that local union over a long period of years, the period of years at least covered by the existence of preceding renewals of the same area labor agreement that he testifies 10 years, although the actual original execution of the agreement was, as I recall it in 1941.

But Nicholson testifies that for preceding 10 years, Havstad and Jensen, for whom he was General Construction Superintendent had been working under this agreement and that during that said time, he had not only been getting all of these carpenters from Nathan Fleisher and these are the Carpenters Local Union 1976, but as a matter of fact, he’d been insisting on talking to Fleisher about the dispatch of each man, that is he would not — he was not content just to leave an order in the office, but he had those men there personally from Fleisher.

And among those men, the two men on the job, on this critical day who come into the evidence are the Agronovich’s father and son, Sam, a carpenter and Sol, a carpenter on the job who is also the shop steward on the job for the carpenters, that is the shop steward from Mr. Fleisher and his Carpenters Local 1976.

Now, the testimony of Mr. Fleisher and Mr. Nicholson and Mr. Steinert establishes without doubt that there were only two persons who are in supervisorial positions there for the General Contractor Havstad and Jensen.

One of these persons was Mr. Nicholson, the General Building Superintendent.

The other was Mr. Arnold Steinert whom I referred to as Construction Foreman.

Steinert being at all times in complete authority when — and it sets time as Mr. Nicholson might be absent from the operation.

Now it happens that this visit of Mr. Fleisher’s pursuant to the contract provisions I have mentioned, but not directly outlined occurred on the morning of August 17th, 1954 and the transaction was completed between him and Mr. Steinert before Mr. Nicholson even came to the job.

The testimony of Mr. Steinert indicates that at least a half hour had elapsed following his giving of his instructions to the carpenters involved in this contract question, a half hour between that time in the first arrival of Mr. Nicholson.

Now, as you may have assumed, the position of the Board here is that something must have happened in that half hour, which constituted a — an inducement or a direction from Mr. Fleisher directly to the employees.

Pursuant to this contract clause, which was a clause that said in so many words, “Workmen shall not be required to handle non-union material.”

You’ll find it is the petitioner carpenters’ position that such a conclusion is orderly without reasonable foundation on the record considered as a whole or at all.

Now, there had been and this was the occasion from Mr. Fleisher’s visit to a job.

A shipment of doors received from Wisconsin on the job known as Paine doors.

That was the reason Mr. Fleisher, the business agent had been there the day before and that was the reason he was there talking to Mr. Steinert this morning.

On this morning in question, Mr. Fleisher was arriving at a job where every carpenter on the job was a member of his union.

Audio Transcription for Oral Argument, Part 3: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Arthur Garrett:

He was arriving this morning on a job where every carpenter on the job was not only a member of his union but a member he had personally dispatched to the job, according to the invariable custom of building Superintendent Nicholson in ordering his men.

And he was furthermore, arriving at a job, on which he had a union representative Mr. Sol Agronovich, the shop steward for Local 1976 of which Mr. Fleisher was business representative.

And yet on the preceding day, he waited three hours in the office for someone in authority and then left without going to anyone of this — his own carpenters about these doors, and I expect to show you from the record on the morning in question, he talked to not a single one of this his own carpenters about the doors, but he said to Mr. Steinert who was in a complete in charge of the job who was supervision and the only supervision available for him to talk to.

And because this is going to come into question again, I’d like to read it verbatim from page 165 of the record, the testimony of Mr. Steinert, as to what Mr. Fleisher told him, “You’re under oath at the Board hearing.

There had been in this case as in the preceding cases a previous application for the — by the Board at the time of these events to the Federal District Court for a Taft-Hartley injunction which was refused them, so that this testimony is at the Board hearing which was held I believe sometime in around April of the following year.

Beginning at page 165, where the Board attorney is asking Mr. Steinert what Fleisher told him.

“What did you say to him and what did he say to you?”

“Well, he told me that we’d have to quit hanging the doors until they got it settled that they were union or non-union doors and they were going to check on them and in a day or two, they would be cleared and we could go ahead and go to work.”

“Did Mr. Nathan Fleisher use the word “veil” all the way through — all the way through there in your conversation?”

“Well, I don’t remember.

No.”

“Mr. Steinert, I want you to recall just as well as you can what Mr. Fleisher’s words were to you?”

