Local 761, International Union of Electrical, Radio & Machine Workers, AFL-CIO v. National Labor Relations Board

PETITIONER:Local 761, International Union of Electrical, Radio & Machine Workers, AFL-CIO
RESPONDENT:National Labor Relations Board
LOCATION:Alabama General Assembly

DOCKET NO.: 321
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 366 US 667 (1961)
ARGUED: Apr 17, 1961 / Apr 18, 1961
DECIDED: May 29, 1961

Facts of the case

Question

  • Oral Argument – April 18, 1961
  • Audio Transcription for Oral Argument – April 18, 1961 in Local 761, International Union of Electrical, Radio & Machine Workers, AFL-CIO v. National Labor Relations Board

    Audio Transcription for Oral Argument – April 17, 1961 in Local 761, International Union of Electrical, Radio & Machine Workers, AFL-CIO v. National Labor Relations Board

    Earl Warren:

    Number 321, Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO, Petitioner, versus N.L.R.B.

    Mr. Sigal.

    Benjamin C. Sigal:

    Mr. Chief Justice, Members of the Court, may it please the Court.

    The National Labor Relations Board in this case held that the petitioner violated Section 8 (b) (4) (A) of the National Labor Relations Act, as it appeared prior to amendment in 1949, by inducing and encouraging the employees of independent contractors to engage in a concerted refusal to work with an object of forcing the independent contractors to cease doing business with the General Electric Company and in order that the petitioner cease and desist from that conduct, not only as to these independent contractors but as to any other — as to the employees of any other employer.

    Now, the facts are these.

    The petitioner represents and there at that time, the production and maintenance employees of the General Electric Company at its Appliance Park plant near Louisville, Kentucky.

    There were about 10,000 employees altogether at the plant at that time than — of which the petitioner represented about 7600.

    The principal products of this plant are electrical appliances such as dishwashers, dryers, washers, room air-conditioning units and appliances of that kind.

    Now, the Appliance Park plant consists of a collection a collection of 13 buildings on a large tract of land, consisting about 1000 acres.

    Six of the buildings are used directly for production purposes and the others for servicing the production processes.

    Access to the plant is obtained by five road ways crossing a culvert which surrounds the plant and these roadways are called gates.

    Most of the employees, the customers and others wanting to enter the plant do so by way of these roadways.

    Now, in 1958 and from time to time prior to that, the company had entered into contracts with independent contractors for work to be done on its buildings in this — on this site and on the grounds as well and the work consisted of general maintenance work and also for installation, repair and alteration of the facilities in the plants and most important, work in converting to the manufacturer of new models of these various appliances such as retooling, rearrangement of conveyors and so forth.

    Some of this work had been done and it could be done by the employees of General Electric if they were available at the time and there was also a unique competitive system within the company by which one of the departments or service department bid on certain types of alterations and maintenance work.

    And if their bid was lower than that of the independent contractor, they obtained the work otherwise it went to an independent contractor.

    Now, in 1954, the company had issued instructions that one of these five gates, namely which was numbered 3-A to be used only by the employees of the independent contractors whereas the other gates could be used by its own employees and also by the employees of suppliers, other customers and so forth.

    Now, the reason for this action was that there had been a number of strikes of the craftsmen of the — in the employees of the independent contractors which had involved the employees of GE and therefore, they set aside this particular gate for the exclusive use of the employees of the contractors.

    Now, this gate was of course used by any contractor and not just by those who happen to be involved in this case.

    Now, at the time of the strike which occurred in this case — which occurred in July of 1958, there were — contracts had been given to 12 independent contractors, half of whom had already started their work on those particular contracts.

    Most — one of them, they worked on — one of them had gone — it begun as far back as January of 1958, none had gone back before that.

    However, there were a couple of these contractors who had worked on these premises on other contracts from time to time over a period of two, three, or four years.

    As to the other contractors, they hadn’t even begun doing the work which they had contracted to do for General Electric at this time.

    Felix Frankfurter:

    As I — I may have missed, Mr. Sigal but did you state when gate three —

    Benjamin C. Sigal:

    Yes.

    Felix Frankfurter:

    — was —

    Benjamin C. Sigal:

    — in 1954.

    Felix Frankfurter:

    1954, in reference to any special situation?

    Benjamin C. Sigal:

    No, not special except as I indicated.

    There had been a number of jurisdictional disputes, strikes among the employees of the independent contractors.