“Well he said, there non-union doors and they didn’t have a label and we’d have to quit hanging the doors until it was settled.”

“And then what did you say to him?”

“I said all right.”

I want to stop at that point to interpolate that that is the point where the employer, according to the contract, if Mr. Steinert was their foreman and agent as he seemed to be, made the decision on the question of whether it would permit the hot cargo clause to be invoked.

Now continuing on the record.

“Then what did you do?”

“Well, the laborers were moving the doors from floor to floor and I told them to leave them alone, leave them set and we went down into the basement where Sam Agronovich was working and told him we’d have to quit hanging the doors because they weren’t union until they got it settled.”

“Did you tell Mr. Agronovich to do anything else?”

“I told him that he could put his tools away and then he could put on the door butts on the metal jambs.”

Interpolating again the previous testimony show that prior to this time, instead of working on the door butts and the metal jambs, which were affixed to the door before they were affixed to the door opening, that Mr. Agronovich had been working on jigs, which were to be used in connection with the fitting of the doors.”

Returning to the record.

“That was the same time?

“And Mr. Fleisher was present when you talked to Mr. Agronovich?”

Dropping down through three sets of questions and answers, which I do not consider essential, I want to resume in the middle of the page.

“When did you first see the Superintendent Mr. Nicholson?”

“I don’t know.

I guess it was around 11 or a little after 11 o’clock.”

“How long after you had given these instructions to the carpenters and to the laborers?

Audio Transcription for Oral Argument, Part 3: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Arthur Garrett:

Was it that you first saw, Mr. Nicholson?”

“Well, I’ll say it was about a half hour.”

And I would like to interpolate at this point that the testimony of Mr. Nicholson here and after given in the record, shows that he has been away from a job until or had not arrived on the job actually until the time that Mr. Steinert actually saw him one and a half hour after giving these directions and that Mr. Steinert had been completely in charge in his place instead.

Now, that still left the question as to what if anything had been said in this conversation between Mr. Steinert and Mr. Sam Agronovich, who was the only carpenter actually involved with the doors, and that was cleared up by cross-examination, the cross-examination consisting of just two lines.

Cross-examination of Mr. Steinert, question by Mr. Nicholson, “When you went to stop Sam Agronovich from hanging the doors, did Mr. Fleisher say anything?”

“To Sam?”

Question.

“Yes.”

Answer.

“Not that I know of, no.”

Now later on, Mr. Nicholson, the General Superintendent arrived on the job.

He had a conversation with his foreman, Mr. Steinert and with Mr. Fleisher.

That was at the job site also.

In that conversation, Mr. Fleisher spoke to no one except Mr. Nicholson and Mr. Steinert.

In that conversation, Mr. Nicholson did not countermand anything that Mr. Steinert had said.

He complained about shortness of notice, but he did not complain about being requested not to hang the doors.

That is to put the hot cargo clause into effect.

And it was not until — and if that occurred there — during the injunction proceeding in the Federal District Court, that any request was made of any workmen by management that hang any of these doors.

And in connection with that, a significant thing occurred on the question of whether or not when Mr. Steinert said, “I said all right in response to this request to invoke the hot cargo law or the hot cargo provision — the hot cargo contract provision.

An important thing occurred that there is light — threw his light on the question of whether Steinert, the foreman, was representing management when he acquiesced or whether he was merely acting under the direction to the union and it is upon that rather fine point that we’ve been charged for responsibility for violation of the Taft-Harley section.

Now, during the — as it will be shown by the testimony of both Steinert and Nicholson, during the hearing on the Taft-Hartley injunction, it appeared that a weak point in the regional directors or general counsel’s petition for injunctions appeared in the fact that whether by Fleisher or as they contended by Fleisher and Steinert, the weak point appeared in the fact that an inducement or encouragement of direction has been given only to one workman, Sam Agronovich, and so someone who was interested in getting the Taft-Hartley injunction, one of the charging parties I believe, the charging party in this case being the regional distributor for these doors, Sand, recently distributor for Paine, the manufacturer and the charging party.

Sands or someone on his behalf called up Nicholson and said, “Here, it looks like since these inducements or representations had been conveyed in whatever way they were conveyed, the only one workman, we think you have to go around and talk to the others and ask them whether they’re willing to hang these doors.