    Felix Frankfurter:

    Yes.

    Benjamin C. Sigal:

    And that was the reason, but there was — so far as I think the record — no, the record does not say there was anything special in 1954.

    Felix Frankfurter:

    Or any — any prophetic device of this petitioner?

    Benjamin C. Sigal:

    No.

    (Voice Overlap) I don’t know if anything — prior to that time —

    Felix Frankfurter:

    Was this great forethought?

    Benjamin C. Sigal:

    I’m sorry?

    Felix Frankfurter:

    Was this great forethought?

    Was this great forethought with reference to this controversy?

    Benjamin C. Sigal:

    I doubt it because there had been no strikes by the employees of General Electric Company prior to that time and the one that occurred in this case was a first one that occurred which was four years later.

    They —

    Felix Frankfurter:

    In the record, that’s just —

    Benjamin C. Sigal:

    They said as a matter of fact at that time that the reason they set it up was to insulate their employees from the employees of the independent contractors who had been engaged up to that time in about 22 jurisdictional strikes up to — from the time the plant opened which was only about four or three years earlier.

    Felix Frankfurter:

    You’re not suggesting any — you’re not suggesting any devious purpose about it?

    Benjamin C. Sigal:

    No, no.

    I don’t think they had anything like that in mind as to — as the problem arose in this case.

    Now, as to the employees of these contractors, only about half of dozen had testified and three of them said that they had begun — worked only two days before the strike in this case.

    Two others that said that they had began to work at — after the strike began and one or two testified they — their work had gone on for about six months or more.

    That’s all the testimony there was as to the length of work by the employees of the independent contractors.

    Now, the work done, as I indicated earlier, was done primarily on the buildings and, in the buildings rather, in which the strikers worked and there was no building, no permanent building for the contractors themselves.

    Now, perhaps it would be helpful just to examine for a moment the map which appears after page 170 in the record.

    You’ll note that this has — the tract of land is rectangular.

    The gates — the gate involved here, 3-A is on the right hand side of that rectangle.

    Now, gate around — but the middle of that right hand side, you’ll note letter A.

    That was a gate intended for the employees and visitors.

    Above that was Gate B — was gate number 3 — that is B — it was gate number 3 and then above that is C which is 3-A.

    Now, that is the gate which is involved in this proceeding.

    Now, when the employees of the independent contractors went into that gate, they turned left and a number of them went to work in the first building, in building number 1 and a number of them went almost the whole length of that tract and went to work in building number — which is marked here as building number 5, 5 dealt with — manufactured household refrigerators, 1 manufactured the home laundry equipment.

    Now, when the — well, I should note also that in addition to these three entrances, there’s one on the far left corner of this tract, that was a gate for employees and there’s one at the top of that rectangle which is also a gate which is a — take gate where truckers came in, employees of suppliers and a gate through which the product of the company was taken out by the employees of truckers and other — and customers and so forth.

    Felix Frankfurter:

    Would you mind telling me where the gate for the — for the GE employees was?

    Benjamin C. Sigal:

    Well, the other four gates could be used —

    Felix Frankfurter:

    Yes.

    Benjamin C. Sigal:

    — by GE employees.

    Felix Frankfurter:

    But you indicated that this is a special gate or a — the most used gate?

    Benjamin C. Sigal:

    No.

    Felix Frankfurter:

    You said this was a gate for the employees.

    Now —

    Benjamin C. Sigal:

    It was just one of the gates.

    I had misspoke if —

    Felix Frankfurter:

    Thank you.

    Benjamin C. Sigal:

    That’s one of the gates, yes.

    Felix Frankfurter:

    I understand that but how many — through how many gates did the employees, and I take it all the 10,000 and not merely your union employees, come, how many gates were there?

    Benjamin C. Sigal:

    Well, there was nothing to preclude them as I understand it from using any of those four gates, but as a matter of fact, for the most part, they used the gate which is designated E.

    Felix Frankfurter:

    Oh, in the corner.

    Benjamin C. Sigal:

    — at the far left hand corner and they also used the gate which is designated A on the right hand side of that rectangle.

    Felix Frankfurter:

    What’s the distance between A and C?

    Benjamin C. Sigal:

    About — between A and C, about 500 feet.

    Felix Frankfurter:

    C is 3-A, isn’t it?