And it then appears that Nicholson, according to his own testimony said to those who are so importuning him.

“I can do that.

I don’t have direct charge or authority over these men.

I have got to get Steinert to do it.”

And attend to those that at this later day, Steinert, sometimes in the company of Nicholson, the General Superintendent, but always Steinert, the foreman, went around individually and ad seriatim one of this men and said to them, “Will you or will you not hang these doors?”

And they all said they didn’t care to do it.

Now, I’m impressed.

Before we leave the facts with several things, one is that Fleisher, the business agent, had wanted to make a direct demand or direction or inducement to the carpenters who were to be involved in hanging these doors.

Audio Transcription for Oral Argument, Part 3: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Arthur Garrett:

He had every opportunity to do so although he didn’t.

They were his own members.

He dispatched everyone of them personally to the job.

Presumably he knew everyone of them personally.

He had his own shop steward on the job.

In fact, he’s a sponsor or he’s intermediary and yet we find him not addressing a single word to any one of them and in fact waiting alone in the office for several hours on the proceeding days rather than contacting his men who were right on the other side of the door.

Now, I’m impressed with the fact that Steinert, who’s made in the findings an award of the Board and in the decision of the Ninth Circuit, a mere instrument of the respondent, the petitioners here that what we contend is merely a — a semantic exchange.

I’m impressed with the fact that he had no connection either with Steinert or his local union, that he held no position in any union, and that his union affiliation, although with the Carpenters Union, was with the Carpenters Union far — far distant.

I’m impressed with the fact that he was so much the instrumentality of many that in this demand that were finally made on the carpenters after management had once consented to the contrary when these demands were finally made upon the carpenters to set the doors.

Only Steinert was deemed by management, the person qualified to be the avenue for the making of this demand.

Now, we are charged in the point as amended, on which we went to hearing in this case with instructing and inducing and encouraging these employees, the very carpenters who were employees of Havstad I’ve been talking about to refuse to install these doors and we’re charged in the same complaint with having done so for the purpose of interfering in business relations, between Paine and Sand, Pain is distributor on the one hand and Havstad and Jensen, the building contractor and Watson and the Dreps on the other, Watson and Dreps being the middleman after which Havstad and Jensen purchased the doors from Sands.

As far as I know, the record is devoid of any evidence that whatever the respondent union did in this case was done for any purpose other than to exercise their rights under this hot cargo labor provision event.

Now in that connection, the position of the union is this.

Particularly since 1947, we pursue our organizing and representative of carpenter employees in Southern California subject to the permission and subject to the hindrance of the National Labor Relations Board.

Their pronouncements, and we follow closely, since the Ravelin case was maintained in our contracts, the hot cargo waiver provision, which I have mentioned to you before, single line and one of the longer paragraphs of the contract, it says that no work minimal required to handle non-union goods.

In the record of this case, it is undisputed that the doors I’ve been talking to you about were non-union, just that, non-union.

Now, it is of course a practical fact that the man who works on struck goods in his own plant is acting against the strikers in the plant that produced those goods just the same as though he were to go to that other plant and walk through the picket line of those strikers.

To the same extent, the same thing can be said of non-union goods.

In the same situation, the same thing can be said of the employer who brings into his plant non-union or struck goods and has them work on there.

That’s particularly true of course to the situation of struck goods.

Now, much has been said about the construct — construction of neutrals in this hot cargo in the secondary boycott controversies, some of it by this Court.

I think that the unions in Southern California in following the policy of this Board as laid down in the Ravelin case and incorporating the permissible provisions about working on struck or non-union goods giving their men an option not to work on those goods.

I think that both the unions and the employers have felt that the presence of such provisions in labor contract give the employer an opportunity to avoid being conscripted.

On behalf of a labor dispute in some other plant or industry that he has that provision and his agreement.

He is not likely to be put in a position where he has to take one side or the other and somebody else’s strike.

Now, if you will look and I know you will at the decision in the Ninth Circuit, which follows the Board, you will see that while it might appear to be otherwise, it actually depends upon the same principles that are relied upon by this so-called majority in the Board.

That is that although the contract clause in question is not illegal although a question of law enforceability.

The culpability of the union in this case must be predicated upon evidence that they induced the refusal to work on the doors.

And while the decision of the Ninth Circuit would seem to rest upon other evidence, it will be found that it actually rests upon the assumption that nobody induced this refusal except Steinert, the employer’s foreman, but that his act can be transferred to the union upon a theory under which they have transferred him from being an agent of the employer into being an agent of the union, a matter I want to go into a little more later.

Now, you’ll notice that is implicit in their decision because they say —

Audio Transcription for Oral Argument, Part 3: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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May I ask you (Inaudible)

Arthur Garrett:

I think that the direct answer would be to that, that although it is treated thoroughly by both sides in the briefs, the petition for certiorari, enumerating the points that has been raised in the Appellate Court or rather the Circuit Court that says, I think at the point probably you’re reading and we rely only on the last of these points, which was the point that related to the hot cargo — to the hot cargo waiver clause.

That’s the only one question of the statute?

Arthur Garrett:

That is right, but we — when I wrote that, I forgot that implicit in that question was this question of agency because the reason they say that we can’t have a benefit, I should have said that we want to raise this question of who Steinert was agent for too because —

(Inaudible)

Arthur Garrett:

That may be, that may be.

The briefs however argued the matter on both sides.

May I proceed?

(Inaudible)

Arthur Garrett:

Yes, thank you.

I — I don’t think we took advantage of counsel.

I think that —

(Inaudible)

Arthur Garrett:

I see.

Well, I —

I’m not telling you not to argue.

Arthur Garrett:

I’ve been conscious of that, but I’ve also been conscious to the fact that this question of agency as related to Steinert is inextricably connected with the legal questions connected with the applications of this car — cargo waiver clause.

I believe at any rate and I won’t allege with the issue any further that although the District Court mentions a certain evidence such was — such as at one point in their decision, they say Fleisher was present when Steinert talked to Agronovich.

But then you’ve just heard, the testimony of Steinert on his cross-examination, which was that although Fleisher was present at that time, he didn’t say anything.

Now, as I’d — I’d say, I — I think it’s fair to — to conclude that everyone has concluded here that — that the union induced this refusal to work because they were able to find that Steinert, despite the circumstances I’d mentioned to you, was the agent of the union — union.

Now on that question of agency, if I may be heard, the circumstances are these.

Steinert’s agency is predicated if anything upon a number of documents to that of which he was a party.

Steinert’s agency for the union isn’t predicated on anything that his employers said to him, or he said to his employer.

It isn’t predicated to find any qualification of his agency resulting from his employment by Havstad and Jensen.

It’s predicated upon the fact that the union bylaws contain a provision that — as what’ll be found in the record on page — on page 198 and 199.

The bylaws of the District Council of Carpenters for this particular area are shown to contain the language quoted in all of the decisions in this case and quoted in the briefs.

No member shall use, handle and install or erect any material produced or manufactured from wood that is not produced and manufactured by members of the United Brotherhood of Carpenters and Joiners of America.

Now that, connected with the following provision that all foremen are equally responsible with the shop stewards for the enforcement of the bylaws, is the basis for the holding that Steinert was the agent of the union and not of his employer and therefore that his acts although apparently the acts of the employer were actually the acts of the union, so that when he told his workmen, “Don’t proceed with this work,” it was actually the union telling him that.

Now, I want you to consider this matter.

If you will look at the provision on the bylaws, which I first read to you, you will see that it contains another sentence preceding what I read.

Audio Transcription for Oral Argument, Part 3: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Arthur Garrett:

It says, “Only members of the United Brotherhood of Carpenters and Joiners of America shall be permitted to do carpenter work on any jobs.”

Now, as given in that form in the bylaws, that sentence would seem to indicate that all carpenters on all jobs from the time of their employment would have to be members of the carpenters union.

As a matter of fact, the carpenter’s contracts in this area don’t provide that even before the Taft-Hartley Act.

They provided only that carpenters working on a job should become members of the union after a given time.

The enactment of the Taft- Hartley Act only resulted in that time being extended for 30 days.

There has been, as you can see, no change however in the provision to be found in the bylaws of the local union or of the district council.

Now, we call the attention of both the Board and the Court to the fact that in the area agreement with the employers, the provision is made not only that this is working on the struck or non-union material, shall be (Inaudible) with the man that they won’t be forced to work on it.