    Benjamin C. Sigal:

    C is 3-A, yes.

    Now, there is a distance so about a mile between the employee gate E and employee gate A.

    Felix Frankfurter:

    But I infer from what you’ve said, perhaps earnestly that most of them came through gate E.

    Benjamin C. Sigal:

    Gate E and gate A.

    Felix Frankfurter:

    Gate E and gate A.

    Benjamin C. Sigal:

    Which is — that has been marked E and A.

    They are numbered otherwise, yes.

    Now —

    Felix Frankfurter:

    And it’s 500 feet between A and C?

    Benjamin C. Sigal:

    That’s I think what the record shows, 500 feet between — I beg your pardon, between A — between B and C.

    Felix Frankfurter:

    Between D and C?

    Benjamin C. Sigal:

    B.

    Felix Frankfurter:

    Where is it?

    Benjamin C. Sigal:

    On the right of that, it’s hard to read there but —

    Felix Frankfurter:

    C?

    Benjamin C. Sigal:

    B.

    Felix Frankfurter:

    C, B, A, I don’t see B, where is it?

    Benjamin C. Sigal:

    Between A and C there’s a B.

    Earl Warren:

    There’s B.

    Felix Frankfurter:

    Yes.

    Well, between B and C there’s –

    Benjamin C. Sigal:

    Between B and C, that’s — I think yes.

    Felix Frankfurter:

    Yes.

    Thank you.

    Now, or are you going to come to that, did the employees observed this — this allocation of gates for them as against —

    Benjamin C. Sigal:

    Yes, practically so.

    In the — in the hearing in this case, there was some evidence that on a few occasions over the years, the GE employees used Gate 3-A.

    However, the Board found and we have not contested the fact that gate 3-A was used exclusively, it certainly was intended for the exclusive use —

    Felix Frankfurter:

    So that —

    Benjamin C. Sigal:

    — of the independent contractor.

    Felix Frankfurter:

    One — one may — hear the rest or your argument or hear the rest of this case and the argument that the employees streamed through E and B and A, is that right?

    Benjamin C. Sigal:

    The employees, yes, of GE.

    Felix Frankfurter:

    Employees of GE streamed to those two gates?

    Benjamin C. Sigal:

    Yes, I think.

    Felix Frankfurter:

    And — that the conduct is also proved that the employee or the contractors or suppliers went through C?

    Benjamin C. Sigal:

    The employees of the — of the independent contractors and the suppliers of the independent contractors —

    Felix Frankfurter:

    Yes.

    Benjamin C. Sigal:

    — went through that gate.

    Felix Frankfurter:

    Yes.

    Benjamin C. Sigal:

    But the employees of other — other suppliers of GE went through the other gates particularly gate B and gate D which was as marked B and D.

    Felix Frankfurter:

    But it is clear that the — that Gate 3-A was used by those for whom it was intended —

    Benjamin C. Sigal:

    Yes.

    Felix Frankfurter:

    — and not used for whom — those whom it was not intended.

    Benjamin C. Sigal:

    Yes.

    Felix Frankfurter:

    Alright.

    Benjamin C. Sigal:

    That’s — that’s a position we’re taking here, although we did — there was some evidence to the contrary in the early parts of the case.

    Now, when the strike began, there is no question it was a lawful strike at all times.

    It was over the question of unresolved grievances.

    The petitioner placed pickets at all five gates, picketed all of them in exactly the same way and carried the same kind of sign, namely “Local 761 on strike, GE unfair.”

    There was no question in the case as to the identification of the employer with whom the — against to whom the petitioner was striking and the trial examiner so found, the Board didn’t challenge that fact.

    Now, in addition to the — using the picket signs, the employees on strike also made some oral appeal to the employees of the contractors when they approached the line, the only place where these oral appeals were made when the — when the employees and the contractors approached the picket line at Gate 3-A.

    There was no attempt, no effort on the part of the pickets to halt the operations of any contractor at any place other than at appliance part and the trial examiner so found and there is so — and the Board adopted that finding.

    Now, most of the employees of the independent contractors observed the line and did not go through.

    A few of them did come to the line as to — and asked permission to remove their tools so that they could work elsewhere and this permission was granted.

    In one or two instances, they were told to go to the office of the union.

    There, they were given a pass, they went through and got — obtained their tools and left and went to other jobs which the — their particular employers have.