We call your attention to the fact that that contract specifically provided that in matters between the employers and the members of the union, the provisions of these bylaws, which are relied upon by the Board here, would be subordinate to and would be waived in favor of the provisions of the area agreement.

Now, the conclusion that the Board had come to concerning the foreman, being the agent for the union and not the employer, it seems to me totally ignores the practical effect of that contract provision.

I think it is rather farfetched and absurd to say that the foreman is bound by this provision in the bylaws, which is the second part of the — of the paragraph and he’s not bound by the first.

I think a fairer interpretation of bylaws and contract would be that wherever they’re in conflict, that wherever one qualifies the other, the terms of the contract, government.

In other words, I think it is perfectly fair to say that we could not for a moment be — would not for a moment be permitted by the Courts of the State of California to discipline or fine a foreman because he didn’t require carpenters at the time of their employment to be members of the union when by our contract, which waives the provisions of the bylaws when in contract, we’ve said they don’t have to be members of the union until after they last 30 days.

And I think it’s the same situation with respect to this provision about not working on union goods, around non-union goods.

I think that while that is in the bylaws that when we put contrary provisions — contrary provisions into the agreement and they certainly are contracts because what we put into the agreement was not a proviso that no workmen should be allowed to work on non-union goods.

It was a statement that they would not be compelled to work upon union goods.

It was an option given, an option which incidentally, the employer finally required to be definitely exercised.

Now in that situation, that’s the situation in which I thought I could come before you in the first instance and say that I did not think that the documents involved, there weren’t any justification for reversing the — the current agency of Mr. Steinert.

Now, there is one other thing I would like to touch upon and that is this.

With respect to the making of this agreement, the question may arise — well, who told the employees that they had this right to exercise their option under this agreement?

Our answer to that is this, that at least in matters of contract, first we’re governed by the State of California and our organizations are voluntary associations.

When one of our — the obligations of our contracts imposed upon the members of this voluntary on incorporated associations, the liabilities roughly that will be found in partnerships.

The organization itself is not inanity except to a very limited degree.

When one of our members is charged under a contract, he doesn’t have to be shown to have been a maker of the contract.

He isn’t asked whether he has read the contract.

The contract is proved — put in evidence and he is bound by it just like every other members.

The actions a member takes under the contract just like the liabilities that he sustains under the contract or the actions of the association and the actions of the association are therefore his actions.

With respect to the obligations or the option to work or not to work upon these goods, given the individual members by the contract, we submit that the ordinary rule of the contract instruction required, the inference, which I think is a governing inference here, that in the actions of this men, they acted pursuant to the rights that they had under the contract which had been made not for them, but for which they had made themselves and by which they were bound.

I thank you.

Earl Warren:

Mr. Manoli.

Dominick L. Manoli:

May it please the Court.

Audio Transcription for Oral Argument, Part 3: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Dominick L. Manoli:

I think initially, I could say that the only question presented in this case —

William O. Douglas:

I can’t hear you.

Dominick L. Manoli:

Initially, I think I should say that the only question which was presented in the petition for certiorari here was whether this hot cargo clauses exempted from the reach of Section 8 (b) (4) (A), the conduct and union inducement of employees.

In the lower court, as well as before the Board, there had been a factual issue as to the — whether the inducement has been directed to a man in his capacity as representative of management or in his capacity as a member of the union with the obligation to enforce the union’s rules and there also the question of whether the — that man was acting as an agent for the union when he issued instructions to the carpenters not to handle these doors.

Those questions are — are essentially factual.

They were resolved against the petitioner both by the Board and in the court below.

They were not preserved in petition for certiorari.

And contrary to Mr. Garrett’s suggestion, we have not dealt with them in our brief.

I think we can put those issues to one side.

And so here again in this case as in the other case, we have this basic problem of whether the union inducement of employees not to handle certain good is removed from the reach of the statute by virtue of a hot — of a — of a hot cargo clause and the clause here reads slightly different on the clause in the other case, something to the effect that the employee shall not be required to handle non-union goods.

And here, the doors which Havstad and Jensen, the contractors, were going to — were going to install came — were purchased from an intermediate distributor in California who in turn had purchased them from the Paine Lumber Company in California who was non-union.

And when these doors came upon at the hospital project where Havstad and Jensen were working, the representative of the union approached the — this man who had the dual capacity of a foreman as well as a member of the union, instructed him not to install these doors.