    Now, as I — I’ve already indicated gates 3 and 4 were used by the employees of the suppliers of GE by their customers, by visitors as well as by the employees of GE.

    During the strike, the company made it very clear through use of radio and television and so forth that it was continuing the operation of a plant and there was — was open for anybody who wanted to do business with them.

    And as a matter of fact about 5000 employees altogether did go through the — to work in the plant.

    That is about 3000 of the non-bargaining unit before and about 2000 of those of the bargaining unit did go in and the plant operated to some extent.

    Now, at the hearing before the trial examiner, the representative of the general counsel made — was quite explicit in saying that the — if the contractors and their employees had used the same — that is the employees of the independent contractors, had used the same gate as the other employees, there would have been no case.

    It was a bit no unfair labor practice, and the case, as the general counsel presented it to the trial examiner, rested on the distinction between the separate gate set aside for the — the employees of the independent contractors and the shared gate which was of course the other four gates.

    Now, the trial examiner found specifically that the pickets made it clear that their dispute was with the General Electric Company only and that there was no effort to halt the operations of any of the independent contractors anywhere outside that project and he concluded that the object of the picketing at Appliance Park was to halt the operations of the struck plant, that is a GE plant, by appeals directed selectively to the company’s employees, to the consuming public and to the employees of neutral employers who were transporting materials in and out of the plant.

    And he concluded, after an exhausted review of the precedents, that this was clearly valid primary activity and there was no violation of 8 (b) (4) (A).

    The Board reversed the conclusions of the trial examiner.

    It adopted his findings and sub — certainly, didn’t set aside any findings of his specifically and held that the — the — without expressing any rationality for — rationality for its action that the object of the petitioners was to enmesh the employees of the independent contractors in its dispute with GE which object was shown by picketing the reserved gate and making oral appeals to those employees.

    That was the entire statement of the Board for — reason for reversing the trial examiner.

    No other justification or rationality was expressed.

    It issued its order for the petitioners to cease and desist not only from this conduct with respect to the employees of independent contractors, but for the employees of every other contractor, customer and so forth.

    The court upheld the Board – no the court below.

    Now, the issue in this case as it is framed by the briefs here is as we see it or at least as we see it, is follows.

    This is permissible under Section 8 (b) (4) (A), deliberately, to induce employees or customers, suppliers and others who perform services for a primary employer to refrain from rendering services to — for the benefit of the primary employer at his place of business during a labor dispute between a primary employer and his employees.

    John M. Harlan II:

    To that purpose of your argument, you accept the findings or the substituted findings that the Board, do you?

    Benjamin C. Sigal:

    Well, the purpose of the argument with respect to the question of whether or not Gate 3-A was exclusive you mean?

    John M. Harlan II:

    Yes.

    Benjamin C. Sigal:

    Yes, we — we accept the finding that Gate 3-A was exclusively for the use —

    John M. Harlan II:

    No, no, no.

    In — for the purposes of your legal argument, the question you’ve just stated, do you accept the findings or fact that the Board made?

    Benjamin C. Sigal:

    The Board made no findings or facts itself.

    John M. Harlan II:

    Well, whatever you call them.

    Benjamin C. Sigal:

    We accept the findings of fact, yes.

    We accept the findings of fact because the — the — made by the trial examiner and as we see it, those findings were adopted by the Board.

    Now, there’s one — one difference with respect to the findings of fact.

    The trial examiner made no finding as to whether or not Gate 3-A had been set aside exclusively for the employees of independent contractors.

    He said that for — in his view of the case, it made no difference.

    The Board found, however, that it was set — that the gate was set aside for the use of the — exclusive use of these employees, of the independent contractors and we are not challenging that finding.

    Now, aside from that, there is no — so far as we see it, there is no difference between the Board and the trial examiner and of course we are resting on the findings as they are made taking the trial examiner’s report and the Board’s statement together.

    Now, so far as the issue is concerned, petitioner of course says that the — it did have the right and does have the right to make these — to deliberately to induce employees or independent contractors to do what was done in this case.

    The Board says that sometimes it is lawful to do so and sometimes it isn’t, depending on the duration of the work of the employer — of the independent contractor on the premises of the primary employer.

    That’s — we’ll go into that — for what in the course of the argument.

    The company here apparently takes the position that there is no right to induce the employees of independent contractors at any time except perhaps — except an individual employee.

    Earl Warren:

    We’ll recess now.