And then this man in the presence of the union’s representative went to the employees and directed them not to — not to install these doors.

And despite appeals by the employer — request rather by the employer — of these employees whether — whether these employees would or would not install the doors, the employees refused to do so.

And this — in this case, the Board held — in fact, the decision in this case is the basis of the decision in the earlier case.

The Board held that irrespective of the hot cargo clause, irrespective of the acquiescence or non-acquiescence of the employer, the union’s inducement of the employer to engage in this conduct violates the statute and the Ninth Circuit agreed with us.

Now, there has been a suggestion here that this is not really a secondary strike activity or sympathetic work stoppage, but that the employees are trying to force their particular employer was entered into this hot cargo agreement to carry out that agreement, that when they refused to — when they refused to handle these doors or in effect have a dispute with their employer and that they are seeking to compel him to submit to their demands that they’ll not be — that they’ll not handle any equip — they’ll not require them to install these non-union doors.

But of course in the sense — in the sense as this Court pointed out in the Denver Building case, the first secondary boycott cases to reach this Court — in a sense, every secondary dispute has that element in it, but the base of real dispute, however, is not with a secondary employer.

The dispute or — is — is with the disfavored partner either because he’s non-union or because he is struck or because the union for some reason or the other doesn’t like — doesn’t like it.

And the hot cargo clause — the hot cargo clause in essence — in essence requires — requires the employer to seize doing business — to seize doing business with another employer who is disfavored.

And when the union seeks to implement that — that type of agreement by means of inducement, it is engaging as I’ve said before in the conduct of the statute prescribes and that necessarily the forceable consequence of its conduct is a sensation of business — is a cessation of business between the employer that has entered into this agreement and the employer who is disfavored.

Now, under the statute — under the statute, it doesn’t have to be the sole object.

The statute says, “Where an object thereof is a cessation or destruction of business relations.”

And Congress deliberately — originally, Congress had used the word “the object” and deliberately changed it to “an object” and we believe that that requirement is satisfied in this case.

Now, there’s also been a suggestion that by the use of the word “struck goods” that possibly — and I want to — I want to dispel in the misconception there might be on this point.

I’d use the word “struck goods” that here we may have a situation where the doors were in unfinished condition that came out of a struck plant or of a non-union plant and then that they are set to some other employer to finish these goods in effect that the secondary employers people are being asked to act as strikebreakers.

Now we don’t have that situation here at all, either in this case or in the other case, it’s an entirely different case where may well be that there is such a community of interest between the employees and one group is not required to act as strikebreakers.

But in this type of case so, when Congress — when it was dealing with the secondary — when it was considering the secondary boycott provisions was faced with the argument, which Mr. Justice Brandeis had made in his dissenting opinion in (Inaudible), that there was a community of interest between the employees of employer A over here and the employees of employer B here so that if these employers got into trouble with their employer, these employees over here should be able to help them.

Congress specifically rejected for better or for worse, specifically rejected that philosophy.

And while these clauses may be for the purpose of preserving union — while these clauses may be entered into by the union for purpose of preserving standards or what have you, as I say Congress specifically rejected that concept.

Audio Transcription for Oral Argument, Part 3: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

del

Felix Frankfurter:

(Inaudible)

Dominick L. Manoli:

That’s correct.

Felix Frankfurter:

(Inaudible)

Dominick L. Manoli:

Well, I understand Your Honor but —

Felix Frankfurter:

(Inaudible)

Dominick L. Manoli:

Yes.

Thank you.

On the lone point of the agency of Steinert, I should like to correct myself, Justice Black said, “Correction, I — I certainly merit.”

The question is not treated at all in the Board’s brief, but is the subject of an entire section of the brief that we filed starting on page 19.

I wanted to make that statement because perhaps although under the statement of issues in the petition for certiorari, that question was not specifically mentioned as I say I think because I thought it was a part of the hot cargo waiver clause issue.

We did devote a considerable portion of our briefs to it.

Now, I should like to say that while it is probably implicit in the consequences of any inducement not to handle struck or non-union material that a consequence will be that the trade of some maker or handler of that material may be effective.

The language of the act here requires that such effect be not a mere effect, but a union objective, and it was the lack of evidence as to any objective of the union rather than the enforcement of the contract provision to which I referred in my opening argument.

I thank you.